OLIVIA HERRING and WILLIAM HERRING, husband and wife, Respondents,
JOSE PELAYO and BLANCA PELAYO, individually, and as husband and wife, and the marital community therein, Appellants.
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.
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.
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.
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.
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.
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
Standard of Review
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.
Liability Under RCW 64.12.030
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