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Selbee v. Van Buskirk

Court of Appeals of Ohio, Fourth District, Scioto

February 23, 2018

ANTHONY R. SELBEE, ET AL., Plaintiffs-Appellees,
v.
MARVIN L. VAN BUSKIRK, JR., ET AL., Defendants-Appellants.

          Stanley C. Bender, Law Offices of Stanley C. Bender, Portsmouth, Ohio, for appellants Marvin L. Van Buskirk Jr. and Eleanor Van Buskirk.

          Joseph D. Kirby, Cole, Kirby & Associates, L.L.C., Jackson, Ohio, for appellant Robert Thornsberry Jr.

          George L. Davis, IV, George L. Davis III Co., L.L.C., Portsmouth, Ohio, for appellees.

          DECISION AND JUDGMENT ENTRY NUNC PRO TUNC TO 2/20/18

          William H. Harsha, Judge.

         {¶1} Robert Thornsberry, Jr., agreed to harvest timber from the Van Buskirk property, but he mistakenly cut trees from the property of adjoining landowners the Selbees. Subsequently, the Selbees sued the Van Buskirks and Thornsberry for recklessly trespassing on their property and harvesting their trees. A jury returned verdicts in favor of the Selbees for $128, 190 in compensatory damages. Based on the jury's finding that the defendants acted recklessly, the trial court awarded statutory damages in the amount of $384, 570, after trebling the amount of compensatory damages.

         {¶2} In their first assignments of error the Van Buskirks and Thornsberry assert that the jury award of $128, 190 in compensatory damages is contrary to law and against the manifest weight of the evidence. Thornsberry argues that there was no evidence of diminution in value of the Selbees' property resulting from the trespass and cutting of their trees. We reject this argument because in an action based on temporary injury to noncommercial real estate, a plaintiff need not prove diminution in the market value of the property in order to recover the reasonable costs of restoration.

         {¶3} The Van Buskirks contend that the restoration measure of damages is inapplicable because the Selbees admitted that they had previously agreed to sell some trees, i.e., their property was commercial rather than noncommercial. However, the Van Buskirks forfeited this assertion by failing to raise it below; nor do they argue plain error. We also reject their assertion that the remote de minimis removal of four trees for sale changed the character of the Selbees' property to commercial in nature. And in any event, the distinction between commercial and noncommercial no longer is dispositive.

         {¶4} The Van Buskirks and Thornsberry both assert that the Selbees could not recover the reasonable costs of restoration for the trees because restoration was impractical or impossible. However, there was competent, credible evidence that the Selbees' property could be restored close to its preexisting condition within a reasonable period of time. The Selbees testified that although it was not possible to replace the cut trees with the exact same trees, the replacement value that their experts testified to represented their true cost to replace the cut trees.

         {¶5} Finally, the Van Buskirks and Thornsberry claim that the Selbees were not entitled to the restoration-cost method of damages because it was grossly disproportionate to the property's value. The appellants forfeited any potential error by not timely objecting to the Selbees' expert appraisal. And the parcel upon which the defendants trespassed adjoined another parcel containing the Selbees' home. The evidence established that the Selbees used these parcels as one continuous piece of land. Therefore, the $128, 190 in compensatory damages as restoration costs was not grossly disproportionate to the $82, 580 value of the two contiguous parcels.

         {¶6} We overrule the defendants' first assignments of error.

         {¶7} In their second assignments of error the Van Buskirks and Thornsberry contend that the trial court erred in admitting the testimony of the Selbees' expert witnesses on the issue of damages. They contend the trial court erred in finding the witnesses were experts and that their testimony met the threshold test of scientific reliability.

         {¶8} We reject the defendants' contention because the defendants forfeited all but plain error by failing to object to the qualifications and testimony of the experts during the trial. However, the defendants do not argue plain error on appeal. Likewise, they cannot establish plain error because the defendants did not object to the admission of the experts' appraisal report, which contained the evidence that the arborists were properly qualified as experts. We overrule the defendants' second assignments of error.

         {¶9} In their third assignments of error the Van Buskirks and Thornsberry contend that the jury's finding that they acted recklessly was against the manifest weight of the evidence. Thornsberry, a third-generation, certified master logger who had never been previously sued for cutting timber from the wrong property, testified that the Van Buskirks' and the Selbees' properties were indistinguishable, which made it more difficult to locate the boundary. Nevertheless, he located a corner stone, with a post, where two fences came together, which provided the usual sign that this was the property line. Although Thornsberry did not contact the Selbees and did not obtain a survey or tax map, he believed he had located the marker for the boundary and flagged it with orange markers. However, he was ultimately mistaken. At best, the evidence establishes negligence on the defendants' part, not a "perverse disregard" of a "known risk." We sustain their third assignment of error and reverse the judgment insofar as it includes a treble-damage award based on the jury's finding of recklessness. We affirm the award of compensatory damages.

         I. FACTS

         {¶10} Anthony and Cheryl Selbee filed a complaint for damages against Marvin and Eleanor Van Buskirk and several unnamed parties for trespassing and cutting timber on the Selbees' property. The Van Buskirks answered and filed a third-party complaint against Robert Thornsberry Jr., alleging that they had entered into a contract with Thornsberry for cutting timber on their property, but that Thornsberry may have harvested timber on the Selbees' property. The Van Buskirks claimed that Thornsberry acted as an independent contractor rather than as their agent and that he had agreed to indemnify them for any boundary line disputes or property damages he caused. Thornsberry answered the Van Buskirks' third-party complaint by claiming that he was not required to indemnify them.

         {¶11} Subsequently, the Selbees filed an amended complaint naming only the Van Buskirks and Thornsberry for their trespass and unlawful harvest of trees. The defendants answered, and the case proceeded to a jury trial, where the Van Buskirks dismissed their third-party complaint against Thornsberry; the defendants then submitted a joint defense against the Selbees' claims.

         {¶12} According to the evidence, for over 35 years Anthony Selbee and his wife, Cheryl, have owned two adjacent tracts of land in Scioto County, one that includes their home, pool, barn, and gazebo on 1.3 acres, and a 9.344 acre tract in back of the home. The 1.3-acre lot was valued at $73, 240, and the 9.344-acre lot was valued at $9, 340. The Selbees treat the two tracts as one continuous piece of property, i.e., although they are technically located on two adjacent tracts, they use them as a single property.

         {¶13} Before the incident the Selbees used the 9.344-acre tract, which was covered with many trees, for primarily noncommercial aesthetic purposes, i.e., the beautification of their property through the different seasons, a sound barrier from a road and train track that were near their property, and recreational pursuits like wildlife watching, tree climbing, sled riding, camping, and hunting. Mr. Selbee did sell four trees from the larger tract many years prior to this incident.

         {¶14} Marvin Van Buskirk and his wife, Eleanor, have lived on property adjoining the Selbees' property for over 30 years. Mr. Van Buskirk entered into an agreement with Robert Thornsberry, Jr., to cut timber from several parcels of their property in exchange for a part of the proceeds Thornsberry received from selling logs and pulp wood. In accordance with their agreement, Thornsberry began timbering in July or August 2012 into September 2012.

         {¶15} Mr. Van Buskirk went to New Mexico to bury his father and was there from early July until mid-September 2012. According to his testimony, as Thornsberry got closer to cutting trees near the Selbees' property, Mr. Van Buskirk instructed Thornsberry by telephone to talk to Mr. Selbee about the boundary between their properties if he could not find the boundary pins. Mr. Van Buskirk admitted that he did not hire a surveyor or anyone else to confirm the boundary line between the parties' properties.

         {¶16} Thornsberry is a certified, third-generation master logger who had never been previously sued for cutting timber from the wrong property. According to Thornsberry, the Van Buskirks' and the Selbees' properties appeared like they were part of the same tract of woods from the ground. For instance, there was no line fence between the two landowners. Likewise, both parcels had been logged before, resulting in the trees on both tracts being similar in their appearance. Therefore it was difficult to determine that they were different properties. He located a corner stone with a post, where two fences came together, which provided him with telltale signs that they represented the property line, but he was ultimately mistaken. Because of his reliance on the stone, post, and fences as markers of the boundary line, Thornsberry did not obtain a survey or tax map for the property before he removed trees because he felt "he had no need for one." And although he asked another adjacent landowner for the location of the boundary between that owner's property and the Van Buskirks' property, he did not ask the Selbees for the location of their boundary line.

         {¶17} Thornsberry ended up trespassing on the Selbees' property and cutting down 187 trees from about half of the Selbees' 9.344-acre tract. Thornsberry used the proceeds from his sales of logs and pulp to pay the Van Buskirks $2, 570.78.

         {¶18} When Mr. Van Buskirk returned from New Mexico in mid-September 2012, he looked at the area that Thornsberry had cut and realized that Thornsberry trespassed on the Selbees' property. Both Van Buskirk and Thornsberry immediately agreed they should notify the Selbees. Thornsberry met Mrs. Selbee at the school where she worked to advise her of the situation. Thornsberry admitted that he had mistakenly cut down trees from their property, and initially told her that he felt the trees he cut were worth $200, but offered her $500 to pay for the damages. Mrs. Selbee relayed the message to her husband who became upset and refused the offer after he looked at their property. Apparently the Selbees were unaware of the trespass until Thornsberry pointed it out. Thornsberry later realized he had cut more than he initially supposed and agreed the trees were worth somewhere around $6, 000 at trial.

         {¶19} Mr. Selbee contacted the Ohio Department of Natural Resources, which referred him to a forester named James Chattin to value their damages. Chattin examined the timber Thornsberry cut on the Selbees' property, located 350 stumps, and calculated a market value for the timber cut of $6, 089.

         {¶20} The Selbees believed that Chattin's valuation was too low, particularly because they did not want the trees to be cut, and instead enjoyed their aesthetic value, which was diminished by the defendants' conduct. They contacted certified, registered consulting arborists William Hanks and Jonathan Butcher, who identified 187 trees that the defendants had removed from the Selbees' property. The arborists used the "trunk formula method, " which had been prepared by the Council of Tree and Landscape Appraisers, and approved and adopted by various arborist organizations, to appraise the restoration cost of the trees as $128, 190. The defendants affirmatively stated that they did not object to the admission into evidence of Hanks's and Butcher's appraisal report, which included their valuation of restoration costs.

         {¶21} The jury awarded the Selbees compensatory damages against the defendants in the amount of $128, 190, and found that the defendants acted recklessly. Based on that finding the trial court entered judgment in favor of the Selbees and against the Van Buskirks and Thornsberry jointly and severally in the amount of $384, 570, after trebling the $128, 190 compensatory-damage figure under R.C. 901.51.

         II. ASSIGNMENTS OF ERROR

         {¶22} We consolidated the Van Buskirks' and Thornsberry's appeals for purposes of briefing, oral argument, and decision.

         {¶23} The Van Buskirks assign the following errors for our review:

I. THE JURY'S AWARD OF COMPENSATORY DAMAGES IS CONTRARY TO LAW AND AGAINST THE MANIFEST ...

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