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Birchler v. Castello Land Co.

filed: May 6, 1996.

MARTIN BIRCHLER, A SINGLE MAN, AND JUDITH WILSON, A SINGLE WOMAN, AND DEAN B. LANG AND DARLENE LANG, HUSBAND AND WIFE, AND THE MARITAL COMMUNITY COMPOSED THEREOF, RESPONDENTS,
v.
CASTELLO LAND COMPANY, INC., A WASHINGTON CORPORATION, AND J.R. HAYES & SONS, INC., A WASHINGTON CORPORATION, APPELLANTS.



Superior Court County: King. Superior Court Cause No: 93-2-15114-4. Date filed in Superior Court: January 27, 1995. Superior Court Judge Signing: Hon. Marilyn Sellers.

Written by: Judge Cox, Concurred by: Judge Coleman, Judge Kennedy

Author: Cox

COX, J. -- Castello Land Company, Inc. ("Castello"), and J.R. Hayes & Sons, Inc. ("Hayes"), appeal the judgment in favor of Martin Birchler, Judith Wilson, and Dean and Darlene Lang. The judgment awards damages for emotional distress as well as for violations of the timber trespass statute. The trial court properly awarded emotional distress damages and properly excluded evidence of Castello and Hayes' efforts to repair the damage to vegetation. Therefore, we affirm.

Birchler, Wilson, and the Langs ("Owners") owned and resided on property located in Sea-Tac, Washington. A greenbelt of vegetation lined the south end of their property. Castello owned an undeveloped ravine south of and adjacent to this residential property.

Castello obtained a permit to grade and fill the ravine and permitted Hayes to put fill material in the ravine. Castello was not authorized to grade on the residential

properties. Castello's foreman instructed Nick Hayes, vice-president of Hayes, where to grade and fill. Nick Hayes then directed his workers to scrape vegetation off the property before grading any fill material onto it.

Hayes' equipment operator began grading from the west end of the ravine and scraped all vegetation from the ground before grading fill onto the ground. He filled 40 feet north of the boundary on the residential properties. He had no permission from the property owners to enter onto the property and admitted that he knew he was filling and grading on the property of others. Hayes' work ultimately encroached on each of the residential properties and removed vegetation without permission.

Nick Hayes later visited the Wilson property and observed that part of her property had been completely stripped, including her portions of a fence. Wilson then gave him permission to remove the remains of the damaged fence and to level the ground so the fence could be replaced. In order to properly level Wilson's property, Nick Hayes believed he would have to grade Birchler's property level with Wilson's. Nick Hayes allegedly obtained permission to do so from Jack Gardner, Birchler's tenant. Gardner was residing on the property. Nick Hayes then proceeded to grade that property.

Castello and Hayes also offered to compensate Owners for the damage done to their vegetation. Owners declined these offers. Owners commenced this action, alleging causes of action against Castello and Hayes for trespass to land, violation of the Consumer Protection Act, and statutory timber trespass.*fn1

The trial court dismissed the Consumer Protection Act claims on summary judgment. The trial court also ruled in limine that Castello and Hayes could not present evidence of their offer to repair the damage to Owners' vegetation and properties. The court further ruled that Castello and Hayes could present evidence of the conversation between Nick Hayes and Gardner regarding Nick Hayes' understanding that he had permission to remove vegetation and grade the Birchler property. But at trial, following an objection by Owners and an unreported sidebar, Castello and Hayes did not elicit testimony regarding this conversation.

The parties proceeded to trial on the timber trespass claim. They also sought emotional distress damages. Castello and Hayes moved to strike these claims for emotional distress damages. The trial court denied the motion and permitted Owners to present evidence of emotional distress. The court instructed the jury on emotional distress damages, over objections by Castello and Hayes.

The jury returned verdicts for Owners, awarding damages for restoration costs and emotional distress. The jury further found that the trespasses to the property were not "casual or involuntary." The court entered judgments for each owner as follows: Birchler was awarded $53,000 ($17,000 in restoration costs trebled $2,000 for emotional distress); the Langs were awarded $41,750 ($13,250 in restoration costs trebled $2,000 for emotional distress); and Wilson was awarded $53,000 ($17,000 in restoration costs trebled $2,000 for emotional distress). Castello and Hayes appeal.

I

Emotional Distress Damages

Castello and Hayes argue that the trial court erred by awarding emotional distress damages. They claim that Owners elected the ...


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