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Porter v. Kirkendoll

Court of Appeals of Washington, Division 2

July 17, 2018

JERRY PORTER and KAREN ZIMMER, husband and wife Appellants,
PEPPER E. KIRKENDOLL and CLARICE N. KIRKENDOLL, husband and wife; KYLE PETERS and ANDREA PETERS, husband and wife; G & J LOGGING, INC., a Washington Corporation; MITCH PAYNE; JOHN BOGER; DANIEL SHEETS, a/k/a BOONE SHEETS, and JENNIFER SHEETS, husband and wife; BOONE'S MECHANICAL CUTTING, INC., a Washington Corporation; and JOHN DOES 1-5, Respondents.

          LEE, A.C.J.

         Jerry Porter and Karen Zimmer (collectively "Porter") appeal the superior court's order on summary judgment dismissing Porter's claims for waste, timber trespass, equitable indemnity, and contribution. Porter also appeals the superior court's exclusion of his rebuttal expert's testimony.

         We hold that the superior court did not err in dismissing Porter's waste and contribution claims. However, we hold that the superior court erred in dismissing Porter's timber trespass and equitable indemnity claims and that it abused its discretion in excluding Porter's rebuttal expert's testimony. Accordingly, we affirm in part, reverse in part, and remand to the superior court for further proceedings consistent with this opinion.


         A. Logging The Properties

         Porter owned a lot to the east of, and adjacent to, Pepper and Clarice Kirkendoll's (collectively "Kirkendoll") property in Lewis County. The land near the property line between the two properties was forested. There was a 60-foot right of way easement located on the western edge of Porter's property, and a road was built on the easement. Porter's property line extended westward past the road about 8 feet at the north end and about 30 feet at the south end. Porter and Kirkendoll used the road to access their respective properties.

         In March 2014, Kirkendoll hired Kyle Peters and G & J Logging, Inc. (collectively "G & J") to remove some trees. G & J hired Boone Sheets and Boone's Mechanical Cutting, Inc. (collectively "Boone") to assist in the tree cutting.

         Kirkendoll told G & J that he owned the property up to the edge of the road and that all of the trees up to the edge of the road were his. Kirkendoll had seen two monuments that marked the corners of Porter's property west of the road before the trees were cut. Peters was with Kirkendoll when Kirkendoll saw the monuments, and Peters saw at least one of the monuments.

         Based on Kirkendoll's representations, G & J instructed Boone on where to cut, and Boone cut and removed the trees up to the edge of the road, including trees on Porter's property. G & J sold the logs and split the proceeds with Kirkendoll.

         After Porter accused Kirkendoll of cutting trees on Porter's property, Kirkendoll had his property surveyed. The survey confirmed that Porter's property line extended into the area where Kirkendoll had instructed G & J to cut trees.

         B. Porter's Suit

         Porter filed suit against Kirkendoll, G & J, and Boone. Porter alleged timber trespass under RCW 64.12.030 and waste under RCW 4.24.630. Specifically, Porter alleged that the defendants "intentionally, recklessly or negligently trespassed upon [Porter's property] and cut trees." Clerk's Papers (CP) at 2. Porter also alleged that cutting his trees damaged his landscape, and removing and selling his trees converted his personal property. Porter sought treble damages and attorney fees.

         C. Kirkendoll's Answer

         Kirkendoll's answer admitted that he "caused timber to be harvested from a right of way easement adjacent to the Plaintiffs [Porter's] holdings" and that he and his "agents only removed timber on property adjacent to [Kirkendoll's] property located on a legally described boundary right-of-way easement." CP at 5-6. Kirkendoll asserted that

[a]s early as 2006 and 2007, when Plaintiffs were already in possession of the property in question and actually performing work on the boundary road at issue in this complaint and answer, Mr. Kirkendoll openly and in full view [of] Plaintiffs and of the then-travelled portion of the right-of-way, began managing the disputed trees for harvest . . . . By not putting the Kirkendolls on notice of their claim of ownership of the trees in question after seeing that significant timber prep work had been done, Plaintiffs waived damages and are estopped in pais from demanding any more than the actual profit obtained by Kirkendoll on such trees.

CP at 6. Kirkendoll also stated that Porter could not allege waste because he alleged timber trespass and that facts warranting treble damages were not pled. Kirkendoll did not assert fault of others as an affirmative defense.

         D. G & J's and Boone's Answers and Cross-Claims

         G & J's answer admitted that Kirkendoll hired it to remove trees from property that Kirkendoll represented was his, that G & J entered Porter's property and removed trees based on Kirkendoll's representation, and that G & J hired Boone to assist in cutting the trees. G & J alleged that it reasonably believed the trees were on Kirkendoll's property.

         G & J asserted cross-claims against Kirkendoll for contribution and indemnity. G & J alleged that Porter sought to hold G & J liable because of Kirkendoll's acts and, if G & J was found liable, such liability was caused by Kirkendoll. Therefore, Kirkendoll should (1) contribute to any damages awarded against G & J, or alternatively, the court should reduce G & J's liability by its proportionate share of fault; and (2) indemnify G & J for any amounts recovered by Porter against G & J.

         Boone's answer admitted that G & J hired it to cut trees on Kirkendoll's property, that Boone followed G & J's instructions on where to cut, that Boone reasonably believed the trees were on Kirkendoll's property, and that Boone only cut trees within the boundaries represented by G & J. Boone also asserted that "[a]ny damages allegedly suffered by Plaintiffs were caused, in whole or in part, by the negligence or improper actions of others." CP at 17. Boone later amended its answer to include a cross-claim against G & J and Kirkendoll for "equitable or implied in fact indemnity." Supplementary . Clerk's Papers (Supp. CP) at 587.

         E. Damages Experts

         Porter hired Patrick See as an expert witness on damages. See used "the trunk formula method[1] to determine the value the destroyed landscape made to the property value of the entire Porter holding." Supp. CP at 378. See stated that Porter would not enjoy the natural landscape that lined his driveway for at least forty years after the trees were replaced and that Porter's land was damaged. The damage could not be measured by stumpage value[2] alone because that value ignored the landscape value lost.

         Kirkendoll hired Michael Jackson as an expert witness. Jackson stated that the trunk formula method was the appropriate appraisal method for trees in residential landscape, recreational, or shade tree situations when the species and size can be determined. But Jackson disagreed with See's damages calculation.

         G & J hired Walter Knapp as an expert witness. Knapp stated that the trees should be valued solely for their stumpage value.

         G & J also hired Victor Musselman to conduct an evaluation. Musselman stated that there was no effect on the marketability of Porter's property due to the cut trees.

         F. Pre-Trial Proceedings

         Kirkendoll sent Jackson's report to Porter before the discovery cutoff date. Kirkendoll later sent Jackson's notes and file to Porter and asked, "If [the notes and file] in any way impacts your experts' ability to testify fully at their depositions tomorrow, please let me know right away so we can attempt to work something out." Supp. CP at 376. Porter did not respond to the email.

         Nine days later, Porter sent a letter to the defendants naming Galen Wright as an additional rebuttal expert.[3] Specifically, Porter said Wright would rebut the manner in which Jackson and Knapp applied the trunk formula and their opinions as to the distinction between landscape damage and damages associated with the appropriation of Porter's logs. This letter was sent days after disclosure of rebuttal witnesses was due.

         Kirkendoll filed a motion in limine to exclude Wright from testifying. Kirkendoll argued that Porter untimely disclosed Wright as an expert, that Wright's testimony was cumulative to that of Porter's other expert, that Kirkendoll would be prejudiced if Wright was allowed to testify, and that Porter provided no compelling reason for the last minute "switch" of experts.

         The superior court granted Kirkendoll's motion and excluded Wright's testimony. The superior court reasoned that Porter untimely disclosed Wright as an expert, that Porter did not respond to Kirkendoll's letter asking whether Jackson's notes and file would impact See's deposition testimony, and that Porter would not be prejudiced because Porter had another expert witness who could testify to the same subject area as Wright.

         G. The Settlement

         A month before the superior court's ruling excluding Wright's rebuttal testimony, Porter and G & J entered into a settlement agreement. G & J agreed to pay Porter $75, 000, assign all of its cross-claims against Kirkendoll to Porter, allow Porter to use G & J's experts, and assist Porter in prosecuting the assigned claims. In exchange, Porter agreed to indemnify G & J against all cross-claims brought against G & J by other parties and to dismiss his claims against G & J.

         A couple of days later, Porter, G & J, and Boone entered into a supplemental settlement agreement. In the supplemental settlement agreement, G & J agreed to pay Porter an additional $40, 000. Boone agreed to pay Porter $10, 000, assign all of its claims against Kirkendoll to Porter, assist Porter in prosecuting the assigned claims, and dismiss its ...

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