                                                                               FILED

                                                                       February 20, 2014

                                                                  In the Office of the Clerk of Court
                                                                W A State Court of Appeals, Division III


            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DMSION THREE

EAGER BEAVER., INC., a Washington              )
Corporation,                                   )         No. 30827-8-III
                                               )
                     Appellant,                )
                                               )
       v.                                      )
                                               )
BULLDOG TRUCKING &                             )
EXCAVATION, LLC, a Washington                  )
Limited Liability Company, and                 )
MICHAEL AND "JANE DOE"                         )
SUTTON, individually,                          )
                                               )
                     Respondents,              )
                                               )         UNPUBLISHED OPINION
CINDY AND "JOHN DOE" BEAVERT,                  )
individually, SEATTLE IRON &                   )
METALS CORPORATION, a                          )
Washington Corporation,                        )
                                               )
                     Defendants.               )

       SIDDOWAY, J. -    Eager Beaver Inc. appeals the trial court's decision, following a

bench trial, that Eager Beaver did not prove wrongful conduct on the part of two

defendants required to recover treble damages under RCW 4.24.630, a trespass statute. It

challenges both the trial court's construction of the statute and the sufficiency of the

record to support the court's conclusion. While we do not entirely agree with the trial
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   No.30827-8-III
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   court's construction of the statute, we reject Eager Beaver's construction. And under any

     construction of the statute advanced by the parties, the trial court's findings~all of which

     we treat as verities-support the result. We affirm.

                          FACTS AND PROCEDURAL BACKGROUND

            In 2004, Cindy Beavert hired Eager Beaver Inc. to log several acres of her

     property, located in Leavenworth. Among equipment used by Eager Beaver to perform

     the work was a log yarder. After the work was completed, Eager Beaver parked the

     yarder on United States Forest Service land adjacent to Ms. Beavert's property, allegedly

     with forest service permission. Although Eager Beaver maintains that it started up the

     yarder periodically to keep the bearings from seizing up and to prevent water from

     collecting in the oil, it is undisputed that the yarder's condition deteriorated significantly

     over the next several years.

            In 2008, Ms. Beavert asked her tenant, Michael Sutton, to help her remove the

     yarder, which she considered unsightly. Mr. Sutton was then an employee of Bulldog

     Trucking & Excavation LLC, which had recently begun using its equipment for scrap

     demolition and recycling, due to a sharp rise in its value. Mr. Sutton's manager, Donald

     Eldredge, told company employees to keep an eye out for available scrap. When told

     about the yarder, Mr. Eldredge gave Mr. Sutton permission to use the company's

     equipment and its employees to dismantle it for Ms. Beavert, with the understanding that

     Mr. Sutton and Bulldog would divide proceeds from the scrap.


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       Ms. Beavert gave Mr. Sutton a key to a locked gate that led to the location of the

yarder and Mr. Sutton began dismantling it for scrap. Approximately halfWay into

complete destruction of the yarder, Tracy Gronlund, the president of Eager Beaver,

received a call from a neighbor down the road from the Beaverts, who informed him that

his yarder was being dismantled and taken away. Mr. Gronlund immediately drove to the

site, discovered Mr. Sutton and two other men scrapping the yarder, and stopped their

work. Bulldog received $7,530.75 for the scrap that had been cut by that point and sold

to Seattle Iron & Metals Corporation. Bulldog later paid those proceeds over to Eager

Beaver. What remained of the yarder was not worth repairing and could only be sold for

scrap. Eager Beaver obtained $1,500 for what remained.

       Eager Beaver sued Bulldog, Cindy and "John Doe" Beavert, Seattle Iron, and

Michael and "Jane Doe" Sutton for conversion, and asserted an additional claim for

negligence against Bulldog and Seattle Iron. It later moved to amend the complaint to

add a claim for damages under RCW 4.24.630(1), which the trial court granted. The

claims against Seattle Iron were dismissed on summary judgment.

       Eager Beaver then moved for partial summary judgment on liability for

conversion against the remaining defendants, which the trial court granted. The issue of

damages proceeded to a bench trial in May 2011. In a memorandum decision, the trial

court found that given the deteriorated condition of the yarder, its highest and best use at

the time of conversion was as scrap, and its salvage value at that time was $11,000. It


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     awarded treble damages under RCW 4.24.630(1) against only the Beaverts and the

     Suttons, finding that Ms. Beavert and Mr. Sutton had acted "wrongfully" within the

     meaning of the statute.

            The court calculated the treble damages recoverable against the Beaverts and

     Suttons as $23,969.25. It calculated the damages recoverable against Bulldog-net of the

     proceeds for scrap that Eager Beaver had received directly, and from Bulldog-as

     $1,969.25.

            All parties moved the court to reconsider its application ofRCW 4.24.630(1).

     Eager Beaver argued that Bulldog was also chargeable with wrongful conduct, directly or

     through its employee, Mr. Sutton. The Beaverts and Mr. Sutton argued that the statute

     was a trespass statute and did not apply because the yarder was on forest service property

     and they had not trespassed in dismantling it. Alternatively, they argued that further trial

     was required on the application of the statute, claiming that Eager Beaver's request for

     treble damages under the statute was raised for the first time on the morning of the

     damages trial, the parties were not prepared to present evidence on the statute's

     application, and the court had lacked a sufficient record on which to decide liability.

            The trial court granted the motion to re-open and entertain additional evidence on

     the issue of Mr. Sutton's and Bulldog's liability under RCW 4.24.630(1). It refused to

     entertain additional evidence as to the Beaverts' liability, concluding that Ms. Beavert's

     liability was clear. When Eager Beaver and the Beaverts thereafter resolved the issues


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between them, the trial court entered an agreed order dismissing the Beaverts from the

case.

        The trial court heard additional evidence on liability under RCW 4.24.630(1) in

November 2011, including testimony from Mr. Sutton and Mr. Eldredge. Having heard

the evidence, it reversed its earlier decision as to Mr. Sutton's liability. It found that

neither he nor Bulldog acted wrongfully since both believed the yarder had been

abandoned and that they were authorized by Ms. Beavert to remove it.

        Eager Beaver appeals, raising two issues. The first is whether the trial court

misconstrued RCW 4.24.630 by treating Mr. Sutton's and Bulldog's subjective belief

about "whether they were 'going onto the land of another'" as a factor in determining

their liability. Br. of Appellant at 1.

        The second is whether the trial court erred in concluding that Mr. Sutton and

Bulldog did not act wrongfully. In connection with this second issue, Eager Beaver

implicitly challenges some of the trial court's factual findings, but without assigning error

under RAP 10.3. Even more problematic is that it challenges those findings without

providing a verbatim report of the relevant proceedings. For reasons discussed below, we

will not consider Eager Beaver's challenges to the court's findings.

                                          ANALYSIS

        We address the two issues raised by Eager Beaver in tum.




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                              1 Application ofRCW 4.24.630(1).

          RCW 4.24.630, entitled "Liability for damage to land and property," provides in

relevant part:

          Every person who goes onto the land of another and who removes timber,
          crops, minerals, or other similar valuable property from the land, or
          wrongfully causes waste or injury to the land, or wrongfully injures
          personal property or improvements to real estate on the land, is liable to the
          injured party for treble the amount of the damages caused by the removal,
          waste, or injury.

RCW 4.24.630(1). It goes on to provide that for purposes of the section, "a person acts

'wrongfully' if the person intentionally and unreasonably commits the act or acts while

knowing, or having reason to know, that he or she lacks authorization to so act." Id.

          Eager Beaver argues that since Mr. Sutton went onto forest service land ("the land

of another") and thereupon "wrongfully injured personal property," then Eager Beaver-

the "injured party"-is entitled to treble damages under the statute. It argues that Mr.

Sutton's subjective belief that the yarder was located on the Beaverts' property was

irrelevant. Bulldog answers in part that RCW 4.24.630(1) is a trespass statute and that

Mr. Sutton did not commit a trespass by entering onto forest service land open to the

public.

          RCW 4.24.630(1) is not as explicit as RCW 64.12.030, the timber trespass statute,

in requiring that the entry onto "the land of anothee' be a trespass. Both statutes speak of

entry onto "the land of another," but unlike RCW 4.24.630(1), the timber trespass statute

explicitly frames a claim under the statute as one that involves an invasion of the

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plaintiffs interest in the subject land: it states that recovery under the statute is provided

"in an action by such person" with "such person" referring to the person on whose land

the timber is located, and it states that the claim is "against the person committing such

trespasses." Former RCW 64.12.030 (1881). RCW 4.24.630(1) lacks either of these

further direct or indirect references to trespass but nonetheless has been repeatedly

characterized by Washington courts as a trespass statute.

       In Colwell v. Etzell, 119 Wn. App. 432, 439, 81 PJd 895 (2003), this court held

that "[t]he statute's premise is that the defendant physically trespasses on the plaintiffs

land." This court refused to apply RCW 4.24.630(1) in Colwell because "[t]here was no

physical trespass in the present case." Id. Judge Sweeney, concurring, stated that "[t]he

plain language of the statute requires a trespass," citing the language "every person who

goes onto the land of another." Id. at 444.

       Both our Supreme Court and Division One of our court have characterized the

statute as describing the elements of "statutory trespass." Saddle Mountain Minerals,

LLC v. Joshi, 152 Wn.2d 242, 249, 95 PJd 1236 (2004); C/ipse v. Michels Pipeline

Constr., Inc., 154 Wn. App. 573,576,225 P.2d 492 (2010). Division One in Clipse

pointed out that the statute was enacted by Laws of 1994, chapter 280, in the same bill

that amended former RCW 79.01.760 (1993), the then-existing law pertaining to public

lands trespass, and that the house bill report stated that the bill would establish similar

civil damages provisions" 'with respect to all lands. '" Id. at 579 (quoting record). In its


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   recent decision in Bird v. Best Plumbing Group, LLC, 175 Wn.2d 756, 762, 774, 287

     P.3d 551 (2012), our Supreme Court repeatedly referred to RCW 4.24.630 as "the

     trespass statute."

            Here, court minutes reveal that the trial court concluded that RCW 4.24.630(1) is

     "much broader than just trespass" and that it conceivably applied to the defendants,

     depending on their knowledge and intent. Clerk's Papers (CP) at 420. The court appears

     to have based its interpretation on the fact that the statute is not explicit that the owner of

     the entered land must be the "injured party" or in referring to a "trespass." None of the

     decisions cited above have focused on the absence of such language in the statute.

            Statutory construction is a question of law and reviewed de novo. State v. Elmore,

     154 Wn. App. 885,904-05,228 P.3d 760 (2010). We interpret statutes to give effect to

     the legislature's intent. City ofSpokane v. Spokane County, 158 Wn.2d 661,673, 146

     P.3d 893 (2006). If a statute's meaning is plain on its face, then the court will give effect

     to that plain meaning as an expression of legislative intent. State ex reI. Citizens Against

     Tolls v. Murphy, 151 Wn.2d 226,242, 88 P.3d 375 (2004). Plain meaning is discerned

     not only from the provision in question but also from closely related statutes and the

     underlying legislative purposes. Id.

            We avoid constructions that yield unlikely, absurd, or strained consequences.

     Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002). It is only if a statute is

     susceptible to two or more reasonable interpretations that it is ambiguous and that we


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resort to additional canons of statutory construction or legislative history. Dep't of

Ecologyv. Campbell & Gwinn, LLC, 146 Wn.2d I, 12,43 P.3d 4 (2002).

       The earlier·mentioned bill enacting RCW 4.24.630, which amended another

trespass statute, informs the plain meaning ofRCW 4.24.630(1), as does RCW

4.24.630(2), which makes the remedy under subsection (1) unavailable in the event that

one of several other more specific trespass or trespass immunity statutes applies. And

under the construction advanced by Eager Beaver, the remedy provided by subsection (I)

would not be available if Ms. Beavert injured the yarder on her own property yet would

be available if she injured it on adjacent forest service property-an arbitrary and

irrational result. For these reasons, we reject Eager Beaver's arguments and reaffirm

Colwell's conclusion that the plain premise ofRCW 4.24.630 is that a defendant has

physically trespassed on the plaintiffs land. The statute does not apply, then, to injury of

a private person's property that is located on forest service land open to the public.

      11. 	 Was there an insufficient basis for the trial court's conclusion that 

           Mr. Sutton and Bulldog did not know they lacked authorization? 


       We will also address the second issue raised by Eager Beaver, which argues that

the trial court erred in finding that Mr. Sutton and Bulldog were unaware they lacked

authorization and in concluding, from that, that they did not act wrongfully. It cites

extensively to deposition testimony, some apparently published during trial, but without

providing a transcript of other evidence presented in the trial.




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          RAP 9.2(b) states that "[a] party should arrange for the transcription of all those

portions of the verbatim report of proceedings necessary to present the issues raised on

review." It further provides, "If the party seeking review intends to urge that a verdict or

finding of fact is not supported by the evidence, the party should include in the record all .

evidence relevant to the disputed verdict or finding." Id.

       Eager Beaver rationalizes its failure to provide a verbatim transcript by

representing that the facts are "essentially undisputed." Br. of Appellant at 1. Mr. Sutton

and Bulldog disagree, characterizing the facts relating to the application ofRCW

4.24.630 as "highly disputed." Br. of Resp't at 1. The fact that the trial court's findings

conflict with the evidence as characterized by Eager Beaver is sufficient for our purposes

to establish that the evidence was disputed and a report of proceedings is necessary for

appeal.

       It is axiomatic that an appellant cannot ask us to decide that evidence' presented to

the trial court did not support its findings and at the same time fail to provide us with all

the evidence on which the trial court was entitled to rely. Our presumption is that the

trial court, not an advocate, is the reliable reporter of what was proved. Accordingly, if

an inadequate record is provided we will treat all of the trial court's findings as verities.

Our review is limited to whether the findings of fact support the trial court's conclusions

oflaw. Haberman v. Elledge, 42 Wn. App. 744, 745-46, 713 P.2d 746 (1986).




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No. 30827-8-111
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       As previously observed, the statute provides that for purposes of subsection (l), "a

person acts 'wrongfully' if the person intentionally and unreasonably commits the act or

acts while knowing, or having reason to know, that he or she lacks authorization to so

act." RCW 4.24.630. In Clipse, 154 Wn. App. 573, Division One addressed an

ambiguity certified by a superior court: should the second appearance of the word "acts"

in the statutory definition be read as a noun or a verb? In other words, should the

relevant language in subsection (l) be read as:

       A person acts "wrongnJlly" if the person intentionally and unreasonably commits
       the act [noun, meaning a Single act] or acts [noun, meaning multiple acts]

       while knowing, or having reason to know, that he or she lacks authorization to so
       act,

or should it be read as:

       A person acts "wrongfully" if the person intentionally and unreasonably commits
       the act [noun: single act]

       or [ifhe] acts [verb] while knowing, or having reason to know, that he or she lacks
       authorization to so act[.]

The first construction would require that a plaintiff like Eager Beaver show that a

defendant's conduct be intentional, unreasonable, and knowing or having reason to know

of a lack of authorization. The second construction would permit a plaintiff to show that

a defendant, while perhaps not acting intentionally or unreasonably, at least knew or had

reason to know of a lack of authorization. For sound reasons that we need not repeat

here, Division One concluded that the second use of "acts" is as a noun, and that to



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No.30827-8-III
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establish that a person has acted wrongfully for purposes of the statute, a plaintiff must

show that he '''intentionally and unreasonably commits an act while knowing or having

reason to know that he or she lacks aqthority to so act.'" Id. at 579-80 (quoting record);

accord Borden v. City o/Olympia, 113 Wn. App. 359, 374, 53 P.3d 1020 (2002) (RCW

4.24.630 requires that a claimant "show that the defendant 'wrongfully' caused waste or

injury to land, and a defendant acts 'wrongfully' only ifhe or she acts 'intentionally''');

Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231,246,23 P.3d 520 (2001)

("[A]s the plain language ofRCW 4.24.630(1) envisions wrongful conduct, any violation

of that statute is analogous to an intentional tort, like trespass to personal property or

conversion.").

       Here, the trial court's findings included the following:

       Defendants Bulldog and Sutton did not know or have reason to know they
       lacked authorization to scrap the yarder, but reasonably believed Beavert
       did.

CP at 575 (Finding of Fact 8), and

       Michael Sutton did not know who owned the yarder, but understood from
       Cindy Beavert that she did not own the yarder [and] that the yarder had
       been abandoned by whoever owned it, and that they owed her money.

Id. (Finding of Fact 15).

       The trial court's conclusions of law included additional findings of fact. I When


       I If a determination concerns whether evidence shows that something occurred or
existed, it is properly labeled a finding of fact, but if the determination is made by a
process of legal reasoning from facts in evidence, it is a conclusion of law. State v.

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No. 30827-8-111
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findings are included within conclusions we examine them for what they are, regardless

of their labeL Miller v. Anderson, 91 Wn. App. 822, 825 n.l, 964 P.2d 365 (1998) (citing

Willener v. Sweeting, 107 Wn.2d 388,394, 730 P.2d 45 (1986)). We treat these findings,

too, as verities:

       At the request of the Defendant, Cindy Beavert, the Defendants, Michael
       Sutton and Bulldog Trucking went on the land of the U.S. Forest Service
       and salvaged a significant portion of the yarder.

CP at 578 (Conclusion of Law 5), and

       Mr. Eldredge had no reason to know his company lacked authorization.
       The yarder was accessed through Ms. Beavert's locked gate, no indicia of
       ownership were present, and the yarder's condition suggested it had been
       abandoned.

CP at 579 (Ex. A additional conclusion).

       The trial court's conclusions of law included its conclusion that

       [i]n order for RCW 4.24.630 to apply, the Plaintiff must prove Defendant's
       actions were "wrongful" as defined in the statute .
              . . . Since neither Mr. Sutton nor Bulldog Trucking knew who owned
       the yarder, and reasonably believed the yarder was on the property owned
       by Cindy Beavert, their actions were not wrongful[,]

CP at 578 (Conclusions of Law 5, 6), and that

       Bulldog Trucking is only liable for the value of the yarder.


Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986). Stated differently, a finding
of fact is "an 'assertion that a phenomenon has happened or is or will be happening
independent of or anterior to any assertion as to its legal effect.'" Moulden & Sons, inc.
v. Osaka Landscaping & Nursery, inc., 21 Wn. App. 194, 197,584 P.2d 968 (1978)
(internal quotation marks omitted) (quoting Leschi improvement Council v. Wash. State
Highway Comm 'n, 84 Wn.2d 271,283,525 P.2d 774,804 P.2d 1 (1974)).

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    No. 30827~8~III
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    CP at 579 (Ex. A additional conclusion).

           These conclusions are supported by the findings. They provide an additional basis

    for determining that Mr. Sutton and Bulldog were not liable for treble damages under

    RCW 4.24.630(1).

                                         III Attorney fees.
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I          Eager Beaver requests reasonable attorney fees and expenses under RAP 18.1 and


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    RCW 4.24.630(1). The statute provides an attorney fee remedy to a party entitled to

    recover under subsection (1) but we have determined that Eager Beaver was not entitled
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n   to recover.
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           The judgment of the trial court is affirmed. 

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           A majority of the panel has determined that this opinion will not be printed in the 


    Washington Appellate Reports but it will be filed for public record pursuant to RCW

    2.06.040.




    WE CONCUR: 




    Fiorsmo,    C~.


    Kulik, J.P.T.


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