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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wiersum v. Harder (8/23/2013) sp-6815

Wiersum v. Harder (8/23/2013) sp-6815

         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  



JOEL G. WIERSUM and DARLENE                          )  

WIERSUM,                                             )        Supreme Court No. S-14304  

                                                     )  

                          Appellants,                )        Superior Court No. 3KO-08-00064 CI  

                                                     )  

                                                     )        O P I N I O N  

PAUL R. HARDER and                                   )  

LISA W. WIETFELD,                                    )       No. 6815 - August 23, 2013  

                                                     )  

                          Appellees.                 )  

                                                     )  



                  Appeal from the Superior Court of the State of Alaska, Third
  

                                                             

                  Judicial District, Kodiak, Steve W. Cole, Judge.
  



                  Appearances:   Alexander O. Bryner, Feldman Orlansky &
  

                  Sanders,  Anchorage,  for  Appellants.    Jill  C.  Wittenbrader,
  

                  Law Office of Jill Wittenbrader, LLC, Kodiak, for Appellee
  

                  Harder.      Gregory   S.   Hunt,   Bliss,   Wilkens   &   Clayton,
  

                                                 

                  Anchorage, for Appellee Wietfeld.
  



                  Before:  Fabe, Chief Justice, Carpeneti, Winfree, Stowers, and
  

                  Maassen, Justices.
  



                  PER CURIAM.
  

                  FABE, Chief Justice, concurring.
  

                  CARPENETI, Justice, with whom WINFREE, Justice, joins, concurring in
  

                  part and dissenting in part.
  

                  WINFREE, Justice, concurring in part and dissenting in part. 
 

                  STOWERS, Justice, with whom MAASSEN, Justice, joins, concurring in
  

                  part and dissenting in part.
  


----------------------- Page 2-----------------------

I.        INTRODUCTION
  



                    This appeal arises out of a timber trespass action.  Paul Harder brought a  

                                                            



lawsuit  seeking  restoration  damages  against  Joel  and  Darlene  Wiersum   after  the  



Wiersums cleared trees from Harder's property without his permission.  The Wiersums  

                                                                                                         



filed a third-party complaint against Harder's sister, Lisa Wietfeld.  They sought to  



apportion fault to Wietfeld, claiming that she had negligently misrepresented that she  



                                                                  

owned the property where the trees were cut when she gave them permission to remove  



trees  from  her  property.    The  superior  court  granted  Wietfeld's  summary  judgment  



                                                                                                 

motion and dismissed the claim against her. The remaining parties proceeded to trial and  



                                                                                                                  

a jury awarded Harder $161,000 in compensatory restoration damages.  The jury also  



found that Harder was entitled to statutory treble damages.  The superior court denied  



                       

the Wiersums' motions for a directed verdict and judgment notwithstanding the verdict.  



                                                                                                   

                    The Wiersums appeal, arguing that the superior court erred by dismissing  



their  claim  against  Wietfeld  and  by  denying  their  motions  for  directed  verdicts  and  



                                                         

judgment notwithstanding the verdict. Because we conclude that Wietfeld owed no duty  



                                                                                      

to Harder, we affirm the superior court's grant of summary judgment as to Wietfeld.  We  



also affirm the superior court's denial of the Wiersums' motions for a directed verdict  



because Harder presented sufficient evidence for the issue of restoration costs to be  



                                                                            

submitted to the jury.  We conclude, however, that the superior court erred by denying  



the Wiersums' motion for judgment notwithstanding the verdict because the jury's award  



                                                                                

of restoration damages was objectively unreasonable. We therefore vacate the damages  



award and order a new trial on damages.  



                                                             -2-                                                       6815
  


----------------------- Page 3-----------------------

II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                                                                                                                    

                   Paul Harder bought land in the Monashka area of Kodiak in 1976.  He built  



                                                                                                              

a small home on the property in 1981 and lived there for several years.   In 1982 he  



subdivided the property into three lots: Lots 1A, 1B, and 1C.  



                                                                                                         

                   In  1993  Harder sold  Lot 1B, where his house stood, to  his sister,  Lisa  



                                                                                                                   

Wietfeld.  Over the next 15 years, Harder lived in Washington and Hawaii with his  



                                                                                                                          

family.  He periodically returned to Kodiak to fish and visit the Monashka property.  He  



                                                                                                  

testified that he intended to build a home on Lot 1A in the future, as this was his favorite  



area of the property.  



                   In  2002  the  Wiersums  bought  property  adjacent  to  Lot  1A  (Harder's  



property), which overlooks Lot 1B (Wietfeld's property).  The Wiersums could see  



Wietfeld's cabin at the bottom of the hill below their property, and they assumed that  



Wietfeld owned all of the land between her house and their property.  



                                                            

                   In 2005 Darlene Wiersum called Wietfeld while Wietfeld was at work to  



                                                                                         

ask if the Wiersums could cut down some trees on Wietfeld's property that might "come  



                                                                                   

down with the wind" and harm their property.  Wietfeld gave them permission because  



                                                                                           

she thought the removal of some trees would "let a little more light in."  When Wietfeld  



                                                            

returned home from work later that day, she discovered that the entire hillside had been  



                                                        

cleared.  Upset by the number of trees that had been cut, Wietfeld immediately called the  



Wiersums and left a message instructing them not to cut any more trees.  Harder next  



                                                                                                   

visited the property in 2007 and discovered the clear-cut hillside.  He asked Wietfeld  



who had cut the trees and informed her that the trees were on his property, not hers.   



                                                             -3-                                                       6815
  


----------------------- Page 4-----------------------

          B.       Proceedings  



                   In  March  2008  Harder  brought  a  timber  trespass  claim  against  the  



                                                                                                                 1  

Wiersums seeking restoration costs and treble damages under AS 09.45.730.   Harder  



                                                                                                             

asserted in his complaint that he had intended to let the land "remain in its natural state  



                                                                              

and planned to build a small cabin in the old growth forest for his retirement."  In their  



                                                           

answer,  the  Wiersums  asserted  that  if  they  were  liable  for  damages,  fault  must  be  



                                                                  2  

apportioned to Wietfeld under AS 09.17.080.   They also filed a third-party complaint  



against Wietfeld, alleging that she had negligently misrepresented to the Wiersums that  



she owned the property belonging to her brother and again claiming that in the event  



Harder was entitled to damages, fault must be apportioned between themselves and  



Wietfeld under AS 09.17.080.  



                                                     

                   Harder filed a motion for partial summary judgment seeking to establish  



                                          

that he was entitled to treble damages under AS 09.45.730.  The Wiersums opposed the  



motion, arguing that there was a genuine issue of material fact regarding application of  



one of the statutory exceptions to treble damages: whether the Wiersums reasonably  



                                                                                                              3  

believed that they had permission from the property owner to cut the trees.   Wietfeld  



          1        AS 09.45.730 provides that a person who commits trespass by removing  



trees or shrubs from another person's property "is liable to the owner of that land . . . for  

                                                                                                                        

treble the amount of damages that may be assessed in a civil action," unless one of the  

                                                    

three exceptions set forth in the statute applies.  



          2        AS 09.17.080 provides the process for determining percentages of fault and  



apportioning damages in actions where more than one person is liable.  



          3        Under the treble damages statute, a property owner may recover only actual  



                                                                                        

damages for timber trespass if the trespasser had "an honest and reasonable belief" that  

                                                                  

he had permission from the property owner to cut the trees.  Matanuska Elec. Ass'n v.  

                                                                                                              

Weissler, 723 P.2d 600, 608 (Alaska 1986) (quoting Curlee v. Donaldson, 233 S.W.2d  

746, 754-55 (Mo. App. 1950)).  



                                                             -4-                                                       6815
  


----------------------- Page 5-----------------------

filed  a  cross-motion  for  summary   judgment,  arguing  that  there  was  no  evidence  to  



support a claim of liability against her.  



                   The  superior  court  denied  Harder's  motion,  ruling  that  whether  the  



Wiersums' actions were reasonable was a question of fact for the jury to decide.  The  



superior  court  granted  Wietfeld's  motion,  ruling  that  the  material  facts  regarding  



Wietfeld's  involvement  were  undisputed  and  did  not  support  a  claim  against  her.  



Accordingly, the superior court dismissed the claim against Wietfeld.  



                   Harder and the Wiersums proceeded to trial in May 2010.  Harder testified  



                                                                                            

about his reasons for wanting to restore the land to its original condition.  As a boy, he  



                                                                                                           

had hiked across the property with his friends while hunting and fishing.  He lived in the  



                                                                                            

house that he had built on Lot 1B for several years. Even after he moved out of Alaska,  



he  continued  to  fish  in  Kodiak  in  the  summers  and  periodically  spent  time  at  the  



                                       

Monashka  property  with  his  family.    He  testified  that  he  held  on  to  the  Monashka  



                                                                              

property for 34 years and that he intended to build a house and live on Lot 1A once his  



son graduated from college.  



                                                                                                 

                   Harder testified that he had "always wanted to keep [Lot] 1A" because it  



                                 

was "a very beautiful piece of property."  The property was also very private, because  



the tall trees screened the neighboring houses from view.  But after the trees were cut  



                                  

down,       the    property        "looked       totally     different":       It   was      "full    of    salmonberry  



                

bushes, . . . whereas it was just like thick moss before," he had not heard any ravens there  



since  the  trees  were  cut,  and  he  had  lost  his  privacy.    Harder  concluded:  "It's  



                                                                                             

been . . . altered forever, and all I'm asking is that it's repaired. . . . I mean, I don't want  



money.  I want my trees back."  



                   Harder presented expert testimony on the cost of restoring the land.  A  



forester  had  identified  approximately  70  stumps  on  Harder's  property.    An  arborist  



                                                          

testified that it would cost $161,000 to transplant 70 Sitka spruce trees that were nine to  



                                                             -5-                                                       6815
  


----------------------- Page 6-----------------------

ten feet tall and an additional $162,000 to replace the forest ground cover.  The arborist               



testified that it was necessary to purchase the trees from a nursery in British Columbia           



because it was only possible to get trees up to seven feet tall in Alaska.  A horticulturist  



testified to a different method of transplanting larger trees and estimated it would cost  



                          

$620,537 to restore Harder's property.  He agreed that it would be "much easier" and  



cheaper  to  transplant  smaller  trees.    Harder  conceded  on  cross-examination  that  his  



                                                                                                                                

property was valued at about $27,500 for tax purposes and that it had not suffered any  



diminution in market value as a result of the lost trees.  



                          At the conclusion of Harder's evidence, the Wiersums filed a motion for  



a directed verdict on the issue of restoration costs, arguing that Harder had failed to  



provide evidence of diminution in the value of his property or any damages due to the  



                                                                                                                                         

loss of the wood from the cut trees. They contended that the restoration appraisal figures  



                                                       

offered by Harder's experts were not "reasonably proportionate to a zero diminution in  



                                                                                                                                           4  

market value" as required by this court's decision in Osborne v. Hurst.   The superior  



                                                                                       

court denied the motion, finding that Harder had presented sufficient evidence to allow  



the jury to consider the claim.  



                          The Wiersums testified and explained that when they obtained Wietfeld's  



                                   

permission to cut the trees on her property, they believed that she owned the land where  



the trees were, although they admitted that they did not check public records to verify  



ownership.  The Wiersums then presented evidence from an expert in real estate sales  



and  transactions  who  testified  that  in  2005  Harder's  property  had  a  listing  value  of  



                                                                                                                                         

$30,000 - $40,000, and by 2009 would have been listed at $50,000 -  $55,000.  The  



                                                                                                                                        

expert also testified that the value of the lot would only be "minimally affected, if at all"  



by the removal of the trees.  



             4            947 P.2d 1356, 1358-59 (Alaska 1997).  



                                                                                 -6-                                                                                6815  


----------------------- Page 7-----------------------

                                                                            

                    The Wiersums also presented expert testimony from another arborist who  



                                                            

estimated restoration would cost about $34,000.  The Wiersums' arborist's restoration  



estimate for Harder's land was based on the value of the trees removed, the cost of  



                                                                     

transplanting smaller Sitka spruce from other areas of Kodiak, and the addition of funds  



to compensate for "the value of what can't be replaced," such as 80 to 100 foot tall trees  



                                                                                                      

that were "growing in a forested environment where the root zones [were] intertwined,  



                                                                           

and . . . where you can't just go and replace that exact tree in that environment."  The  



trees that were removed were valued using the "trunk formula method."  This method  



                                             

determines the value of a lost tree by first identifying the price of a replacement tree that  



                                                                                                                   

is "the largest common available size," and then measuring a cross-section of the lost tree  



                                                                                                      

and  extrapolating  its price based  on  the price of the replacement tree.    The  arborist  



                                                                                                                   

testified that this method is used when it is not possible to replace exact trees due to their  



                                                                                      

size or their growth in a forested environment where their root zones are intertwined.  He  



                                                                                                         

testified that some of the stumps he identified on Harder's land were from "hazardous  



trees" that would normally receive a negative value  because they would have to be  



removed by the owner before any house could be built on the property.  But, in his  



appraisal, the arborist classified these trees as "habitat in  a forest" and gave them a  



neutral  value.    The  arborist  testified  that  his  restoration  plan  specifically  took  into  



account  Harder's  interest  in  restoring  the  privacy  that  his  property  had  previously  



enjoyed.  



                                                           

                    At the conclusion of their evidence, the Wiersums renewed their motion for  



a directed verdict, arguing that there was no evidence of diminution in the value of  



                                                                        

Harder's property and that the only restoration cost figures offered into evidence were  



                                                                                         

disproportionate in light of this "zero" diminution in value.  They asserted that there was  



                                                                                                                  

therefore no evidence in the record from which the jury could conclude that an award of  



                                                               -7-                                                         6815
  


----------------------- Page 8-----------------------

                                                                                                               

restoration costs would be objectively reasonable.  The superior court again denied the  



Wiersums' motion.  



                                                                                                    5 

                                                                                                      that justified restoring  

                     The jury found that Harder had a "reason personal" 



the property to its previous condition, and it awarded him $161,000 in compensatory  



                                                                     

restoration damages.  The jury also found that Harder was entitled to statutory treble  



damages.  The Wiersums then filed a motion for a judgment notwithstanding the verdict  



                                                                   

(JNOV), arguing that "the restoration cost damages awarded to the Plaintiff Paul Harder  



                                                                                              

are manifestly unreasonable as a matter of law in light of the zero diminution in the value  



of Mr. Harder's property that resulted from the trees being cut."  The superior court  



                                                                                             

denied the motion and entered a final judgment in favor of Harder.  The Wiersums now  



                          

appeal, arguing that the superior court erred by dismissing their claims against Wietfeld  



and by denying their directed verdict and JNOV motions.  



III.       STANDARD OF REVIEW  



                                                                                                                   

                     We review the superior court's grant of summary judgment to Wietfeld de  



         6  

novo.   Summary judgment is appropriate if, viewing the evidence in the light most  



           5         Although "the reasonable cost of replacing the land in its original position"   



is ordinarily an acceptable measure of damages for trespassory harm to land such as the   

removal  or  destruction  of  trees,  see  RESTATEMENT  (SECOND)  OF  TORTS    929(1)(a)  

cmt. b (1977), we have allowed for the possibility of disproportionately large restoration  

                                                                                  

costs only if there is a "reason personal to the owner for restoring the land to its original  

                                                               

condition."    Osborne,  947  P.2d  at  1359  (internal  quotation  marks  omitted)  (citing  

RESTATEMENT (SECOND) OF TORTS  929(1)(a) cmt. b).  



           6  

                                                   

                     Powell v. Tanner , 59 P.3d 246, 248 (Alaska 2002) (citing State v. Alaska  

Civil Liberties Union, 978 P.2d 597, 603 (Alaska 1999)).  



                                                                  -8-                                                           6815
  


----------------------- Page 9-----------------------

                                                                                             

favorable to the non-moving party, there is no genuine dispute over the material facts and  



                                                                                         7  

the moving party is entitled to judgment as a matter of law.   



                    We  also  review  de  novo  the  superior  court's  denial  of  the  Wiersums'  



                                                      8  

directed verdict and JNOV motions.   The "substantive legal question" is whether, after  



                                                                                       

reviewing  the  full  record  presented  to  the  jury  in  the  light  most  favorable  to  the  



                                                                                                                           9  

                                                                                                                               In  

non-moving  party,  a  reasonable  juror  could  possibly  find  in  that  party's  favor. 



reviewing the record, this court does not weigh conflicting evidence or judge witness  

credibility.10  



IV.	      DISCUSSION  



                                                                                                                 

          A.	       The Superior Court Did Not Err By Granting Wietfeld's Motion For  

                    Summary Judgment And Dismissing The Claim Against Her.  



                                            

                    The Wiersums brought a third-party complaint seeking to apportion fault  



to Wietfeld on the theory that she was negligent in misrepresenting her ownership of  



Harder's property when she gave the Wiersums permission to cut down trees.  The  



                                                                                                                   

superior court granted summary judgment in favor of Wietfeld, finding that she did not  



          7	        Alaska R. Civ. P. 56(c); Powell , 59 P.3d at 248.  



          8         Cameron v. Chang-Craft, 251 P.3d 1008, 1017-18 (Alaska 2011) (citing   



L.D.G., Inc. v. Brown , 24 P.3d 1110, 1117 (Alaska 2009)).  



          9         Id.  at  1017.    A  mid-trial  motion  for  a  directed  verdict  "is  essentially  a  



summary judgment motion made after the close of an opponent's case."  Id.  Because the  

                                                                                                  

Wiersums renewed their mid-trial motion at the close of all the evidence, we review their  

                               

motion on the full record presented to the jury.  



          10  

                                                                                                        

                    Id. at 1017-18 (citing City of Whittier v. Whittier Fuel & Marine Corp., 577  

                          

P.2d   216,   220   (Alaska   1978),   disapproved   on   other   grounds,  Native   Alaskan  

                                                                                         

Reclamation & Pest Control, Inc. v. United Bank of Alaska , 685 P.2d 1211, 1220 (Alaska  

 1984)).  



                                                               -9-	                                                        6815
  


----------------------- Page 10-----------------------

                                         11  

                                                                 

owe a duty to the Wiersums.                  But we have previously explained that "fault can only be  



apportioned under AS 09.17.080 to parties who may be liable to the plaintiff for money  



                                                                                            12  

                                                                                                Thus, the Wiersums'  

damages, including third-party defendants and settling parties." 



liability cannot decrease through apportionment to Wietfeld unless Wietfeld may be  



liable to Harder for negligence.  While the superior court twice ruled that Wietfeld did  



                                                    

not owe a duty to the Wiersums, it never addressed whether she owed a duty to Harder.  



But we are "not bound by the reasoning articulated by the superior court and can affirm  



a grant of summary judgment on alternative grounds, including grounds not advanced  



                                                     13  

                                                         We may therefore address the issue of whether  

by the superior court or the parties." 



                                                                                               

Wietfeld owed a duty to Harder when she told the Wiersums that they could cut trees on  



her property.  



                    1.       Wietfeld owed no duty to Harder.  



                                                                                                  

                    In their complaint, the Wiersums contended that fault must be apportioned  



                                                         

to Wietfeld because she was negligent when she failed to disclose to the Wiersums that  



she did not know exactly where her property lines were and that Harder also owned  



                              14  

                                       

property in the area.             In essence, their negligence claim was based on the theory that  



          11        Liability under a negligence theory requires a showing of duty and a breach        



of that duty.   See Lyons v. Midnight Sun Transp. Servs., Inc., 928 P.2d 1202, 1204  

(Alaska 1996) (citing Alvey v. Pioneer Oilfield Servs., Inc. , 648 P.2d 599, 600 (Alaska  

1982)).  



          12       Alaska Gen. Alarm, Inc. v. Grinnell , 1 P.3d 98, 102 (Alaska 2000) (citing  

                                                                                          

Benner v. Wichman , 874 P.2d 949, 955-58 (Alaska 1994)).  



          13       Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc. , 32  



P.3d 346, 351 (Alaska 2001) (citing Wright v. State, 824 P.2d 718, 720 (Alaska 1992)).  

                                                                                                  



          14  

                                                                        

                    Wietfeld argues that the Wiersums either abandoned their apportionment  

                                                                        

claim in oral argument before the superior court or invited the superior court's alleged  

                                                                                                           (continued...)  



                                                            -10-                                                       6815
  


----------------------- Page 11-----------------------

Wietfeld  had  negligently  misrepresented  or  failed  to  disclose  information  to  the  



Wiersums, and her negligence caused the Wiersums to trespass on Harder's property and  



remove Harder's trees, thereby causing Harder to suffer damages.    



                    Negligent  misrepresentation  requires  a  showing  that  a  party  made  a  



                                                 

misrepresentation "in the course of [her] business, profession, or employment, or in any  

other transaction in which [she] has a pecuniary interest."15  Similarly, liability for failure  



                                                                                                           

to disclose information when there is an affirmative duty to do so occurs when one party  



                                                          

"fails to disclose to another a fact that he knows may justifiably induce the other to act  



                                                                       16  

                                                                                                           

or refrain from acting in a business transaction."                         There is no evidence to support, and  



the parties do not argue, that Wietfeld was involved in a business transaction with the  



Wiersums or had a pecuniary interest in the removal of the trees.  Thus, Wietfeld owed  



                                                      

no duty under a theory of negligent misrepresentation or failure to disclose information  



                                                               17  

when she had an affirmative duty to do so.                         



          14(...continued)  



error in dismissing the claim.  But we need not reach this issue because we conclude that  

                                            

there is no evidence to support the Wiersums' arguments that Wietfeld owed a duty to  

                                                                                                                    

Harder  under  a  theory  of  negligent  misrepresentation,  nondisclosure,  or  general  

negligence.  



          15        RESTATEMENT  (SECOND)  OF  TORTS    552(1)  (1977);  see  also  Valdez  



Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co. , 45 P.3d 657, 671 (Alaska 2002);  

Bubbel v. Wien Air Alaska, Inc. , 682 P.2d 374, 380 (Alaska 1984).  



          16  

                                                                             

                    RESTATEMENT (SECOND) OF  TORTS   551(1) (1977); see also Arctic Tug  

                                                       

&  Barge,  Inc.  v.  Raleigh,  Schwarz  &  Powell,  956  P.2d  1199,  1202  (Alaska  1998);  

Turnbull v. LaRose, 702 P.2d 1331, 1334 (Alaska 1985).  



          17  

                                                                                                    

                    Even if Wietfeld had owed a duty under one of these theories, she would  

                                 

have owed this duty to the Wiersums and not to Harder.  Thus, a breach of this duty  

                                                                                      

would  not  be  sufficient  to  apportion  fault  to  Wietfeld  for  the  harm  caused  by  the  

Wiersums' trespass.  



                                                             -11-                                                        6815
  


----------------------- Page 12-----------------------

                                                              

                    We turn next to the question whether Wietfeld owed a duty to Harder under  



a general negligence theory.  The Wiersums argue that Wietfeld owed a broad duty of  



             

care  to  her  neighbors  -  both  themselves  and  Harder  -  and  is  liable  for  any  



unreasonable  risk  of  harm  to  these  parties  that  stems  from  her  own  conduct.    They  



                                                                                                                       18 

                                                                                                                          and  

support this assertion with references to the Restatement (Second) of Torts  158 



         19  

                 

 165,      as well as a treatise on tort law.  They also cite to case law from other states for  



the rule that "[a] landowner who intends to have timber cut on his land owes a duty to  



an  adjoining  landowner  to  ascertain  the  boundary  line  of  the  adjoining  land  with  



                             20  

                                                 

diligence and care."             But these sources do not support the imposition of a duty in this  



case.  



                                                                                             

                    Sections 158 and 165 of the Restatement (Second) of Torts are inapplicable  



here.  Comment j to section 158 indicates that the section is intended to apply to cases  



          18        This section provides, in relevant part:  



                                                                                    

                              One is subject to liability to another for trespass . . . if  

                    he intentionally  



                              (a) enters land in the possession of the other, or causes  

                    a thing or a third person to do so, . . . .  



          19        This section provides:  



                              One who recklessly or negligently, or as a result of an  

                    abnormally dangerous activity, enters land in the possession  

                    of another  or  causes a thing or third person so to enter is  

                                          

                    subject to liability to the possessor if, but only if, his presence  

                                                                           

                    or the presence of the thing or the third person upon the land  

                                                                      

                    causes harm to the land, to the possessor, or to a thing or a  

                                                              

                    third  person in whose security the possessor has a legally  

                             

                    protected interest.  



          20        Burris v. Krooss , 563 S.W.2d 875, 877 (Tex. Civ. App. 1978) (citing Kirby  



Lumber Corp. v. Karpel , 233 F.2d 373 (5th Cir. 1956)).  



                                                             -12-                                                       6815
  


----------------------- Page 13-----------------------

                                                                                                                                21  

                                                                          

where "by any act of his, the actor intentionally causes a third person to enter land." 



To satisfy the element of intent, the actor must "command[] or request[]" a third person  

                                                       

                                          22  Section 158 thus applies the general principle that "one  

to enter the land of another.  

                                                                                                                     



who intentionally causes another to do an act is under the same liability as though he  

                             



                                                    23  

himself does the act in question."                      There is no evidence in the record that Wietfeld  

                                     



commanded or requested that the Wiersums enter Harder's land and remove his trees.  



Section 158 is therefore inapplicable.  



                    Section  165  similarly  provides  no  support  for  the  Wiersums'  position.  



Section  165  imposes  liability  where  a  party  recklessly  or  negligently  enters  land  in  

                                                                                       



possession of another, or causes "a thing or third person so to enter," and thereby harms  

             24  Comment a to this section indicates that the rule applies where "the conduct  

the land.                                                                                             



of the actor either . . . involve[s] an unreasonable risk of invading the possessor's interest  

                             



in his exclusive possession of the land, or . . . [is] caused by an abnormally dangerous  

                                                25   As examples, the illustrations to section 165 indicate  

activity carried on by the actor."     



that liability may apply to reckless or negligent driving of an automobile that results in  



                                                                                                 

a crash on another's land; a "balloon ascension" at a county fair that the owners should  



                                                                                                 

realize is likely to touch down on the land of another, and does; a landowner's blasting  



to excavate a cellar that causes damage to a neighbor's house; and a jet pilot who crashes  



          21        RESTATEMENT (SECOND) OF TORTS    158  cmt. j (1965) (emphasis added).
     



          22        Id.
  



          23        Id.
  



          24        RESTATEMENT (SECOND) OF TORTS  165 (1965).  



          25        Id. at cmt. a.  



                                                              -13-                                                        6815
  


----------------------- Page 14-----------------------

                                                                   26  

an experimental plane onto another party's land.    Unlike these illustrations, Wietfeld's  



act of giving the Wiersums permission to cut trees on her own land did not present an  



                                        

unreasonable  risk  that  the  Wiersums  would  enter  Harder's  land  and  cut  his  trees.  



Section 165 is therefore also inapplicable here.  



                   The Wiersums next cite case law from Texas for the rule that landowners  



                                                                                                      

who  intend  to  cut  timber  on  their  own  land  owe  a  duty  to  adjoining  landowners  to  

                                                                      27  This rule was established in Kirby  

                                                                            

ascertain the boundary lines of the adjoining land.                                      

                                   28  a seminal case in which the United States Court of Appeals  

Lumber Corp. v. Karpel ,                                                  



for the Fifth Circuit applied Texas law.  In Kirby Lumber , landowners in Texas brought  



a suit for damages against their neighbors, a lumber corporation, and individuals who  



unwittingly advised a timber removal company to harvest trees from the landowners'  



             29  

                 The defendant-landowners had arranged with a timber removal company to  

property.                                                                                      

cut and sell timber from their land to a lumber corporation.30  An agent for the defendant- 

                                                                                      



landowners took a representative of the timber removal company to the property and  

                                                                          31    The  agent  then  referred  the  

                                                                                                         

pointed  out  "one  or  two"  of  the  property  lines.  



representative  to  an  associate  who  subsequently  gave  the  representative  incorrect  



                                                                               

boundary lines resulting in the removal of timber from a neighboring piece of property  



          26       Id. at cmt. c & cmt. e.  



          27       See Burris v. Krooss,  563 S.W.2d 875, 877 (Tex. Civ. App. 1978) (citing  



Kirby Lumber Corp. v. Karpel , 233 F.2d 373 (5th Cir. 1956)).  



          28       233 F.2d at 375.  



          29       Id. at 374-75.  



          30       Id. at 374.  



          31       Id.  



                                                          -14-                                                     6815
  


----------------------- Page 15-----------------------

                                             32  

                     

owned by the plaintiffs.                         The Fifth Circuit concluded that the defendant-landowners,  



                                                                                             

acting through their agents, had failed to discharge their duty to show the correct location  



                                                                                              

of  the  boundary  lines  and  were  therefore  liable  for  trespass  because  they  "aid[ed],  



                                                                                                    33  

assist[ed], or advise[d]" the timber removal company.                                                     



                         Unlike the defendant-landowners in Kirby Lumber , Wietfeld did not seek  

                                                                                                                          



out  the  Wiersums  to  remove  trees  from  her  land,  nor  did  she  affirmatively  offer  



                                                                                                                                               

inaccurate information about her property boundaries.  The Wiersums did not ask her for  



this information and, because this was not a business transaction, she was under no legal  



                                            34  

obligation to provide it.                        Under the reasoning of Kirby Lumber , and the line of cases  



                                                                                               

that rely upon it, Wietfeld did not assume a duty to give accurate information to the  



Wiersums when they asked permission to remove her trees.  



                                                                                                                                

                         Finally, the Wiersums' reliance on Prosser and Keeton's treatise on tort law  



                              

for the rule that a landowner owes a broad duty "to cause no unreasonable risks of harm  



                                                                                      35  

to  others  in  the  vicinity"  is  also  unavailing.                                        Our  prior  decisions  recognize  that  



                                                                                                           

landowners have a "duty to use due care to guard against unreasonable risks created by  



                                                                                           36  

                                                                                               We have also held that a landowner  

dangerous conditions existing on their property."  



must  act  "as  a  reasonable  person  in  maintaining  his  property  in  a  reasonably  safe  



            32           Id.  



            33           Id. at 375.  



            34           See  RESTATEMENT  (SECOND) OF  TORTS  551(1) (1977); see also Arctic  



Tug & Barge, Inc. v. Raleigh, Schwarz & Powell                                             , 956 P.2d 1199, 1202 (Alaska 1998);         

Turnbull v. LaRose, 702 P.2d 1331, 1334 (Alaska 1985).  



            35           W.  PAGE KEETON ,  DAN  B.  DOBBS,  ROBERT E.  KEETON  &  DAVID G.  OWEN ,  



P 

                                         

   ROSSER & KEETON , THE LAW OF TORTS  57, at 386 (5th ed. 1984).  



            36           Estate of Mickelsen ex rel. Mickelsen v. North-Wend Foods, Inc.                                                      , 274 P.3d  



1193, 1199 (Alaska 2012) (quoting Burnett v. Covell , 191 P.3d 985, 989 (Alaska 2008)).                             



                                                                            -15-                                                                       6815
  


----------------------- Page 16-----------------------

                                                                                37  

                                                                                              

condition in view of all the circumstances."                                         But we have never previously gone so far  



as to hold that a landowner has a broad duty to prevent the unreasonable risk of harm to  



her neighbors caused by third parties.  



                                                                          

                          In the absence of statute, regulation, contract, or case law, the question of  

whether an actionable duty of care exists "is essentially a public policy question."38                                                                        In  



                                         

D.S.W.  v. Fairbanks North Star Borough School District, we identified a number of  



                                                           39  

                                                               As  we  recently  observed  in  Hurn  v.  Greenway ,  

factors  to  guide  this  inquiry. 



                                                                                                                                                     

foreseeability  of  harm  is  the  most  important  factor,  followed  by  the  burden  on  the  



                                                                                              40 

defendant and the consequences to the community.                                                   Thus, "there can be no duty where  



the harm is unforeseeable, but foreseeability alone is insufficient to establish a duty if the  

burden of taking care or the effect on society is too harsh."41  



                         The foreseeability of harm to Harder resulting from Wietfeld's conduct was  



                                                                                                                                                    

low.  Wietfeld made no active representation to the Wiersums to imply that the trees on  



             37          Webb  v.  City  &  Borough  of  Sitka,  561  P.2d  731,  733  (Alaska  1977),  



superseded on other grounds by statute, AS 09.65.200, as recognized in Univ. of Alaska  

v.  Shanti,  835  P.2d  1225,  1228  n.5  (Alaska  1992)  (discussing  AS  09.45.795,  

subsequently renumbered as AS 09.65.200).  



             38          D.S.W. v. Fairbanks N. Star Borough Sch. Dist. , 628 P.2d 554, 555 (Alaska  



 1981).  



             39          These factors are:   The foreseeability of harm to the plaintiff, the degree of  



certainty that the plaintiff suffered injury, the closeness of the connection between the   

defendant's conduct and the injury suffered, the moral blame attached to the defendant's     

conduct, the policy of preventing future harm, the extent of the burden to the defendant                              

and consequences to the community of imposing a duty to exercise care with resulting   

liability for breach, and the availability, cost, and prevalence of insurance for the risk  

involved.  Id.  



             40          293 P.3d 480, 486-87 (Alaska 2013).  



             41          Id. at 487 (internal citations omitted).  



                                                                             -16-                                                                       6815
  


----------------------- Page 17-----------------------

the hillside near the Wiersums' property were hers and not Harder's.  She merely gave   



the Wiersums permission to cut trees on her own land.                                    It was thus foreseeable that the     



Wiersums would cut trees on Wietfeld's property.  But it was not foreseeable that the  



Wiersums would remove 70 large trees from the hillside of Harder's property - some  



of  which  were  located  between  300  and  400  feet  from  the  Wiersums'  own  land  -  



                                                                        

without conducting proper due diligence to identify the true property owner and then  



seeking that person's permission.  "No person can be expected to guard against harm  



from events which are not reasonably to be anticipated at all, or are so unlikely to occur  



                                                                                                                  42  

that the risk, although recognizable, would commonly be disregarded."                                                  



                     The burden on Wietfeld and the negative consequences to the community  

                                                                                                                   



of imposing a duty under these circumstances are also significant.  Imposing such a duty  

                                                                                                          



would inflict large judgments on parties like Wietfeld, who would be forced to pay for  

                                                                         



the unforeseeable reckless or negligent conduct of a third party if it results in harm to a  

                                                                                                                        



neighbor's  property.    The  community  would  also  be  burdened  because  landowners  



would be required to acquire and provide accurate information about their property  



boundaries before granting their neighbors permission to take any action on their land,  



                                                                            

lest they be exposed to tort liability.  We think a sounder policy is to require any party  



who seeks to benefit by removing trees from another's property to identify the true  



property owner and confirm accurate property boundaries.   



                                                                                                          

                     On  balance,  we  conclude  that  Wietfeld  owed  no  duty  to  inform  the  



Wiersums of Harder's property lines when they asked to cut trees on her property, and  



we affirm the superior court's grant of summary judgment to Wietfeld.  



           42        PROSSER  &  KEETON ,  THE LAW OF TORTS  31, at 170.  



                                                                  -17-                                                                6815  


----------------------- Page 18-----------------------

                    2.	       We decline to reverse the superior court's grant of summary  

                                                                            

                              judgment to Wietfeld based on new arguments raised for the  

                              first time on appeal.  



                    The Wiersums also argue for the first time on appeal that there is a genuine  



                                                                                              

issue of fact regarding whether Wietfeld is liable for trespass.  But at trial, counsel for  



the Wiersums expressly stated that the Wiersums were "not trying to hold [Wietfeld]  



                                                                        

liable specifically for the elements of trespass."  We have previously stated that we will  



affirm a grant of summary judgment on alternative grounds, including grounds that were  



                                           

not advanced by the parties, and may consider "any matter appearing in the record, even  



                                                                                                               43  

                                                                                                                     But  the  

if  not  passed  upon  by  the  superior  court,  in  defense  of  the  judgment." 



                                  

Wiersums  ask  us  to  reverse  a  grant  of  summary  judgment  on  grounds  that  were  



                                                                        

specifically disclaimed at trial and therefore not considered by the superior court.  In the  



interests of fairness to the trial court and justice to Wietfeld, we decline to reverse the  

superior court's ruling based on new arguments raised for the first time on appeal.44  



                                                                  

          B.	       The Superior Court Did Not Err By Denying The Wiersums' Motions  

                                                         

                    For Directed Verdicts.  



                    The Wiersums challenge the superior court's denial of their two motions  



                                                                                                

for directed verdicts on Harder's claim for restoration damages.  They argue that Harder  



          43        Hoffman Constr. Co. of Alaska v. U.S. Fabrication & Erection, Inc. , 32  



P.3d 346, 351 (Alaska 2001); see also Sengupta v. Univ. of Alaska , 21 P.3d 1240, 1255  

                                                                            

(Alaska  2001);  Pierce  v.  Pierce,  949  P.2d  498,  500-01  (Alaska  1997);  Williams  v.  

Alyeska Pipeline Serv. Co. , 650 P.2d 343, 351 (Alaska 1982).  



          44  

                                                                              

                    See Harvey v. Cook, 172 P.3d 794, 802 (Alaska 2007) ("Ordinarily, a party  

                                                                                  

seeking to raise an issue on appeal must have raised it and offered evidence on it in the  

                                                  

trial court.  Therefore, issues not properly raised in the trial court will not ordinarily be  

                                                                                   

considered on appeal.  This rule is based on the belief that permitting a party to claim  

                                                                                                    

error regarding a claim not raised and litigated below 'is both unfair to the trial court and  

unjust to the opposing litigant.' " (quoting In re Marriage of Walker , 42 Cal. Rptr. 3d  

325, 332 (Cal. App. 2006))).  



                                                             -18-	                                                       6815
  


----------------------- Page 19-----------------------

presented  insufficient  evidence  of  a  reason  personal  to  justify  restoration  damages.  



Harder contends that the Wiersums have failed to preserve this argument because they  



             

did not challenge the existence of his reason personal in either of their motions for  



                                                                                 

directed verdict.  In the alternative, Harder argues that he presented sufficient evidence  



of a reason personal for the issue to reach the jury.  



                                                              

                    As a general matter, a party waives an argument if the party did not raise  

                                 45  Harder is correct that the Wiersums did not explicitly challenge  

it in the superior court.                                                                



the  existence  of  his  reason  personal  when  they  moved  for  directed  verdict.    The  

                           



Wiersums' arguments in favor of directed verdict centered on an alleged lack of evidence  



                                                         

of diminution in the value of Harder's property, and thus lack of a basis for an award of  



                                                                                                      

damages.  The Wiersums have therefore waived the argument that Harder presented  



                                                                                                    

insufficient  evidence  of  a  reason  personal  and  after  reviewing  the  merits  of  the  



Wiersums' argument, we conclude that there was no reversible error by the superior  



         46  

court. 



                    We  have  recognized  that  a  party  who  is  injured  by  an  invasion  of  his  

                                                               



property "not totally destroying its value" may choose as damages "either the loss in  



                                                        47  

                                                            To determine whether an award of restoration  

value or reasonable restoration costs."                                                       



          45        See Kingery v. Barrett, 249 P.3d 275, 281 n.15 (Alaska 2011) (citing                              Blood  



v. Kenneth A. Murray Ins., Inc. , 151 P.3d 428, 431 n.17 (Alaska 2006)).  



          46       Miller v. Sears , 636 P.2d 1183, 1189 (Alaska 1981) ("We decline to review  



claims not raised below except to the extent that they may constitute plain error.").  



          47        Osborne v. Hurst, 947 P.2d 1356, 1358 (Alaska 1997) (quoting  G & A  



Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379, 1385 (Alaska 1974))  

(internal quotation marks omitted).  



                                                             -19-                                                       6815
  


----------------------- Page 20-----------------------

costs  is  appropriate,  we  have  adopted  the  test  set  forth  in  Restatement  (Second)  of  

Torts  929,48 which provides in part:  



                                                                                           

                     (1)       If  one  is  entitled  to  a  judgment  for  harm  to  land  

                    resulting from a past invasion and not amounting to a total  

                     destruction of value, the damages include compensation for  



                               (a)       the  difference  between  the  value  of  the land  

                                                                                                           

                    before  the  harm  and  the  value  after  the  harm,  or  at  his  

                                                                                        

                     election in an appropriate case, the cost of restoration that has  

                                                                     

                                                                             [49] 

                    been or may be reasonably incurred.  



                                                                        

Comment b to  929 explains that damages 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  



                 50  

                                                                          

condition."           We have previously interpreted "reason personal" to mean peculiar or  

special  to  the  owner.51  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  



                                                                                                                       52  

restoration costs award rather than to pocket the funds and enjoy a windfall."                                              



                     In  G & A  Contractors, Inc. v. Alaska Greenhouses, we concluded that  



                                                    

restoration damages were proper because the plaintiff's use of the damaged property as  



                                                                                                

"a showplace in connection with his nursery business" was a purpose "peculiar" to the  



          48        See id.; see also Andersen v. Edwards, 625 P.2d 282, 288 (Alaska 1981).   



          49         RESTATEMENT (SECOND) OF TORTS  929 (1977).  



          50        Id. at cmt. b (emphasis added).  



          51        See Osborne, 947 P.2d at 1359 (citing Andersen , 625 P.2d at 288).  



          52        Id.  



                                                               -20-                                                          6815
  


----------------------- Page 21-----------------------

             53  

plaintiff.       In  Osborne v. Hurst, we suggested that a reason personal may also exist  



where a plaintiff owns a piece of property "because of its unique views, its abundant  



                                                                                                             54  

trees, and the unusual juxtaposition of the trees, the cabin, and the views."                                    We also  



found  relevant  the  plaintiff's  testimony  that  "other  properties  in  the  area  were  not  



                                                                                      

comparable,"  and  that  she  and  her  partner  planned  to  use  the  property  for  their  



                55  

retirement.           



                   In Andersen v. Edwards , however, we determined that the plaintiff had not  



                                                                                                   

demonstrated a reason personal because he had not shown that trees cut on his property  



were particularly valuable to him "because of their beauty, location, quality, size or other  



                             56  

particular features."            The trees were not "ornamental" and did not have any "special  



                                                                                                     57 

                                                                                                         We concluded  

value" beyond the fact that they were located on the plaintiff's property. 



                                

that the plaintiff had not demonstrated a reasonable likelihood that the trees would be  



restored, and we held that the appropriate measure of damages was the diminution in  

value of the property or the economic value of the timber that was cut.58  



                                                                               

                   Harder presented evidence at trial that he held on to the Monashka property  



for 34 years and that he intended to build a house and live on Lot 1A once his son  



graduated from college because "it's a very beautiful piece of property."  Harder's sister  



                                                                                                       

confirmed that Harder intended to build a cabin on the property.  A real estate agent also  



          53       517 P.2d 1379, 1387 (Alaska 1974).
  



          54       947 P.2d at 1360.
  



          55       Id.
  



          56       625 P.2d at 288-89.  



          57       Id. at 289.  



          58       Id.  



                                                            -21-                                                      6815
  


----------------------- Page 22-----------------------

testified that he approached Harder about selling the land, but Harder refused to sell.  



And Harder testified that he "[didn't] want money," he only "want[ed his] trees back"  



                                       

and was therefore asking for damages to restore the property by replanting the forested  



area.  He testified that Lot 1A had a "big, nice, beautiful" carpet of moss and that the  



                                                                         

property was very private, because the tall trees screened the neighboring houses from  



                                              

view.  He also testified that he enjoyed spending time with his children on the property,  



but that after the trees were cut down, the property "looked totally different":   It was  



                                                                                                                        

now "full of salmonberry bushes, . . . whereas it was just like thick moss before," and he  



                               

reported that he had not heard any ravens there since the trees were cut.  In light of this  



                                                                                 

testimony, we cannot conclude that the superior court erred in determining that Harder  



had presented sufficient evidence of a reason personal for the issue of restoration costs  



to be submitted to the jury.  



                                                                                        

          C.        The Superior Court Erred By Denying The Wiersums' JNOV Motion.  



                                                                                     

                    The Wiersums also challenge the superior court's denial of their JNOV  



                                                                                          

motion.  They argue that the superior court erred because the jury's award of restoration  



damages  is  objectively  unreasonable  given  its  disproportionate  relationship  to  the  



                                                                                               

property's diminution in value and because Harder's "minimal use of and contribution  



                                                                                                   

to the land's special value would at most justify a marginal award of restoration costs."  



                                                                                                              

Harder argues that the jury's award was supported by sufficient evidence and was "the  



minimal amount reasonable to restore the trees."  



                    We  have  twice  considered  the  reasonableness  of  restoration  costs  that  



exceed  the  diminution  in  the  market  value  of  the  plaintiff's  property.    In  G  &  A  



                                                                                                

Contractors, we rejected a defendant's argument that restoration damages were "grossly  



disproportionate" where the property owner had paid $4,000 per acre for the property  



                                                   

and the jury awarded $12,550 for restoring 10,560 square feet (about a quarter-acre) of  



                                                             -22-                                                        6815
  


----------------------- Page 23-----------------------

        59  

land.       Because the owner "indicated that the principle value of the property was from  

                                



the creek running through it," and claimed that he intended to use the property "to create  

                                                      



a showplace in connection with his nursery business," we held that "it was not error to  

                                                                                                   

award the reasonable cost of restoring the property to its original condition."60  



                     Subsequently, in Osborne, we cautioned that "restoration costs exceeding  

                                                                                            



diminished  market  value  may  be  awarded  only  to  the  extent  such  added  costs  are  

                                                                                   



objectively reasonable in light of the 'reason personal' and in light of the diminution in  

                                                                                                



           61  

value."        The plaintiff in  Osborne had advanced a non-commercial reason personal  



based on the property's "unique views, its abundant trees, and the unusual juxtaposition  

                                                                                                      



                                                          62  

of the trees, the cabin, and the views."                      We recognized that the record "unquestionably  

                                               



showed that restoration costs were disproportionately higher than diminished market  

                                                                                                         



value" where the property owners sought restoration costs of $170,000 for property that  

                                                                                  



                                                                                            63  

had  only  diminished  in  value  from  $32,000  to  $21,000.                                     We  emphasized  that  a  

                                                                          



restoration award must be limited to "the cost of restoration that has been or may be  

                                                                                                                       



reasonably incurred," and that the purpose for this rule is "to reduce the economic waste  

                                                                                              



that occurs when a party incurs repair costs in excess of the diminished value of the  

property."64  

                     



          59         G & A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379, 1387   



(Alaska 1974).  



          60        Id.
  



          61         Osborne v. Hurst, 947 P.2d 1356, 1360 (Alaska 1997).
  



          62        Id.
  



          63        Id. at 1357, 1360.  



          64        Id.  at 1360 (emphasis in original).  We also explained in a footnote that  

                                        

                                                                                                                 (continued...)  



                                                                -23-                                                          6815
  


----------------------- Page 24-----------------------

                    Taken together, G & A Contractors and Osborne instruct that restoration  



                                            

costs  exceeding  diminished  market  value  may  be  awarded  only  to  the  extent  that  



restoration  costs  are  objectively  reasonable  in  light  of  the  property  owner's  reason  



personal and the diminution in value of the property.  The application of this general  



                                                                                                                 

principle must ensure that an award of restoration damages does not confer a windfall  



upon a landowner.  



                    The California Court of Appeal addressed this issue in a factually similar  



                                            65  

case.    In  Heninger  v.  Dunn ,                a  property  owner  lived  on  wooded  property  in  the  



mountains  and  his  neighbors  bulldozed  a  road  across  his  land,  damaging  trees  and  



                66  

                                      

vegetation.           The  road  actually  increased  the  property's  value  from  $179,000  to  



               67  

$ 184,000.         Because there was no depreciation in property value, the superior court  



                                                                                                68  

ruled that the property owners were not entitled to any damages.                                    The appeals court  



reversed, relying on the general rule that restoration costs that exceed the property's  



                                                                                                              

decrease in fair market value may be justified if the owner has a reason personal for  



                                                                     69  

                                                                         But the Heninger court stressed that  

restoring the property to its original condition. 



                                                        

property  owners  may  only  recover  reasonable  costs  of  replacing  destroyed  trees,  



          64(...continued)  



while a jury might conclude that the plaintiffs had a valid reason personal justifying some  

                                                     

restoration costs in excess of the property's diminished market value, the jury could also  

                                           

conclude  that  "expenditure  of  the  full  estimated  cost  of  $170,000  would  not  be  

                                                                                     

reasonable."  Id. at 1360 n.1.  



          65        162 Cal. Rptr. 104 (Cal. App. 1980).  



          66       Id. at 106.  



          67       Id.  



          68       Id.  



          69       Id. at 107.  



                                                             -24-                                                       6815
  


----------------------- Page 25-----------------------

explaining  that  restoration  of  property  to  its  original  condition  may  not  always  be  



reasonable:  



                    Proposed        replacement          costs     may      be    unreasonable          or  

                                                                        

                    excessive in relation to the damage inflicted upon the land  or  

                                                                 

                    its value prior to the trespass.  In such cases, the achievement  

                    of a reasonable approximation of the land's former condition  

                    may  involve  something  less  than  substantially  identical  

                    restoration. . . . [I]t may be more appropriate to award costs  

                                                                                           

                    for  the  planting  of  saplings,  or  a  few  mature  trees,  or  

                    underbrush to prevent erosion and achieve a lesser but, over  

                                                                           [70] 

                    time, reasonable aesthetic restoration.  



                    The California court concluded that "substantially identical restoration,"  



                 

which was estimated to cost approximately $240,000 and involved transplanting a large  



                                                                                                

number of mature trees, was "a manifestly unreasonable expense in relation to the value  



                                               71 

                                                                                                          

of the land prior to the trespass."                The court instructed that, on remand, the trial court's  



determination  of  reasonable  restoration  costs  should  focus  on  whether  restoring  the  



                                   

property  with  sapling  trees  and  ground  cover  would  achieve  reasonable  aesthetic  



                 72  

restoration.         



                                                                             

                    Applying these principles to Harder's property, the award of $161,000 in  



restoration costs is objectively unreasonable in light of the pre-trespass total value of  



Harder's  property,  Harder's  reason  personal  for  restoration,  and  the  absence  of  any  



                                                                                     

documented decrease in the value of Harder's property.  Under these circumstances, it  



          70       Id. at 108-09 (citations omitted).  



          71       Id. at 109.  Cf. Kelly v. CB&I Constructors, Inc.                      , 102 Cal. Rptr. 3d 32, 41  



(Cal. App. 2009) (restoration costs in excess of the property's value before the trespass  

were  supported  by  substantial  evidence  that  the  costs  were  necessary  to  make  the  

property safe and habitable by plaintiff and his family and suitable for use as a horse  

                                                                                         

ranch).  



          72       Heninger , 162 Cal. Rptr. at 109.  



                                                             -25-                                                       6815
  


----------------------- Page 26-----------------------

is "more appropriate to award costs for the planting of saplings, or a few mature trees,  



or underbrush to prevent erosion and achieve a lesser but, over time, reasonable aesthetic  

restoration."73  The record shows that Harder's property could be reasonably restored by  



                                                                                                                 

replacing at least some of the mature Sitka spruce with saplings or smaller trees and that  



because the property's large trees were "growing in a forested environment where the  



                                                                                                   

root zones [were] intertwined" it was not possible to "replace that exact tree in that  



environment."  



                                                                   

                   In light of the record in this case and decisions in G & A Contractors and  



                                                                 

Osborne, we conclude that the superior court erred in denying the Wiersums' motion for  



                                                                                                                 

a  JNOV.    The  jury  was  required  to  base  its  restoration  award  on  a  finding  that  the  



                                                                                                                

restoration costs were objectively reasonable in light of the value of Harder's land, the  



                                                                                      

diminution of its value, and his reason personal. In this case, viewing the evidence in the  



light most favorable to the nonmoving party, as we must when we review a superior  

court's decision to grant or deny a JNOV,74 we conclude that no reasonable juror would  



award  restoration  costs  totaling  more  than  four  times  the  full  fair  market  value  of  



Harder's property before the trespass.  Because we conclude that the jury's award of  



$161,000 in compensatory restoration damages was objectively unreasonable, and that  



the  Wiersums  were  entitled  to  judgment  notwithstanding  the  verdict,  we  vacate  the  



damage award and remand for a new trial on damages.   



                   Because  a  new  trial  on  damages  is  required,  we  address  the  question  



                                                                                       

whether inadmissible evidence was admitted at trial in order to provide guidance to the  



trial court on remand.  The Wiersums argue that the superior court erred by allowing  



                                                                      

inadmissible evidence and improper arguments.  A review of the record shows that the  



          73       Id.  



          74       Cameron v. Chang-Craft, 251 P.3d 1008, 1017-18 (Alaska 2011).  



                                                           -26-                                                        6815  


----------------------- Page 27-----------------------

Wiersums failed to object to much of the evidence that they now challenge on appeal.  

                                                                                   



The  Wiersums  do,  however,  identify  one  piece  of  evidence  that  the  superior  court  



admitted over their objection: The superior court allowed Harder to testify to and submit  

                                                                                                   



as evidence a purported notarized "contract" with the jurors, promising them that he  



           

would use any award of restoration damages to restore his property.  Harder was then  



permitted  to  testify  that  "if  the  jury  is  not  cool  with  this  document,  you  can  write  



anything you want for me.  I'll do it."  



                                                                     

                    We agree with the Wiersums that Harder's tactic is unprecedented and that  



                                    

allowing this evidence was improper and "fundamentally unfair."  As the Wiersums  



correctly  maintain,  "a  promise  of  restoration  couched  in  the  form  of  a  contract  is  a  



                                                                                                                

particularly misleading form of a promise."  This is exemplified by Harder's claim in the  



                                                                                                  

purported contract that he would restore the property "at the risk of being prosecuted for  



fraud."    But  Harder's  one-sided  promise  with  the  jury  was  not  legally  enforceable.  



                                                                                                   

Moreover, by suggesting that the jury could modify the agreement and "write anything  



[they] want for me," Harder intimated that the jurors had some control over the terms of  



the purported agreement, which they did not.   



                    Because   contracts   are   widely   recognized   to   be   legally   enforceable  



                                   

agreements, proposing such a "contract" with the jurors was likely to have misled jurors  



into believing that Harder's promise to restore his property was legally enforceable when  



                                                                                    

it was not.  The jury's decision on the proper amount of damages could thus have been  



                                              

impermissibly influenced by a false belief that Harder was legally bound to use a damage  



award to restore his property.  On remand, this evidence and testimony shall not be  



admitted.  



                                                             -27-                                                       6815
  


----------------------- Page 28-----------------------

V.     CONCLUSION  



              We AFFIRM the superior court's decision granting summary judgment to  



Wietfeld  and  dismissing  the  claim  against  her.    We  AFFIRM  the  superior  court's  



decision  denying  the  Wiersums'  two  motions  for  directed  verdict.    We  REVERSE,  



however,  the  superior  court's  ruling  denying  the  Wiersums'  JNOV  motion  and  we  



REMAND for a new trial on damages.  



                                            -28-                                     6815
  


----------------------- Page 29-----------------------

FABE, Chief Justice, concurring.  



                    I agree with the court's opinion in almost all respects.  But in my view, the  



award on remand should be limited by the principle that restoration damages will not   



ordinarily be objectively reasonable if they exceed the total market value of the property  

                                                                                   



before  the  trespass.    I  would  therefore  order  a  remittitur,   limiting  the  amount  of  

compensatory damages to the highest total value for the property given at trial: $40,000.1  

                                                                                    



                    In Osborne v. Hurst, we relied on the Restatement (Second) of Torts for the  

                                                          



proposition that an injured landowner may recover compensatory damages in an amount  



that either accounts for the diminution in the value of the land caused by the trespass or  

allows the land to be restored to its pre-trespass condition.2  We recognized that the court  

                                                                                          



may award restoration costs that exceed diminution of value where there is a reason  

personal to the owner for restoring the land to the original condition.3  But we cautioned  

               



that these costs must be objectively reasonable in light of the property owner's reason  

                                                                             

personal for restoring the land and the amount of the land's diminution in value.4                                           The  

                                                                                                                             



reason for this rule is to "reduce the economic waste that occurs when a party incurs  



repair costs in excess of the diminished value of the property" and to ensure that the  

landowner does not enjoy a windfall.5  In my view, an award of restoration damages that  



exceeds the total market value of the property before the trespass should not ordinarily  

                                                



          1         With  treble  damages  under  AS   09.45.730,  the  total  award  would  be  



$120,000 before the addition of pre- and post-judgment interest and attorney's fees.  



          2         947 P.2d 1356, 1358-59 (Alaska 1997) (citing RESTATEMENT (SECOND) OF  

                                             

TORTS   929(1)(a) cmt. b (1977)).  



          3         Id. at 1359.  



          4         Id. at 1360.  



          5         Id.  



                                                              -29-                                                         6815
  


----------------------- Page 30-----------------------

be viewed as  objectively reasonable because it would result in economic waste and  



                                                                                                                            6  

                                     

potentially confer on the property owner the "windfall" we warned against in Osborne.  



                   The question in this appeal is whether the $161,000 in restoration costs  

                                                                                                      



awarded  as  compensatory  damages  was  objectively  reasonable  in  light  of  Harder's  



                                                              

reason personal for restoring his property and any diminution in the value of Harder's  



                                                                                               

property as a result of the Wiersums' trespass.  I would add to the considered factors the  



total  market  value  of  Harder's  property  before  the  trespass  and  would  hold  that  



                                                                         

compensatory damages to restore land based on a reason personal should not ordinarily  



exceed the total value of the property prior to trespass.  And because the compensatory  



damage  award  in  this  case  was  over  four  times  the  total  market  value  of  Harder's  



property before the trespass, the award of restoration damages could not possibly be  



viewed as objectively reasonable.  



                                                                                                      

                   Other jurisdictions have limited damages for restoration costs to the total  



value of the property before the trespass.  In Keitges v. VanDermeulen , the Nebraska  



Supreme Court held that a landowner who intended to use his land for recreational or  



                                                                                      

residential purposes could recover restoration costs but that those costs could not exceed  



                                                                              7  

                                                                                 The landowners in Keitges had  

the fair market value of the property before the injury. 



bought a 10-acre parcel of unimproved property with the intention of building a house  

                                        



in the future and had used the land for "recreational purposes such as 'nature hikes' with  



                      8 

                         While constructing a fence, a neighbor cut approximately 100 trees and  

their children." 



damaged an area "at least 450 feet  long and 8 to 10 feet wide" on the landowners'  



          6        Id. at 1359.  



          7        483 N.W.2d 137, 143 (Neb. 1992).  



          8        Id. at 138-39.  



                                                            -30-                                                         6815  


----------------------- Page 31-----------------------

                9  

                                                                                                          

property.   The Nebraska Supreme Court held that the proper measure of damages in an  



action for compensatory damages for destruction of trees and land used for residential  



or  recreational  purposes  was  the  cost  of  reasonable  restoration  of  the  landowner's  



                                                                                                                                                   10  

                                                                

property to its preexisting condition or to a condition as close as reasonably feasible. 



That court reasoned that "the principle underlying allowance of damages is to place the                                           



injured party in the same position, so far as money can do it, as he would have been had                     



there been no injury or breach of duty, that is, to compensate him for the injury actually       



                   11  

                          But  the  Nebraska  Supreme  Court  limited  the  outside  boundary  of  

sustained."                                                                                             



reasonableness to the property's total value before injury:  "[T]he award for such damage  

                                      

may not exceed the market value of the property immediately preceding the damage."12  

                                   



                       Similarly,  in  Vaught  v.  A.O.  Hardee  &  Sons,  Inc.,  the  South  Carolina  

                                                                           



Supreme Court relied on Keitges and our decision in Osborne to hold that a landowner  

                                                                        



may not recover restoration costs for noncommercial trees and shrubs that exceed the  

                



                                                                                       13  

total market value of the property prior to the loss.                                       In  Vaught, landowners who used  

                                                                                                                                     



their property for hunting and recreation brought suit against a construction company  

                                               



that  negligently  set  a  fire  that  spread  to  the  landowners'  property  and  burned  



                                                                                             14  

approximately 21 acres of land and over 1,000 trees.                                             The South Carolina Supreme  



Court held that the diminution in value of a parcel of property will generally be the  



            9          Id. at 139.  



            10         Id. at 143.  



            11         Id. at 142 (quoting  "L" Invs., Ltd. v. Lynch, 322 N.W.2d 651, 656 (Neb.              



1982)).  



            12         Id. (citing  "L" Invs., Ltd., 322 N.W.2d at 656).  



            13         623 S.E.2d 373, 377-78 (S.C. 2005).  



            14         Id. at 374-75.  



                                                                       -31-                                                                 6815
  


----------------------- Page 32-----------------------

                                                                                             

proper measure of damages in a case of trespass unless the cost of restoration is less than  



the  amount  of  diminution,  in  which  case  restoration  damages  may  be  the  proper  



             15  

                                                                                               

measure.         But where the cost of restoration exceeds the amount of diminution in value,  



                                                                                                        

the cost of restoration may be awarded "when the landowner has a personal reason  



relating to the land for restoring the land to its original condition and when the cost of  



                                                                                       16  

                                                                                           The South Carolina court  

restoration is reasonable in relation to the damage inflicted." 



limited this rule, holding that "the landowner may not recover restoration costs which  

exceed the market value of the entire parcel prior to the loss."17  



                                                                        

                    Applying  these  principles  to  this  case,  the  evidence  most  favorable  to  



Harder  indicates  that  prior  to  the  trespass,  Harder's  entire  property  was  valued  at  



                                                                                              

$40,000. Thus, while I agree with the court's opinion that Harder demonstrated sufficient  



                                                                                                                   

evidence of a reason personal to award objectively reasonable restoration costs, an award  



that exceeds the property's total market value of $40,000 is not reasonable under the  



                                                                                                                   

circumstances of this case.  And the jury's award, which exceeded the value of the entire  



property by $121,000, is certainly not reasonable.  



                    To avoid the unnecessary expense to the parties of a new trial on damages,  



                                                    18 

                                                        allowing  Harder  to  choose  whether  to  accept  a  

I  would  simply  order  a  remittitur, 



          15        Id. at 377-78.  



          16        Id. at 378.  



          17        Id.   



          18  

                                              

                    See Norcon, Inc. v. Kotowski, 971 P.2d 158, 175 (Alaska 1999) ("Where  

                                                                                                     

we find an award to be excessive we will vacate the award and may order a remittitur."  

(citing Sturm, Ruger & Co. v. Day, 615 P.2d 621, 624 (Alaska 1980))); see also Lynden  

Inc. v. Walker , 30 P.3d 609, 620 (Alaska 2001) (vacating an award of future medical  

expenses and ordering a remittitur where the jury did not have adequate information  

                                                                                                

before it on which it could have based an award).  



                                                             -32-                                                       6815
  


----------------------- Page 33-----------------------

remittitur of $40,000, the total value of his property prior to the trespass, or to have a   



                                                19  

                                                    Harder might prefer a new trial in order to present  

new trial on the issue of damages.                                                   



additional  expert  testimony  on  the  market  value  of  his  property  before  the  trespass  

                                                                                   



because that was not the focus of trial.  But I would give Harder the choice between  



accepting   a   compensatory   award   of   $40,000,   which   would   be   trebled   under  



AS 09.45.730, or requesting a new trial on damages.  



          19       See Lynden, 30 P.3d at 620 n.63.   



                                                           -33-                                                        6815  


----------------------- Page 34-----------------------

CARPENETI, Justice, with whom WINFREE, Justice, joins, concurring in part and  



dissenting in part.  



                   I agree with all of the conclusions reached in today's opinion but one.  The  

                                                                                                



opinion decides, without explicitly so holding, that the superior court's error in denying  

                                                                                



the  Wiersums'  JNOV  motion  extended  only  to  the  amount  of  restoration  damages  



                                         

awarded.  But I believe that this error did more:  It fatally infected the jury's finding that  



                                                                                    

Harder had a "reason personal" that would justify the use of restoration damages at all,  



rather than diminution damages, in a case such as this where restoration damages are  



disproportionate to diminution in value.  For this reason, I would reverse the judgment  



                                      

and remand for retrial on all damages issues, including whether restoration damages are  



appropriate.  



                                                                  

                   Today's opinion concludes that the superior court erred in allowing Harder  



to introduce a purported contract with the jurors.  The contract promised that Harder  



                                                                    

would spend all restoration damages to restore his property.  The opinion also finds error  



          

in the superior court allowing Harder to offer the jury the option to revise the contract  



                                                                     

in any way that it saw fit and in promising that he would comply with the document as  



revised.  I agree with the court's conclusion that admission of this evidence was error.  



                   But I disagree with the unstated conclusion that the only effect of this error  



                                                                              

was to require a retrial on the amount of restoration damages.  The admission of this  



evidence throws doubt on the jury's conclusion that restoration damages are appropriate  



           

at all.   I disagree with today's opinion because under our law concerning the use of  



                                                         

restoration damages it is clear that the admission of this evidence appreciably affected  



the jury's verdict and therefore affected the substantial rights of the Wiersums.  



                   Admission of the evidence was error.  



                   Harder  was  successful  in  obtaining  the  admission,  over  the  Wiersums'  



objections, of a purported contract which read as follows:  



                                                            -34-                                                      6815
  


----------------------- Page 35-----------------------

                                                                                    

                    I Paul Harder do hereby solemnly swear, at the risk of being  

                                                                                          

                   prosecuted for fraud, to replant a minimum of 70 Sitka spruce  

                   trees  and  no  less  than  6500  square  feet  of  understory  on  

                    Lot  1A  block  8  Monashka  bay  subdivision,  if  awarded  

                   restoration damages from the Harder versus Wiersum[]s law  

                    suit.  I Paul Harder agree to use all those restoration damages  

                                                                      

                    solely for restoration and to plant the largest trees that the  

                    award will afford. . . .           Paul Harder agrees that restoration  

                                                                                     

                    damages shall be held in an escrow trust by his attorney Jill  

                    Wittenbrader and doled out as needed to complete the job.  



The document, characterized by Harder's attorney as "a contract to the jurors," was  

                                                                                 



signed by Harder and notarized.  During his testimony, Harder read the "contract" to the  

                           



jury and then testified about it:  "And I would like to add that if the jury is not cool with  

                                                                                   



this document, you can write anything you want for me.  I'll do it.  I want to plant the  

                                                                                     



trees back and I want you to know that I [will]."  



                    Today's opinion by the court correctly concludes that admission of this  



evidence was error, for at least two reasons.  First, Harder's tactic was "unprecedented"  

                                                                                                



and "allowing this evidence was improper and 'fundamentally unfair' " because the  



"one-sided promise with the jury was not legally enforceable."  Second, by suggesting  

                                                                                             



that  the  jury  could  legally  modify  the  contract  in  any  way  that  it  wanted,  "Harder  



intimated that the jurors had some control over the terms of the purported agreement,  



which they did not."  



                   Admission of the evidence appreciably affected the verdict.  

                                                                                                            



                    But the court's opinion does not go far enough in assessing the harm caused  

                                                             



by admission of this evidence.  The jury's task, after finding liability, was to determine  



whether  the  measure  of  damages  would  be  diminution  in  value  of  the  land  or  the  



                                                            -35-                                                      6815
  


----------------------- Page 36-----------------------

                                                                           1  

                                                                                                                       

reasonable cost of restoration of the land.                                   Restoration damages that are disproportionate  



                                                2  

                                                                                               

to the diminution in value                         can be awarded only if the owner has a reason personal that  



                                                                                                                      

would justify the higher award (and if the amount of restoration costs is not unreasonably  



                                                                                    3  

disproportionate to the diminution in value).   



                                                                                   

                         Jury Instruction No. 16, which no party has challenged and which correctly  



                                                                                   

stated the law, provided that in determining "whether there is a 'reason personal' to Mr.  



                      

Harder for restoring the property, you may consider the nature of the property, how it  



was used, the likelihood that he would actually restore it, or any other factors you think  



                                                                           

are important." (Emphasis added.) The challenged evidence - both the language of the  



                                                  

"contract"  with  the  jury  that  was  admitted  into  evidence  and  Harder's  testimony  



                                                                                                                                                         

embellishing the contract, allegedly enforceable by a prosecution for fraud were he to fail  



                                          

to use an award only for restoration - would have looked to a jury like an ironclad  



                                                                                                                

guarantee binding Harder to use any award for restoration.  Thus, on the critical issue of  



                                                                                  

whether Harder had a reason personal for obtaining restoration costs, on one of only  



                                                                                                                              

three factors it was instructed to consider the jury was erroneously provided apparently  



rock-solid evidence on which to rely in making that determination.  



             1           Osborne v. Hurst, 947 P.2d 1356, 1359 (Alaska 1997).  



             2           The evidence at trial regarding restoration damages ranged                                                          from  about  



$34,000 to over $600,000.  The evidence at trial regarding diminution in value of the   

land suggested that the market value of the land before the trees were cut and after                                                              

remained the same.  The superior court found that the borough property tax assessment   

for the lot was the same before and after the trees were cut.  



             3           Osborne,  947  P.2d  at  1359  (citing  RESTATEMENT  (SECOND)  OF  TORTS  



 929(1)(a) cmt. b (1977)).  



                                                                             -36-                                                                        6815
  


----------------------- Page 37-----------------------

                    In  deciding  whether  the  erroneous  admission  of  evidence  will  support  

                                                      

reversal of a verdict, we look to whether the error "substantially affect[ed] the verdict,"4  

                                                                            



                                                                   5  

"appreciably  affect[ed]  the  jury's  verdict,"   or  "affected  the  substantial  rights  of  a  

                                                                                           

party."6  I believe it to be beyond argument that admission of the "contract" and Harder's  

                                                                                           



testimony regarding the "contract" meets this standard in all of its manifestations.  A jury  

                                                                                              



faced  with  determining  whether  Harder  had  a  reason  personal  and  looking  to  the  

                                                                                       



standards of Instruction No. 16 - and particularly "the likelihood that [Harder] would  

                                                            



actually restore [the property]" - would have placed great weight on the "contract" and  

                                                                                                     



related  evidence.    But  the  evidence  should  not  have  been  admitted.                                          In  these  



circumstances,  I  conclude  that  this  erroneous  admission  of  evidence  affected  the  



substantial rights of the Wiersums.  I would reverse on that basis and remand for a new  

                                                                                           



trial on damages, including whether Harder had established a reason personal justifying  

                                                                                             



the use of restoration costs as the measure of damages.  



          4         Beech Aircraft Corp. v. Harvey , 558 P.2d 879, 886-87 (Alaska 1976).  



          5         Municipality of Anchorage v. Devon , 124 P.3d 424, 432 n.28 (Alaska 2005)  



(quoting  Wyatt v. State, 981 P.2d 109, 115 (Alaska 1999) (quoting Love v. State , 457  

P.2d 622, 631-32 (Alaska 1969))).  



          6         Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 349 (Alaska 2012)   



(quoting Cartee v. Cartee, 239 P.3d 707, 721 (Alaska 2010)).  



                                                              -37-                                                         6815
  


----------------------- Page 38-----------------------

WINFREE, Justice, concurring in part and dissenting in part.  



                                                                                                                

                     I agree that the judgment in this case must be reversed, but for the reasons  



                                                 

expressed by Justice Carpeneti in his concurring opinion; I otherwise agree with the per  



                                                                                                                  

curiam opinion.  I write separately to note that the parties apparently agree that the treble  



                                   

damages provision of AS 09.45.730 applies to restoration damages and to acknowledge  



                                                                                                                        

that Chief Justice Fabe's concurring opinion raises an important concern about the upper  



                                                            

limits of restoration damages.  But the latter issue was not raised in the superior court or  



                   

on appeal.  Absent appropriate briefing on this legal issue, I prefer that the parties raise  



it in the superior court on remand.  



                                                               -38-                                                          6815
  


----------------------- Page 39-----------------------

STOWERS,  Justice,  with  whom  MAASSEN,  Justice,  joins,  concurring  in  part  and  



dissenting in part.  



                                                                                               

                    Although I agree with most of the court's opinion, I respectfully disagree  



                                                                                                                      

with its decision to vacate the jury's restoration damages award and order a new trial on  



damages.  By vacating the jury's damages award, the court today intrudes into the jury's  



role as factfinder and impermissibly substitutes its own judgment for that of the jury.  



                                                            

                    We have long recognized  the fundamental role juries play in our legal  



                                                                                                      

system.  Juries are the voice of reason, conscience, and community, and we trust them  



to make difficult decisions touching upon life and death.  It is the jury's responsibility  



to "make the difficult and uniquely human judgments that defy codification and that  

                                                                                      1   We the court are obligated  

                                                                                          

build discretion, equity, and flexibility into a legal system."  



to respect these judgments. In the words of the United States Supreme Court, "In no case  

                                                                               



is it permissible for the court to substitute itself for the jury, and compel a compliance on  

                                           



the part of the latter with its own view  of the facts in evidence, as the standard and  

                                                             



measure of that justice, which the jury itself is the appointed constitutional tribunal to  

                                                                            

award."2  



                    Our standards of review reflect the deference and respect with which we  



treat jury verdicts.  It is well established that "[o]ur role in reviewing a grant of a [JNOV]  

                                          



motion . . . is not to weigh conflicting evidence or judge the credibility of witnesses, but  

                                                                                        



rather to determine whether the evidence, when viewed in light most favorable to the  

                                                                                                



non-moving   party,   is   such   that   reasonable   persons   could   not   differ   in   their  



          1        McCleskey v. Kemp , 481 U.S. 279, 311 (1987) (internal quotation marks  



and alterations omitted).  



          2        Barry v. Edmunds , 116 U.S. 550, 565 (1886).  



                                                             -39-                                                          6815  


----------------------- Page 40-----------------------

                 3                                   4 

judgment."   This test is objective,  and a JNOV motion must "be scrutinized under a  



                                                                                         

principle of minimum intrusion into the right to jury trial guaranteed under the Alaska  



                      5  

Constitution."   "[I]f there is room for diversity of opinion among reasonable people, the  



                                            6  

question is one for the jury."   



                    The Restatement (Second) of Torts provides:  



                     [T]he  reasonable  cost  of  replacing  the  land  in  its  original  

                    position        is    ordinarily        allowable         as    the     measure         of  

                    recovery. . . .  If, however, 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,  damages  are  measured  only  by  the  difference  

                                                                           

                                                                                                         [7] 

                    between the value of the land before and after the harm.  



                                                                                                                   

We expanded upon this requirement in Osborne v. Hurst, where we held that a party may  



                                                                                                            

recover restoration costs disproportionate to the diminution in market value so long as  



                                                                                                             

that party can also prove an objectively reasonable reason personal and the added costs  



                                                              

are objectively reasonable in light of the established reason personal and the diminution  



          3         Heynen v. Fairbanks , 293 P.3d 470, 474 (Alaska 2013) (quoting Korean  



Air Lines Co. v. State , 779 P.2d 333, 338 (Alaska 1989)) (internal quotation marks and  

                

alterations omitted).  



          4         Id.  



          5          Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011) (quoting City  



of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128, 1130 n.2 (Alaska 1983)) (internal  

                                                            

quotation marks omitted).  



          6         Heynen , 293 P.3d at 474 (internal quotation marks omitted).  



          7  

                                                                               

                    RESTATEMENT  (SECOND) OF  TORTS  929(1)(a) cmt. b (1977) (emphasis  

added).  



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                            8  

 in market value.   In reversing the superior court's grant of summary judgment, we   



 further noted that "[t]he issues of whether replacement costs should be awarded and the               



 extent to which such costs might have been reasonable should properly have been left  

for the jury. "9  



                      Here, the superior court properly left these factual questions to the jury's  



 discretion,  yet  the  court  today  reverses  the  jury's  restoration  damages  award.    In  



justifying this reversal, the court notes that the jury "was required to base its restoration  



                                                                                  

 award on a finding that the restoration costs were objectively reasonable in light of the  



                                                                                                                          

 value of Harder's land, the diminution of its value, and his reason personal." But the jury  



                                                                           

 did exactly that here.  It is undisputed that the jury was properly instructed on Osborne:  



 the jury instructions expressly provided that the jury could not find that Harder was  



                                                                                  

 entitled to restoration damages unless it also found that "the cost of restoring the property  



                                                                                                   

 is not disproportionate to the loss in property value caused by the trespass or, if it is  



                                                                                                                          

 disproportionate, that there is a 'reason personal' to Mr. Harder for restoring the property  



                                            10  

 to its original condition.' "                   The instructions further provided that "[o]nce a 'reason  



 personal' is found, restoration costs exceeding diminished market value may be awarded  



                                                                                                                       

 only to the extent that such added costs are objectively reasonable in light of the 'reason  



                                        

 personal' and in light of the diminished market value."  Accordingly, the jury found that  



                                                                                          

 although the market value of the trees was only $3,520, there was a reason personal that  



                                                                              

justified  an  award  of  $161,000.    There  is  no  indication  in  the  record  that  the  jury  



 disregarded the jury instructions in arriving at these figures, and it was reasonable for the  



jury to conclude that Harder was entitled to compensation for the loss of the trees and  



           8          947 P.2d 1356, 1360 (Alaska 1997).  



           9          Id. (emphasis added).  



            10        See id.  



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----------------------- Page 42-----------------------

damage to his property; that there was a "reason personal" to Harder for restoring the  



                                                                        

property  to  its  original  condition;  and  that  an  award  of  $161,000  was  objectively  



reasonable in light of Harder's reason personal and in light of the diminished market  

value.11  



                   The court concludes that "[t]he record shows that Harder's property could  



                                                            

be  reasonably  restored  by  replacing  at  least  some  of  the  mature  Sitka  spruce  with  



saplings or small trees and that because the property's large trees were 'growing in a  



                                 

forested environment where the root zones [were] intertwined' it was not possible to  



'replace  that  exact  tree  in  that  environment.'  "    This  holding  suggests  that  it  was  



                                                                

reasonable for Harder to replant small trees in order to restore the property damaged by  



                                                                                                             

the Wiersums, but it was unreasonable for him to plant trees similar in size to those that  



were cut down.  But Harder specifically testified that the size of the trees was part of  



                                   

what contributed to his enjoyment of the property:  he described the privacy provided by  



the  trees,  the  ravens  that  once  frolicked  in  the  trees,  and  the  overall  beauty  of  the  



                                                                                              

property.  Harder also explained how because of the trespass, he had lost his privacy, he  



                                                                              

no longer heard the ravens in the trees, and the entire property had been "destroyed."  It  



was for the jury and not this court to determine whether Harder's reason personal was  



such that the compensatory restoration damages should cover the costs of the larger,  



                                          

more  expensive  trees  and  whether,  to  the  extent  these  restoration  costs  exceeded  



diminished market value, they were objectively reasonable in light of the reason personal  

and in light of the diminished market value.12  



                   Applying our standards of review to the jury's damages award, reversal was  



appropriate only if the evidence, when viewed in the light most favorable to Harder,  



          11       See id .  



          12       See id.  



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----------------------- Page 43-----------------------

                                                                                                             13  

                                                                                

"was such that reasonable persons could not differ in their judgment."                                           This standard  



clearly  was  not  met.    It  was  undisputed  that  the  Wiersums  significantly  altered  the  



                                                  

character of Harder's property; the Wiersums clear-cut an entire hillside, destroying at  



                                                

least 70 of Harder's large trees in the process.  Thus a significant compensatory damages  



            

award was not unwarranted.  Four different expert witnesses testified on the cost of  



                                                                                         

restoring the land, and their estimates varied widely:  an arborist testified that it would  



cost  $161,000  to  transplant  70  Sitka  spruce  that  were  nine  to  ten  feet  tall  and  an  



additional $162,500 to replace the forest ground cover; a horticulturist testified to a  



different method of transplanting larger trees and estimated it would cost $620,537 to  



restore  Harder's  property;  another  arborist  estimated  restoration  would  cost  about  



                                                                                                                             

$34,000 to replant smaller Sitka spruce transplanted from other areas of Kodiak; and an  



                                                                                                                                 

expert in real estate testified that the value of the lot would be "minimally affected, if at  



             

all" by the removal of the trees.  The evidence presented at trial thus established that  



                                                                                                                              

although the property had not suffered any diminution in market value as a result of the  



                                                                                      

lost trees, restoration would cost as much as $620,537.  Given the conflicting evidence  



              

and the variety of testimony on the costs of restoration - which the jury and not this  



                      

court had the opportunity to weigh and to judge - it was within an acceptable range of  



                       

reason for the jury to conclude that an award of $161,000 in compensatory restoration  



damages was appropriate.  



                                                                          

                     Moreover, the court's conclusion that Harder's property could reasonably  



                                                                                          

be restored by replacing some of the mature Sitka spruce with saplings or smaller trees  



           13  

                                                        

                     Heynen v. Fairbanks , 293 P.3d 470, 474 (Alaska 2013) (quoting Korean  

                

Air Lines Co. v. State , 779 P.2d 333, 338 (Alaska 1989)) (internal quotation marks and  

alterations omitted).  



                                                                -43-                                                              6815  


----------------------- Page 44-----------------------

                                                                                                          14  

relies exclusively on expert testimony provided by the Wiersums.                                               But as the court  



                                                                                                  

itself recognizes, "generally the only evidence that should be considered [in reviewing  

the denial of a JNOV motion] is the evidence favorable to the non-moving party."15                                                     It    



is improper for the court to rely on evidence presented by the Wiersums to conclude that  



                                                                                     

the restoration award was unreasonable, and none of the evidence presented by Harder  



                                                  16  

                                                                        

supports the court's conclusion.                       The court today acts in direct disregard of the proper  



standard of review.  



                                                            

                     By reversing the jury's damages award, which was supported by ample  



evidence  in  the  record  and  based  on  proper  jury  instructions,  the  court  invades  the  



                                                                                             

province of the jury without any justification for so doing.  We have long relied on juries  



                                                              

to serve as the quintessential collective "reasonable" person and entrusted them to make  



           14        The court relies on "[t]he record" to hold that Harder's property could be     



reasonably restored by replacing mature Sitka spruce with saplings or smaller trees and                                     

that it was not possible to fully replicate the environment on Harder's property.                                             But the  

only evidence in the record to support this conclusion was testimony provided by an   

arborist appearing on the Wiersums' behalf.  



           15  

                                                                                                               

                     Cameron v. Chang-Craft, 251 P.3d 1008, 1018 (Alaska 2011) (emphasis  

added).  



           16  

                                                                                                                       

                     For support the court cites Heninger v. Dunn , 162 Cal. Rptr. 104, 108-09  

(Cal. App. 1980), a case from the California Court of Appeal.  Heninger established that  

                                                                                                                

in California, restoration costs may exceed diminution in value where there is a reason  

personal.  Id. at 107-08.  Heninger also established, however, that such costs "may be  

unreasonable or excessive in relation to the damage inflicted upon the land or its value  

                                                                                    

prior to the trespass."  Id. at 108-09 (internal citations omitted).  The case therefore  

recognizes  a  rule  that  fundamentally  differs  from  our  own  jurisprudence  in  that  the  

determination of whether costs are unreasonable does not take into account the reason  

personal.  See id.  Moreover, Heninger was not a jury case.  Id. at 106.  



                                                                 -44-                                                            6815
  


----------------------- Page 45-----------------------

                                                   17  

                                                                                                                 

important factual determinations.                      A jury of twelve did exactly that here and arrived at  



                                                      

a consensus after following proper jury instructions and evaluating conflicting evidence,  



                                                                              

and  yet  the  court  holds  their  determination  was  unreasonable.    I  disagree  with  this  



                                                                                                        

holding and therefore dissent from the court's decision to vacate the damages award and  



                                              18  

order a new trial on damages.                     



          17        See Sioux City & Pac. R.R. Co. v. Stout, 84 U.S. 657, 664 (1873) ("Twelve  



men of the average of the community, comprising men of education and men of little  

                                                              

education, men of learning and men whose learning consists only in what they have  

                                                                                    

themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit  

                                 

together, consult, apply their separate experience of the affairs of life to the facts proven,  

                                                                                                         

and draw a unanimous conclusion.  This average judgment thus given it is the great effort  

of the law to obtain.  It is assumed that twelve men [and women] know more of the  

                      

common affairs of life than does one man, that they can draw wiser and safer conclusions  

                                                                       

from admitted facts thus occurring than can a single judge.").  



          18  

                                                                                 

                     I also disagree with Justice Carpeneti's partial dissent's conclusion that the  

admission of evidence of Harder's contract with the jury "fatally infected the jury's  

finding that Harder had a 'reason personal' that would justify the use of restoration  

damages  at  all."  The  jury's  reason  personal  finding  was  amply  supported  by  other  

evidence in the record that was properly admitted:  Harder testified that he had purchased  

                                                                                                            

the Monashka property for its natural beauty, that he had fond memories of hiking and  

                                                                                                                 

fishing in the area as a boy and of spending time on the property with his friends and  

                                                       

family over the years, that he had owned the property for over 30 years, that he had  

always intended to keep Lot 1A, that he intended to live there once his son had graduated  

and he had sufficient funds to build a house, and that the trees had contributed to the  

                                   

property's natural beauty and privacy.  Harder's sister confirmed that Harder intended  

                                                                                     

to build a cabin on the property, and a real estate agent also confirmed that Harder had  

                                                                   

refused to sell the property.  Thus any error in the superior court's decision to admit  

                                                                                                           

Harder's contract with the jury was at worst harmless error and did not provide grounds  

                                                           

for reversal.  



                                                               -45-                                                              6815  

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