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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Douglas Galipeau v. Briana Bixby and Mei-Lani Bixby (11/13/2020) sp-7491
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DOUGLAS GALIPEAU, )
) Supreme Court No. S-17365
Appellant, )
) Superior Court No. 3VA-17-00021 CI
v. )
) O P I N I O N
BRIANA BIXBY, as Trustee of the )
Irrevocable Trust of Rose E. Fong and ) No. 7491 - November 13, 2020
individually, and MEI-LANI BIXBY, )
individually, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Valdez, Jonathan A. Woodman, Judge.
Appearances: Susan Orlansky and Brian J. Stibitz, Reeves
Amodio LLC, Anchorage, for Appellant. William Bixby,
Law Office of William Bixby, Benicia, California, for
Appellees.
Before: Bolger,ChiefJustice, Maassen,and Carney, Justices.
[Winfree, and Stowers, Justices, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A property owner cut down trees on his lot to build a cabin. The trees were
protected by his subdivision's Declaration of Covenants, Conditions, and Restrictions
----------------------- Page 2-----------------------
(CCRs) and could not be cut down without prior approval. The owners of an adjacent
lot sued him. The superior court found the property owner liable and, following a
two-day non-jury trial, awarded the neighbors compensatory restoration damages and
punitive damages.
The property owner appeals, arguing that the superior court erred in both
damages awards. We agree. There was no basis in the evidence for an award of
restoration costs when the trees would not be restored, and there was no evidence to
support an award based on a loss of value to the neighbors' property. Nor was there
proof of an independent tort as necessary to support a punitive damages award in a case
premised on the breach of CCRs. We therefore vacate the superior court's judgment and
remand for entry of a nominal damages award.
II. FACTS AND PROCEEDINGS
A. Facts
This appeal stems from a dispute between owners of adjacent lots in a
Valdez subdivision: Douglas Galipeau, owner of Lot 3, and Briana and Mei-Lani Bixby,
owners of Lot 4. The subdivision's lots are subject to CCRs which the original
developers recorded and filed with the City of Valdez. The CCRs give enforcement
rights to the declarants and any other subdivision property owner. This appeal concerns
Article II, Section 7 of the CCRs, which states the declarants' "specific desire . . . to
maintain the maximum natural beauty and [a]esthetic value of the subject property" and
mandates that "in no event . . . shall any 'evergreen' type tree having a trunk measuring
six (6) inches or more in diameter at a height of four (4) feet from ground level be
destroyed or removed from any lot unless specifically approved by the Architectural
Committee." The section further states that if the Committee fails to approve or reject
any building or maintenance plans submitted to it within 60 days, "approval will not be
required" and the CCRs "will be deemed to have been fully complied with."
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----------------------- Page 3-----------------------
The Bixby sisters grew up in a house on Lot 4. They both left Valdez after
high school and at the time of trial lived in California. Their mother operated a bed and
breakfast in the family home, but it closed in 2016 after she passed away, and the sisters
inherited the home from their mother's trust.
Galipeau purchased the adjoining Lot 3 in June 2013. The lot had never
been developed, but Galipeau believed the previous owner had submitted a site plan to
the City. Intending to build a cabin, he hired a company to remove several trees from the
lot. He concedes that he never requested or received Committee approval for this action.
B. Proceedings
In April 2017 the Bixbys sued Galipeau, alleging that he breached the
CCRs and committed trespass by cutting protected trees on his property without
Committee approval. They sought money damages to restore the property, punitive
damages, and injunctive relief. In his answer Galipeau admitted that he was the legal
owner of Lot 3 and that he "cut, or caused to be cut, certain trees on [his] Lot in
anticipation of building a home there."
The court granted partial summary judgment to the Bixbys, finding that
there were no genuine issues of material fact regarding Galipeau's liability for cutting
1 The court then granted a second motion for
down the trees in violation of the CCRs.
partial summary judgment in favor of the Bixbys, concluding that Galipeau was also
1 Galipeau's appeal does not challenge the court's finding of liability,
conceding that "the evidence presented to the superior court established that he violated
a covenant by cutting, or otherwise downing, without permission from the subdivision's
Architectural Committee, a number of 'protected trees.' "
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----------------------- Page 4-----------------------
2 3
liable for punitive damages under AS 09.45.730 and AS 09.17.020. The court
concluded that "a plaintiff seeking damages for trees destroyed or felled on defendant's
land can seek the same damages as th[e] plaintiff would be entitled to if defendant had
committed trespass by cutting trees on plaintiff's land." Therefore, it explained, the only
remaining issues for trial were"theamount of compensatory restoration damages and the
amount of punitive damages."
1. The superior court held a non-jury trial on damages.
The court held a two-day bench trial in June 2018. The court first deemed
admitted the Bixbys' discovery requests regarding punitive damages because Galipeau
had failed to respond, and it granted the Bixbys' motion to exclude most of Galipeau's
witnesses and all of his exhibits because they had not been timely filed.
TheBixbys' first witness wasarborist MariaD'Agostino, an expert in "tree
appraisals" and the "replacement and care of trees." D'Agostino had visited Galipeau's
lot in September 2017 and observed three downed trees and ten stumps of varying sizes
4
between 14 and 38 inches.
She testified that trees of this size were "too large to be
replaced with commonly available nursery stock." She estimated that each tree would
cost "around $4,200" to replace, that the value of the three downed trees was $67,000,
and that the value of the ten trees originally atop the stumps was $311,000. She
2 The statute imposes "treble the amount of damages that may be assessed
in a civil action" for the act of cutting down trees owned by another, or trees in common
ownership, "without lawful authority."
3 The statute codifies the procedure for submitting punitive damages claims
to the trier of fact and the elements necessary to support such an award.
4 Tree size is determined by the "trunk formula" industry standard which
measures the trunk diameter at breast height. Only one of the trees Galipeau downed
was measured using this standard; the other trees could not be measured at the necessary
height.
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----------------------- Page 5-----------------------
explained that successfully moving living trees of the same size "would be extremely
unlikely" and such a move would be "[p]rohibitively expensive" and "far more than the
5
[trees'] value."
Next to testify was Mary Jo Evans, one of the original developers of the
subdivision and a current member of the Committee. Like D'Agostino, she testified that
the subdivision's trees helped moderate the wind. She also testified that Galipeau never
sought Committee approval or submitted plans to the Committee, noting that she has
"never spoken with him."
The Bixbys also testified. They explained that neither of them had
permanently lived in the Lot 4 house since high school and the only current occupant
was a renter in the basement unit. They testified that the B&B had not been in operation
since 2016 and that neither of them had any firm plans to reopen it. But Mei-Lani
testified that the loss of the trees made their house more susceptible to wind damage and
reduced their privacy; they now had to keep the blinds closed on the side of the house
that faced Galipeau's lot. Briana testified that she was worried about increased heating
costs, though she could not provide exact figures because they kept their house's
temperature at the minimum level necessary to prevent frozen pipes. Both sisters also
noted the emotional impact the trees' loss had on them: Briana was angry and upset after
learning that she could no longer enjoy the trees' presence as she had in her childhood,
and Mei-Lani testified that the loss of the trees affected her on a "personal and emotional
level."
On the second day of trial the court noted for the record that it had visited
Lot 3 to better understand its layout and what had occurred. Galipeau testified next. He
5 D'Agostinoexplainedthat replanting even six-inch trees, whichwould take
35-40 years to grow to the approximate size of the trees Galipeau downed, is "generally
not done" because smaller trees adapt more easily.
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----------------------- Page 6-----------------------
said that a 1980s site plan for Lot 3 was on file with the City of Valdez and had been
approved by a city building inspector. He testified that he had hired a company to "push
out" the northwest side of his lot and knock down some trees. He admitted he had never
obtained the Committee's permission.
2. The superior court awarded both compensatory and punitive
damages.
In December 2018 the court issued its written findings of fact and
conclusions of law. The court found that Galipeau was aware of the CCRs before he
purchased Lot 3, that he knew the CCRs prohibited cutting down protected trees without
Committee approval, and that he cut down prohibited trees "intentionally and
voluntarily." The court accepted D'Agostino's testimony about the number of protected
trees that were cut and her estimates of their replacement cost and overall value. The
court stated that D'Agostino testified that the value of the trees was $4,200 each and their
6
total replacement cost would be $380,000.
The court explained that Galipeau's "violation of the restrictive covenant
amounted to a breach of contract." It held that the Bixbys were entitled to compensatory
restoration damages but noted that the actual restoration of the trees was "untenable"
given the "extreme animosity between these parties" and the likelihood that Galipeau
would "actively work to thwart the survival" of any replacement trees. It awarded the
Bixbys $54,600 for "the value of the thirteen trees."
The court decided that punitive damages were also available because
Galipeau's "conduct constituting the breach of contract would be considered an
6 The court appears to have misrecalled D'Agostino's testimony. She
testified that the value of the ten trees represented by the stumps was $311,000 and the
value of the three downed trees was $67,000, explaining that there was a difference
between what the trees were worth and their replacement cost. She estimated that the
replacement cost to purchase and install new six-inch trees was about $4,200 per tree.
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----------------------- Page 7-----------------------
independent tort - e.g., waste, private nuisance, or trespass to trees." It held that
Galipeau's conduct "amounted to [a] reckless indifference to the rights of others, and
conscious actionin deliberatedisregardofthoserights,"highlighting that ifGalipeau had
cut down trees on the Bixbys' property the Bixbys would be entitled to not only
7 Finding the case
compensatory restoration damages but also statutory treble damages.
analogous to a trespass to trees case, and finding Galipeau's conduct "egregious, willful,
extreme, and outrageous," the court awarded the Bixbys treble damages in the amount
of $163,800. The court also ordered a permanent injunction and awarded the Bixbys
prejudgment interest and attorney's fees.
Galipeau appeals.
III. STANDARD OF REVIEW
"A trial court's determination of damages is a finding of fact which we
affirm unless it is clearly erroneous. But we apply our independent judgment in deciding
whether the trial court's award of damages is based on an erroneous application of law."8
9
"Statutory interpretation is also a question of law, which we review de novo."
7 See AS 09.45.730. The court read the treble damages provision as
authorizing compensatory damages plus three times that amount as punitive damages,
instead of a total award three times the compensatory damages. Cf. Wiersum v. Harder ,
316 P.3d 557, 571 n.1, 573 (Alaska 2013) (Fabe, C.J., concurring) (tripling the base
award of $40,000 to make the total award $120,000 in a case brought under
AS 09.45.730).
8 Hainesv.Comfort Keepers, Inc., 393 P.3d 422, 427 (Alaska2017) (quoting
Beaux v. Jacob, 30 P.3d 90, 97 (Alaska 2001)); see Erwin v. Mendenhall, 433 P.3d 1090,
1094 (Alaska 2018) ("We 'review de novo whether the trial court correctly applied legal
rules pertaining to damages and prejudgment interest.' " (quoting City of Seward v.
Afognak Logging , 31 P.3d 780, 783 (Alaska 2001))).
9 Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 878 (Alaska 2013).
-7- 7491
----------------------- Page 8-----------------------
IV. DISCUSSION
A. It Was Error For The Superior Court To Award Compensatory
Restoration Damages.
The superior court's finding that "[t]he violation of the restrictive covenant
amounted to a breach of contract" is not challenged on appeal. From its finding of
liability the court went on to craft a compensatory damages remedy by reference to the
10
trees' value, awarding $4,200 per tree for a total of $54,600.
Galipeau challenges this award on a number of grounds. He argues that it
had "no bearing . . . on the damages that the Bixbys sustained," which included only a
general loss of privacy and aesthetics and the negative effects of increased wind
exposure, none of which the Bixbys attempted to value in dollar terms. He contends that
the Bixbys never discussed any plans to plant trees on their own property "to reduce the
effects of losing trees" next door, instead presenting expert testimony only on the value
of the trees that were cut - which were Galipeau's trees, not theirs.
We begin our analysis with the observation that "breach of covenant claims
11 We have held that "a plaintiff alleging breach of
sound in contract, rather than tort."
contract must present evidence sufficient to calculate the amount of the loss caused by
the breach"; while this amount need not be proven with "exact detail," it "must provide
a reasonable basis" for the fact finder's determination.12 Damages may not be awarded
for "mere breach"; rather, "the amount of damages awarded must correspond to injuries
10 As noted above, the court appears to have used the trees' replacement cost
rather than their value. See supra p. 6 and note 6.
11 Kalenka v. Taylor, 896 P.2d 222, 228 (Alaska 1995).
12 Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 636 (Alaska 1996) (quoting
City of Palmer v. Anderson, 603 P.2d 495, 500 (Alaska 1979)).
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----------------------- Page 9-----------------------
resulting from the breach. The proper measure of recovery for a breach of contract claim
is the loss or damage actually sustained." 13
As Galipeau correctly observes, the superior court made no findings about
thedamagetheBixbys"actuallysustained,"characterizing their losses as "ofan aesthetic
nature" and "difficult to quantify." The Bixbys did not attempt to quantify their aesthetic
loss in dollar terms. They did not present evidence of their lot's market value or how
that value may have been affected by the loss of trees. Several witnesses testified that
the house was now more exposed to the wind, but no one attempted to quantify the
problem in dollar terms; Briana testified, in fact, that wind had always been an issue
because of where the house was situated. And although Briana also testified that the loss
of the buffer could affect their heating costs, she conceded, "[W]e don't know for sure
what that's doing to our heat bill because we run the house at just maintenance levels
while we're gone."
Thus, in making its damage award, the superior court was faced with the
problem of putting a dollar amount on the Bixbys' "difficult to quantify" - and in fact
unquantified - harms. Finding that the Bixbys had "a reason personal for restoring the
property to its original condition" which entitled them "to compensatory restoration
damages," the court further found that "an award of restoration damages is untenable in
this case" because of the animosity between the parties; in other words, it recognized that
13 24 W ILLISTONON CONTRACTS § 64:12 (4th ed.May 2020 Update) (footnote
omitted). Of course, "any breach of contract entitles the injured party to at least nominal
damages, [but] that party cannot recover more without establishing a basis for an
inference of fact that he or she has been actually damaged." Id. (footnote omitted). "If
the breach caused no loss or if the amount of the loss is not proved . . . [,] a small sum
fixed without regard to the amount of loss will be awarded as nominal damages."
RESTATEMENT (SECOND) OF CONTRACTS § 346 (A M. L AW INST . 1981).
-9- 7491
----------------------- Page 10-----------------------
14
money to buy new trees would not go toward replacing the old trees. The court
therefore awarded a sum it determined to represent the cut trees' value (though the
testimony shows that the amount actually reflected the restoration cost, a significantly
lower amount). But whether the amount represented the trees' restoration cost or their
value, the superior court plainly intended it to be a proxy for the Bixby's own
unquantified harm.
The use of restoration cost as a measure of damages in this case was error.
Relying on the Restatement (Second) of Torts, we have held that restoration costs are an
appropriate measure of damages only if those costs (1) are not "disproportionately larger
than the diminution in the value of the land" and (2) there is a " 'reason personal to the
15 Here, in the absence of
owner for restoring' the land to its original condition."
evidence of "the diminution in the value of the land," there was no basis on which to
make a finding one way or the other whether the restoration costs were
disproportionately high.
The second requirement for using the restoration cost measure -a "reason
personal" to the Bixbys - also lacks support in the record. A "reason personal" for
14 The superior court found, and neither party disputes, that "there is
insufficient room between the window and the property line to replace the trees on [the
Bixbys'] property. The only way this view could be restored is by replanting trees on
[Galipeau's] land."
15 Osborne v. Hurst, 947 P.2d 1356, 1359 (Alaska 1997) (citing
RESTATEMENT (SECOND) OF TORTS § 929(1)(a) cmt. b (A M. L AW INST . 1977)); see also
Andersen v. Edwards , 625 P.2d 282, 289 (Alaska 1981) (noting that restoration costs are
inappropriate in situations "where there is [not] a reasonable likelihood that the trees will
be restored"); Chung v. Rora Park, 339 P.3d 351, 353 (Alaska 2014) (noting that
replacement costs for trees removed from a plaintiff's property are an inappropriate
measure of damages when they disproportionately exceed the loss in value of the land
and "there is no reason personal to the owner for restoring the land to its original
condition" (quoting Osborne, 947 P.2d at 1359)).
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restoring property to its original condition "exists where the owner holds property
primarily for use rather than for sale and where the owner is likely to make repairs with
16 In its
the restoration costs award rather than to pocket the funds and enjoy a windfall."
second summary judgment order on liability, the court listed a number of reasons why
the Bixbys had a "reason personal," including "the beauty, ornamental nature, location,
quality, and size of the protected trees" and the Bixbys' "sentimental attachment to the
unique setting, privacy, and views created by the protected trees," all of which led the
court to conclude that the Bixbys were "likely to actually restore the property to its
original state rather than enjoy the windfall received from payment of compensatory
restoration damages." But these findings were made on an unopposed motion for
summary judgment, and the court's decision changed following trial, when it found that
"actual restoration of the trees is untenable." If a complaining landowner does not
demonstrate a "reasonable likelihood that the trees w[ill] be restored," then "the
appropriate measure of damages [i]s the diminution in value of the property or the
17 On the facts found at trial, thus, an award
economic value of the timber that was cut."
to the Bixbys of restoration costs would amount to an unacceptable "windfall," and the
court was required to look to other measures.
As noted above, the Bixbys presented no evidence of "diminution in value
of [their] property."18 That leaves only "the economic value of the timber that was cut"19
16 Osborne, 947 P.2d at 1359 (emphasis added).
17 Wiersum v. Harder , 316 P.3d 557, 568 (Alaska 2013) (citing Andersen v.
Edwards, 625 P.2d 282, 289 (Alaska 1981)).
18 Id.
19 Id.
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20
as a possible measure of their damages. But "the timber that was cut" had no economic
value to the plaintiffs; the cut trees were not the Bixbys' trees, and they could not have
21 And the market price received for Galipeau's cut trees has no
sold them for timber.
apparent relation to the Bixbys' loss of aesthetics, diminution in property value, and
exposure to the wind.
In short, as we have defined these damages remedies in the past, the Bixbys
were not entitled to damages based on restoration costs or the value of the cut trees.
Rather, their damages remedy lay in proof of "diminution in the value of their
property,"22 but they presented no evidence on that issue and the court made no findings
about it. We must therefore conclude that it was error for the superior court to award
compensatory damages in anything other than a nominal amount.23
B. It Was Error For The Superior Court To Award The Bixbys Punitive
Damages.
1. Punitive damages are not available because Galipeau's breach
of contract did not constitute an independent tort.
We have consistently held that "[p]unitive damages are not recoverable for
breach of contract unless the conduct constituting the breach constitutes an independent
20 Id.
21 The economic value of timber is otherwise known as "stumpage value,"
defined as "the market value of a tree before it is cut; the amount that a purchaser would
pay for a standing tree to be cut and removed." Porter v. Kirkendoll , 421 P.3d 1036,
1040 n.2 (Wash. App. 2018) (citing David H. Bowser, "Hey, That's My Tree!" - An
Analysis of the Good-Faith Contract Logger Exception from the Double and Treble
ILLAMETTE L. R EV. 401,
Damage Provisions of Oregon's Timber Trespass Action, 36 W
405 (2000)), aff'd in part, rev'd in part , 449 P.3d 627 (Wash. 2019).
22 Wiersum, 316 P.3d at 568.
23 See 24 WILLISTON ON CONTRACTS § 64:12 (4th ed. May 2020 Update);
RESTATEMENT (SECOND) OF CONTRACTS § 346 (A M. L AW. I NST . 1981); supra note 13.
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24
tort," applying this holding specifically to breaches of restrictive covenants in Kalenka
25
v. Taylor.
The plaintiffs in Kalenka sued to enforce restrictive covenants on nine
subdivision lots, seeking punitive damages for willful violation of the covenants and to
26 We observed, however, that the "breach of covenant
enforce a penalty provision.
claims sound in contract, rather than tort."27 We reiterated the principle that "[p]unitive
damages are unavailable in a contract claim, and a contract claim cannot be transmuted
into one that gives rise to punitive damages simply by alleging that the defendants
violated the covenants 'wilfully and with reckless disregard' for the [property holder's]
interest."28
The superior court in this case justified its award of punitive damages by
determining that "[t]he conduct constituting the breach of contract would be considered
an independent tort - e.g., waste, private nuisance, or trespass to trees; therefore,
punitive damages are available." The court reached the amount of punitive damages by
relying on the trespass to trees statute, AS 09.45.730, observing that this case was
"analogous." Because AS 09.45.730 allows the trebling of compensatory damages in
cases of intentional and voluntary trespass, the court trebled the restoration costs
awarded as compensatory damages to reach its punitive damages award.
24 ARCO Alaska, Inc. v. Akers , 753 P.2d 1150, 1153 (Alaska 1988); see also
Wien Air Alaska v. Bubbel, 723 P.2d 627, 631 (Alaska 1986) (noting that "awarding
punitive damages [in contract cases] would be inconsistent with the [compensatory]
policy behind contract damages").
25 896 P.2d 222, 228 (Alaska 1995).
26 Id. at 224-25.
27 Id. at 228.
28 Id.
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Again, we must conclude that this damages award was error; this case is
governed by the rule articulated in Kalenka that a breach of CCRs is a breach of contract,
29 And we disagree that Galipeau's
not a tort, even if done willfully and intentionally.
conduct can "be considered an independent tort." An independent tort, by definition, is
one that would exist even if there were no contract;30 here, Galipeau owed no duty to the
Bixbys to refrain from cutting his own trees except for the contractual duty imposed by
the CCRs.
The first independent tort the superior court found possibly applicable was
waste. An action for waste is governed by AS 09.45.740, which provides a right of
action to "a guardian, tenant for life or years, or tenant in common of real property" for
"waste on the property." Referencing the statutory remedy, we have defined waste as
occurring "when the owner of a possessory estate engages in unreasonable conduct that
results in physical damage to the land and substantial diminution in the value of estates
31 Although the Bixbys urge us to give the statute an
owned by others in the same land."
expansive reading due to its remedial nature, a liberal reading does not allow us to ignore
29 Id.
30 See, e.g., Bayerische Landesbank, N.Y. Branch. v. Aladdin Capital Mgmt.
LLC, 692 F.3d 42, 58 (2d Cir. 2012) ("Under New York law, a breach of contract will
not give rise to a tort claim unless a legal duty independent of the contract itself has been
violated."); Gita Sports Ltd. v. SG Sensortechnik GmbH &Co. KG , 560 F. Supp. 2d 432,
442 (W.D. N.C. 2008) ("Under the independent tort doctrine, 'a plaintiff must allege a
duty owed him by defendant which is separate and distinct from any duty owed under
a contract.' " (citation omitted)); Toyota-Lift of Minn., Inc. v. Am. Warehouse Sys., LLC ,
868 N.W.2d 689, 696 (Minn. App. 2015) ("An independent tort may accompany a
breach of contract when the defendant has a legal duty to the plaintiff arising separately
from any duty imposed in the contract."), aff'd, 886 N.W.2d 208 (Minn. 2016).
31 McKibben v. Mohawk Oil Co., 667 P.2d 1223, 1228 (Alaska 1983)
(emphasis added).
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the statute's plain language. The remedy is clearly intended to address harms to property
in common ownership and isexpressly made available only to thosewithcertain interests
in the property on which the waste has been committed. The Bixbys have no remedy for
waste committed on an adjoining lot in which they have no possessory interest.
Thesecondpossibleindependenttort cited by thesuperiorcourtwasprivate
32 which authorizes
nuisance. Suits for private nuisance are governed by AS 09.45.230,
civil actions "to enjoin or abate a private nuisance" and to recover damages.33
"Nuisance" is defined by statute as "a substantial and unreasonable interference with the
use or enjoyment of real property, including water."34 We have never had occasion to
define "substantial and unreasonable interference" in a published opinion; in an
unreported decision, however, we affirmed the superior court's use of the Restatement's
35
multi-factor test in refusing to enjoin the noisy operation of a neighbor's dog kennel.
Under the Restatement, "interference is unreasonable if (a) the gravity of the harm
outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is
serious and the financial burden of compensating for this and similar harm to others
would not make the continuation of the conduct not feasible."36 The application of these
factors "is a problem of relative values to be determined by the trier of fact in each case
32 See AS 09.45.230(e) (stating that with certain exceptions, "a person may
not bring a civil action to enjoin or abate a private nuisance or to recover damages for
a private nuisance unless the action is authorized by this section").
33 AS 09.45.230(a).
34 AS 09.45.255.
35 Trails North, Inc. v. Seavey, Nos. S-8425, S-8505, 1999 WL 33958785
(Alaska Dec. 1, 1999) (citing RESTATEMENT (SECOND) OF TORTS § 826 (AM. LAW INST .
1965)).
36 RESTATEMENT (SECOND) OF TORTS § 826.
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37
in the light of all the circumstances of that case"; the determination is essentially "a
weighing process, involving a comparative evaluation of conflicting interests." 38
Aclaimfor privatenuisancewas neitherpled in thecomplaintnorexpressly
litigated in this case, and accordingly the superior court did not - at least explicitly -
conduct the "comparative evaluation of conflicting interests" necessary to find that a
private nuisance existed. Whether the interference was "substantial" depended in large
part on the extent to which the Bixbys actually intended to "use or enjoy[]" their
property; the court made no findings on that topic. As for whether the interference was
"unreasonable," the court gauged the unreasonableness of Galipeau's actions solely by
reference to the willfulness with which he violated the CCRs - that is, that he
committed a willful breach of contract.39 Setting aside his contractual duties in our
search for an independent tort, we see nothing in the court's findings that would support
the conclusion that Galipeau's action in cutting down his own trees was an unreasonable
use of his own property.
The third possible independent tort cited by the superior court was trespass
to trees, codified in AS 09.45.730. The statute addresses the injury or removal of trees,
but again only in situations that are expressly enumerated: as most relevant here, they
include the unlawful cutting of trees on "the land of another person or on the street or
37 Id. § 826 cmt. b.
38 Id. § 826 cmt. c.
39 In their brief on this appeal, the Bixbys also define Galipeau's conduct as
unreasonable for purposes of the private nuisance tort by pointing to "the fact that
Galipeau did not own the right to cut down prohibited trees on his lot, even for
construction purposes," a restriction which "[h]e voluntarily and knowingly agreed to . . .
when he bought his lot." This restriction on Galipeau's rights was solely contractual.
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40
highway in front of a person's house." Galipeau did not remove trees from "the land
of another person"; the cut trees were indisputably on his own property.
The superior court did make a finding that Galipeau "cut down prohibited
trees on Fiddlehead Lane . . . , a street in front of the Plaintiffs' house," relying for the
finding on Galipeau's deemed admission during discovery. We are unable to find a
further explanation of these trees' location in the trial testimony; the Bixbys themselves
did not describe with any particularity the location of the downed trees, and their expert
witness described "[m]ost of the trees/stumps" she found on Galipeau's lot as being
"clustered together on the central part of the lot, with the exception of . . . the largest
stump, that we found at the bottom of the slope," i.e., at the northwest end of the
41 far from the southern tip of the property abutting Fiddlehead Lane. Looking
property,
at the small plat of the subdivision admitted as an exhibit at trial, we do not see any place
on Galipeau's lot where he could have cut down trees that were situated between the
Bixbys' house and the street. We assume, therefore, that the trees that were cut down
were Galipeau's; the court would surely have expressly stated a finding that he cut down
trees belonging to the Bixbys, as this would have directly implicated the trespass to trees
statute (which the court relied on only by analogy). We also assume that the trees were
not in front of the Bixbys' house; again, such a finding would have directly implicated
the trespass to trees statute. We are left with this conclusion about the superior court's
finding: although Galipeau cut down trees on his property that were "on Fiddlehead
40 The other locations of unlawful tree-cutting that could result in liability
under the statute include "(2) a village or municipal lot, or cultivated grounds, or the
commons or public land of a village or municipality, or (3) the street or highway in front
of land described in (2) of this section." AS 09.45.730.
41 Both Evans and Galipeau describe the slope's location as the northwest end
of the property.
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Lane," a street that is "in front of the Plaintiffs' house," the trees along the street that
Galipeau cut down were not in front of the Bixbys' house but rather in front of his own.
This finding did not implicate the damage remedy of AS 09.45.730, as the
superior court implicitly concluded by not relying on it. The operative language of the
statute involves the liability of one "who without lawful authority cuts down . . . a
42 We interpret this language
tree . . . on . . . the street . . . in front of a person's house."
as requiring that the unlawfully cut tree was between the person's house and the street,
not simply that the tree was on a street that also, at some point in its length, ran in front
of the person's house. The latter interpretation would lead to absurd results, as persons
who lived blocks away would have a right of action simply because they lived on the
same street as the downed tree. In short, there is no reasonable interpretation of the
trespass to trees statute, AS 09.45.730, that would apply to the actions at issue here.
Weconclude,therefore, thatGalipeau'sbreachoftheCCRs, though willful,
did not constitute an independent tort for which he could be liable for punitive damages.
Because punitive damages may not be awarded in breach of contract actions absent
conduct amounting to an independent tort, we must vacate the punitive damages award.
2. Alaska Statute 34.08.670, which concerns common interest
ownership, does not apply.
In its conclusions of law, the superior court cited AS 34.08.670 to bolster
its contention that punitive damages were available, and the Bixbys rely on the statute
on appeal. The statute provides, in pertinent part, that persons who are adversely
affected by a failure to comply with Title 34, chapter 8 - governing "common interest
communities"43 - have "a claim for appropriate relief," which includes punitive
42 AS 09.45.730.
43
See AS 34.08.010 ("Except as provided in AS 34.08.030, this chapter
(continued...)
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44
damages "for a wilful failure to comply with this chapter." The Bixbys argue that their
subdivision is a "common interest community" covered by the chapter.
But "common interest community" is a precisely defined termfor purposes
of Title 34, chapter 8. A "common interest community" is "real estate with respect to
which a person, by virtue of ownership of a unit, is obligated to pay for real estate taxes,
insurance premiums, maintenance, or improvement of other real estate described in a
45 The Bixbys appear to argue that they are members of a "planned
declaration."
community" and therefore in a "common interest community," but to be covered by
Title 34, chapter 8 a planned community must still meet the "common interest
community" definition.46 And as Galipeau points out, nothing in the CCRs satisfies the
definitional requirement that the residents of the subdivision be "obligated to pay for real
estate taxes, insurance premiums, maintenance, or improvement of other real estate" in
the subdivision; they are more appropriately characterized as residents of a "general plan
47 As the Bixbys are not members of a "common interest community,"
development."
AS 34.08.670 does not give them a basis for a punitive damages award.
43 (...continued)
applies to each common interest community created within the state after January 1,
1986.").
44 AS 34.08.670.
45 AS 34.08.990(7).
46 See AS 34.08.990(24) (defining "planned community" as "a common
interest community that is not a condominium or a cooperative").
47 See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.7(1) (AM. LAW.
INST . 2000) ("A 'general-plan development' is a real-estate development or
neighborhood in which individually owned lots or units are burdened by a servitude
imposed to effectuate a plan of land-use controls for the benefit of the property owners
in the development or neighborhood.").
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V. CONCLUSION
We VACATE the superior court's judgment and its awards of
compensatory damages and punitive damages. We REMAND with instructions for the
superior court to enter an award of nominal damages and to revisit the issues of
prejudgment interest and attorney's fees as may be necessary.
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