                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 20, 2016

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    ERNEST KIRK GEORGE,                                             No. 48222-3-II

                               Appellant,

          v.

    JOHN DANIELSEN, a single adult male; JIM                  UNPUBLISHED OPINION
    MORGER CONSTRUCTION, INC, a
    Washington corporation; DAN MORGER and
    “JANE DOE” MORGER, and their marital
    community; JOHN DOES 1-3,

                               Respondents.

         MELNICK, J. — After filing a suit for timber trespass1 and waste,2 Ernest Kirk George

appeals the trial court’s orders denying his motion for partial summary judgment and granting John

Danielsen’s and Dan Morger’s cross-motions for partial summary judgment.3 We do not consider

the denial of George’s motion for partial summary judgment regarding treble damages under the

timber trespass statute because the trial court determined that issues of material fact remained and

held a trial on the merits. We conclude that the trial court did not err by granting Danielsen’s and



1
    RCW 64.12.030.
2
    RCW 4.24.630.
3
 George also assigned error to the trial court denial of George’s post-trial CR 50 motion on treble
damages under the timber trespass statute. But we do not address this assignment of error because
George did not designate for the appellate record a transcript of the trial. Without knowing what
evidence was presented at trial, we cannot determine whether the trial court erred in denying the
CR 50 motion based on that evidence. Hernandez v. Stender, 182 Wn. App. 52, 59, 358 P.3d 1169
(2014).
48222-3-II


Morger’s motions for partial summary judgment regarding liability under the waste statute because

the damages were provided for under the timber trespass statute, and therefore the waste statute

did not apply. We affirm.

                                             FACTS

       In 2012, Danielsen purchased property adjacent to George’s property. Danielsen did not

hire a surveyor to establish the property line. Instead, he relied on a plat map to determine the

property line location. In December, Danielsen hired Morger to cut trees on what he believed to

be his property.

       Morger, without a surveyor or a map, marked with ribbons what he believed to be the

property line. The line he marked was 25 to 30 feet north of a cattle containment fence. Morger

cut the trees within the barrier of ribbons. However, Danielsen and his neighbor, John Brush, who

lived immediately to the north, concluded that the marked boundary was not the actual property

boundary. Brush identified a survey marker from a recent survey of his own property. He and

Danielsen stretched the measuring tape from the survey marker and moved south until they found

another stake. They observed several steel fence posts scattered around the area that they measured

to, but the posts were not in a straight line.      They observed the cattle containment fence

approximately 5 or 6 feet inside the line they measured. The first steel fence post was about 25 to

30 feet farther north of the cattle containment fence. George believed that the cattle containment

fence was about 6 to 10 feet from the property line on the east end and 40 to 50 feet from the

property line on the west end. Danielsen believed the fence was on his property.




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       Danielsen instructed Morger to cut to the fence line and Morger asked, “Are you sure?”

Clerk’s Papers (CP) at 55. After receiving an affirmative answer, Morger cut the trees just to the

fence line.

I.     PROCEDURAL FACTS

       George filed a complaint for timber trespass and waste against Danielsen and Morger. He

sought treble damages. The complaint alleged that Danielsen and Morger “negligently, recklessly,

or intentionally entered onto [George’s] land and cut and removed trees” in violation of the timber

trespass or the waste statutes. CP at 2. Danielsen denied the allegations.

       George filed a motion for partial summary judgment on the issue of whether Danielsen and

Morger were jointly liable for treble damages and for conversion of the timber under the timber

trespass statute. George argued that Danielsen and Morger were unable to prove that they

mitigated damages under the timber trespass statute.

       Morger responded to George’s motion for summary judgment and filed a cross-motion for

partial summary judgment. In his cross-motion, he argued that George could not seek relief under

the waste statute where a remedy was available under the timber trespass statute.

       Danielsen also responded to George’s motion for summary judgment and filed a cross-

motion for partial summary judgment. In his cross-motion, he argued that the trial court should

dismiss George’s claims under the waste statute because the timber trespass statute expressly

provides for damages to landowners whose trees are cut.

       The trial court heard arguments on all of the motions for partial summary judgment.

Regarding George’s motion for partial summary judgment, the trial court denied the motion and

found that material issues of fact existed as to whether treble damages under the timber trespass

statute applied. The trial court granted George summary judgment on the issue that a trespass



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occurred. However, all damages issues were preserved for trial, as were all issues regarding

“mitigation” under the timber trespass statute. CP at 281. The trial court granted Morger’s and

Danielsen’s cross-motions for partial summary judgment, dismissing George’s claims under the

waste statute and for conversion.

II.    TRIAL

       After a trial, the jury found by special verdict that 18 trees were wrongfully cut by

Danielsen or persons acting under his direction. The jury awarded damages of $12,500 to George.

The jury also found that when Danielsen directed Morger to cut down the trees, he was not liable

under the waste statute, and he acted with probable cause to believe that the trespass occurred on

his own land. The trial court entered judgment for George against Danielsen in the amount of

$12,500 and $1,725.20 in costs and attorney fees.

       George appeals.

                                           ANALYSIS

I.     GEORGE’S MOTION FOR PARTIAL SUMMARY JUDGMENT

       George argues that the trial court erred by denying his motion for partial summary

judgment on the issue of treble damages because Danielsen did not present evidence that he had

probable cause to believe the trees were on his land.

       Where a trial court’s denial of summary judgment is based on the existence of disputed

material facts, we will not review it when raised after a trial on the merits. Weiss v. Lonnquist,

173 Wn. App. 344, 354, 293 P.3d 1264 (2013). “Where the pretrial order denying summary

judgment is premised on a question of law, however, the court can review that order even after a

full trial on the merits.” Weiss, 173 Wn. App. at 354.




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       Here, the trial court denied George’s motion for partial summary judgment on damages

because issues of material fact remained. Therefore, we do not review the trial court’s denial of

the motion.

II.    CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

       George argues that the trial court erred by granting the cross-motions for partial summary

judgment and dismissing his claim under the waste statute because the statute’s plain terms apply

to anyone who removes timber from the land of another. We disagree.

       A.      Legal Standards

       We review an order for summary judgment de novo, engaging in the same inquiry as the

trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary

judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). We construe

all facts and their reasonable inferences in the light most favorable to the nonmoving party. Jones,

146 Wn.2d at 300.

       A party moving for summary judgment bears the burden of demonstrating that there is no

genuine issue of material fact. Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume

Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). “A material fact is one upon which the

outcome of the litigation depends in whole or in part.” Atherton, 115 Wn.2d at 516. If the moving

party satisfies its burden, the nonmoving party must present evidence demonstrating that a material

fact remains in dispute. Atherton, 115 Wn.2d at 516. If the nonmoving party fails to demonstrate

that a material fact remains in dispute, and reasonable persons could reach but one conclusion from




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48222-3-II


all the evidence, then summary judgment is proper. Vallandigham v. Clover Park Sch. Dist. No.

400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).

       In addition, we must determine the meaning of the waste and the timber trespass statutes.

We review the meaning of statutes de novo. Jongeward v. BNSF Ry. Co., 174 Wn.2d 586, 592,

278 P.3d 157 (2012). Our “fundamental objective is to ascertain and carry out the legislature’s

intent.” Gunn v. Riely, 185 Wn. App. 517, 524, 344 P.3d 517, review denied, 183 Wn.2d 1004

(2015). We must give effect to the plain meaning of the statute as an expression of legislative

intent, if the statute’s meaning is plain on its face. Gunn, 185 Wn. App. at 524. Only if the statute

is ambiguous should we look to interpretive aids, such as canons of construction and case law.

Gunn, 185 Wn. App. at 524.

       B.      The Trial Court Did Not Err By Granting Partial Summary Judgment

       The waste statute, provides:

       (1) 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. For purposes of
       this 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. Damages recoverable under this section include, but
       are not limited to, damages for the market value of the property removed or injured,
       and for injury to the land, including the costs of restoration. In addition, the person
       is liable for reimbursing the injured party for the party’s reasonable costs, including
       but not limited to investigative costs and reasonable attorneys’ fees and other
       litigation-related costs.

       (2) This section does not apply in any case where liability for damages is provided
       under [the timber trespass statute].

RCW 4.24.630.




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48222-3-II


        The timber trespass statute, provides:

        Whenever any person shall cut down, girdle, or otherwise injure, or carry off any
        tree, including a Christmas tree as defined in RCW 76.48.020, timber, or shrub on
        the land of another person, or on the street or highway in front of any person’s
        house, city or town lot, or cultivated grounds, or on the commons or public grounds
        of any city or town, or on the street or highway in front thereof, without lawful
        authority, in an action by the person, city, or town against the person committing
        the trespasses or any of them, any judgment for the plaintiff shall be for treble the
        amount of damages claimed or assessed.

RCW 64.12.030.

        We held in Gunn that “the waste statute does not provide damages when the timber trespass

statute does.” 185 Wn. App. at 524. The plain meaning of the waste statute excepts timber trespass

from it. Gunn, 185 Wn. App. at 524-26. “[Section 2 of the waste statute] explicitly excludes its

application where liability for damages is provided under RCW 64.12.030, the timber trespass

statute.” Gunn, 185 Wn. App. at 525. Because the plain meaning of the statute is evident, we

follow it.

        George argues that we should overrule Gunn, but he has not analyzed how that case is both

incorrect and harmful. See Deggs v. Asbestos Corp. Ltd., ___ Wn.2d ___, 381 P.3d 32, 38 (2016).

        We follow our precedent and the plain meaning of RCW 4.24.630(2) and conclude that

when damages are provided for in the timber trespass statute, the waste statute’s provisions on

damages are inapplicable. The trial court did not err by granting the cross-motion for summary

judgment and dismissing George’s claim under the waste statute.




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48222-3-II


       We affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                         Melnick, J.

We concur:




       Johanson, J.




       Maxa, A.C.J.




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