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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Douglas Galipeau v. Briana Bixby and Mei-Lani Bixby (11/13/2020) sp-7491

Douglas Galipeau v. Briana Bixby and Mei-Lani Bixby (11/13/2020) sp-7491

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

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

                                                                                                                         

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

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



DOUGLAS  GALIPEAU,                                                )  

                                                                  )    Supreme Court No. S-17365  

                                                                                       

                                                                                                         

                                 Appellant,                       )  

                                                                  )    Superior  Court  No.  3VA-17-00021  CI  

           v.                                                     )  

                                                                                            

                                                                  )    O P I N I O N  

                                                      

BRIANA BIXBY, as Trustee of the                                   )  

                                                                                                                    

                                                          

Irrevocable Trust of Rose E. Fong and   )                              No. 7491 - November  13, 2020  

                                                 

individually, and MEI-LANI BIXBY,                                 )  

individually,                                                     )  

                                                                  )  

                                 Appellees.                       )  

                                                                  )  



                                                                                                               

                                            

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

                                                                                                        

                      Judicial District, Valdez, Jonathan A. Woodman, Judge.  



                                                                                               

                      Appearances:  Susan Orlansky and Brian J. Stibitz, Reeves  

                                                                                                             

                      Amodio LLC, Anchorage, for Appellant.   William Bixby,  

                                                                                                                  

                      Law  Office  of  William  Bixby,  Benicia,  California,  for  

                      Appellees.  



                                                                                                                         

                      Before: Bolger,ChiefJustice, Maassen,and Carney, Justices.  

                                                                                  

                      [Winfree, and Stowers, Justices, not participating.]  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                      A property owner cut down trees on his lot to build a cabin. The trees were  



                                                                                                                          

protected by his subdivision's Declaration of Covenants, Conditions, and Restrictions  


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

                                                                                                                      

(CCRs) and could not be cut down without prior approval.  The owners of an adjacent  



                                                                                                                                 

lot sued him.   The superior court found the property owner liable and, following a  



                                                                                                                             

two-day non-jury trial, awarded the neighbors compensatory restoration damages and  



              

punitive damages.  



                                                                                                                            

                    The property owner appeals, arguing that the superior court erred in both  



                                                                                                                               

damages awards.   We agree.   There was no basis in the evidence for an award of  



                                                                                                                                

restoration costs when the trees would not be restored, and there was no evidence to  



                                                                                                                           

support an award based on a loss of value to the neighbors' property.  Nor was there  



                                                                                                                             

proof of an independent tort as necessary to support a punitive damages award in a case  



                                                                                                                              

premised on the breach of CCRs. We therefore vacate the superior court's judgment and  



                                                             

remand for entry of a nominal damages award.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                                 

                    This appeal stems from a dispute between owners of adjacent lots in a  



                                                                                                                         

Valdez subdivision: Douglas Galipeau, owner of Lot 3, and Briana and Mei-Lani Bixby,  



                                                                                                                      

owners  of  Lot  4.            The  subdivision's  lots  are  subject  to  CCRs  which  the  original  



                                                                                                                

developers recorded and filed with the City of Valdez.  The CCRs give enforcement  



                                                                                                                      

rights to the declarants and any other subdivision property owner. This appeal concerns  



                                                                                                                               

Article II, Section 7 of the CCRs, which states the declarants' "specific desire . . . to  



                                                                                                                             

maintain the maximum natural beauty and [a]esthetic value of the subject property" and  



                                                                                                                   

mandates that "in no event . . . shall any 'evergreen' type tree having a trunk measuring  



                                                                                                                               

six (6) inches or more in diameter at a height of four (4) feet from ground level be  



                                                                                                               

destroyed or removed from any lot unless specifically approved by the Architectural  



                                                                                                     

Committee."  The section further states that if the Committee fails to approve or reject  



                                                                                                                               

any building or maintenance plans submitted to it within 60 days, "approval will not be  



                                                                                                                     

required" and the CCRs "will be deemed to have been fully complied with."  



                                                               -2-                                                        7491
  


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

                                                                      The Bixby sisters grew up in a house on Lot 4. They both left Valdez after                                                                                                                                                                                                                                                                                              



high school and at the time of trial lived in California.                                                                                                                                                                                                                                Their mother operated a bed and                                                                                                                          



breakfast in the family home, but it closed in 2016 after she passed away, and the sisters                                                                                                                                                                                                                                                                                                                                          



inherited the home from their mother's trust.                                                                                                                                                                                                



                                                                      Galipeau purchased the adjoining Lot 3 in June 2013.                                                                                                                                                                                                                                            The lot had never   



been developed, but Galipeau believed the previous owner had submitted a site plan to                                                                                                                                                                                                                                                                                                                                                                     



the City. Intending to build a cabin, he hired a company to remove several trees from the                                                                                                                                                                                                                                                                                                                                                            



lot. He concedes that he never requested or received Committee approval for this action.                                                                                                                                                                                                                                                                                                                                                                                



                                   B.                                 Proceedings  



                                                                      In April 2017 the Bixbys sued Galipeau, alleging that he breached the                                                                                                                                                                                                                                                   



 CCRs   and   committed   trespass  by   cutting   protected   trees   on   his   property   without  



 Committee approval.                                                                                               They sought money damages to restore the property, punitive                                                                                                                                                                                                                                          



damages, and injunctive relief.                                                                                                                                      In his answer Galipeau admitted that he was the legal                                                                                                                                                                                                                 



 owner  of   Lot 3 and that he "cut, or caused to be cut, certain trees on [his] Lot in                                                                                                                                                                                                                                                                                                                                                                 



 anticipation of building a home there."                                                                                                                                                                      



                                                                      The court granted partial summary judgment to the Bixbys, finding that                                                                                                                                                                                                                                                                                                     



there were no genuine issues of material fact regarding Galipeau's liability for cutting                                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                      1          The court then granted a second motion for  

down the trees in violation of the CCRs.                                                                                                                                                                                                                                                                                                                                                                                                             



partial summary judgment in favor of the Bixbys, concluding that Galipeau was also  

                                                                                                                                                                                                                                                                                                                                                                                                                                               



                                    1                                 Galipeau's   appeal   does   not   challenge   the   court's   finding   of   liability,  



 conceding that "the evidence presented to the superior court established that he violated                                                                                                                                                                                                                                                                                                                                 

 a covenant by cutting, or otherwise downing, without permission from the subdivision's                                                                                                                                                                                                                                                                                                        

Architectural Committee, a number of 'protected trees.' "                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                            -3-                                                                                                                                                                                                             7491
  


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

                                                                                                                                                                                              2                                                                               3  

liable   for   punitive   damages   under   AS   09.45.730   and   AS   09.17.020.     The   court  



concluded that "a plaintiff seeking damages for trees destroyed or felled on defendant's                                                                                                                                                                                            



land can seek the same damages as th[e] plaintiff would be entitled to if defendant had                                                                                                                                                                                                                           



committed trespass by cutting trees on plaintiff's land." Therefore, it explained, the only                                                                                                                                                                                                                    



remaining issues for trial were"theamount of compensatory restoration damages and the                                                                                                                                                                                                                                



amount of punitive damages."                                                                                     



                                                  1.                      The superior court held a non-jury trial on damages.                                                                                                                       



                                                 The court held a two-day bench trial in June 2018.                                                                                                                                        The court first deemed                                  



admitted the Bixbys' discovery requests regarding punitive damages because Galipeau                                                                                                                                                                                                           



had failed to respond, and it granted the Bixbys' motion to exclude most of Galipeau's                                                                                                                                                                                                 



witnesses and all of his exhibits because they had not been timely filed.                                                                                                                                                                                                 



                                                 TheBixbys'                                    first witness                                  wasarborist                                  MariaD'Agostino,                                                       an expert in "tree  



appraisals" and the "replacement and care of trees." D'Agostino had visited Galipeau's                                                                                                                                                                                                 



lot in September 2017 and observed three downed trees and ten stumps of varying sizes                                                                                                                                                                                                                        



                                                                                                     4  

between 14 and 38 inches.                                                                                                                                                                                                                                                                                             

                                                                                                             She testified that trees of this size were "too large to be  



                                                                                                                                                                                                                                                                                                        

replaced with commonly available nursery stock."  She estimated that each tree would  



                                                                                                                                                                                                                                                                                              

cost "around $4,200" to replace, that the value of the three downed trees was $67,000,  



                                                                                                                                                                                                                                                                                                              

and  that  the  value  of  the  ten  trees  originally  atop  the  stumps  was  $311,000.                                                                                                                                                                                                                         She  



                         2                       The statute imposes "treble the amount of damages that may be assessed                                                                                                                                                                        



in a civil action" for the act of cutting down trees owned by another, or trees in common                                                                                                                                                                                                      

ownership, "without lawful authority."                                                                  



                         3                       The statute codifies the procedure for submitting punitive damages claims  

                                                                                                                                                                                                                                                                                                       

to the trier of fact and the elements necessary to support such an award.  

                                                                                                                                                                                                                                               



                         4                       Tree size is determined by the "trunk formula" industry standard which  

                                                                                                                                                                                                                                                                                                        

measures the trunk diameter at breast height.  Only one of the trees Galipeau downed  

                                                                                                                                                                                                                                                                                                 

was measured using this standard; the other trees could not be measured at the necessary  

                                                                                                                                                                                                                                                                                            

height.  

                           



                                                                                                                                                           -4-                                                                                                                                               7491
  


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

explained that successfully moving living trees of the same size "would be extremely                                                                           



unlikely" and such a move would be "[p]rohibitively expensive" and "far more than the                                                                                         



                               5  

[trees'] value."                   



                                                                                                                                                                              

                            Next to testify was Mary Jo Evans, one of the original developers of the  



                                                                                                                                                                             

subdivision and a current member of the Committee. Like D'Agostino, she testified that  



                                                                                                                                                                         

the subdivision's trees helped moderate the wind. She also testified that Galipeau never  



                                                                                                                                                                             

sought Committee approval or submitted plans to the Committee, noting that she has  



                                                        

"never spoken with him."  



                                                                                                                                                                            

                            The  Bixbys  also  testified.                                 They  explained  that  neither  of  them  had  



                                                                                                                                                                 

permanently lived in the Lot 4 house since high school and the only current occupant  



                                                                                                                                                                 

was a renter in the basement unit. They testified that the B&B had not been in operation  



                                                                                                                                                                

since 2016 and that neither of them had any firm plans to reopen it.   But Mei-Lani  



                                                                                                                                                                             

testified that the loss of the trees made their house more susceptible to wind damage and  



                                                                                                                                                           

reduced their privacy; they now had to keep the blinds closed on the side of the house  



                                                                                                                                                                     

that faced Galipeau's lot.  Briana testified that she was worried about increased heating  



                                                                                                                                                                    

costs,  though  she  could  not  provide  exact  figures  because  they  kept  their  house's  



                                                                                                                                   

temperature at the minimum level necessary to prevent frozen pipes.  Both sisters also  



                                                                                                                                                                           

noted the emotional impact the trees' loss had on them: Briana was angry and upset after  



                                                                                                                                                              

learning that she could no longer enjoy the trees' presence as she had in her childhood,  



                                                                                                                                                                

and Mei-Lani testified that the loss of the trees affected her on a "personal and emotional  



                

level."  



                                                                                                                                                                       

                            On the second day of trial the court noted for the record that it had visited  



                                                                                                                                                                               

Lot 3 to better understand its layout and what had occurred.  Galipeau testified next.  He  



              5             D'Agostinoexplainedthat                               replanting even six-inch trees, whichwould                                               take  



35-40 years to grow to the approximate size of the trees Galipeau downed, is "generally                                                                        

not done" because smaller trees adapt more easily.                                                         



                                                                                       -5-                                                                                7491
  


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

said that a 1980s site plan for Lot 3 was on file with the City of Valdez and had been                                                                                                                                                                                            



approved by a city building inspector. He testified that he had hired a company to "push                                                                                                                                                                                      



out" the northwest side of his lot and knock down some trees. He admitted he had never                                                                                                                                                                                         



obtained the Committee's permission.                                                                                             



                                             2.	                   The superior court awarded both compensatory and punitive                                                                                                                                        

                                                                   damages.  



                                             In  December   2018   the   court   issued   its   written   findings   of   fact  and  



conclusions of law.                                                 The court found that Galipeau was aware of the CCRs before he                                                                                                                                                         



purchased Lot 3, that he knew the CCRs prohibited cutting down protected trees without                                                                                                                                                                                   



Committee   approval,   and   that   he   cut   down   prohibited   trees   "intentionally   and  



voluntarily." The court accepted D'Agostino's testimony about the number of protected                                                                                                                                                                              



trees that were cut and her estimates of their replacement cost and overall value.                                                                                                                                                                                                The  



court stated that D'Agostino testified that the value of the trees was $4,200 each and their                                                                                                                                                                                       



                                                                                                                                               6  

total replacement cost would be $380,000.                                                                                                          



                                             The court explained that Galipeau's "violation of the restrictive covenant  

                                                                                                                                                                                                                                                                   



amounted to a breach of contract." It held that the Bixbys were entitled to compensatory  

                                                                                                                                                                                                                                                   



restoration damages but noted that the actual restoration of the trees was "untenable"  

                                                                                                                                                                                                                                                         



given the "extreme animosity between these parties" and the likelihood that Galipeau  

                                                                                                                                                                                                                                                                   



would "actively work to thwart the survival" of any replacement trees.  It awarded the  

                                                                                                                                                                                                                                                                                        



Bixbys $54,600 for "the value of the thirteen trees."  

                                                                                                                                                                                  



                                             The  court  decided  that  punitive  damages  were  also  available  because  

                                                                                                                                                                                                                                                                      



Galipeau's  "conduct  constituting  the  breach  of  contract  would  be  considered  an  

                                                                                                                                                                                                                                                                                        



                       6                     The   court   appears   to   have   misrecalled   D'Agostino's   testimony.       She  



testified that the                                     value  of the ten trees represented by the stumps was $311,000 and the                                                                                                                                                           

value   of the three downed trees was $67,000, explaining that there was a difference                                                                                                                                                                          

between what the trees were worth and their replacement cost.                                                                                                                                                        She estimated that the                                            

replacement cost to purchase and install new six-inch trees was about $4,200 per tree.   



                                                                                                                                             -6-	                                                                                                                                 7491
  


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

independent tort -                              e.g., waste, private nuisance, or trespass to trees."                                                                   It held that      



Galipeau's conduct "amounted to [a] reckless indifference to the rights of others, and                                                                                                     



conscious actionin deliberatedisregardofthoserights,"highlighting                                                                                       that ifGalipeau had                 



cut   down   trees   on   the   Bixbys'   property   the   Bixbys   would   be   entitled   to   not   only  

                                                                                                                                                          7   Finding the case  

compensatory restoration damages but also statutory treble damages.                                                                                                                       



analogous to a trespass to trees case, and finding Galipeau's conduct "egregious, willful,  

                                                                                                                                                                                   



extreme, and outrageous," the court awarded the Bixbys treble damages in the amount  

                                                                                                                                                                                  



of $163,800.  The court also ordered a permanent injunction and awarded the Bixbys  

                                                                                                                                                                                   



prejudgment interest and attorney's fees.  

                                                                                              



                              Galipeau appeals.  

                                                     



III.            STANDARD OF REVIEW  

                                                          



                              "A trial court's determination of damages is a finding of fact which we  

                                                                                                                                                                                            



affirm unless it is clearly erroneous. But we apply our independent judgment in deciding  

                                                                                                                                                                                

whether the trial court's award of damages is based on an erroneous application of law."8  

                                                                                                                                                                                                     



                                                                                                                                                                               9  

                                                                                                                                                                 

"Statutory interpretation is also a question of law, which we review de novo." 



               7              See   AS   09.45.730.     The   court   read   the   treble   damages   provision  as  



authorizing compensatory damages plus three times that amount as punitive damages,                                                                                            

instead of a total award three times the compensatory damages.                                                                                Cf. Wiersum v. Harder                              ,  

 316 P.3d 557, 571 n.1, 573 (Alaska 2013) (Fabe, C.J., concurring) (tripling the base                                                                                                    

award   of   $40,000   to   make   the   total   award   $120,000   in   a   case   brought   under  

AS 09.45.730).   



               8              Hainesv.Comfort Keepers, Inc., 393 P.3d 422, 427 (Alaska2017) (quoting  

                                                                                                                                                                                 

Beaux v. Jacob, 30 P.3d 90, 97 (Alaska 2001)); see Erwin v. Mendenhall, 433 P.3d 1090,  

                                                                                                                                                                                       

 1094 (Alaska 2018) ("We 'review de novo whether the trial court correctly applied legal  

                                                                                                                                                                                         

rules pertaining to damages and prejudgment interest.' " (quoting  City of Seward v.  

                                                                                                                                                                            

Afognak Logging , 31 P.3d 780, 783 (Alaska 2001))).  

                                                                                                      



               9              Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 878 (Alaska 2013).  

                                                                                                                                                                       



                                                                                              -7-                                                                                       7491
  


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

IV.	       DISCUSSION  



                                                                                                                         

           A.	         It  Was  Error  For  The  Superior  Court  To  Award  Compensatory  

                                              

                       Restoration Damages.  



                                                                                                                                     

                       The superior court's finding that "[t]he violation of the restrictive covenant  



                                                                                                                                                

amounted to a breach of contract" is not challenged on appeal.   From its finding of  



                                                                                                                                               

liability the court went on to craft a compensatory damages remedy by reference to the  



                                                                                                       10  

                                                                                                             

trees' value, awarding $4,200 per tree for a total of $54,600. 



                                                                                                                                                  

                       Galipeau challenges this award on a number of grounds.  He argues that it  



                                                                                                                                          

had "no bearing . . . on the damages that the Bixbys sustained," which included only a  



                                                                                                                                           

general  loss  of  privacy  and  aesthetics  and  the  negative  effects  of  increased  wind  



                                                                                                                                              

exposure, none of which the Bixbys attempted to value in dollar terms. He contends that  



                                                                                                                                               

the Bixbys never discussed any plans to plant trees on their own property "to reduce the  



                                                                                                                                           

effects of losing trees" next door, instead presenting expert testimony only on the value  



                                                                                                                       

of the trees that were cut - which were Galipeau's trees, not theirs.  



                                                                                                                                          

                       We begin our analysis with the observation that "breach of covenant claims  

                                                            11  We have held that "a plaintiff alleging breach of  

                                                                                                                     

sound in contract, rather than tort." 



contract must present evidence sufficient to calculate the amount of the loss caused by  

                                                                                                                                                



the breach"; while this amount need not be proven with "exact detail," it "must provide  

                                                                                                                                       

a reasonable basis" for the fact finder's determination.12   Damages may not be awarded  

                                                                                                                                      



for "mere breach"; rather, "the amount of damages awarded must correspond to injuries  

                                                                                                                                        



           10          As noted above, the court appears to have used the trees' replacement cost                                             



rather than their value.                 See supra        p. 6 and note 6.          



           11          Kalenka v. Taylor, 896 P.2d 222, 228 (Alaska 1995).  

                                                                                                       



           12          Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 636 (Alaska 1996) (quoting  

                                                                                                                                      

City of Palmer v. Anderson, 603 P.2d 495, 500 (Alaska 1979)).  

                                                                                                



                                                                       -8-	                                                                7491
  


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

resulting from the breach. The proper measure of recovery for a breach of contract claim                                                                                 

is the loss or damage actually sustained."                                           13  



                            As Galipeau correctly observes, the superior court made no findings about  

                                                                                                                                                                        



thedamagetheBixbys"actuallysustained,"characterizing their losses as "ofan aesthetic  

                                                                                                                                                                  



nature" and "difficult to quantify." The Bixbys did not attempt to quantify their aesthetic  

                                                                                                                                                                  



loss in dollar terms.  They did not present evidence of their lot's market value or how  

                                                                                                                                                                          



that value may have been affected by the loss of trees.  Several witnesses testified that  



the house was now more exposed to the wind, but no one attempted to quantify the  

                                                                                                                                                                             



problem in dollar terms;  Briana testified, in fact, that wind had always been an issue  

                                                                                                                                                                         



because of where the house was situated. And although Briana also testified that the loss  

                                                                                                                                                                            



of the buffer could affect their heating costs, she conceded, "[W]e don't know for sure  

                                                                                                                                                                           



what that's doing to our heat bill because we run the house at just maintenance levels  

                                                                                                                                                                       



while we're gone."  

                                           



                            Thus, in making its damage award, the superior court was faced with the  



problem of putting a dollar amount on the Bixbys' "difficult to quantify" - and in fact  

                                                                                                                                                                            



unquantified - harms. Finding that the Bixbys had "a reason personal for restoring the  

                                                                                                                                                                              



property to its original condition" which entitled them "to compensatory restoration  

                                                                                                                                                             



damages," the court further found that "an award of restoration damages is untenable in  

                                                                                                                                                                                



this case" because of the animosity between the parties; in other words, it recognized that  

                                                                                                                                                                            



              13            24 W       ILLISTONON               CONTRACTS § 64:12                        (4th ed.May 2020 Update) (footnote                      



omitted). Of course, "any breach of contract entitles the injured party to at least nominal                                                                        

damages,   [but]   that   party   cannot   recover   more   without   establishing   a   basis   for   an  

inference of fact that he or she has been actually damaged."                                                                 Id.  (footnote omitted). "If  

the breach caused no loss or if the amount of the loss is not proved . . . [,] a small sum                                                   

fixed   without regard to the amount of loss will                                                        be   awarded as nominal damages."                   

RESTATEMENT  (SECOND) OF  CONTRACTS   § 346 (A                                                          M. L     AW  INST . 1981).   



                                                                                       -9-                                                                               7491
  


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

                                                                                                                                                                                                                                                                             14  

 money to buy new trees would not go toward replacing the old trees.                                                                                                                                                                                                                  The court   



 therefore awarded a sum it determined to represent the cut trees' value (though the                                                                                                                                                                                                                              



 testimony shows that the amount actually reflected the restoration cost, a significantly   



 lower amount).                                            But whether the amount represented the trees' restoration cost or their                                                                                                                                                                           



 value,   the   superior   court   plainly   intended   it   to   be   a   proxy  for   the   Bixby's   own  



unquantified harm.   



                                                  The use of restoration cost as a measure of damages in this case was error.                                                                                                                                                                                                     



 Relying on the Restatement (Second) of Torts, we have held that restoration costs are an                                                                                                                                                                                                                             



 appropriate measure of damages only if those costs (1) are not "disproportionately larger                                                                                                                                                                                                               



 than the diminution in the value of the land"                                                                                                                      and  (2) there is a " 'reason personal to the                                                                                                  

                                                                                                                                                                                                                      15           Here,  in  the  absence  of  

 owner   for   restoring'   the   land   to   its   original   condition."                                                                                                                                                                                                                                           



 evidence of "the diminution in the value of the land," there was no basis on which to  

                                                                                                                                                                                                                                                                                                                       



 make   a   finding   one   way   or   the   other   whether   the   restoration   costs   were  

                                                                                                                                                                                                                                                                              



 disproportionately high.  

                                                                                            



                                                  The second requirement for using the restoration cost measure -a "reason  

                                                                                                                                                                                                                                                                                               



personal" to the Bixbys - also lacks support in the record.  A "reason personal" for  

                                                                                                                                                                                                                                                                                                                   



                         14                       The   superior   court   found,   and   neither   party   disputes,   that   "there   is  



 insufficient room between the window and the property line to replace the trees on [the                                                                                                                                                                                                                        

 Bixbys'] property.  The only way this view could be restored is by replanting trees on                                                                                                                                              

 [Galipeau's] land."                                                     



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

                                                                                                                                                                                                                                                                                                 

 RESTATEMENT  (SECOND)  OF  TORTS  § 929(1)(a) cmt. b (A                                                                                                                                                         M. L            AW  INST . 1977));                                             see also   

Andersen v. Edwards                                                           , 625 P.2d 282, 289 (Alaska 1981) (noting that restoration costs are                                                                                                                                                                  

 inappropriate in situations "where there is [not] a reasonable likelihood that the trees will                                                                                                                                                                                                                  

be restored");                                        Chung   v. Rora                                              Park,   339   P.3d  351,   353   (Alaska 2014)                                                                                                                (noting that   

 replacement costs for trees removed from a plaintiff's property are an inappropriate                                                                                                                                                                                       

 measure of damages when they disproportionately exceed the loss in value of the land                                                                                                                                                                                                                         

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

 condition" (quoting                                                      Osborne, 947 P.2d at 1359)).                                                      



                                                                                                                                                        -10-                                                                                                                                                 7491
  


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

restoring   property to                     its   original condition                    "exists where the                    owner   holds property   



primarily for use rather than for sale                                and  where the owner is likely to make repairs with                                       

                                                                                                                                                          16   In its  

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



second summary judgment order on liability, the court listed a number of reasons why  

                                                                                                                                                                



the Bixbys had a "reason personal," including "the beauty, ornamental nature, location,  

                                                                                                                                                        



quality, and size of the protected trees" and the Bixbys' "sentimental attachment to the  

                                                                                                                                                                   



unique setting, privacy, and views created by the protected trees," all of which led the  

                                                                                                                                                                   



court to conclude that the Bixbys were "likely to actually restore the property to its  

                                                                                                                                                                    



original state rather than enjoy the windfall received from payment of compensatory  

                                                                                                                                             



restoration damages."                          But these findings were made on  an  unopposed  motion  for  

                                                                                                                                                                  



summary judgment, and the court's decision changed following trial, when it found that  

                                                                                                                                                                  



"actual restoration of the trees is untenable."   If a complaining landowner does not  

                                                                                                                                                                  



demonstrate  a  "reasonable  likelihood  that  the  trees  w[ill]  be  restored,"  then  "the  

                                                                                                                                                                



appropriate measure of damages [i]s the diminution in value of the property or the  

                                                                                                                                                                  

                                                                                    17   On the facts found at trial, thus, an award  

economic value of the timber that was cut."                                                                                                                  

                                                                           



to the Bixbys of restoration costs would amount to an unacceptable "windfall," and the  

                                                                                                                                                                   



court was required to look to other measures.  

                                                                     



                          As noted above, the Bixbys presented no evidence of "diminution in value  

                                                                                                                                                               

of [their] property."18  That leaves only "the economic value of the timber that was cut"19  

                                                                                                                                                              



             16           Osborne, 947 P.2d at 1359 (emphasis added).                                



             17            Wiersum v. Harder                    , 316 P.3d 557, 568 (Alaska 2013) (citing                                        Andersen v.   



Edwards, 625 P.2d 282, 289 (Alaska 1981)).                                



             18           Id.  



             19           Id.  



                                                                                -11-                                                                           7491
  


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

                                                                                      20  

as a possible measure of their damages.                                                    But "the timber that was cut" had no economic                                    



value to the plaintiffs; the cut trees were not the Bixbys' trees, and they could not have                                                                                             

                                                21    And the market price received for Galipeau's cut trees has no  

 sold them for timber.                                                                                                                                                                     



apparent relation to the Bixbys' loss of aesthetics, diminution in property value, and  

                                                                                                                                                                                         



exposure to the wind.  

                                    



                              In short, as we have defined these damages remedies in the past, the Bixbys  

                                                                                                                                                                                  



were not entitled to damages based on restoration costs or the value of the cut trees.  

                                                                                                                                                                                                   



Rather,  their  damages  remedy  lay  in  proof  of  "diminution  in  the  value  of  their  

                                                                                                                                                                                      

property,"22 but they presented no evidence on that issue and the court made no findings  

                                                                                                                                                                               



about it.  We must therefore conclude that it was error for the superior court to award  

                                                                                                                                                                                   

compensatory damages in anything other than a nominal amount.23  

                                                                                                                                                        



               B.	            It Was Error For The Superior Court To Award The Bixbys Punitive  

                                                                                                                                                                              

                              Damages.  



                              1.	            Punitive damages are not available because Galipeau's breach  

                                                                                                                                                                                 

                                             of contract did not constitute an independent tort.  

                                                                                                                                                          



                              We have consistently held that "[p]unitive damages are not recoverable for  

                                                                                                                                                                                           



breach of contract unless the conduct constituting the breach constitutes an independent  

                                                                                                                                                                      



               20	            Id.  



               21             The economic value of timber is otherwise known as "stumpage value,"                                                                               



defined as "the market value of a tree before it is cut; the amount that a purchaser would                                                                                         

pay for a standing tree to be cut and removed."                                                              Porter v. Kirkendoll                           , 421 P.3d 1036,        

 1040 n.2 (Wash. App. 2018) (citing David H. Bowser, "Hey, That's My Tree!" - An  

                                                                                                                                                                                  

Analysis of the Good-Faith Contract Logger Exception from the Double and Treble  

                                                                                                                                            ILLAMETTE  L. R                    EV. 401,   

Damage Provisions of Oregon's Timber Trespass Action, 36 W 

405 (2000)),                 aff'd in part, rev'd in part                               , 449 P.3d 627 (Wash. 2019).                                       



               22              Wiersum, 316 P.3d at 568.  

                                                                                



               23             See 24 WILLISTON ON                                 CONTRACTS   § 64:12 (4th ed. May 2020 Update);                                             

                                        

RESTATEMENT  (SECOND)  OF  CONTRACTS  § 346 (A                                                                  M. L      AW. I   NST . 1981);                  supra  note 13.   



                                                                                            -12-	                                                                                     7491
  


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

        24  

tort,"      applying this holding specifically to breaches of restrictive covenants in                                     Kalenka  



                25  

v.   Taylor.                                                                                                                     

                     The plaintiffs in Kalenka  sued to enforce restrictive covenants on nine  



                                                                                                                                      

subdivision lots, seeking punitive damages for willful violation of the covenants and to  

                                             26   We observed, however, that the "breach of covenant  

                                                                                                                          

                              

enforce a penalty provision. 

claims sound in contract, rather than tort."27   We reiterated the principle that "[p]unitive  

                                                                                                                        



damages are unavailable in a contract claim, and a contract claim cannot be transmuted  

                                                                                                                       



into one that gives rise to punitive damages simply by alleging that the defendants  

                                                                                                                       



violated the covenants 'wilfully and with reckless disregard' for the [property holder's]  

                                                                                                                          

interest."28  



                     The superior court in this case justified its award of punitive damages by  

                                                                                         



determining that "[t]he conduct constituting the breach of contract would be considered  

                                                                                                                        



an independent tort  -  e.g.,  waste, private nuisance, or trespass to trees; therefore,  

                                                                                                                         



punitive damages are available."  The court reached the amount of punitive damages by  

                                                                                                                                     



relying on the trespass to trees statute,  AS 09.45.730, observing that this case was  

                                                                                                                                  



"analogous."  Because AS 09.45.730 allows the trebling of compensatory damages in  

                                                                                                                                      



cases  of  intentional  and  voluntary  trespass,  the  court  trebled  the  restoration  costs  

                                                                                                                                



awarded as compensatory damages to reach its punitive damages award.  

                                                                                                                    



           24        ARCO  Alaska,  Inc.  v.  Akers ,  753  P.2d  1150,  1153  (Alaska  1988);  see  also  



 Wien  Air  Alaska  v.  Bubbel,   723  P.2d   627, 631   (Alaska   1986)   (noting  that   "awarding  

punitive   damages   [in   contract   cases]   would  be   inconsistent   with   the   [compensatory]  

policy  behind  contract  damages").  



           25        896 P.2d 222, 228 (Alaska 1995).  

                                                                 



           26        Id. at 224-25.  

                               



           27        Id. at 228.  

                               



           28        Id.  



                                                                 -13-                                                           7491
  


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

                                         Again, we must conclude that this damages award was error; this case is                                                                                                                                                



governed by the rule articulated in                                                                   Kalenka  that a breach of CCRs is a breach of contract,                                                                               

                                                                                                                                                         29       And we disagree that Galipeau's  

not a tort, even if done willfully and intentionally.                                                                                                                                                                                



 conduct can "be considered an independent tort."  An independent tort, by definition, is  

                                                                                                                                                                                                                                                                 

 one that would exist even if there were no contract;30 here, Galipeau owed no duty to the  

                                                                                                                                                                                                                                                             



Bixbys to refrain from cutting his own trees except for the contractual duty imposed by  

                                                                                                                                                                                                                                                              



the CCRs.  

                                  



                                         The first independent tort the superior court found possibly applicable was  

                                                                                                                                                                                                                                                          



waste.  An action for waste is governed by AS 09.45.740, which provides a right of  

                                                                                                                                                                                                                                                               



 action to "a guardian, tenant for life or years, or tenant in common of real property" for  

                                                                                                                                                                                                                                                             



"waste on the property."  Referencing the statutory remedy, we have defined waste as  

                                                                                                                                                                                                   



 occurring "when the owner of a possessory estate engages in unreasonable conduct that  

                                                                                                                                                                                                                                                          



results in physical damage to the land and substantial diminution in the value of estates  

                                                                                                                                                                                                                                                 

                                                                                                          31   Although the Bixbys urge us to give the statute an  

 owned by others in the same land."                                                                                                                                                                                                                            

                                                                                       



 expansive reading due to its remedial nature, a liberal reading does not allow us to ignore  

                                                                                                                                                                                                                                                   



                    29                  Id.  



                    30                   See, e.g., Bayerische Landesbank, N.Y. Branch. v. Aladdin Capital Mgmt.                                                                                                                                  



LLC, 692 F.3d 42, 58 (2d Cir. 2012) ("Under New York law, a breach of contract will                                                                                                                                    

not give rise to a tort claim unless a legal duty independent of the contract itself has been                                                                                                                                                           

violated.");  Gita Sports Ltd. v. SG Sensortechnik GmbH &Co. KG                                                                                                                                      , 560 F. Supp. 2d 432,                              

442 (W.D. N.C. 2008) ("Under the independent tort doctrine, 'a plaintiff must allege a                                                                                                                                                                            

duty owed him by defendant which is separate and distinct from any duty owed under   

 a contract.' " (citation omitted));                                                              Toyota-Lift of Minn., Inc. v. Am. Warehouse Sys., LLC                                                                                                             ,  

 868 N.W.2d 689, 696 (Minn. App. 2015) ("An independent tort may accompany a                                                                                                                                                                                     

breach of contract when the defendant has a legal duty to the plaintiff arising separately                                                                                                                                             

 from any duty imposed in the contract."),                                                                                    aff'd, 886 N.W.2d 208 (Minn. 2016).                                                            



                    31                  McKibben  v.  Mohawk  Oil  Co.,  667  P.2d  1223,  1228  (Alaska  1983)  

                                                                                                                                                                                                                                                  

 (emphasis added).  

                                 



                                                                                                                             -14-                                                                                                                      7491
  


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

the statute's plain language. The remedy is clearly intended to address harms to property                                                                                          



in common ownership and isexpressly made available                                                                        only to thosewithcertain                                 interests  



in the property on which the waste has been committed. The Bixbys have no remedy for                                                                                                            



waste committed on an adjoining lot in which they have no possessory interest.                                                                                      



                               Thesecondpossibleindependenttort cited                                                         by thesuperiorcourtwasprivate                            

                                                                                                                                                          32  which authorizes  

nuisance.   Suits for private nuisance are governed by AS 09.45.230,                                                                                                           

civil  actions  "to  enjoin  or  abate  a  private  nuisance"  and  to  recover  damages.33  

                                                                                                                                                                                                        



"Nuisance" is defined by statute as "a substantial and unreasonable interference with the  

                                                                                                                                                                                                

use or enjoyment of real property, including water."34  We have never had occasion to  

                                                                                                                                        



define  "substantial  and  unreasonable  interference"  in  a  published  opinion;  in  an  

                                                                                                                                                                                               



unreported decision, however, we affirmed the superior court's use of the Restatement's  

                                                                                                                                                                      



                                                                                                                                                                                                  35  

multi-factor test in refusing to enjoin the noisy operation of a neighbor's dog kennel.                                                                                                                 

                                                                                                                                                                                  



Under the Restatement, "interference is unreasonable if (a) the gravity of the harm  

                                                                                                                                                                                          



outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is  

                                                                                                                                                                                                  



serious and the financial burden of compensating for this and similar harm to others  

                                                                                                                                                                                        

would not make the continuation of the conduct not feasible."36   The application of these  

                                                                                                                                                                                           



factors "is a problem of relative values to be determined by the trier of fact in each case  

                                                                                                                                                                                            



               32             See  AS 09.45.230(e) (stating that with certain exceptions, "a person may  



not bring a  civil action to enjoin or abate a private nuisance or to recover damages for  

a  private  nuisance  unless  the  action  is  authorized  by  this  section").  



               33             AS 09.45.230(a).  

                                        



               34             AS 09.45.255.  

                                        



               35              Trails North, Inc.  v. Seavey, Nos.  S-8425, S-8505,  1999 WL 33958785  

                                                                                                                                                                               

(Alaska Dec. 1, 1999) (citing RESTATEMENT  (SECOND)  OF  TORTS  §  826  (AM.  LAW  INST .  

                                                                    

 1965)).  



               36              RESTATEMENT  (SECOND) OF  TORTS  §  826.  



                                                                                              -15-                                                                                        7491
  


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

                                                                                          37  

in the light of all the circumstances of that case";                                         the determination is essentially "a                        

weighing process, involving a comparative evaluation of conflicting interests."                                                               38  



                        Aclaimfor privatenuisancewas neitherpled in thecomplaintnorexpressly  

                                                                                                                                            



litigated in this case, and accordingly the superior court did not - at least explicitly -  

                                                                                                                                                        



conduct the "comparative evaluation of conflicting interests" necessary to find that a  

                                                                                                                                                          



private nuisance existed.  Whether the interference was "substantial" depended in large  

                                                                                                                                                   



part  on  the  extent  to  which  the  Bixbys  actually  intended  to  "use  or  enjoy[]"  their  

                                                                                                                                                   



property; the court made no findings on that topic.  As for whether the interference was  

                                                                                                                                                     



"unreasonable," the court gauged the unreasonableness of Galipeau's actions solely by  

                                                                                                                                                        



reference  to  the  willfulness  with  which  he  violated  the  CCRs  -  that  is,  that  he  

                                                                                                                                                       

committed a willful breach of contract.39                                      Setting aside his contractual duties in our  

                                                                                                                                                



search for an independent tort, we see nothing in the court's findings that would support  

                                                                                                                                               



the conclusion that Galipeau's action in cutting down his own trees was an unreasonable  

                                                                                                                                     



use of his own property.  

                                               



                        The third possible independent tort cited by the superior court was trespass  

                                                                                                                                              



to trees, codified in AS 09.45.730.  The statute addresses the injury or removal of trees,  

                                                                                                                                                   



but again only in situations that are expressly enumerated:  as most relevant here, they  

                                                                                                                                                    



include the unlawful cutting of trees on "the land of another person or on the street or  

                                                                                                                                                        



            37          Id.  §  826  cmt.  b.  



            38          Id.  §  826  cmt.  c.  



            39          In  their  brief  on  this  appeal,  the  Bixbys  also  define  Galipeau's  conduct  as  



unreasonable   for   purposes   of   the   private   nuisance   tort   by   pointing   to   "the   fact   that  

Galipeau   did   not   own   the   right   to   cut   down   prohibited   trees   on   his   lot,   even  for  

construction  purposes,"  a  restriction  which  "[h]e voluntarily  and  knowingly  agreed  to  .  .  .  

when he bought  his lot."  This restriction on  Galipeau's  rights was solely contractual.    



                                                                          -16-                                                                     7491
  


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

                                                                                                                                       40  

highway in front of a person's house."                                                                                                        Galipeau did not remove trees from "the land                                                                                                     



of another person"; the cut trees were indisputably on his own property.                                                                                                                                                                                      



                                               The superior court did make a finding that Galipeau "cut down prohibited                                                                                                                                                    



trees on Fiddlehead Lane . . . , a street in front of the Plaintiffs' house," relying for the                                                                                                                                                                                                       



finding on Galipeau's deemed admission during discovery.                                                                                                                                                               We are unable to find a                                                            



further explanation of these trees' location in the trial testimony; the Bixbys themselves                                                                                                                                                                              



did not describe with any particularity the location of the downed trees, and their expert                                                                                                                                                                                               



witness described "[m]ost of the trees/stumps" she found on Galipeau's lot as being                                                                                                                                                                                                       



"clustered together on the central part of the lot, with the exception of . . . the largest                                                                                                                                                                                            



stump, that we found at the bottom of                                                                                                          the slope," i.e., at the northwest end of the                                                                                                      

                                41  far from the southern tip of the property abutting Fiddlehead Lane. Looking  

property,                                                                                                                                                                                                                                                                       



at the small plat of the subdivision admitted as an exhibit at trial, we do not see any place  

                                                                                                                                                                                                                                                                                             



on Galipeau's lot where he could have cut down trees that were situated between the  

                                                                                                                                                                                                                                                                                                   



Bixbys' house and the street.  We assume, therefore, that the trees that were cut down  

                                                                                                                         



were Galipeau's; the court would surely have expressly stated a finding that he cut down  

                                                                                                                                                                                                                                                                                           



trees belonging to the Bixbys, as this would have directly implicated the trespass to trees  

                                                                                                                                                                                                                                                                                               



statute (which the court relied on only by analogy).  We also assume that the trees were  

                                                                                                                                                                                                                                                                                             



not in front  of the Bixbys' house; again, such a finding would have directly implicated  

                                                                                                                                                                                                                                                                          



the trespass to trees statute.  We are left with this conclusion about the superior court's  

                                                                                                                                                                                                                                                                                      



finding:  although Galipeau cut down trees on his property that were "on Fiddlehead  

                                                                                                                                                                                                                                                                       



                       40                      The other locations of unlawful tree-cutting that could result in liability                                                                                                                                                         



under the statute include "(2) a village or municipal lot, or cultivated grounds, or the                                                                                                                                                               

commons or public land of a village or municipality, or (3) the street or highway in front                                                                                                                                                                                                    

of land described in (2) of this section."                                                                                                   AS 09.45.730.   



                       41                      Both Evans and Galipeau describe the slope's location as the northwest end  

                                                                                                                                                                                                                                                                                                   

of the property.  

                      



                                                                                                                                                 -17-                                                                                                                                         7491
  


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

Lane," a street that is "in front of the Plaintiffs' house," the trees along the street that                                                                                            



Galipeau cut down were not in front of the Bixbys' house but rather in front of his own.                                                                                              



                              This finding did not implicate the damage remedy of AS 09.45.730, as the                                                                                    



superior court implicitly concluded by not relying on it.                                                                    The operative language of the                               



statute involves the liability of one "who without lawful authority cuts down . . . a                                                                                                    

                                                                                                                               42    We interpret this language  

tree . . . on . . . the street . . . in front of a person's house."                                                                                                         



as requiring that the unlawfully cut tree was between the person's house and the street,  

                                                                                                                                                                                   



not simply that the tree was on a street that also, at some point in its length, ran in front  

                                                                                                                                                                                     



of the person's house.  The latter interpretation would lead to absurd results, as persons  

                                                                                                                                                                               



who lived blocks away would have a right of action simply because they lived on the  

                                                                                                                                                                                         



same street as the downed tree.  In short, there is no reasonable interpretation of the  

                                                                                                                                                                                         



trespass to trees statute, AS 09.45.730, that would apply to the actions at issue here.  

                                                                                                                                                                               



                              Weconclude,therefore, thatGalipeau'sbreachoftheCCRs, though willful,  

                                                                                                                                                                                 



did not constitute an independent tort for which he could be liable for punitive damages.  

                                                                                                                                                                                                  



Because punitive damages may not be awarded in breach of contract actions absent  

                                                                                                                                                                                  



conduct amounting to an independent tort, we must vacate the punitive damages award.  

                                                                                                                                                                                 



                              2.	           Alaska  Statute  34.08.670,  which  concerns  common  interest  

                                                                                                                                                                             

                                            ownership, does not apply.  

                                                                                             



                              In its conclusions of law, the superior court cited AS 34.08.670 to bolster  

                                                                                                                                                                                 



its contention that punitive damages were available, and the Bixbys rely on the statute  



on  appeal.                  The statute provides,  in  pertinent part,  that persons who are adversely  

                                                                                                                                                                          



affected by a failure to comply with Title 34, chapter 8 - governing "common interest  

                                                                                                                                                                                

communities"43                       -  have  "a  claim  for  appropriate  relief,"  which  includes  punitive  

                                                                                                                                                                             



               42             AS 09.45.730.   



               43  

                                                                                                                                                                               

                              See  AS 34.08.010 ("Except as provided in AS 34.08.030, this chapter  

                                                                                                                                                                  (continued...)  



                                                                                           -18-	                                                                                     7491
  


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

                                                                                                                                  44  

damages "for a wilful failure to comply with this chapter."                                                                            The Bixbys argue that their                         



subdivision is a "common interest community" covered by the chapter.                                                                                                



                              But "common interest community" is a precisely defined termfor purposes                                                                            



of Title 34, chapter 8.                             A "common interest community" is "real estate with respect to                                                                               



which a person, by virtue of ownership of a unit, is obligated to pay for real estate taxes,                                                                                            



insurance premiums, maintenance, or improvement of other real estate described in a                                                                                                               

                             45       The  Bixbys  appear  to  argue  that  they  are  members  of  a  "planned  

declaration."                                                                                                                                                                  



community" and therefore in a "common interest community," but to be covered by  

                                                                                                                                                                                              



Title  34,  chapter  8  a  planned  community  must  still  meet  the  "common  interest  

                                                                                                                                                                                   

community" definition.46   And as Galipeau points out, nothing in the CCRs satisfies the  

                                                                                                                                                                                              



definitional requirement that the residents of the subdivision be "obligated to pay for real  

                                                                                                                                                                                             



estate taxes, insurance premiums, maintenance, or improvement of other real estate" in  

                                                                                                                                                                                                



the subdivision; they are more appropriately characterized as residents of a "general plan  

                                                                                                                                                                                            

                                 47     As the Bixbys are not members of a "common interest community,"  

development."                                                                                                                                                          



AS 34.08.670 does not give them a basis for a punitive damages award.  

                                                                                                                                                                       



               43             (...continued)
  



applies  to   each   common   interest   community   created within  the   state   after  January   1,
  

 1986.").  



               44             AS  34.08.670.  



               45             AS  34.08.990(7).  



               46             See  AS  34.08.990(24)  (defining  "planned  community"  as  "a  common  

                                                                                                                                                                                

interest community that is not a condominium or a cooperative").  

                                                                                                                    



               47             See RESTATEMENT  (THIRD) OF  PROPERTY (SERVITUDES) §  1.7(1)  (AM. LAW.  

                                        

INST .    2000)    ("A                         'general-plan    development'    is    a    real-estate    development    or  

neighborhood   in  which   individually   owned   lots   or  units   are  burdened  by   a   servitude  

imposed  to  effectuate  a  plan  of  land-use  controls  for  the  benefit  of  the  property  owners  

in  the  development  or  neighborhood.").   



                                                                                              -19-                                                                                       7491
  


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

V.             CONCLUSION  



                              We    VACATE    the    superior    court's    judgment    and    its    awards    of  



compensatory damages and punitive damages.                                                              We REMAND with instructions for the                                               



superior  court  to  enter  an  award  of  nominal  damages  and  to  revisit  the  issues  of  

                                                                                                                                                                                           



prejudgment interest and attorney's fees as may be necessary.                                                      



                                                                                                 -20-                                                                                7491
  

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