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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chung v. Park (12/12/2014) sp-6973
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRISTOPHER JINSOO CHUNG, )
) Supreme Court No. S-15374
Appellant, )
) Superior Court No. 3AN-09-09549 CI
v. )
) O P I N I O N
RORA PARK, LAKEVIEW LLC, )
and GLACIER MASONRY & ) No. 6973 - December 12, 2014
EXCAVATING, INC., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Susan Orlansky, Susan Orlansky LLC,
Anchorage, for Appellant. Ronald A. Offret, Aglietti, Offret
& Woofter, Anchorage, for Appellees Rora Park and
Lakeview LLC. Notice of non-participation filed by Steven
D. Smith, Law Offices of Steven D. Smith, Anchorage, for
Appellee Glacier Masonry & Excavating, Inc.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
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I. INTRODUCTION
A landowner sued her neighbor for trespass, alleging that the neighbor
cleared trees from the landowner's property without permission. The superior court
found that the tree cutting did not diminish the property value and that there was no
reason personal to the landowner for restoring the trees. But the superior court awarded
damages equal to the cost of restoring 50 trees on the property.
Ordinarily, a landowner damaged by a trespass may recover either the loss
in property value or reasonable restoration costs. But restoration costs are inappropriate
if they are disproportionate to the loss in property value, unless there is a reason personal
to the landowner for restoring the land. We thus conclude that we must vacate this award.
II. FACTS AND PROCEEDINGS
In August or September 2007, Rora Park began leasing a unit (Unit 13) on
her property to Christopher Chung. Chung agreed to make some improvements to Unit
13 and a chapel on the property, and Park agreed to offset the rent according to the value
1
of Chung's work.
Soon thereafter, Park sold an adjacent lot (Lot 3) to Chung, on which
Chung intended to build a house.
Chung hired Glacier Masonry and Excavation, Inc. (Glacier) to build the
foundation of the new house on Lot 3 in August 2008. As part of that project, Glacier
agreed to clear trees and other vegetation from the lot. While Glacier was removing trees
from Lot 3, one of its employees, a man named Tracy, was discovered clearing vegetation
in the power line easement between Lot 3 and Park's adjacent lot. One witness suggested
1 The parties disagreed at trial about the actual terms of the lease agreement.
Park testified that Chung agreed to pay $2,000 per month, with the understanding that
the rent would be offset by the value of any improvements Chung completed. Chung
testified that he agreed to make certain improvements and correct building code
deficiencies in lieu of paying any rent at all. The actual terms of the parties' lease
agreement, however, are not relevant to the issues presented by this appeal.
-2- 6973
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Tracy may have gone "four or five [f]eet" beyond the boundary of Lot 3. Because
Glacier did not have a permit to work in the easement and there was a significant fine for
working in the easement without a permit, Glacier's owner immediately told Tracy to
leave the easement and work elsewhere. Glacier's owner testified that Tracy "said that
he was clearing out there to get a view, and that he'd been paid by Christopher Chung."
The owner testified that "eight or so" trees were removed from the power line easement;
another Glacier employee put the number at "three to six."2
Aerial photographs presented by the parties indicate that some trees were
removed from Park's property near the border of Lot 3 between August 2008 and
September 27, 2008, and more trees were removed between 2008 and 2009. The trees
appear to have been removed more or less directly behind the house built on Chung's
property. Timber debris, presumably from the cleared trees, was also discovered buried
on Park's property.
An expert witness hired by Park estimated that 562 trees were cleared from
about a third of an acre of Park's property. He calculated that it would cost over
$400,000 to restore the property to its former condition. But Chung's expert witness
testified that the market value of Park's property was likely not affected by the removal
of trees.
Apart from the testimony described above, there was no direct evidence of
who was responsible for removing the trees from Park's property. Park testified that she
saw workers on her property and that Chung told her that the workers cut the trees. But
2 Chung argues that the superior court erroneously found that "Tracy was
later 'seen clearing the property.' " Chung appears to believe the court found that Tracy
was seen working on Park's property at some point after the power line easement
incident. But, read in context, the court's statement that "later . . . Tracy was seen
clearing the property" appears to refer to testimony about Tracy's activity in the power
line easement.
-3- 6973
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Park did not personally see anyone remove trees from her property. Although she
suggested that Chung may have cleared the trees so that he could see a nearby lake from
his house, Chung denied that his house had any view of the lake even after the trees were
cleared. Nevertheless, he offered no alternative explanation for the trees' disappearance.
In August 2009 Park evicted Chung from Unit 13. She then filed a
complaint in the Anchorage Superior Court, claiming that Chung trespassed on her
property and cut down trees without permission.3
Park sought to recover the cost of
restoring the trees and punitive damages. Chung, in his answer, admitted that a contractor
removed "a few trees" from Park's property but asserted that the removal was done
without his permission.
After a bench trial in August 2013, the superior court found Chung liable
for the trees removed from Park's property before September 27, 2008. The court
determined there was insufficient evidence to find Chung liable for tree removal
occurring after that date or for the burial of timber debris on the property. Although the
court acknowledged that Park had not proved that the tree cutting reduced the value of her
property and found that Park had no reason personal for replacing the trees, it
nevertheless concluded that "it would be reasonable both aesthetically and legally to
award damages that would permit replacement of trees on that first portion of the lot that
can be clearly shown to have been scraped clean as of September 27th, 2008." The court
therefore awarded Park the cost of replacing 50 trees, $23,500. Because the court found
that Chung's trespass was not unintentional or involuntary, it awarded treble damages
under AS 09.45.730.
Chung appeals.
3 Because Chung has only appealed the superior court's judgment concerning
Park's trespass claim, we do not address Park's claim for unpaid rent or Chung's third-
party claim against Glacier.
-4- 6973
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III. STANDARD OF REVIEW
We review the superior court's factual findings for clear error.4 Clear error
"occurs when a review of the entire record leaves us with a definite and firm conviction
that a mistake has been made."5
"Whether the superior court applied the correct legal
standard is a question of law that we review de novo . . . ."6
IV. DISCUSSION
Chung argues that it was error to award Park damages equal to the cost of
replacing the trees that were removed from her property. He argues that, because the
superior court found that Park did not have a "reason personal for restoring the land," the
court should have awarded damages equal to the diminution of property value caused by
the removal of the trees. Park responds that awarding only damages for lost property
value in this case would be contrary to the purpose of AS 09.45.730, which allows a
landowner to recover punitive damages against an intentional trespasser.
"[A] party who is injured by an invasion of his property not totally
destroying its value may choose as damages either the loss in value or reasonable
7
restoration costs." But "reasonable restoration costs are an inappropriate measure of
damages when those costs are disproportionately larger than the diminution in the value
4 Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities , 282 P.3d
348, 354 (Alaska 2012).
5 Id.
6 Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011).
7 Wiersum v. Harder, 316 P.3d 557, 567 (Alaska 2013) (per curiam) (internal
quotation marks omitted) (citing Osborne v. Hurst, 947 P.2d 1356, 1358 (Alaska 1997)).
This court has also held that the landowner may recover "the economic value of the
timber cut," Andersen v. Edwards , 625 P.2d 282, 289 (Alaska 1981), but no party has
alleged that Park's trees had any appreciable economic value.
-5- 6973
----------------------- Page 6-----------------------
of the land and there is no reason personal to the owner for restoring the land to its
8 9
original condition."
A reason personal is one that is "peculiar or special to the owner."
"We require the landowner to demonstrate a reason personal because we believe it
indicates circumstances where the owner holds property primarily for use rather than for
sale and where the owner is likely to make repairs with the restoration costs award rather
10
than to pocket the funds and enjoy a windfall." For example, in Osborne v. Hurst, we
held that there was sufficient evidence to find that two landowners had a reason personal
for replacing trees that were destroyed by a fire on their property after the landowners
testified that they "had selected the property because of its unique views, its abundant
trees, and the unusual juxtaposition of the trees, the cabin, and the views" and that "other
properties in the area were not comparable."11
During trial in this case, Park attempted to establish a reason personal for
replacing the trees that Chung had allegedly removed. When asked about how she felt
when she discovered the trees had been removed, she testified:
I have a previous history of cancer, and this natural beauty of
my yard is [a] healing spot for me, and . . . in the future I'm
going to [live] here, after [Chung] move[s] . . . . [A]fter work
I come by, see my property and see the natural beauty and the
trees and all that[. W]hen I [saw] that all cut out it just [made]
me very - [it] just [broke] my heart, and then very angry
8 Osborne, 947 P.2d at 1359 (emphasis omitted) (internal quotation marks
omitted) (citing RESTATEMENT (SECOND) OF TORTS § 929 cmt. b (1977)).
9 Wiersum, 316 P.3d at 568.
10 Id. (quoting Osborne, 947 P.2d at 1359) (internal quotation marks omitted).
11 947 P.2d at 1360.
-6- 6973
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. . . . I don't know how [I can] explain . . . , it's just my
healing natural stop. [It] is just healing my health and
[helping] me for day-by-day living, and then when I saw that
it just really hurt my feeling[s] . . . .
But the superior court did not credit this testimony, because Park downplayed her visits
to the property later in the trial. As a result, the court found that Park had not established
a reason personal for restoring her property. Nevertheless, the court concluded that "it
would be reasonable both aesthetically and legally to award damages that would permit
replacement of trees" and awarded damages accordingly.
According to the unrebutted testimony of Chung's expert witness, the
removal of trees from Park's property did not appreciably affect the value of her property.
The court accepted that testimony in its findings of fact. Therefore, the damages the court
awarded - $23,500 before trebling - were clearly disproportionate to the diminution
of the property value.
The superior court could award restoration damages only if it found that
Park had a reason personal for restoring her property.12
But the court expressly found that
Park did not prove a reason personal, and Park has not challenged that finding on appeal.
Therefore, awarding compensatory damages that exceeded the diminution in the market
value of Park's property was not appropriate.
Park appears to argue that awarding only damages for lost property value
would be contrary to AS 09.45.730, which provides that an intentional trespasser is
"liable . . . for treble the amount of damages that may be assessed in a civil action." Here,
12 Wiersum, 316 P.3d at 567-68 ("[D]amages are measured only by the
difference between the value of the land before and after the harm if the 'cost of
replacing the land in its original condition is disproportionate to the diminution in the
value of the land caused by the trespass, unless there is a reason personal to the owner
for restoring the original condition.' " (emphasis in original) (quoting RESTATEMENT
(SECOND) OF TORTS § 929 cmt. b (1977))).
-7- 6973
----------------------- Page 8-----------------------
"the amount of damages that may be assessed in a civil action," as determined by our case
law, is the diminution in the market value of Park's property. Nothing in AS 09.45.730
provides a basis for awarding restoration damages when such damages would not
otherwise be appropriate.13
V. CONCLUSION
We VACATE the portion of the judgment awarding trespass damages and
REMAND for recalculation of prejudgment interest and attorney's fees. The superior
court may enter an award of nominal damages based on its finding of an intentional
14
trespass.
13 Chung also challenges the superior court's findings about the number and
composition of the removed trees. The court used these findings to determine the
restoration damages. Because we conclude that Park is not entitled to restoration
damages, we do not need to reach these issues.
14 See Brown Jug, Inc. v. Int'l Bhd. of Teamsters, Local 959, 688 P.2d 932,
938 (Alaska 1984).
-8- 6973
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