State v. Singer

State v. Singer  (2004-371); 180 Vt. 104; 904 A.2d 1184

2006 VT 46

[Filed 30-Jun-2006]


  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
  order that corrections may be made before this opinion goes to press.


                                 2006 VT 46

                                No. 2004-371


  State of Vermont                          Supreme Court

                                            On Appeal from 
       v.                                   Washington Superior Court


  Barrett M. Singer                         October Term, 2005


  Matthew I. Katz, J.

  William H. Sorrell, Attorney General, and Michael O. Duane, Assistant
  Attorney General, Montpelier, for Plaintiff-Appellee/Cross-Appellant.

  Robert F. O'Neill and Andrew R. Strauss of Gravel and Shea, Burlington, for 
  Defendant-Appellant/Cross-Appellee.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶ 1.     SKOGLUND, J.   This case concerns the calculation of a damage
  award flowing from a jury verdict finding defendant liable for the
  unauthorized cutting of trees under Vermont's timber trespass statute, 13
  V.S.A. § 3606.  On appeal, defendant challenges the jury's award of
  punitive damages, and the State cross-appeals to challenge the court's jury
  instructions on how to calculate damages under § 3606.  We reject the trial
  court's method of calculating damages under § 3606 and, as a result, hold
  that the State should have received treble damages under that statute. We
  also hold that punitive damages are unavailable in tandem with multiple
  damages under § 3606.  Accordingly, we remand for entry of judgment in the
  State's favor.  
   
       ¶ 2.     Defendant owns a parcel of land in Hyde Park, Vermont,
  abutting the Green River Reservoir State Park, which is owned by the State. 
  In April and May 1999, defendant sought a variance from the Town of Hyde
  Park so that he could build a boathouse closer to the reservoir.  In May
  1999, the State's Department of Forests, Parks and Recreation denied
  defendant permission to construct an access from his property across state
  park land to the water, and the Town denied his request for a variance.

       ¶ 3.     After both denials, defendant completed extensive work on his
  property that spilled over onto state park land.  Specifically, he cut down
  ninety-eight trees on a swath of state park land between his property and
  the reservoir and bulldozed a road to the water across the cleared land. 
  On June 21, 1999, the State commenced an action seeking injunctive relief,
  damages, punitive damages, and other penalties.  On June 23, 1999, pursuant
  to the parties' stipulation, the Washington Superior Court entered an order
  requiring defendant to immediately cease all construction, install
  immediate erosion control measures, hire a consultant to develop a plan to
  remediate the damage to the state park land, and implement the remediation
  plan.  Defendant carried out the remediation plan, although the State twice
  had to move for contempt, with the court issuing amended orders of
  injunctive relief in response.(FN1)
   
       ¶ 4.     In May 2001, this matter went to trial before a jury on the
  issue of damages.  The State sought treble damages under Vermont's timber
  trespass statute, which provides that when a person cuts down, destroys, or
  removes trees or timber without the owner's permission, "the party injured
  may recover of such person treble damages in an action on this statute." 
  13 V.S.A. § 3606.  If the defendant proves that he "acted through mistake,
  or had good reason to believe that the trees, timber, wood, or underwood
  belonged to him, or that he had a legal right to perform the acts
  complained of," then the injured party can recover only single damages. 
  Id.
   
       ¶ 5.     The jury returned its verdict via a special verdict form
  supplied by the trial court.(FN2)  The jury answered that the "actual value
  of trees lost by the State" and the "value of replacement trees planted by
  [defendant]" both equaled $54,000 and found that the cutting of the trees
  was not an "honest mistake."  In formulating the damage award, the jury was
  instructed to calculate its answer as follows: "If the answer to Question 2
  is 'no,' then your answer to Question 4 will be three times (Response
  Number 1 minus Response Number 3).  Put differently, first do the
  subtraction, if any, then the multiplication, if any."  The jury filled in
  a figure of $0, because 54,000 subtracted from 54,000 is zero, and zero
  multiplied by three is zero.  Finally, Question 5 asked the jury to decide
  punitive damages, noting that "[w]hether to make a punitive award, and its
  amount, is a matter for the jury's discretion."  The jury filled in $62,500
  as the punitive damages award.

       ¶ 6.     Defendant argues on appeal that: the jury could not award
  punitive damages once it decided that the State's actual damages were $0;
  the statutory trebling of damages is a punitive measure which, if utilized,
  precludes an accompanying award of punitive damages; and injunctive relief
  cannot support a punitive damages award.  The State responds that punitive
  damages may be awarded regardless of whether it won a net verdict, as long
  as the jury concluded that defendant was liable to the State for some
  quantum of harm.  Thus, the State reasons, the $54,000 value the jury
  placed on the cut trees was sufficient to support punitive damages, even
  assuming defendant was entitled to a $54,000 offset for the remediation
  work.  The State argues in its brief that punitive damages are available
  along with treble damages, but at oral argument its counsel indicated that,
  if faced with the choice of accepting treble damages less the value of the
  planted trees or a retrial on the issue of punitive damages, the State
  would forego the punitive damages.
   
       ¶ 7.     In its cross-appeal, the State argues that the trial court
  should have instructed the jury to treble the value of the trees cut before
  deducting the value of the replacement trees.  The State pointed to
  decisions from other jurisdictions interpreting timber trespass statutes
  that uniformly apply the statutory multiplier to the plaintiffs' damages
  before deducting the value of any remedial work or other mitigation by the
  defendants.  The State also cited cases addressing RICO and the Clayton Act
  for the proposition that any offset should be subtracted after applying the
  statutory multiplier.  The State contends that such a rule serves the
  purposes behind cumulative damages statutes like 13 V.S.A. §
  3606-compensating injured parties for their loss, plus the time and
  inconvenience devoted to remedying it, and encouraging compliance with the
  law.  Thus, the State concludes, the trial court undermined the statute by
  essentially trebling the value of defendant's reparation efforts, instead
  of trebling the value of the damage he caused.

       ¶ 8.     In section I, we hold that the court incorrectly instructed
  the jury to subtract the value of the replacement trees from the value of
  the cut trees and then treble the result.  We agree with the majority of
  other jurisdictions dealing with similar timber trespass statutes, as well
  as the weight of authority concerning other multiple-damages statutes like
  RICO and the Clayton Act, and hold that the court should have instructed
  the jury to treble the value of the cut trees before subtracting the value
  of the replacement trees.  In section II, we hold that the State cannot
  recover punitive damages along with treble damages under the timber
  trespass statute, again joining the majority of courts that have addressed
  the availability of punitive damages in addition to multiple damages under
  similar timber trespass statutes.

                                     I.
   
       ¶ 9.     The State's challenge to the trial court's method of
  computing damages under 13 V.S.A. § 3606, as reflected in the instructions
  accompanying Question 4 of the verdict form, presents an issue of first
  impression: Does the statutory multiplier apply before or after the value
  of defendant's remediation work is subtracted from the value of the trees
  cut?  This is a question of law which we review de novo.  See United States
  v. Firchau, 380 P.2d 800, 805 (Or. 1963) (characterizing question of
  whether to deduct mitigation before or after applying multiplier in
  Oregon's timber trespass statute as one of law); Tydrich v. Bomkamp, 558 N.W.2d 692, 694 (Wis. Ct. App. 1996) (reviewing de novo trial court's
  computation of damages under Wisconsin's timber trespass statute).  A party
  challenging a jury instruction on appeal must show that the instruction was
  erroneous and prejudicial.  Greene v. Bell, 171 Vt. 280, 286, 762 A.2d 865,
  871 (2000).  As explained below, the purposes of § 3606 are best served by
  applying the multiplier before deducting the value of any remediation
  undertaken after the illegal cutting.  Thus, the trial court's instruction
  was error and prejudiced the State by improperly reducing its recovery
  under § 3606.

       ¶ 10.     In deciding how to apply the statute's multiple-damages
  provision, "our principal objective is to implement [the] legislative
  intent" behind the statute.  In re Hinsdale Farm, 2004 VT 72, ¶ 5, 177 Vt.
  115, 858 A.2d 249.  Because the statute is silent concerning the
  computation of damages, "we must consider the entire statute, including its
  subject matter, effects and consequences."  Id.  This Court has long
  recognized that compensation of the wronged party is a primary purpose of
  Vermont's timber trespass statute and that the right to recover multiple
  damages serves that purpose.  Guild v. Prentis, 83 Vt. 212, 217, 74 A. 1115, 1118 (1910).  The treble-damages provision signals the Legislature's
  recognition that, in the context of a claim for unlawful cutting of trees,
  full compensation may require more than repayment for the value of the
  trees cut.  For example, a landowner's damages may include, beyond the cut
  trees themselves, costs associated with erosion, pollution, and "numerous
  other injuries to the land."  Ventoza v. Anderson, 545 P.2d 1219, 1228
  (Wash. Ct. App. 1976).  Additionally, as this Court has recognized, the
  comfort and aesthetic value provided by "trees that have no direct
  commercial value" can also serve as a legitimate element of damages in
  cases involving the destruction of trees.  O'Brien v. Dewey, 120 Vt. 340,
  349-50, 143 A.2d 130, 135 (1958). 
   
       ¶ 11.     The treble-damages provision also serves as a deterrent,
  placing "tree cutters on notice that they cut beyond their boundaries at
  their peril."  Firchau, 380 P.2d  at 805; accord King v. Grecco, 111 S.W.3d 877, 881 & n.2 (Ky. Ct. App. 2003) (characterizing " 'tree pirates' " and
  "arboreal rustlers" as "a scourge condemned from the bayou to the last
  frontier" (quoting Jordan v. Stevens Forestry Svcs., Inc., 430 So. 2d 806,
  809 (La. Ct. App. 1983)).  This punitive aspect of the timber trespass
  statute serves to deter intentional trespass and the wrongful taking of
  another's timber.  Ventoza, 545 P.2d  at 1227.  Thus, our decision
  concerning the correct application of the statutory multiplier must serve §
  3606's purposes of providing full compensation for landowners whose trees
  are taken or destroyed by another and discouraging the unauthorized cutting
  or damaging of trees. 

       ¶ 12.     Like the other courts that have addressed this issue under
  similar statutes, we hold that the aims of § 3606 are best served by
  applying the statutory multiplier before deducting the value of any
  mitigation or remediation by defendant or any recovery by plaintiff.  See
  United States v. Hult, 319 F.2d 47, 48 (9th Cir. 1963) (holding that the
  possibility that plaintiff could have salvaged enough of the cut timber to
  offset the stumpage value of the cut timber could be considered as
  potential mitigation only after plaintiff's damages had been doubled);
  Perry-Griffin Found. v. Proctor, 421 S.E.2d 186, 189 (N.C. Ct. App. 1992)
  (doubling value of cut timber under North Carolina timber trespass statute
  before subtracting agreed-upon credit for monies recovered by plaintiff);
  Firchau, 380 P.2d  at 805 (applying statutory multiplier before making
  allowance for "such sums in mitigation as may be appropriate in a given
  case"); Tydrich, 558 N.W.2d  at 696 (affirming trial court's computation of
  damages by which it doubled value of cut trees under Wisconsin statute
  before applying offset for plaintiff's net proceeds from sale of cut
  timber).  As illustrated in Firchau, if we adopted the trial court's
  method, a defendant could defeat the statute's purposes by leaving enough
  cut trees behind so that the landowner could sell them for a sum equal to
  the value of the trees cut.  380 P.2d  at 805.  Put another way, if we
  permitted the deduction of mitigation or remediation prior to trebling the
  value of the cut trees, a defendant could simply write "the victim of the
  trespass a check for the value of the timber removed . . . [plus] other
  incidental losses, and thereby wash out his liability altogether."  Id.  We
  will not interpret § 3606 so that "the owner who suffered the involuntary
  harvest of his timber would have to bear it in silence."  Id. 
   
       ¶ 13.     Ultimately, § 3606 recognizes that when a defendant cuts
  down another's trees without authorization, he deprives the trees' owner of
  not only the right to use and enjoy those particular trees as the owner
  sees fit, but also the monetary value of the cut trees.  Thus, defendant's
  contention to the contrary notwithstanding, this case does implicate a
  landowner's right to use his land, and the trees growing there, as he sees
  fit.  Accepting the trial court's method of computing damages under § 3606,
  however, would "force compensation upon [an owner] when undamaged, growing
  trees were what he would have possessed but for the willful intrusion of
  the trespasser."  Ventoza, 545 P.2d  at 1227.  Such an interpretation would
  fail to promote § 3606's goal of protecting the owner's right to use or
  preserve his trees as he desires.
   
       ¶ 14.     Finally, the fact that § 3606 provides for treble damages
  regardless of whether a person cuts down and carries away the trees of
  another or simply cuts them down and leaves them further supports our
  conclusion.  The statute applies the same remedy under either scenario,
  even though "[t]he net result to the landowner may be substantially
  different" depending on which course the wrongdoer takes.  Ventoza, 545 P.2d  at 1228.  Under the trial court's and defendant's reading of § 3606,
  however, recovery would depend on the defendant's decision to remove the
  cut trees or not-if the defendant left some trees, the plaintiff would be
  permitted to treble the value of only the cut trees in excess of whatever
  value could be realized by salvaging the timber left behind.  If the
  salvage value happened to equal or exceed the value determined by the trier
  of fact for the cut trees, the plaintiff's recovery under § 3606 would be
  zero.  The Legislature could not have intended a plaintiff's recovery under
  § 3606 to depend on a defendant's decision to remove or leave behind
  unlawfully cut trees, and such a result would fly in the face of the
  statute's dual purposes-compensation and deterrence.  Accordingly, we
  reject the trial court's method of computing damages under § 3606 and hold
  that, when the statute's trebling provision applies, a plaintiff's total
  damages are computed by determining the value of the trees cut, trebling
  that figure, and then making any appropriate allowances for remediation or
  mitigation.(FN3)  Therefore, the State is entitled to statutory damages of
  $108,000-the value of the cut trees ($54,000) multiplied by three, less the
  value of the replacement trees ($54,000).

                                     II.

       ¶ 15.     The State cannot, however, recover both multiple damages
  under § 3606 and punitive damages for the destruction of the trees.(FN4) 
  As explained above, § 3606's treble-damages provision serves, in part, to
  deter tree piracy by punishing one who unlawfully cut another's trees.
  Given this punitive component of § 3606, awarding the State both treble
  damages and punitive damages here would amount to an improper double
  recovery, because the State would then recover twice for the same
  injury-the wrongful cutting of its trees.  See Will v. Mill Condo. Owners'
  Ass'n, 2006 VT 36, ¶ 7, 17 Vt. L. Wk. 107 (noting that generally a
  plaintiff cannot recover twice for the same injury).
   
       ¶ 16.     Further, courts in other jurisdictions that have considered
  the propriety of punitive damages in addition to multiple-damage awards
  under timber trespass statutes have consistently reached the same
  conclusion.  For example, in Baker v. Ramirez, the court held that, under
  California's timber trespass statute, allowing both punitive and statutory
  multiple damages "would amount to punishing the defendant twice" and would
  not advance the statute's policy of "educating blunderers (persons who
  mistake location of boundary lines) and discouraging rogues (persons who
  ignore boundary lines)."  235 Cal. Rptr. 857, 866 (Ct. App. 1987); see also
  Stoner v. Houston, 582 S.W.2d 28, 30-31 (Ark. 1979) (reversing where
  plaintiffs recovered both treble damages under Arkansas timber trespass
  statute and punitive damages in connection with trespass); Marsella v.
  Shaffer, 754 N.E.2d 411, 419 (Ill. App. Ct. 2001) ("[T]he recovery of both
  punitive and treble damages under the [Illinois Wrongful Tree Cutting] Act
  would amount to an impermissible double recovery . . . because both awards
  were based on the same injury."); Johnson v. Tyler, 277 N.W.2d 617, 618-19
  (Iowa 1979) (affirming grant of new trial because plaintiff improperly
  recovered both treble damages under Iowa timber trespass statute and
  punitive damages); King, 111 S.W.3d  at 882 (holding that punitive damages
  may not be awarded along with treble damages under timber trespass
  statute); Johnson v. Jensen, 446 N.W.2d 664, 666 (Minn. 1989) (holding that
  plaintiffs could not recover both treble damages under timber trespass
  statute and punitive damages).   Accordingly, we reverse and remand for
  entry of judgment in the State's favor in the amount of $108,000-the value
  of the cut trees multiplied by three, less the value of the replacement
  trees, and excluding the jury's award of punitive damages.

       Reversed and remanded for further proceedings consistent with this
  decision.

  FOR THE COURT:


  _______________________________________
  Associate Justice

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                                  Footnotes



FN1.  In 2000, the State brought criminal charges against defendant.  He
  pled no contest to reduced charges and was convicted of a misdemeanor.

FN2.  The special verdict form, as completed by the jury, contained the
  following questions, answers, and instructions:

  1.  The actual value of trees lost by the State, on its lands, as a
      result of their being cut down by Mr. Singer is
           $              54,000.

  2.  Has defendant persuaded you that his cutting down of State trees
      was an "honest mistake?"
           Yes ___	No X 

  3.  The value of the replacement trees planted by Mr. Singer is
           $              54,000.

  4.  The awarded damages to the State are
           $               0.

       (The answer to Question 4 is your response to Number 1, minus
       your response to Number 3, if the answer to Question 2 is
       "yes."  If the answer to Question 2 is "no," then your answer
       to Question 4 will be three times (Response Number 1 minus
       Response Number 3).  Put differently, first do the
       subtraction, if any, then the multiplication, if any.)
       
  5.  For punitive damages, the jury awards to the State the sum of
           $               62,500.

       (Whether to make a punitive award, and its amount, is a
       matter for the jury's discretion.)
       
FN3.  In light of our holding on this issue, we need not engage
  defendant's arguments concerning the definition of "actual damages" and the
  propriety of awarding punitive damages to a party to whom the jury has not
  awarded net money damages.  See McCormick v. McCormick, 159 Vt. 472, 479,
  621 A.2d 238, 241 (1993) ("Punitive or exemplary damages presuppose the
  existence of actual damages.").


FN4.  The State argues that defendant waived his ability to challenge
  the punitive damages by failing to timely object to the relevant jury
  instructions or the verdict form.  The question of the availability of
  punitive damages in addition to a treble damage award under § 3606,
  however, flows naturally from the analysis above.  Thus, regardless of the
  outcome of the State's waiver argument, we can and do decide the punitive
  damages issue.

FN5.  We note that one court has allowed punitive damages to stand
  alongside treble damages awarded under a timber trespass statute similar to
  § 3606.  Bullman v. D & R Lumber Co., 464 S.E.2d 771, 777 (W. Va. 1995). 
  That decision rested on the court's conclusion that the treble damage award
  authorized by the statute "has nothing to do with punishing the wrongdoer." 
  Id.  We decline to adopt that view with respect to § 3606.