RALPH G HAJJ V ANDREA ROAT
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STATE OF MICHIGAN
COURT OF APPEALS
RALPH G. HAJJ,
UNPUBLISHED
April 16, 2002
Plaintiff/Counter DefendantAppellee,
v
No. 229838
Oakland Circuit Court
LC No. 99-017747-CH
ANDREA ROAT and DAVID ROAT,
Defendants/Counter PlaintiffsAppellants.
Before: K.F. Kelly, P.J. and Doctoroff and Cavanagh, JJ.
PER CURIAM.
Defendants appeal by right from a judgment awarding them actual, rather than treble,
damages on their complaint for damages under MCL 600.2919(1)(a). We reverse and remand.
This appeal is being decided without oral argument pursuant to MCR 7.214(E).
The trial court granted defendants’ motion for summary disposition on their
counterclaim, ruling that plaintiff had removed shrubs from defendants property, that the
removal was not casual and involuntary, and that plaintiff did not have probable cause to believe
that the shrubs were on his land. It therefore found that defendants were entitled to treble
damages under the statute and set a hearing to determine actual damages. Following the hearing,
the court refused to award treble damages.
Defendants contend that they were entitled to treble damages and the court erred in
concluding otherwise, especially given its prior ruling awarding treble damages. Plaintiff
contends that the court erred in granting defendants’ motion for summary disposition and
properly declined to award treble damages. Generally, the failure to file a cross appeal precludes
the appellee from raising an issue not raised by appellant. Kosmyna v Botsford Community
Hosp, 238 Mich App 694, 696; 607 NW2d 134 (1999), lv gtd 463 Mich 906 (2000). While a
cross appeal is necessary to obtain a decision more favorable than that rendered by the lower
tribunal, it is not necessary to urge an alternative ground for affirmance, even if the trial court
considered and rejected that alternative ground. In re Herbach Estate, 230 Mich App 276,
284;583 NW2d 541 (1998). Because plaintiff did not file a cross appeal, this Court cannot
consider whether defendants were entitled to judgment on their trespass claim but can consider
whether the trial court properly declined to award treble damages.
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Pursuant to statute, a person who cuts down or carries off any wood, underwood, trees, or
timber or despoils or injures the trees on another’s land without the owner’s permission is liable
to the owner for treble damages. “If upon trial of an action under this provision or any other
action for trespass on lands it appears that the trespass was casual and involuntary, or that the
defendant had probable cause to believe that the land on which the trespass was committed was
his own, . . . judgment shall be given for the amount of single damages only.” MCL
600.2919(1)(a).
Under this statute, a plaintiff need not show that a defendant acted with malice or an
intent to do injury. Iacobelli Constr Co, Inc v Western Cas & Sur Co, 130 Mich App 255, 263;
343 NW2d 517 (1983). However, the trespass must be more than negligent for treble damages to
be awarded. Id. at 261. Treble damages are only warranted where there is proof of active
misconduct, Stevens v Creek, 121 Mich App 503, 509; 328 NW2d 672 (1982), or a knowing and
intentional trespass. Governale v Owosso, 59 Mich App 756, 759; 229 NW2d 918 (1975). Thus
the defendant’s good faith and honest belief that he possessed the legal authority to commit the
complained-of act will preclude liability for treble damages. Id. The burden of proof is on the
plaintiff to show that the cutting was done without his permission. The burden of proof is on the
defendant to prove that the trespass was casual and involuntary rather than wilful. Stevens,
supra.
Defendants cited to various documents in support of their motion but did not append
them to the brief. From the documents actually submitted to the trial court, it is clear that
plaintiff plainly admitted that he directed his son to cut down the shrubs. Therefore, reasonable
minds could not differ in concluding that the trespass was not casual and involuntary and the trial
court did not err in so finding. The question thus remains whether plaintiff had probable cause to
believe that the shrubs were on his land. Given that both parties claimed they were told by the
same person that the shrubs were on their own property and relied on surveys purportedly
showing that the shrubs were within their own lot lines, and that neither party submitted the
surveys on which they relied to prove that the shrubs were clearly on their own property, the trial
court erred in finding that there was no genuine issue of fact whether plaintiff had probable cause
to believe that the shrubs were on his land.
Reversed and remanded for a determination on defendants’ claim for treble damages. We
do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Martin M. Doctoroff
/s/ Mark J. Cavanagh
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