Eager Beaver, Inc., et al V. Bulldog Trucking & Excavation, Llc, et al

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, 	)
)
Appellant, 	)
)
v. 	)
)
BULLDOG TRUCKING & 	)
EXCAVATION, LLC, a Washington 	)
Limited Liability Company, and 	)
MICHAEL AND "JANE DOE" 	)
SUTTON, individually, 	)
)
Respondents, 	)
)
CINDY AND "JOHN DOE" BEAVERT, 	)
individually, SEATTLE IRON & 	)
METALS CORPORATION, a 	)
Washington Corporation, 	)
)
Defendants. 	)
No. 30827-8-III
UNPUBLISHED OPINION
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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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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I
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 of Spokane 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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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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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.
II 	Eager Beaver requests reasonable attorney fees and expenses under RAP 18.1 and
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
1 	to recover.	n
l
~ The judgment of the trial court is affirmed.
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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