             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 GLENN R. OAKES and CINDY R.
 OAKES, husband and wife,                                  No. 79487-6-I

                               Appellants,                 DIVISION ONE

                               v.
                                                           UNPUBLISHED OPINION
 MATTHEW CHIU and RAME CHIU,
 husband and wife,

                                Respondents.

       MANN, C.J. — Glenn and Cindy Oakes appeal the trial court’s decision dismissing

their timber trespass claim on summary judgment. Because the Oakeses failed to

present evidence of any resulting damages to support their claim, we affirm.

                                                      I.

       In May 2014, Matthew and Rame Chiu cut new growth off of a cottonwood tree

stump located on the Oakeses’ property and sprayed it with a Roundup-brand

pesticide. 1 The Chius also wrapped the stump with large plastic bags in an attempt to

suffocate the new growth.

       In June 2017, the Oakeses filed a pro se complaint against the Chius for timber

trespass under RCW 64.12.030. 2 They made minor amendments to this claim, by

stipulation in May 2018, but did not allege any additional claims.


       1   Another entity, not a party to this appeal, cut down the tree in September 2013.
       2   RCW 64.12.030 applies to any “tree,” “timber,” and “shrub.”


            Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79487-6-I/2


       In November 2018, the Chius moved for summary judgment arguing that the

Oakeses lacked evidence of damages to support their claim. 3 The trial court granted

the motion and entered orders dismissing the Oakeses’ claim with prejudice. The

Oakeses then filed a motion for reconsideration, which the trial court denied. The

Oakeses appeal.

                                                  II.

       The Oakeses argue that they produced sufficient evidence to create a material

issue of fact on their timber trespass damages. We disagree.

       We review summary judgments de novo, engaging in the same inquiry as the

trial court, and viewing the facts and the inferences in favor of the nonmoving party.

Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary

judgment is proper when there is no genuine issue as to any material fact and the

moving party is entitled to a judgment as a matter of law. 4 CR 56(c).

       On summary judgment, the moving party bears the initial burden of showing that

it is entitled to judgment as a matter of law. Ranger Ins., 164 Wn.2d at 552. If the

moving party meets its burden, the burden then shifts to the nonmoving party to bring

forth “specific facts which sufficiently rebut the moving party’s contentions and disclose

the existence of a genuine issue as to a material fact.” Meyer v. Univ. of Wash., 105

Wn.2d 847, 852, 719 P.2d 98 (1986).




          3 The Chius had previously moved for summary judgment dismissal of the Oakeses’ claim, which

the trial court denied in July 2018. That decision is not at issue in this appeal.
          4 “A genuine issue of material fact exists where reasonable minds could differ on the facts

controlling the outcome of the litigation.” Ranger Ins., 164 Wn.2d at 552.


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No. 79487-6-I/3


                                                    A.

        The plaintiff bears the burden to prove damages in a timber trespass action.

Seattle-First Nat. Bank v. Brommers, 89 Wn.2d 190, 197, 570 P.2d 1035 (1977). “The

standard measure of damages for the loss of ornamental trees in actions brought

pursuant to RCW 64.12.030 is either the restoration costs or the diminution in the value

of the affected property.” 5 Happy Bunch, LLC v. Grandview North, LLC, 142 Wn. App.

81, 91 n.3, 173 P.3d 959 (2007).

        Here, the Chius met their initial burden of establishing that the Oakeses “suffered

no cognizable damages.” They supported their motion with the report of M. Eliza

Davidson, a certified arborist, who inspected the stump in May 2017 and stated:

        Apparently the stump was not treated to prevent regeneration, for which
        cottonwood is well known. Re-sprouting stems are growing robustly from
        the trunk just below the top of the stump and range up to 1½” in diameter.
        All stems are crowded and weakly attached. A dense grove of root
        sprouts also extends westward and upslope from the stump. These
        saplings have reached an approximate height of 12-16 feet. This thicket
        appears to be growing and spreading with great vigor. I found little
        evidence that either stump or root fares were physically damaged or
        decayed.

Davidson also testified that “[i]f you don’t specifically treat a cut stump, poison it or girdle

it, you will get abundant regrowth, and that’s what has happened over the years to this

cottonwood.”

        In opposition, along with their declarations, the Oakeses submitted pictures

showing a mixture of black and green foliage around the stump that were taken within a

few days of the Chius’ actions. They supplied nothing else to show physical damages.

And while they offered the declaration of Joseph Booth, a certified land use planner, to


        5An “ornamental” or residential tree’s “primary function and value is essentially noncommercial in
nature.” Sherrell v. Selfors, 73 Wn. App. 596, 603, 871 P.2d 168 (1994).


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raise an issue of fact on damages, Booth did not state that the Chius caused any

damage to the stump. Rather, Booth stated:

       I was informed that the tree was illegally cut down by the Summit
       Homeowner’s Association (HOA) several years ago and it was
       subsequently poisoned and recut by neighbors thereafter.

       I have examined the property and note that the stump continues to sprout.
       Prior to the initial cutting and poisoning of the cottonwood, the tree
       provided slope stability and erosion control functions. While the remaining
       stump provides some of these functions, further poisoning will eventually
       eliminate all such functions, leaving the adjacent geologic hazardous area
       more prone to erosion and slumping.

(Emphasis added). Nor did Booth’s offer any value estimates for restoring the new

growth or foliage impacted by the Chius’ trespass.

       The Oakeses failed to produce sufficient evidence of damages to support a

timber trespass claim. Therefore, the trial court properly granted summary judgment.

                                             B.

       The Oakeses contend that they are entitled to emotional distress damages for

the timber trespass and that material facts remain in dispute. However, it is undisputed

that the Chius’ actions here involved only the new growth on the stump, that “the stump

continues to sprout,” and that the sprouts “are growing robustly.” And, the Oakeses

have failed to ascribe any value to this new growth. The evidence on review supports

the absence of material facts on this issue. Accordingly, the trial court did not err by

summarily dismissing the claim.

                                            III.

       Next, the Oakeses argue that the trial court erred by denying their oral motion to

amend the complaint to add a new claim of general trespass. This argument is not

persuasive.



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        We review the denial of a motion to amend for abuse of discretion. 6 Cambridge

Townhomes, LLC v. Pac. Star Roofing, Inc., 166 Wn.2d 475, 483, 209 P.3d 863 (2009).

CR 15(a) governs pleading amendments and provides that the moving party “shall”

attach a proposed amended pleading to the motion. One of the purposes of this

requirement is to provide parties with adequate notice of the basis for claims asserted

against them. 7 Wilson v. Horsley, 137 Wn.2d 500, 505, 974 P.2d 316 (1999).

        Here, the Oakeses failed to comply with CR 15(a) because that rule

contemplates a written motion, not an oral one like the Oakeses attempted during the

summary judgment hearing. Moreover, during its oral ruling, the trial court made clear

that,

        I’m not going to just sua sponte amend the complaint. There was
        opportunities if the Oakes wanted to . . . say under [CR] 56(f), we don’t
        have enough time to respond to this, we need additional time, . . . or to file
        as part of their response, this should be an amendment to include some
        other claim other than timber trespass. The only thing that’s pled and is
        before me at this point is timber trespass.

“While inexpert pleadings may survive a summary judgment motion, insufficient

pleadings cannot.” Pac. Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342,

352, 144 P.3d 276 (2006). Nothing in the record explains why the Oakeses did not

earlier move to amend. Thus, there was no abuse of discretion.




        6 “A trial court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or untenable reasons.” Ameriquest Mortg. Co. v. Office of Attorney General of Wash.,
177 Wn.2d 467, 478, 300 P.3d 799 (2013).
        7 A civil complaint must “apprise the defendant of the nature of the plaintiff’s claims and the legal

grounds upon which the claims rest.” Kirby v. City of Tacoma, 124 Wn. App. 454, 469-70, 98 P.3d 827
(2004).


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                                                   IV.

        Finally, the Oakeses argue that the trial court erred by denying their motion for

reconsideration of its summary judgment order. Below, they sought reconsideration on

three separate grounds CR 59(a)(1), (7), and (9). On appeal, the Oakeses abandon

their arguments under CR 59(a)(1) and (7). 8 Thus, we discuss only their CR 59(a)(9)

argument which we now reject.

        We review a trial court’s order on reconsideration for abuse of discretion. Rivers

v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175

(2002). Courts rarely grant reconsideration under CR 59(a)(9) for lack of substantial

justice due to the other broad grounds set forth under CR 59(a). Lian v. Stalick, 106

Wn. App. 811, 825, 25 P.3d 467 (2001).

        Here, in seeking reconsideration, the Oakeses repeated the arguments that they

made in opposition to summary judgment. And, as discussed above, they failed to

demonstrate any error in the trial court’s order on summary judgment. Likewise, for

reasons already detailed, the Oakeses have failed to demonstrate that the trial court

abused its discretion in denying reconsideration based on CR 59(a)(9).

        We affirm the summary judgment order, denial of the oral motion to amend the

complaint, and denial of the motion for reconsideration.




        8 The Oakeses’ brief does not address CR 59(a)(1) (irregularity in the proceedings) or CR
59(a)(7) (no evidence to justify the decision or contrary to law). Accordingly, we deem that they have
abandoned these arguments on appeal. RAP 10.3(a)(6).


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WE CONCUR:




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