COULDA, SHOULDA, WOULDA
Trials are much more of an art than a science. Trial attorneys walk a fine line between not putting enough evidence on to support their case and dumping so much data into the record that the factfinder cannot dig its way out of the pit of minutiae to reach the right conclusion. I once had an old law professor who cautioned us not to tell him more about the elephant than he ever wanted to know. It’s sort of like that.
Still, the sense that you should never leave any fish in the pond when you’re done angling is not the worst instinct to act upon.
Take the Wolfenbargers, people who probably should have read their property deed a little more carefully when they bought their property next to the Woods’ place. If they had, they probably would not have mistakenly thought they owned the common driveway and thus could cut down the six Eastern Red Cedars that flanked the gravel strip. It’s a bad idea to cut down the neighbors’ trees, even when you think they’re yours. It’s a worse idea to try to defend a tree case against plaintiffs whose surname is “Wood.”
But it’s a worse idea still for your lawyer to figure he or she can rely on rapier-like cross-examination of the plaintiffs’ experts to make your valuation case. The Wolfenbargers’ mouthpiece may have saved them a few bucks on an expert, but “pennywise and pound foolish,” as they say. The old aphorism is “hope is not a strategy.” Neither is complaining to the court that the plaintiffs did not make the kind of damages showing you think they should have. You want a damages showing you can argue to the judge or jury? If so, you had better put the evidence on yourself.
The Wolfenbargers coulda, shoulda, woulda put some diminution of value evidence on, expert testimony that showed the Woods’ place did not lose a third of its value because six lousy trees were cut down. But they didn’t…
Wood v. Wolfenbarger, Case No. E2011-01953-COA-R3-CV (Ct.App. Tenn. Aug. 15, 2012), 2012 Tenn. App. LEXIS 563, 2012 WL 3329525. The Woods owned property next to that of the Wolfenbargers. The two parcels share a gravel road, which the Wolfenbargers mistakenly believed they owned. They did not.
In spring 2009, the Wolfenbargers cut down trees on both sides of the road. The trees, Eastern Red Cedars, belonged to the Woods, and were healthy mature trees when they were cut down. The Woods sued.
The only issue to be decided at trial was the amount of damages. The Woods offered testimony of Jim Cortese, a certified master arborist. He testified that there were varying approaches to figuring the value of the trees. First is the cost approach. One subset of the cost approach is repair cost, which measures the cost to repair broken branches and other less-than-fatal damage to the tree. There is also replacement cost, a method used when the trees are a total loss, but are of the size that can be replaced with the same species of roughly the same size and quality.
Then there is the “trunk formula method.” Jim testified that the trunk formula method is to be used when the is tree is too large to be replaced. The value calculated in that method is the cost of replacing the tree with the largest locally available plant, and then adjusting for the size difference, species classification, condition classification, and location classification of the appraised tree.
Jim also described a timber value method, to be used for trees grown as commercial lumber, employed to determine value for a stand of timber in a woodland setting where the trees are of sufficient size and character to be harvested. Here, Jim said, the timber value was not the appropriate method for determining the value of the Woods’ trees. He explained: “It was my opinion that there were not enough trees to justify a timber sale. It was – the trees were not really – they just wouldn’t be suitable for a timber sale.” He also explained that “a timber sale is always between a willing buyer and a willing seller. It is not a forced upon somebody valuation that they have to accept what the value of the trees are.”
Jim calculated that if the timber value of the trees was considered, it would be just $840.00. However, he opined that the timber value should not be used here, because this was no commercial timber stand. Instead, Jim testified that the replacement cost method should be used to value the six trees cut in this case. testified that he has successfully transplanted trees as large as the ones at issue in this case. He figured the replacement cost for the trees at $161,300.
He also used the trunk formula method to value the damages. He testified in detail about this method, and valued the first tree at $14,700; the second at $5,400; the third at $19,000; the fourth at $10,600; the fifth at $5,800; and the sixth at $6,600, for total damages of $62,100.
The trial court said that because the Woods had not offered any evidence of the value of their land or how the aesthetics of the property had been damaged, it would not entertain any damages other than the timber value of the cut trees, citing Tenn. Code Ann. § 43-28-312. Because the cutting was negligent, the trial court said, the statute authorized doubling the damages. The trial judge awarded the Woods $1,680.00.
The Woods appealed.
Held: The statute did not limit the Woods to the mere value of the wood. Instead, they were entitled to damages calculated by the trunk formula method, raising their take to $62,100.
The Wolfenbargers argued that because no evidence of diminution of value was presented, the timber value was the only appropriate measure of damages under Tenn. Code Ann. § 43-28-312. The Woods responded that they had presented three estimates of damages, and if the Wolfenbargers wanted the trial court to apply a different measure of damages than the Woods’ showing, they should have put on their own evidence. The Court of Appeals agreed. “Plaintiffs presented no evidence with regard to diminution of value. Neither, however, did Defendants. Neither the Trial Court nor this Court may award damages based upon a measure of damages when there is no evidence in the record regarding that measure of damages.”
The Court said, however, that the statute “clearly and unambiguously provided that ‘nothing in this section precludes an owner of property on which timber has been cut by another from recovering damages for loss of value other than commercial timber value, if any, of the timber negligently or intentionally cut’.” Thus, the Woods were free to produce evidence of the measure of damages other than the timber value, which is what they did.
The Court of Appeals found that using timber value was inappropriate, observing that Jim Cortese specifically testified that timber value should not be used. No evidence the record rebutted this testimony, the Court said, and the trial judge found Jim to be a credible witness. On the other hand, the Court of Appeals rejected the Woods’ contention that replacement cost should be used, noting that the Woods had bought their place in 2006 for $185,000. It was “unreasonable to argue that the proper measure of damages for the wrongful cutting of these six trees is the replacement value of $161,300,” the Court said, which was “an amount almost equal to the price… paid for the entire 38 acres only a couple of years earlier.”
However, the Court ruled, the Woods’ trunk formula evidence did make sense. The evidence showed that the six lost trees were too large to be replaced for a reasonable cost. Jim’s trunk formula method provided a value for each tree, evidence which the Wolfenbargers did not challenge. “Given all this,” the Court said, “we find and hold that Plaintiffs proved that the trunk formula method was the appropriate method of valuing the damages in this case. We note that Tenn. Code Ann. § 43-28-312 provides for doubling or tripling, when appropriate, only of the current market value of the timber. As Plaintiffs are not awarded the current market value of the timber, they are not entitled to an award of double the amount of their damages. We modify the Trial Court’s judgment to award damages to Plaintiffs in the amount of $62,100…”
– Tom Root