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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chung v. Park (12/12/2014) sp-6973

Chung v. Park (12/12/2014) sp-6973

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER .  

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



CHRISTOPHER JINSOO CHUNG,                          )  

                                                   )        Supreme Court No. S-15374  

                          Appellant,               )  

                                                   )        Superior Court No. 3AN-09-09549 CI  

         v.                                        )  

                                                   )        O P I N I O N  

RORA PARK, LAKEVIEW LLC,                           )  

and GLACIER MASONRY &                              )        No. 6973 - December 12, 2014  

EXCAVATING, INC.,                                  )  

                                                   )  

                          Appellees.               )  

                                                   )  



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

                 Judicial District, Anchorage, Patrick J. McKay, Judge.  



                 Appearances:        Susan     Orlansky,      Susan      Orlansky      LLC,  

                 Anchorage, for Appellant.  Ronald A. Offret, Aglietti, Offret  

                                                                            

                 &   Woofter,   Anchorage,   for   Appellees   Rora   Park   and  

                 Lakeview LLC.  Notice of non-participation filed by Steven  

                                                                            

                 D.  Smith, Law Offices of Steven D. Smith, Anchorage, for  

                 Appellee Glacier Masonry & Excavating, Inc.  



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

                                     

                 Bolger, Justices.  



                 BOLGER, Justice.  


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

I.        INTRODUCTION
  



                    A  landowner  sued  her  neighbor  for  trespass,  alleging  that  the  neighbor  



cleared trees from the landowner's property  without permission.  The superior court  

                                                                     



found that the tree cutting did not diminish the property value and that there was no  

                                                



reason personal to the landowner for restoring the trees.  But the superior court awarded  

                                                                                                              



damages equal to the cost of restoring 50 trees on the property.  



                    Ordinarily, a landowner damaged by a trespass may recover either the loss  

                                                                                                   



in property value or reasonable restoration costs.  But restoration costs are inappropriate  

                                                                 



if they are disproportionate to the loss in property value, unless there is a reason personal  



to the landowner for restoring the land.  We thus conclude that we must vacate this award.  

                          



II.       FACTS AND PROCEEDINGS  



                    In August or September 2007, Rora Park began leasing a unit (Unit 13) on  

                                                                                                                 



her property to Christopher Chung.  Chung agreed to make some improvements to Unit  

                        



13 and a chapel on the property, and Park agreed to offset the rent according to the value  

                                                                                                   



                          1  

of Chung's work.  

                                                                                                  

                             Soon thereafter, Park sold an adjacent lot (Lot 3) to Chung, on which  



Chung intended to build a house.  



                                

                    Chung hired Glacier Masonry and Excavation, Inc. (Glacier) to build the  



                                                           

foundation of the new house on Lot 3 in August 2008.  As part of that project, Glacier  



                                                                                 

agreed to clear trees and other vegetation from the lot.  While Glacier was removing trees  



               

from Lot 3, one of its employees, a man named Tracy, was discovered clearing vegetation  



                                                                                                  

in the power line easement between Lot 3 and Park's adjacent lot. One witness suggested  



          1         The parties disagreed at trial about the actual terms of the lease agreement.  



Park testified that Chung agreed to pay $2,000 per month, with the understanding that  

the rent would be offset by the value of any improvements Chung completed.  Chung  

testified  that  he  agreed  to  make  certain  improvements  and  correct  building  code  

deficiencies in lieu of paying  any  rent at all.  The actual terms of the parties' lease  

                                                      

agreement, however, are not relevant to the issues presented by this appeal.  



                                                               -2-                                                         6973
  


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

                                                      

Tracy  may  have  gone  "four or  five  [f]eet"  beyond  the  boundary  of  Lot  3.    Because  



                                                                                                 

Glacier did not have a permit to work in the easement and there was a significant fine for  



working in the easement without a permit, Glacier's owner immediately told Tracy to  



leave the easement and work elsewhere. Glacier's owner testified that Tracy "said that  

                  



he was clearing out there to get a view, and that he'd been paid by Christopher Chung."  

      



The owner testified that "eight or so" trees were removed from the power line easement;  

                                                                                                                        

another Glacier employee put the number at "three to six."2  



                                                                                                         

                        Aerial photographs presented by the parties indicate that some trees were  



removed  from  Park's  property  near  the  border  of  Lot  3  between  August  2008  and  



September 27, 2008, and more trees were removed between 2008 and 2009.  The trees  

                     



appear to have been removed more or less directly behind the house built on Chung's  

                                                                                                            



property.  Timber debris, presumably from the cleared trees, was also discovered buried  

                                  



on Park's property.  



                        An expert witness hired by Park estimated that 562 trees were cleared from  

                                                                          



about  a  third  of  an  acre  of  Park's  property.    He  calculated  that  it  would  cost  over  



$400,000 to restore the property to its former condition.  But Chung's expert witness  

                                                             



testified that the market value of Park's property was likely not affected by the removal  

                                                            



of trees.  



                        Apart from the testimony described above, there was no direct evidence of  



who was responsible for removing the trees from Park's property.  Park testified that she  

                                                                                                                       



saw workers on her property and that Chung told her that the workers cut the trees.  But  



            2           Chung argues that the superior court erroneously found that "Tracy was   



later 'seen clearing the property.' "  Chung appears to believe the court found that Tracy   

was  seen  working  on  Park's  property  at  some  point  after  the  power  line  easement  

incident.  But, read in context, the court's statement that "later . . .  Tracy was seen  

clearing the property" appears to refer to testimony about Tracy's activity in the power  

line easement.  



                                                                            -3-                                                                     6973
  


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

Park  did  not  personally  see  anyone  remove  trees  from  her  property.    Although  she  

                                                          



suggested that Chung may have cleared the trees so that he could see a nearby lake from  



his house, Chung denied that his house had any view of the lake even after the trees were  

                                                                                



cleared.  Nevertheless, he offered no alternative explanation for the trees' disappearance.  

                                                                        



                    In  August  2009  Park  evicted  Chung  from  Unit  13.    She  then  filed  a  

                                                        



complaint  in  the  Anchorage  Superior  Court,  claiming  that  Chung  trespassed  on  her  

                                                                                                        

property and cut down trees without permission.3                                                       

                                                                              Park sought to recover the cost of  



                                                               

restoring the trees and punitive damages. Chung, in his answer, admitted that a contractor  



                                                                                          

removed "a few trees" from Park's property but asserted  that the removal was done  



without his permission.  



                    After a bench trial in August 2013,  the superior court found Chung liable  

                                                                                 



for  the  trees  removed  from  Park's  property  before  September  27,  2008.    The  court  

                                                                                 



determined  there  was  insufficient  evidence  to  find  Chung  liable  for  tree  removal  



occurring after that date or for the burial of timber debris on the property.  Although the  

                                                                  



court acknowledged that Park had not proved that the tree cutting reduced the value of her  

                                                                                                              



property  and  found  that  Park  had  no  reason  personal  for  replacing  the  trees,  it  

                                 



nevertheless concluded that "it would be reasonable both aesthetically and legally to  

                                                                                          



award damages that would permit replacement of trees on that first portion of the lot that  

                                                                                              



can be clearly shown to have been scraped clean as of September 27th, 2008."  The court  

                                                                 



therefore awarded Park the cost of replacing 50 trees, $23,500.  Because the court found  



that Chung's trespass was not unintentional or involuntary, it awarded treble damages  



under AS 09.45.730.  



                    Chung appeals.  



          3         Because Chung has only appealed the superior court's judgment concerning  



Park's trespass claim, we do not address Park's claim for unpaid rent or Chung's third- 

                                                                                        

party claim against Glacier.  



                                                               -4-                                                             6973  


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

III.      STANDARD OF REVIEW  

                    We review the superior court's factual findings for clear error.4  Clear error  



"occurs when a review of the entire record leaves us with a definite and firm conviction  

that a mistake has been made."5  

                                                  "Whether the superior court applied the correct legal  

standard is a question of law that we review de novo . . . ."6  



IV.       DISCUSSION  



                                                                   

                    Chung argues that it was error to award Park damages equal to the cost of  



                                                                                                          

replacing the trees that were removed from her property.  He argues that, because the  



                                                                                                  

superior court found that Park did not have a "reason personal for restoring the land," the  



                                                                

court should have awarded damages equal to the diminution of property value caused by  



                                                                                                          

the removal of the trees.  Park responds that awarding only damages for lost property  



          

value in this case would be contrary to the purpose of AS 09.45.730, which allows a  



landowner to recover punitive damages against an intentional trespasser.  



                                               

                    "[A]  party  who  is  injured  by  an  invasion  of  his  property  not  totally  



                                                     

destroying  its  value  may  choose  as  damages  either  the  loss  in  value  or  reasonable  



                           7  

restoration costs."    But "reasonable restoration costs are an inappropriate measure of  



                                                                          

damages when those costs are disproportionately larger than the diminution in the value  



          4         Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities                               , 282 P.3d  



348, 354 (Alaska 2012).  



          5         Id.  



          6         Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011).  



          7         Wiersum v. Harder, 316 P.3d 557, 567 (Alaska 2013) (per curiam) (internal  



quotation marks omitted) (citing Osborne v. Hurst, 947 P.2d 1356, 1358 (Alaska 1997)).  

                                                                                                            

This court has also held that the landowner may recover "the economic value of the  

                  

timber cut," Andersen v. Edwards , 625 P.2d 282, 289 (Alaska 1981), but no party has  

                                                                                                                     

alleged that Park's trees had any appreciable economic value.  



                                                               -5-                                                         6973
  


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

                                               

of the land and  there  is  no  reason personal to the owner for restoring the land to its  



                               8                                                                                                           9  

original condition."                                                                 

                                   A reason personal is one that is "peculiar or special to the owner."  



                                                    

"We  require  the  landowner  to  demonstrate  a  reason  personal  because  we  believe  it  



                                                                                                                

indicates circumstances where the owner holds property primarily for use rather than for  



                                                                                              

sale and where the owner is likely to make repairs with the restoration costs award rather  



                                                                           10  

                                                         

than to pocket the funds and enjoy a windfall."                                For example, in Osborne v. Hurst, we  



                                                                                 

held that there was sufficient evidence to find that two landowners had a reason personal  



                                                                                             

for replacing trees that were destroyed by a fire on their property after the landowners  



testified that they "had selected the property because of its unique views, its abundant  



                                                                                                                      

trees, and the unusual juxtaposition of the trees, the cabin, and the views" and that "other  

properties in the area were not comparable."11  



                      During trial in this case, Park attempted to establish a reason personal for  



replacing the trees that Chung had allegedly removed.  When asked about how she felt  



when she discovered the trees had been removed, she testified:  



                                                                                                         

                      I have a previous history of cancer, and this natural beauty of  

                      my yard is [a] healing spot for me, and . . . in the future I'm  

                      going to [live] here, after [Chung] move[s] . . . .  [A]fter work  

                      I come by, see my property and see the natural beauty and the  

                                                                  

                      trees and all that[.  W]hen I [saw] that all cut out it just [made]  

                                                                                             

                      me very - [it] just [broke] my heart, and then very angry  

                                                                                             



           8          Osborne, 947 P.2d at 1359 (emphasis omitted) (internal quotation marks                      



omitted) (citing RESTATEMENT (SECOND) OF TORTS   929 cmt. b (1977)).  



           9          Wiersum, 316 P.3d at 568.  



           10        Id. (quoting Osborne, 947 P.2d at 1359) (internal quotation marks omitted).  



           11         947 P.2d at 1360.  



                                                                    -6-                                                             6973
  


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

                                                                                               

                    . . . .  I don't know how [I can] explain . . . , it's just my  

                                                                                              

                    healing  natural  stop.    [It]  is  just  healing  my  health  and  

                                                                                                    

                    [helping] me for day-by-day living, and then when I saw that  

                    it just really hurt my feeling[s] . . . .  



But the superior court did not credit this testimony, because Park downplayed her visits  

                                                                                                                      



to the property later in the trial.  As a result, the court found that Park had not established  

                                                                                                



a reason personal for restoring her property.  Nevertheless, the court concluded that "it  



would be reasonable both aesthetically and legally to award damages that would permit  

                                                                                                         



replacement of trees" and awarded damages accordingly.  



                    According  to  the  unrebutted  testimony  of  Chung's  expert  witness,  the  



removal of trees from Park's property did not appreciably affect the value of her property.  

                                                               



The court accepted that testimony in its findings of fact.  Therefore, the damages the court  

                                                    



awarded - $23,500 before trebling - were clearly disproportionate to the diminution  



of the property value.  



                    The superior court could award restoration damages only if it found that  

Park had a reason personal for restoring her property.12  

                                                                                              

                                                                                 But the court expressly found that  



                                                                                                   

Park did not prove a reason personal, and Park has not challenged that finding on appeal.  



                                 

Therefore, awarding compensatory damages that exceeded the diminution in the market  



value of Park's property was not appropriate.  



                                                                                                  

                    Park appears to argue that awarding only damages for lost property value  



                

would  be  contrary  to  AS  09.45.730,  which  provides  that  an  intentional  trespasser  is  



                                                                        

"liable . . . for treble the amount of damages that may be assessed in a civil action."  Here,  



          12         Wiersum,  316  P.3d  at  567-68  ("[D]amages  are  measured  only  by  the  



difference  between  the  value  of  the  land  before  and  after  the  harm  if  the  'cost  of  

replacing the land in its original condition is disproportionate to the diminution in the  

                                                                                                    

value of the land caused by the trespass, unless there is a reason personal to the owner  

                                                                                        

for restoring the original condition.' " (emphasis in original) (quoting RESTATEMENT  

(SECOND) OF TORTS   929 cmt. b (1977))).  



                                                               -7-                                                         6973
  


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

"the amount of damages that may be assessed in a civil action," as determined by our case  

                                                                                    



law, is the diminution in the market value of Park's property.  Nothing in AS 09.45.730  

                                                                                                



provides  a  basis  for  awarding  restoration  damages  when  such  damages  would  not  

                   

otherwise be appropriate.13  



V.        CONCLUSION  



                                                                                       

                     We VACATE the portion of the judgment awarding trespass damages and  



REMAND for recalculation of prejudgment interest and attorney's fees.  The superior  



court may enter an award of nominal damages based on its finding of an intentional  

                                                                                                                 



             14  

trespass. 



          13         Chung also challenges the superior court's findings about the number and   



composition  of  the  removed  trees.    The  court  used  these  findings  to  determine  the  

restoration  damages.               Because  we  conclude  that  Park  is  not  entitled  to  restoration  

                                     

damages, we do not need to reach these issues.  



          14         See Brown Jug, Inc. v. Int'l Bhd. of Teamsters, Local 959, 688 P.2d 932,  

                                               

938 (Alaska 1984).  



                                                                 -8-                                                              6973  

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