Tong v. Kincaid

• Decision Date: 27 June 2001
• Citation: 47 S.W.3d 418
• Parties: (Mo.App. S.D. 2001) Steve Tong and Christine Tong, Plaintiffs/Respondents v. Mac Kincaid and Barbara Kincaid, Husband and Wife, Defendants/Appellants. 23820 0
• Court: Missouri Court of Appeals

47 S.W.3d 418 (Mo.App. S.D. 2001)

Steve Tong and Christine Tong, Plaintiffs/Respondents v. Mac Kincaid and Barbara Kincaid, Husband and Wife, Defendants/Appellants.

23820

Missouri Court of Appeals Southern District

06/27/2001

Appeal From: Circuit Court of Jasper County, Hon. Joseph W. Schoeberl

Counsel for Appellant: Albert D. Johnston

Counsel for Respondent: Peter J. Lasley

Opinion Summary: None

Barney, C.J., and Garrison, J., concur.

Nancy Steffen Rahmeyer, Judge

Steve Tong and Christine Tong ("Respondents") brought an action pursuant to section 537.340¹ against defendants ("Appellants") for damages when Appellants bulldozed the trees and shrubs, which had been used as a wildlife refuge on Respondents' property. The trial court found for Respondents and awarded them $14,717.76 in damages.

Appellants raise three points on appeal. Because all three points are intertwined and relate to the sufficiency of evidence on the amount of damages, we will discuss them together. All three points contest the award of $14,717.76 to Respondents for the trees, shrubs and fence that

were on Respondents' property.

It is undisputed that Appellants destroyed the trees and shrubs on Respondents' property without Respondents' permission. In fact, one of the Appellants asked permission of the Respondents several times and bulldozed the property even though he knew he had not received permission. Appellants are not contesting the evidence to support the fact of a trespass or that some damages should have been awarded to Respondent. Appellants contest the method used to arrive at the amount of damages.

There was conflicting testimony from surveyors about the property line; there was also conflicting testimony concerning the number and kind of trees and shrubs that were removed. There was testimony that the entire property was set up as a wildlife preserve with nine and a half miles of trails around a fifty-two acre lake. There was no testimony of the value of the property before and after the trespass.

On review of a court-tried case, we sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. KJC v. Land Trust of Jackson County, 6 S.W.3d 894 (Mo. banc 1999). On appeal from a court-tried case, we defer to the trial court's findings of fact, given the trial court's superior ability to judge the credibility of witnesses. Brawley v. McNary, 811 S.W.2d 362 (Mo. banc 1991). Neither party requested findings of fact or conclusions of law. In such circumstances, fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached. Rule 73.01(c);² Gaar v. Gaar's Inc., 994 S.W.2d 612, 616 (Mo.App. S.D. 1999).

We will assume the court accepted the testimony of Respondents' surveyor as to the amount of destroyed land; we also assume the court accepted the testimony of Respondents' expert, Skip Stokes, ("Stokes") as to the value of restoring the removed trees and shrubs. In her analysis, Stokes took a sampling of the trees in the surrounding areas. She determined what types of trees were destroyed and then determined the cost to replant and replace a similar grove of trees and bushes. She testified that to replace just one 14-inch diameter pin oak with a similar tree was $3,700.00. That did not include shipping or cost of planting. There were twenty-seven pin oaks on the property. Very few nurseries could provide a tree the size of the removed pin oak and it is unlikely such large trees would survive if replanted, even if an irrigation system were put in place; therefore, the cost would be prohibitive. Additionally, green ash, hackberry and locust trees were taken down. Appellants destroyed various bushes, including approximately eighty lespedeza

shrubs, gray dogwood, buck brush and poison ivy. Stokes also testified as to the cost of restoring the land by putting in smaller bushes and trees; she itemized the specific types of trees and bushes necessary to restore the razed area. It would take twenty years for any new trees to reach a similar size of the trees and shrubs which were destroyed. The total cost for the restoration was $4,905.92.

Appellants argue that the trial court should have placed a market value on the trees and shrubs at the time they were removed from the premises, or if the trees and shrubs had no commercial value, the damages would have been the difference between the fair market value of the land before the bulldozing and after the bulldozing. This case was brought pursuant to section 537.340.

If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person, including any governmental entity, or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mold, or any ice or other substance or material being a part of the realty, or any roots, fruits or plants, or cut down or carry away grass, grain, corn, flax or hemp in which such person has no interest or right, standing, lying or being on land not such person's own, or shall knowingly break the glass or any part of it in any building not such person's own, the person so offending shall pay to the...