Brand v. Mathis & Associates

15 S.W.3d 403, 2000 Mo. App. LEXIS 604, 2000 WL 433285
CourtMissouri Court of Appeals
DecidedApril 24, 2000
DocketNo. 22940
StatusPublished
Cited by8 cases

This text of 15 S.W.3d 403 (Brand v. Mathis & Associates) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brand v. Mathis & Associates, 15 S.W.3d 403, 2000 Mo. App. LEXIS 604, 2000 WL 433285 (Mo. Ct. App. 2000).

Opinion

BARNEY, Judge.

Appellant Thomas J. Mathis, d/b/a Mathis & Associates (“Defendant”) appeals the judgment of the Circuit Court of Wayne County after a trial de novo hearing. See § 482.365.1 In its judgment, the court awarded Respondents Emmanuel Brand and Barbara Brand (“Plaintiffs”) the amount of $3,000.00, arising from Defendant cutting down “312 trees” during the course of performing a survey across real property belonging to Plaintiffs.2

In his two points on appeal, Defendant first asserts that the court “used the wrong basis” to determine Plaintiffs’ damages. Instead of using Plaintiffs’ value for the destroyed “saplings” the court should have used the “market value of the severed saplings or if the market value of the severed saplings was insubstantial then the proper measure of damages ... was the difference in the market value of the real property before and after the damage.” In his second point, Defendant maintains that the judgment was “against the weight of the evidence” and that there was “not substantial evidence to support the ... judgment.” Because of the essential similarity of the two points, they will be reviewed concomitantly.3

At the trial de novo hearing, Plaintiff Emmanuel Brand testified that a mixed variety of 312 trees, i.e., hickory, maple, [405]*405pine, cedar, redbud, cherry, black gum, dogwood, elm, sassafras and persimmon, had been cut by Defendant and his agent. Plaintiff Emmanuel Brand stated that “my value would be that they would be at least worth $25.00 apiece.”

In his testimony, Defendant acknowledged that “some brush was cut” during the course of the survey and identified Exhibit A, taken some seven months after the survey, showing, in Defendant’s words, that “most of the brush [had] regrown.” In response to the question, “and was there much damage after that period of regrowth that you could see there?” Defendant responded, “I felt like there was no damage whatsoever myself.” He further testified that his surveyor cut a “line of sight” of “about three feet wide” with a “machete — long knife, and none of them would be over a inch and a half — two inches in diameter at the very most.” Defendant acknowledged that neither he nor his employee got permission from Mr. Brand to cut trees.

Defendant presented the testimony of an expert witness, Mr. Allison, a forester previously employed by the U.S. Forest Service for 33 years. Mr. Allison testified that he had walked through the survey line and that approximately 216 trees had been cut during the performance of the survey. He acknowledged that the “damage was hard to see at times” and testified that nearby there was “an existing stand of trees close to maturity ... like sixty foot height.” In his view of the scene, he stated that he had identified four trees that “had potential to develop if they were to continue to be open — stay open and be able to grow and so forth” and that it would take “seventy years” to develop. He estimated their value at the end of the seventy year period at $249.36 and that the “approximate value” of the trees today would be $31.49.

I.

“This court is obliged to affirm the trial court’s judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.” Breiding v. Wells, 800 S.W.2d 789, 791 (Mo.App.1990); see Muir v. Ruder, 945 S.W.2d 33, 35 (Mo.App.1997). “In reviewing the sufficiency of the evidence, we review the evidence in the light most favorable to the judgment.” Bolin v. Hanlon, 924 S.W.2d 15, 16 (Mo.App.1996). “[W]e are to give due regard to the opportunity to the trier of fact to have adjudged the credibility of the witnesses. The trial court’s resolution of conflicting evidence is to be accorded due deference by the reviewing court.” McClelland v. Williamson, 627 S.W.2d 94, 96 (Mo.App.1982). “[M]ore stringent rules of evidence apply to a trial de novo of a small claims case than to a trial in small claims court, where informal proceedings are permitted.” Bolin, 924 S.W.2d at 15.

II.

In our review of the pleadings, we observe that Plaintiffs did not expressly plead statutory trespass under either section 537.340 (trespass on realty-treble damages); or section 537.360 (trespass on realty-single damage).4 “[A] party cannot [406]*406recover for a cause of action not pleaded.” Clay v. Missouri Highway and Transp. Comm’n., 951 S.W.2d 617, 631 (Mo.App. 1997). “Under common law, a trespass is the unlawful entry on another man’s ground causing damage, however slight.” Porter v. Fitch, 727 S.W.2d 161, 164 (Mo. App.1987); see also Muir, 945 S.W.2d at 35. “A trespasser is liable for all damages proximately caused by his trespass, whether or not he acted in good faith and with reasonable care, or whether he acted in ignorance of plaintiffs rights, or under mistake of fact or law.” Crook v. Sheehan Enters., Inc., 740 S.W.2d 333, 336 (Mo. App.1987); see Griesenauer v. Emsco Corp., 399 S.W.2d 147, 151 (Mo.App.1965). Although statutory trespass under either sections 537.340 or 537.360 was not expressly pleaded by Plaintiff, nevertheless, cases interpreting how measures of damages are determined under these statutes have rational and relevant application to the instant case. See parallel discussion in Hunter Land & Dev. Co. v. Caruthersville S. & H. Co., 223 Mo.App. 132, 9 S.W.2d 531, 533 (1928)(“while the action for treble damages may be a separate and distinct cause of action from the common-law action of trespass or trover, the line of demarcation is fíne, and they all belong to the same general classification”); see also Porter, 727 S.W.2d at 164. Indeed, section 537.340, the treble damage statute, has been held not to take away the common law right of action for trespass. State ex rel. Smith v. Greene, 494 S.W.2d 55, 58-59 (Mo. banc 1973).

“Ordinarily, the measure of damages in a § 537.340 action is the market value of the property at the time it was removed from the land.”5 Breiding, 800 S.W.2d at 791; see also Keener v. Black River Elec. Co-op., 469 S.W.2d 657, 659 (Mo.App.1971).6 “However, in at least one instance, this court approved the use of before and after values of the real estate as a measure of damages in a § 537.340 action where the things taken, injured or destroyed by a willful trespass have no substantial market value, when considered in their severed state.”

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Bluebook (online)
15 S.W.3d 403, 2000 Mo. App. LEXIS 604, 2000 WL 433285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brand-v-mathis-associates-moctapp-2000.