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
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.
Logging The Properties
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.
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.
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
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
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.
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.
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
[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
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.
& J's and Boone's Answers and Cross-Claims
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
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.
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.
hired Patrick See as an expert witness on damages. See used
"the trunk formula method 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 alone because that value ignored the
landscape value lost.
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
J hired Walter Knapp as an expert witness. Knapp stated that
the trees should be valued solely for their stumpage value.
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.
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.
days later, Porter sent a letter to the defendants naming
Galen Wright as an additional rebuttal expert. 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
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.
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.
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.
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