Berliner v. Clukay

834 A.2d 297, 150 N.H. 80, 2003 N.H. LEXIS 140
CourtSupreme Court of New Hampshire
DecidedSeptember 30, 2003
DocketNo. 2002-481
StatusPublished
Cited by14 cases

This text of 834 A.2d 297 (Berliner v. Clukay) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berliner v. Clukay, 834 A.2d 297, 150 N.H. 80, 2003 N.H. LEXIS 140 (N.H. 2003).

Opinion

Broderick, J.

The defendant, Craig Clukay d/b/a Treeline Timber, appeals from a jury verdict in Superior Court {Burling, J.) awarding the plaintiff, William Berliner, $648,500.00 in damages for the unlawful harvesting of over 5,000 trees from the plaintiffs property. We affirm.

I

The following facts are undisputed. The plaintiff owns three large parcels of undeveloped forest land in Landaff, which he previously used for recreational purposes, including hiking and camping. An abutting landowner hired the defendant to harvest her property. While performing this task, the defendant crossed onto the plaintiffs property, cutting thousands of his trees from approximately seventy acres. After discovering his intrusion, the defendant contended that his trespass was inadvertent and disputed the claimed damages.

[82]*82The plaintiff filed suit seeking statutory damages under, the timber trespass statute, RSA 227-J:8 (2000), compensatory damages for restoration of the land (i.e., replanting the trees), damages for the repair of Cobble Hill Road, the access road to the plaintiff’s property, and various skidder trails and damages for the loss of use and enjoyment of his property. By special verdict, the jury awarded the plaintiff $263,500 in statutory damages, $20,000 for the repair of Cobble Hill Road, $5,000 for the repair of a skid road, and $360,000 for loss of use. This appeal followed.

II

The defendant first challenges the award of statutory damages under the timber trespass statute, which provides:

I. No person shall negligently cut, fell, destroy, injure, or carry away any tree, timber, log, wood, pole, underwood, or bark which is on the land of another person, or aid in such actions without the permission of that person or the person’s agent.
II. In addition to any other civil or criminal penalty allowed by law, any person who violates the provisions in paragraph I shall forfeit to the person injured no less than 3 and not more than 10 times the market value of every such tree, timber, log, lumber, wood, pole, underwood, or bark cut, felled, destroyed, injured, or carried away.

RSA227-J:8. No guidance is provided on the face of the statute concerning the factors to be considered in selecting the appropriate statutory multiplier. The trial court instructed the jury that: “In making your determination concerning the correct statutory multiplier ... you may consider whether the Defendant’s actions were willful, knowing or negligent, as well as any mitigating circumstance.” (Emphasis added.)

The defendant challenges the permissive nature of the court’s charge, arguing that it should have instructed the jury that the statutory multiplier should or must reflect the degree of wrongfulness of the defendant’s conduct. He contends that two of his proposed jury instructions, which the trial court refused to give, would have provided the requisite guidance. He also argues that the 8.5 multiplier selected by the jury was not supported by any evidence of willful misconduct. We conclude, however, that the defendant’s arguments were not preserved for appellate review.

It has been long recognized in this jurisdiction that “[a] specific, contemporaneous objection is required to preserve an issue for appellate review.” State v. Sullivan, 142 N.H. 399, 403 (1997). This requirement is [83]*83grounded in both judicial economy and common sense, affording the trial court the “opportunity to correct an error it may have made, or clearly explain why it did not make an error.” Id. (quotation omitted). Providing the trial court with the opportunity to correct error “is particularly appropriate where an alleged error involves a jury instruction.” State v. Sinbandith, 143 N.H. 579, 581 (1999) (quotation omitted).

The statutory multiplier issue was explored during a chambers conference at the conclusion of the evidence, the day before final argument. Counsel and the court reviewed the proposed jury instructions and discussed factors that might be relevant to the jury’s selection of an appropriate multiplier. The defendant contends that his proposed instructions four and nineteen would have provided the requisite guidance to the jury.

Proposed instruction four reads:

In determining the multiplier of the trees’ market value in order to set a forfeiture penalty under R.S.A. 227~J:8, II, evidence of the defendant’s knowing willfulness in causing the cutting has been held by the Supreme Court to warrant application of a multiple of five time[s] actual compensatory damages.

Similarly, proposed instruction nineteen requested that the jury be advised that:

In a case where the defendant had willfully caused the cutting of the trees after having been informed that they did not have permission to clear the land further, and by evidence that the cutting of the trees exceeded the reasonable use allowed in maintaining neighbors’ prescriptive easement to use roadway to access their lot the New Hampshire Supreme Court has ruled that an award of 5 times the value of 12 trees or compensatory damages award of $1,200 for 12 felled trees was supported by property owner’s uncontroverted estimated value of $100 per tree.

Both proposed instructions referenced a specific timber trespass case, McNamara v. Moses, 146 N.H. 729 (2001), and essentially sought to have the trial court suggest to the jury a statutory multiplier of five in the event it concluded that the defendant’s actions were willful. The trial court, however, demurred:

My reading of [McNamara] is that the Court held that there was sufficient evidence to support such a finding by the trial court, but that it was not a holding of the Court, that multiple of 5 times.

[84]*84Defense counsel’s response indicated her apparent agreement:

Oh, I see what you mean. Okay. But I do think the jury has a right to know that, even in cases of egregious conduct, the multiplier has been in the low end of the range.

The court seemed unpersuaded by this modified request, stating that the facts of the prior case were distinguishable and that “to tell the jury that that case is somehow controlling and those facts are controlling on these facts ... is a misstatement and not within our province of giving them instructions.” The court noted, however, that it

would be happy if we [could] agree on what standard the jury applies by using McNamara v. Moses, because I think this is the most recent case applying this statute, I would be thrilled, because I think we need to be able to give the jury some instruction about what to consider in applying it, but it’s going to be based on the facts of this case and their common sense, using some kind of standard, and let’s see if we can find out what that standard is. Okay. [Turning to proposed instruction n]umber 5.

No agreement on a standard appears in the record. The chambers conference later concluded with an expressed intent to reconvene the next day to allow counsel to place their objections on the record.

The following day the trial court specifically invited counsel, before it instructed the jury, to comment on its draft instructions which they had had an evening to review.

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Cite This Page — Counsel Stack

Bluebook (online)
834 A.2d 297, 150 N.H. 80, 2003 N.H. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berliner-v-clukay-nh-2003.