IN THE COURT OF APPEALS OF IOWA
No. 14-1150 Filed April 22, 2015
PAMELA S. LACKMAN and CHARLES E. LACKMAN, Plaintiffs-Appellees/Cross-Appellants,
vs.
JAMES LEO MUFF, Defendant-Appellant/Cross-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Crawford County, Edward A.
Jacobson, Judge.
A farmer appeals the award of damages in a suit involving the destruction
of trees on his neighbors’ property. The neighbors cross-appeal from the denial
of treble damages. AFFIRMED IN PART AND REVERSED IN PART ON
APPEAL; AFFIRMED ON CROSS-APPEAL.
Maura Sailer of Reimer, Lohman & Reitz, Denison, for appellant.
Jason B. Bottlinger of Bottlinger Law, L.L.C., Omaha, Nebraska, for
appellants.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. 2
TABOR, J.
It is fitting on Earth Day that our court considers a case about the value of
trees. Farmer James Muff hired a contractor with a backhoe to destroy a stand
of trees that were shading his cropland. Some of the trees turned out to be
growing on property owned by his neighbors Pam and Charles Lackman. In a
bench trial on damages, Muff testified the destroyed trees were “worthless.”
Charles Lackman testified the trees were “priceless.” The district court came
down in the middle.
On appeal, Muff claims the court erred in ordering damages in the amount
of $30,450 based on the Lackmans’ estimate of the cost to replace the trees—
specifically fifty small trees at $369 each and six mature trees at $2000 each.
Muff also challenges the award of $350 to reimburse the Lackmans for hiring an
engineering firm to survey the property line, as well as the award of $4125 in
attorney fees. In their cross-appeal, the Lackmans contest the court’s refusal to
order treble damages under Iowa Code section 658.4 (2013).
Because replacement cost is a fair measure for the loss of trees, we affirm
the damages awarded for replacing the fifty small trees. But we do not find
support in the record for awarding $2000 for each of the six mature trees
allegedly damaged by Muff. We also reverse the award of survey costs and
attorney fees. Accordingly, we reduce the overall damage award to $18,450.
Because we agree Muff did not injure the trees with willful disregard for the
Lackmans’ rights, we affirm the denial of treble damages. 3
I. Background Facts and Proceedings
The Lackmans are self-described “tree people.”1 They testified the five-
and-one-half acre parcel in rural Crawford County where they have lived for the
past thirty-two years was more valuable to them because it was covered with
timber.2 The Lackmans planted more than two hundred trees on their wooded
acreage over the years. They use fallen limbs from the forest to heat their home
and Charles does wood-working projects with burl growths from the trees.
Charles testified he “cried for a long time” when a 2008 tornado downed one of
their 150-year-old oak trees. They considered the woods to be their “backyard.”
In 2008, James Muff bought the farm to the north and west of the
Lackmans’ acreage. Muff recalled the property “hadn’t seen a bulldozer in 60, 70
years” and volunteer trees were encroaching onto the cropland. The Lackmans
had allowed the previous farm owner to trim back branches from their trees with
a chain saw.
In early March 2011, Muff hired contractors Earl and Brad Malone to
“clean up” the fence line between his land and the acreage owned by the
Lackmans. Muff assumed the creek bed marked the boundary. The Malones
used a track hoe and a front end loader to remove trees along the creek bed that
Muff later learned belonged to the Lackmans.
1 The Lackmans’ outlook reminds us of the heartfelt sentiments of a famous literary character: “I am the Lorax. I speak for the trees. I speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). By the end of the story, the narrator appreciates the Lorax’s mission: “Plant a new [tree]. Treat it with care. Give it clean water. And feed it fresh air. Grow a forest. Protect it from axes that hack. Then the Lorax and all of his friends may come back.” Id. 2 The Lackmans entered a contract to purchase their acreage in 1982 and paid off the purchase price of $19,000 in 1993. 4
The ground being cleared by Muff was not visible from the Lackmans’
house, situated on the south side of their lot, so they did not see the initial
incursion onto their property. When they did notice the trees being knocked
down, they called the sheriff. By the time the sheriff arrived, the Malones had
moved their machinery to another area of Muff’s property. The sheriff took no
action.
The Lackmans claimed Muff’s contractors destroyed fifty small trees,
those with trunk diameters of approximately two inches, as well as damaging six
mature trees, those with trunk diameters of more than ten inches. The Muffs and
the Lackmans offered differing testimony on the kinds of trees that were
removed. Earl Malone testified the trees included box elder, maple, and
mulberry. Muff insisted the contractor took out a line of cottonwood trees and a
few maple limbs. Charles Lackman testified the tree varieties knocked down
included box elder, maple, ash, cherry, and walnut. Lackman acknowledged he
and his wife had not planted any of the damaged trees, rather they had “come up
naturally.”
After Muff removed the trees, the Lackmans commissioned a survey of the
property line by Sandquist Engineering. After confirming Muff encroached on
their property, on November 13, 2012, they filed a petition alleging Muff “did
willfully injure, destroy and remove trees” from their land. The Lackmans asked
that Muff be held responsible for their “losses and expenses incurred.” The
petition also sought treble damages under section 658.4 and their attorney fees. 5
The district court heard the matter on March 12, 2014. Muff testified the
realtor had told him he was purchasing the crop ground, so he assumed the
boundary line was on the edge of the creek bed. He testified his efforts were
aimed at improving the property. He admitted he did not contact the Lackmans
before bringing in the contractor to remove the trees. Muff did not dispute that
some of the trees removed by the Malones turned out to be on the Lackmans’
property, as the surveyor determined the line, but Muff contended the trees had
no value.
To establish how much it would cost to replace the small trees that were
removed, the Lackmans presented the testimony of Phil Stephens, who had
worked in the landscaping and nursery business for fourteen years. His bid
placed the cost of two-inch root ball trees at $369 each and three-inch root ball
trees at $489.
Stephens was not asked about the value of the mature trees. The only
valuation for the mature trees came during the following exchange between
Charles Lackman and his attorney:
Q. What kind of value are you going to put on the mature trees that you want for damages? A. I don’t know how you can. To me they’re priceless. Q. For purposes of today—they’re priceless to you, I understand that. But for purposes of today, you have to put a value on it. A. If a three-inch tree is worth $500, a 10-inch tree has got to be worth 2,000 or 3,000.
Pam Lackman also testified they were asking $2000 apiece for the mature
trees, but did not give any basis for that valuation. 6
The district court adopted the Lackmans’ figures, awarding damages of
$369 for each of the fifty small trees they claimed were destroyed and $2000 for
each of six mature trees, for a total of $30,450. The court made no finding
concerning the kind of trees that Muff removed from the Lackmans’ property.
The court also awarded attorney fees for the Lackmans in the amount of $4125,
as well as $350 to cover the cost of the land survey. But the court declined to
treble the damages, finding Muff’s conduct did not rise to the level of willful and
wanton as required by section 658.4. Both sides filed motions to enlarge, both
were denied.
Muff appeals the award of damages, attorney fees, and the cost of the
survey. The Lackmans cross-appeal the denial of treble damages.
II. Scope and Standards of Review
We review the damage award for correction of errors at law. Drew v.
Lionberger, 508 N.W.2d 83, 85 (Iowa Ct. App. 1993). The district court’s factual
findings have the effect of a jury verdict and are binding on appeal if supported
by substantial evidence. Id. Evidence is substantial when a reasonable mind
would accept the evidence as adequate to reach the same findings. Id.
We review de novo the awarding of common law attorney fees. See Wolf
v. Wolf, 690 N.W.2d 887, 893 (Iowa 2005). 7
III. Analysis
A. Valuing Loss of Trees
This is not the first case about the worth of a tree. See, e.g., Bangert v.
Osceola Cnty., 456 N.W.2d 183, 191 (Iowa 1990); Laube v. Estate of Thomas,
376 N.W.2d 108, 109 (Iowa 1985); Grell v. Lumsden, 220 N.W. 123, 125 (1928);
Walters v. Iowa Elec. Co., 212 N.W. 884, 886 (1927); Drew, 508 N.W.2d at 85;
Welter v. Humboldt Cnty., 461 N.W.2d 335, 339 (Iowa Ct. App. 1990); Zech v.
Klemme, No. 10-1969, 2011 WL 2556080, at *6 (Iowa Ct. App. June 29, 2011);
see also Fisher v. Lowe, 333 N.W.2d 67, 67 (Mich. Ct. App. 1983) (“We thought
that we would never see a suit to compensate a tree.”). Muff’s extreme position
that the trees he removed from the Lackmans’ property were “totally worthless” is
not supported by the case law.
The more nuanced question is how we should measure the trees’ value on
this record. Our court has said: “Because of the great versatility of trees, it is
impossible to state an all-purpose measure of recovery for loss of trees. Iowa
courts have through the years devised numerous alternatives to be applied
according to the location of the trees and the use to which they were put.” Welter
v. Humboldt Cnty., 461 N.W.2d 335, 339 (Iowa Ct. App. 1990). The case law
identifies three main theories of recovery. First, if the trees served a special
purpose—such as a windbreak, shade or ornamental use—the damages are
measured by the difference between the value of the realty before and after the
destruction of the trees. Laube, 376 N.W.2d at 109. Here, the Lackmans did not
provide objective evidence concerning a diminution of the value of their acreage 8
based on the loss of this stand of trees. Second, where the trees served no
special use, the measure of damages is the commercial market value of the trees
as lumber or other wood products. Bangert, 456 N.W.2d at 190. Here, Charles
Lackman acknowledged the saplings had no market value. Third, where the
trees can be replaced, the damages may be measured by the replacement costs.
Laube, 376 N.W.2d at 109. In this case, the district court embraced the
testimony of experienced nurseryman Phil Stephens, who testified replacing the
two-inch diameter trees would cost $369 apiece.
On appeal, Muff claims the court erred in awarding damages based on
replacement costs. Muff asserts the Lackmans had not attempted to replace the
lost trees and, indeed, had no intent to replant at that location. It is true Charles
testified new trees “would have a real tough time growing there.” But he did not
rule out the possibility of replanting: “We could try it.” The court was entitled to
credit this testimony and base the damage award on the evidence of
replacement costs.
Moreover, replacement costs also may serve as the measure of damages
when trees have a special value to the particular landowner. Bangert, 456
N.W.2d at 191. If the court is satisfied that “an intrinsic loss has occurred that
exceeds the trees’ lumber value,” it may use a combination of the valuation
methods to compensate plaintiffs for their loss. Id. In ruling on Muff’s motion to
enlarge, the district court identified an aesthetic loss to the Lackmans from the
damage to their forest. “Aesthetic is defined as ‘[r]elating to that which is
beautiful or in good taste.’” Id. at 190 (quoting Black’s Law Dictionary 52 (5th ed. 9
1979)). Pam Lackman testified the tree damage was visible when they drive to
and from their home, and she considered the “mutilated” trees to be an eyesore.
Under Bangert, the district court appropriately considered the intrinsic value of
the trees to the Lackmans when awarding damages based on the bid from
landscaper Stephens.
We next examine whether the court’s finding that Muff destroyed six
mature trees that were worth $2000 a piece was properly rooted in the record.
The finding sprouted from the testimony of Charles Lackman, who speculated
that if the small trees were worth $500 apiece, the mature trees must be worth
five to six times that amount. Although a carpenter by trade, Lackman’s
testimony was not based upon any special knowledge or expertise he possessed
in valuing mature trees.
Moreover, Lackman presented confusing and inconsistent testimony
concerning the condition of the six mature trees he was alleging Muff destroyed.
In direct testimony, he admitted he “did not take a count” of the number of mature
trees that were destroyed. The following cross-examination also highlights the
uncertainty:
Q. Now, when you talked about the six mature trees that you think were damaged, those are those six that have branches removed from them, but are not uprooted, correct? A. No, the whole tree’s gone. Q. Gone, like missing? A. Yeah, on the pile. Q. Okay. So you’re not talking about the same six trees Mr. Malone’s talking about? Because I think [plaintiff’s counsel] was limiting you to the six, and Mr. Malone was talking about that had— the branches had been stripped off of it. A. They are the huge ones. They’re still there. 10
Q. Okay. So you are not claiming any damage to those? A. Well, yeah, the branches are all ripped off of them clear to the bark. I mean, the bark is almost ripped off to the trunk. Q. So is that the ones you’re asking $2000 apiece for? A. I don’t know what you’re talking about. Q. Well, you put—when you were talking to [plaintiff’s counsel], you put your damages on six trees at $2,000 apiece. A. There’s more than six, but yes. Q. So, yes, it was the ones where they removed the branches? A. Yes. Q. And those trees are—they’re still— A. They’re standing today. Q. They’re standing and new growth is coming up through the broken part, correct? A. Hopefully come back, yes.
Muff argues on appeal that the Lackmans did not establish the six mature
trees actually needed to be replaced. He claims the district court did not take
into account that the trees were “still standing, had new growth, and may come
back to life.”
We agree the court’s damage determination concerning the six mature
trees was not supported by substantial evidence. The record does not sustain
the court’s finding the mature trees needed to be replaced or the Lackmans’
approximation of the cost of replacing them. As only the cost to replace the
smaller trees is established in the record, we prune back the damage award to
$18,450.
B. Trebling Determination
Branching out on cross-appeal, the Lackmans argue the court erred in
denying their request for treble damages under section 658.4. That statute
provides:
For willfully injuring any timber, tree, or shrub on the land of another, or in the street or highway in front of another’s cultivated ground, yard, or city lot, or on the public grounds of any city, or any 11
land held by the state for any purpose whatever, the perpetrator shall pay treble damages at the suit of any person entitled to protect or enjoy the property.
Iowa Code § 658.4.
This statutory provision of treble damages takes the place of a punitive
damage award. Johnson v. Tyler, 277 N.W.2d 617, 618 (Iowa 1979). The word
“willfully” in this statute falls on the spectrum of mental elements somewhere
between accidental and malicious. Cozad v. Strack, 119 N.W.2d 266, 271 (Iowa
1963). It also means “without reasonable excuse.” Hurley v. Youde, 503 N.W.2d
626, 627 (Iowa Ct. App. 1993). To receive treble damages, “the plaintiffs must
prove that the defendant acted intentionally and deliberately without regard to the
rights of others.” Bangert, 456 N.W.2d at 188-89. The questions of intent,
purpose and motive are for the factfinder. Id.
The district court found Muff’s actions were “careless,” but did not rise to
the level of “willful and wanton” as required by section 658.4. The Lackmans
disagree. In their cross-appeal, they compare Muff’s conduct to the defendant’s
willful disregard for the property boundaries in Drew, 508 N.W.2d at 86. We
acknowledge the similarities, but find Drew distinguishable. In Drew, the
defendant failed to contact the property owner or to solicit his input before
logging the trees. Id. But in Drew, the defendant knew a question existed about
the boundary between the properties and chose to ignore it. See id. Here, Muff
testified he did not know where the property line was. Based on the assertions of
his realtor, Muff assumed the boundary was the edge of the creek bed. No
property stakes marked the dividing line. Muff testified he had no intention to 12
disregard the Lackmans’ rights, but just wanted to improve the property by
removing “overhanging limbs off our farm ground.”
As the fact finder, the district court was entitled to view Muff’s explanation
as reasonable, especially in light of Charles Lackman’s testimony that the
property line “kind of meanders back and forth.” We affirm the district court’s
determination that Muff did not act in willful disregard of the Lackmans’ rights.
See Hurley, 503 N.W.2d at 627-28 (finding act of trimming hedge row between
properties was not willful when it was an attempt to improve the property).
C. Survey Cost
The district court awarded the Lackmans $350 to reimburse Sundquist
Engineering for survey costs, finding the Lackmans “sufficiently pled those
damages.” On appeal, Muff contends the reimbursement was a special damage,
which was not pleaded as such, and therefore, cannot be recovered. See Wright
v. Norris, 187 N.W. 482, 484 (Iowa 1922). Muff alternatively argues the
engineering fees were not a “natural, direct and reasonable consequence” of any
action on his part. The Lackmans respond that the survey fees are special
damages that were tried by consent, citing Iowa Rule of Civil Procedure 1.457.
More than a century ago, our supreme court drew a distinction between
special damages and general damages as follows. “Special damages are such
as do not ordinarily or generally result from a given cause. They are
extraordinary in character in the sense that they follow as the natural result of the
intervention of some condition or circumstance out of the ordinary, and therefore
not generally to be expected.” Kircher v. Inc. Town of Larchwood, 95 N.W. 184, 13
186 (Iowa 1903).3 “The purpose in requiring that special damages be pleaded is
to give fair notice to the other party so that the other party might be able to
prepare adequately for trial.” 11 Barry A. Lindahl, Iowa Practice, Civil and
Appellate Procedure § 10:36 (2014).
In our analysis, it does not matter whether the survey cost was pleaded or
not, or tried by consent or not—because we agree with Muff’s alternative
argument that the survey cost was not a natural result of his wrongdoing.
Charles Lackman testified he commissioned the survey after the trees were
removed “to make sure [he] knew exactly where [his] points were.” The
engineering bill was dated March 25, 2011. Muff’s attorney presented Charles
Lackman with a survey done when the Lackmans bought the acreage. Lackman
testified the reason he had the second survey done was to “prove” where the
property lines were, adding: “I knew where they were. They’ve always been the
crop line.”
The Lackmans’ decision to hire a surveyor to verify the location of their
boundary lines does not qualify as a natural consequence of Muff’s actions.
While the Lackmans may have wanted that verification to go forward with their
lawsuit, that preparation for litigation does not create a direct link between Muff’s
encroachment on their property and the cost of the survey.
3 Modern usage remains consistent with that early definition. See Bryan A. Garner, Garner’s Dictionary of Legal Usage, 388 (3d. ed. 2011) (defining special damages as “those that are alleged to have been sustained in the particular circumstances of the particular wrong”). 14
When we tried to find a definitive Iowa case on this point, we were
stumped.4 But other jurisdictions have held surveyors’ fees are not ordinarily
recoverable as damages. See, e.g., S. Missouri Dist. Council of Assemblies of
God v. Hendricks, 807 S.W.2d 141, 148-49 (Mo. Ct. App. 1991); Stratford v.
Wood, 358 P.2d 80, 81 (Utah 1961); St. Catherine v. Turner, No. 84-779 (Wis.
Ct. App. Apr. 9, 1985). We are persuaded by the reasoning in those cases, and
reverse the district court’s award of the survey fee as a damage attributable to
Muff.
D. Attorney Fees
The district court also awarded the Lackmans $4125 in attorney fees.
Generally, a prevailing party has no claim for attorney fees as damages in the
absence of a statute or contract providing them. Hockenberg Equip. Co. v.
Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 158 (Iowa 1993). Because
this case involves no statute or contract term allowing for the shifting of attorney
fees, Muff argues the court’s award was in error.
On appeal, the Lackmans argue for the first time that they are entitled to
common-law attorney fees. At common law—in rare instances—a prevailing
party could recoup attorney fees if the losing party “acted in bad faith,
vexatiously, wantonly, or for oppressive reasons.” Id. Cases that merit the
award of common-law attorney fees typically involve a claim for punitive
4 In an unpublished case, our court decided adjoining landowners were not entitled to recover the expense of a survey as a cost of litigation. Beitz v. Bailey, No. 02-0166, 2003 WL 1028835, at *3 (Iowa Ct. App. Mar. 12, 2003). 15
damages as well. Id. But “the recovery of attorney fees requires a showing of
culpability beyond the showing required for punitive damages.” See id.
The Lackmans were not able to show Muff’s actions in damaging the trees
merited trebling of their damages. Accordingly, they are not able meet the even
higher standard of “connivance” or “oppression” necessary to win common-law
attorney fees. Accordingly, we reverse the attorney fee award.
In sum, the district court awarded a total of $34,925 in damages and
attorney fees. We affirm the award of damages in the amount of $18,450 for the
Lackmans’ loss of fifty small trees on their acreage. We reverse the award of
$12,000 for six mature trees allegedly damaged by Muff, reverse the award of
$350 in survey fees and reverse the award of $4125 in attorney fees. We
remand for entry of judgment in the amount of $18,450. We affirm the denial of
treble damages.
AFFIRMED IN PART AND REVERSED IN PART ON APPEAL;
AFFIRMED ON CROSS-APPEAL.