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Herring v. Pelayo

Court of Appeals of Washington, Division 2

May 2, 2017

OLIVIA HERRING and WILLIAM HERRING, husband and wife, Respondents,
v.
JOSE PELAYO and BLANCA PELAYO, individually, and as husband and wife, and the marital community therein, Appellants.

          WORSWICK, J.

         Following a bench trial, the trial court found Jose and Blanca Pelayo liable for timber trespass under RCW 64.12.030 and awarded $10, 475 in damages and attorney fees to Olivia and William Herring. The Pelayos appeal, asserting that (1) the trial court's written findings do not support its conclusion that they had violated RCW 64.12.030, (2) the trial court erred by concluding that there were no mitigating circumstances under RCW 64.12.040, and (3) the trial court erred by awarding damages and attorney fees to the Herrings. We accept the Herrings' concession that the trial court erred by awarding them attorney fees and, thus, remand to vacate the portion of the judgment awarding attorney fees. In all other respects, we affirm.

         FACTS

         The Herrings and Pelayos are neighbors who share a common property line. On or about December 2, 2011, the Herrings hired a tree trimmer to remove some branches from a tree that was located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos. The Pelayos believed that the manner in which the tree branches were removed caused the tree to become unbalanced and that the unbalanced tree constituted a danger to their home and their safety. On December 31, 2011, the Pelayos hired a tree trimmer to remove all the remaining branches from the boundary tree without first discussing their plan with the Herrings. The removal of all the remaining branches caused the boundary tree to die.

         The Herrings filed a complaint alleging that the Pelayos committed timber trespass in violation of RCW 64.12.030, or in the alternative, committed trespass in violation of RCW 4.24.630. The matter proceeded to a bench trial. At trial, Jose Pelayo testified in relevant part that (1) he knew the tree at issue was on the Pelayos' and Herrings' common property line, (2) he directed his tree trimmer to remove all of the remaining branches from the tree, (3) he did not discuss his plan to remove the remaining branches with the Herrings, (4) the tree was alive prior to the removal of the remaining branches, and (5) he believed that removing the remaining branches would kill the tree.

         The Pelayos' tree trimmer, Timothy Jones, testified that upon inspecting the unbalanced tree, he believed it was a danger to the Pelayos and their home. Jones stated that he had recommended the Pelayos remove the entire tree or, alternatively, remove all the remaining branches. Jones also told the Pelayos that they could remove a top portion of the tree to balance it. During cross-examination, Jones testified that he might have been able to remove some of the remaining branches to render the tree safer without killing it.

         Following the bench trial, the trial court entered the following findings of fact, which are challenged on appeal:

12. The actions of the Pelayos constituted Timber Trespass under RCW 64.12.030.
13. RCW 64.12.040 (Mitigating Circumstances) does not apply. . . . .
18. The Court awards reasonable attorney fees and costs to the Herrings as determined by this Court based on an attorney fee declaration filed herein.

         Clerk's Papers (CP) at 102-03. From these findings of fact, the trial court concluded in relevant part that the Pelayos committed timber trespass, there were no mitigating circumstances, and the Herrings were entitled to attorney fees. The Pelayos appeal.

         ANALYSIS

         I. Standard of Review

         We review a trial court's decision following a bench trial to determine whether challenged findings are supported by substantial evidence in the record and whether the findings support the conclusions of law. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.2d 369 (2003). Because the Pelayos assign error only to findings of fact 12, 13, and 18, the remaining findings are verities on appeal. Nguyen v. City of Seattle, 179 Wn.App. 155, 163, 317 P.3d 518 (2014). Additionally, because findings of fact 12, 13, and 18 all concern the legal consequences of the Pelayos' conduct rather than the resolution of disputed facts, they are more appropriately characterized as conclusions of law. Shaw v. Clallam County, 176 Wn.App. 929, 928 n.1, 309 P.3d 1216 (2013). Accordingly, we review whether the trial court's factual findings support these challenged conclusions of law. Sunnyside, 149 Wn.2d at 879-80.

         II. Liability Under RCW 64.12.030

         The Pelayos contend that the trial court's findings of fact do not support its conclusion that they were liable under RCW 64.12.030 because the trial court failed to find that their conduct in removing the branches from the boundary tree was ...


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