### FILED February 20, 2014 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DMSIONTHREE EAGERBEAVER., INC., a Washington ) Corporation, ) ) Appellant, ) ) 

### v. ) ) BULLDOGTRUCKING & ) EXCAVATION, LLC, a Washington ) LimitedLiability Company, and ) MICHAEL AND "JANE DOE" ) SUTTON, individually, ) ) Respondents, ) ) CINDYAND "JOHNDOE" BEA VERT, ) individually, SEATTLE IRON & ) METALS CORPORATION, a ) Washington Corporation, ) ) Defendants. ) No. 30827-8-III

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- EagerBeaverInc. appeals the trial court's decision, following a benchtrial, thatEagerBeaverdid notprove wrongful conduct onthe part oftwo defendants required to recovertreble damages underRCW 4.24.630, a trespass statute. It challenges both the trial court's construction ofthe statute andthe sufficiency ofthe record to support the court's conclusion. Whilewe do notentirely agree withthe trial

# I i 

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# I I No.30827-8-III EagerBeaverInc. 

### v. Bulldog Trucking & Excavation LLC court's construction ofthe statute, we reject EagerBeaver's construction. And under any construction ofthe statute advanced by the parties, the trial court's**findings~all** ofwhich

wetreat as verities-supportthe result. We affirm. FACTS AND PROCEDURAL BACKGROUND In 2004, Cindy Beavert hired EagerBeaverInc. to log several acres ofher property, located in Leavenworth. Among equipment used by Eager Beaverto perform the work was a log yarder. Afterthe work was completed, Eager Beaverparked the yarder on United States Forest Service land adjacent to Ms. Beavert's property, allegedly with forest service permission. Although Eager Beaver maintains that it started up the yarderperiodically to keep the bearings from seizingup and to preventwater from collecting in the oil, it is undisputed that the yarder's condition deteriorated significantly

overthe next several years. In 2008, Ms. Beavert asked hertenant, Michael Sutton, to help her remove the yarder, which she considered unsightly. 

### Mr. Sutton was then an employee ofBulldog Trucking & Excavation LLC, which had recently begun using its equipment for scrap demolition and recycling, due to a sharp rise in its value. 

### Mr. Sutton's manager, Donald Eldredge, told company employees to keep an eye out for available scrap. Whentold about the yarder, Mr. Eldredge gave 

### Mr. Suttonpermission to use the company's equipment and its employees to dismantle it for Ms. Beavert, with the understanding that 

### Mr. Sutton and Bulldog would divide proceeds from the scrap.



### 2No.30827-8-III EagerBeaverInc. 

### v. Bulldog Trucking 

### &Excavation LLC Ms. Beavert gave 

### Mr. Sutton a key to a locked gate that led to the location ofthe yarder and Mr. Sutton began dismantling it for scrap. Approximately halfWay into complete destruction ofthe yarder, Tracy Gronlund, the president ofEager Beaver, received a call from a neighbor down the road from the Beaverts, who informed him that his yarder was being dismantled and taken away. 

### Mr. Gronlund immediately drove to the site, discovered 

### Mr. Sutton and two other men scrappingthe yarder, and stopped their work. Bulldog received $7,530.75 for the scrap that had been cut by thatpoint and sold to Seattle Iron & Metals Corporation. Bulldog later paid those proceeds overto Eager Beaver. Whatremained ofthe yarder was not worth repairing and could only be sold for scrap. Eager Beaver obtained $1,500 for what remained. Eager Beaver sued Bulldog, Cindy and "John Doe" Beavert, Seattle Iron, and Michael and "Jane Doe" Sutton for conversion, and asserted an additional claim for negligence against Bulldog and Seattle Iron. It later moved to amend the complaintto add a claim for damages under RCW4.24.630(1), which the trial court granted. The claims against Seattle Iron were dismissed on summaryjudgment. Eager Beaverthen moved for partial summaryjudgment on liability for conversion against the remaining defendants, which the trial court granted. The issue of damages proceeded to a bench trial in May 2011. In a memorandum decision, the trial court found that given the deteriorated condition ofthe yarder, its highest and best use at the time ofconversion was as scrap, and its salvage value atthat time was $11,000. It

3

# I I j No. 30827-8-111 EagerBeaverInc. v. Bulldog Trucking & ExcavationLLC awarded treble damages under RCW4.24.630(1) against only the Beaverts and the Suttons, finding that Ms. Beavert and Mr. Sutton had acted "wrongfully" within the meaning ofthe statute. The court calculated the treble damages recoverable against the Beaverts and Suttons as $23,969.25. Itcalculated the damages recoverable against Bulldog-netofthe proceeds for scrap that EagerBeaverhad received directly, and from Bulldog-as $1,969.25
. All parties moved the court to reconsider its application ofRCW 4.24.630(1). Eager Beaver argued thatBulldog was also chargeable with wrongful conduct, directly or through its employee, Mr. Sutton. The Beaverts and Mr. Sutton argued that the statute
was a trespass statute and did not apply because the yarder was on forest service property and they had not trespassed in dismantling it. Alternatively, they argued that further trial

was required on the application ofthe statute, claiming thatEager Beaver'srequest for treble damages underthe statute was raised for the first time onthe morning ofthe damages trial, the parties were not prepared to present evidence on the statute's application, and the court had lacked a sufficient record on which to decide liability. The trial court granted the motion to re-open and entertain additional evidence on the issue ofMr. Sutton's and Bulldog's liability under RCW 4.24.630(1). Itrefused to entertain additional evidence as to the Beaverts' liability, concluding that Ms. Beavert's liability was clear. When Eager Beaver and the Beaverts thereafterresolved the issues

4No.30827-8-III EagerBeaverInc. v. Bulldog Trucking & Excavation LLC between them, the trial court entered an agreed order dismissing the Beaverts from the
case. The trial court heard additional evidence on liability under RCW 4.24.630(1) in November 2011, including testimony from Mr. Sutton and

### Mr. Eldredge. Having heard the evidence, it reversed its earlier decision as to 

### Mr. Sutton's liability. Itfound that neither he nor Bulldog acted wrongfully since both believedthe yarder hadbeen abandoned and that they were authorized by Ms. Beavertto remove it. EagerBeaver appeals, raising two issues. The first is whether the trial court misconstrued RCW 4.24.630 by treating Mr. Sutton's and Bulldog's subjective belief about "whetherthey were 'going ontothe land ofanother'" as a factor in determining their liability. Br. ofAppellant at 1. The second is whetherthe trial court erred in concluding that Mr. Sutton and Bulldog did not act wrongfully. In connection with this second issue, Eager Beaver implicitly challenges some ofthe trial court's factual findings, but without assigning error under RAP 10.3. Even more problematic is that it challenges those findings without providing a verbatim report ofthe relevant proceedings. For reasons discussed below, we will not consider Eager Beaver's challenges to the court's findings. ANALYSIS We address the two issues raised by Eager Beaver in tum.



### 5No. 30827-8-111 EagerBeaverInc. 

### v. Bulldog Trucking & ExcavationLLC 1 Application ofRCW4.24.630(1). RCW 4.24.630, entitled "Liability for damage to land andproperty,"provides in relevantpart: Every person who goes onto the land ofanother and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, orwrongfully injures personal property or improvements to real estate onthe land, is liable to the injured party for treble the amount ofthe damages caused by the removal, waste, or injury. RCW 4.24.630(1). Itgoes on toprovide that for purposes ofthe section, "aperson acts 'wrongfully' ifthe person intentionally and unreasonably commits the act or acts while knowing, orhaving reasonto know, that he or she lacks authorization to so act." Id. EagerBeaver argues that since 

### Mr. Sutton went onto forest service land ("the land ofanother") and thereupon "wrongfully injuredpersonal property," then EagerBeaverthe "injuredparty"-is entitledto treble damages underthe statute. Itargues thatMr. Sutton's subjective beliefthatthe yarder was located onthe Beaverts' property was irrelevant. Bulldog answers in partthat RCW 4.24.630(1) is a trespass statute and that Mr. Sutton did not commit a trespass by entering onto forest service land open to the public.RCW4.24.630(1) is not as explicit as RCW 64.12.030, the timbertrespass statute, in requiring that the entry onto "the land ofanothee' be a trespass. Both statutes speak of entry onto "the land ofanother," but unlike RCW 4.24.630(1), the timbertrespass statute explicitly frames a claim underthe statute as one that involves an invasion ofthe 6NO.30827-8-III EagerBeaverInc. v. Bulldog Trucking & ExcavationLLC plaintiffs interest in the subject land: it states thatrecovery under the statute is provided "in an action by such person"with "suchperson" referring to the person on whose land the timber is located, and it states that the claim is "againstthe person committing such trespasses." Former RCW 64.12.030 (1881). RCW 4.24.630(1) lacks either ofthese further direct or indirectreferences to trespass but nonetheless has been repeatedly characterized by Washington courts as a trespass statute. In Colwell v. Etzell, 119 Wn. App. 432, 439, 81 PJd 895 (2003), this court held that "[t]he statute's premise is that the defendantphysically trespasses on the plaintiffs land." This court refused to apply RCW 4.24.630(1) in Colwell because "[t]here was no physical trespass in the present case." Id. Judge Sweeney, concurring, statedthat "[t]he plain language ofthe statute requires a trespass," citing the language "everyperson who goes onto the land ofanother." Id. at 444. Both our Supreme Court and Division One ofour court have characterizedthe statute as describing the elements of"statutory trespass." Saddle Mountain Minerals, LLCv. Joshi, 152 Wn.2d 242, 249, 95 PJd 1236 (2004); C/ipse v. Michels Pipeline Constr., Inc., 154 Wn. App. 573,576,225 P.2d 492 (2010). Division One in Clipse pointed outthat the statute was enacted by Laws of 1994, chapter 280, in the same bill that amended former RCW 79.01.760 (1993), the then-existing law pertaining to public lands trespass, and that the house bill report stated that the bill would establish similar civil damages provisions"'withrespect to all lands.'" Id. at 579 (quoting record). In its

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# I No.30827-8-III EagerBeaverInc. 

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# I recent decision in Birdv. BestPlumbing Group, LLC, 175 Wn.2d 756, 762, 774, 287 P.3d 551 (2012), our Supreme Court repeatedly referred to RCW 4.24.630 as "the trespass statute." Here, court minutes reveal that the trial court concluded thatRCW 4.24.630(1) is "much broaderthanjusttrespass" and that it conceivably applied to the defendants, depending on their knowledge and intent. Clerk's Papers (CP) at 420. The court appears to have based its interpretation on the fact that the statute is not explicit that the owner of the entered land must be the "injuredparty" or in referring to a "trespass." None ofthe decisions cited above have focused on the absence ofsuch language in the statute. Statutory construction is a question oflaw and reviewed de novo. State v. Elmore, 154 Wn. App. 885,904-05,228 P.3d 760 (2010). We interpret statutes to give effect to the legislature's intent. City of Spokane v. Spokane County, 158 Wn.2d 661,673, 146 P.3d 893 (2006). Ifa statute's meaning is plain on its face, thenthe court will give effect to that plain meaning as an expression oflegislative intent. State ex reI. CitizensAgainst Tolls v. Murphy, 151 Wn.2d 226,242, 88 P.3d 375 (2004). Plain meaning is discerned not only from the provision in question but also from closely related statutes and the underlying legislative purposes. Id. We avoid constructions that yield unlikely, absurd, or strained consequences. Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002). It is only ifa statute is susceptible to two ormore reasonable interpretations that it is ambiguous and that we


### 8NO.30827·8-II1 EagerBeaverInc. v. Bulldog Trucking & Excavation LLC resort to additional canons ofstatutory construction or legislative history. Dep'tof Ecologyv. Campbell & Gwinn, LLC, 146 Wn.2d I, 12,43 P.3d 4 (2002). The earlier·mentioned bill enacting RCW 4.24.630, which amended another trespass statute, informs the plain meaning ofRCW4.24.630(1), as does RCW 4.24.630(2), which makes the remedy under subsection (1) unavailable in the eventthat

one ofseveral other more specific trespass or trespass immunity statutes applies. And under the construction advanced by EagerBeaver, the remedy provided by subsection (I) would not be available ifMs. Beavert injured the yarder on her ownproperty yet would be available ifshe injured it on adjacent forest service property-an arbitrary and irrational result. Forthese reasons, we reject EagerBeaver's arguments andreaffirm Colwell's conclusion thatthe plain premise ofRCW4.24.630 is that a defendant has physically trespassed onthe plaintiffs land. The statute does not apply, then, to injury of

a private person'sproperty that is located on forest service land open to the public. 11. Was there an insufficient basisfor the trial court's conclusion that Mr. Sutton andBulldogdidnotknow they lackedauthorization? We will also address the second issue raised by EagerBeaver, which argues that the trial court erred in finding that Mr. Sutton and Bulldog were unaware they lacked authorization and in concluding, from that, that they did not act wrongfully. Itcites extensively to deposition testimony, some apparently published during trial, but without providing a transcript ofother evidence presented in the trial.

9No.30827-8-II1 EagerBeaverInc. 

### v. Bulldog Trucking & Excavation LLC RAP 9.2(b) states that "[a] party should arrange for the transcription ofall those portions ofthe verbatim report ofproceedings necessary to present the issues raised on review." Itfurther provides, "Ifthe party seeking review intends to urge that a verdict or finding offact is not supported by the evidence, the party should include in the record all
. evidence relevant to the disputed verdict or finding." Id. Eager Beaverrationalizes its failure to provide a verbatim transcript by representing that the facts are "essentially undisputed." Br. ofAppellant at 1. Mr. Sutton and Bulldog disagree, characterizing the facts relating to the application ofRCW 4.24.630 as "highly disputed." Br. ofResp't at 1. The fact that the trial court's findings conflict with the evidence as characterized by Eager Beaveris sufficient for our purposes to establish that the evidence was disputed and a report ofproceedings is necessary for appeal.Itis axiomatic that an appellant cannot ask us to decide that evidence'presentedto the trial court did not support its findings and at the same time fail to provide us with all the evidence on which the trial court was entitledto rely. Ourpresumption is that the trial court, not an advocate, is the reliable reporter ofwhat was proved. Accordingly, if

an inadequate record is provided we will treat all ofthe trial court's findings as verities. Our review is limited to whether the findings offact supportthe trial court's conclusions oflaw. Haberman v. Elledge, 42 Wn. App. 744, 745-46, 713 P.2d 746 (1986).

10No. 30827-8-111 EagerBeaverInc. v. Bulldog Trucking & Excavation LLC As previously observed, the statute provides that for purposes ofsubsection (l), "a person acts 'wrongfully' ifthe person intentionally and unreasonably commits the act or acts while knowing, orhaving reason to know, that he or she lacks authorization to so act." RCW 4.24.630. In Clipse, 154 Wn. App. 573, Division One addressed an ambiguity certified by a superior court: should the second appearance ofthe word "acts" in the statutorydefinition be read as a noun or a verb? In other words, should the relevant language in subsection (l) be read as: A person acts "wrongnJlly" ifthe person intentionally and unreasonably commits the act [noun, meaning a Single act] or acts [noun, meaningmultiple acts] while knowing, orhaving reason toknow, that he or she lacks authorization to so act,

or should it beread as: A person acts "wrongfully" ifthe person intentionally and unreasonably commits the act [noun: single act]

or [ifhe] acts [verb] while knowing, or having reason to know, that he or she lacks authorizationto so act[.] The first construction would require that a plaintifflike Eager Beaver show that a defendant's conductbe intentional, unreasonable, andknowing or having reason to know ofa lack ofauthorization. The second constructionwould permit a plaintiffto show that

a defendant, whileperhaps not acting intentionally or unreasonably, at least knew orhad

reason toknow ofa lack ofauthorization. For sound reasons that we need notrepeat here, Division One concluded that the second use of"acts" is as a noun, andthat to

11No.30827-8-III EagerBeaverInc. 

### v. Bulldog Trucking & Excavation LLC establish that a person has acted wrongfully for purposes ofthe statute, a plaintiffmust showthat he '''intentionally and unreasonably commits an act while knowing orhaving

reason to know that he or she lacks aqthority to so act.'" Id. at 579-80 (quoting record); accordBorden v. City o/Olympia, 113 Wn. App. 359, 374, 53 P.3d 1020 (2002) (RCW 4.24.630 requires that a claimant "showthat the defendant 'wrongfully' caused waste or injury to land, and a defendant acts 'wrongfully' only ifhe or she acts 'intentionally'''); StandingRockHomeownersAss'n 

### v. Misich, 106 Wn. App. 231,246,23 P.3d 520 (2001) ("[A]s the plain language ofRCW4.24.630(1) envisions wrongful conduct, any violation ofthat statute is analogous to an intentional tort, like trespass to personal property or conversion."). Here, the trial court's findings included the following: Defendants Bulldog and Sutton did not know or have reason to know they lacked authorization to scrap the yarder, but reasonably believed Beavert did. CP at 575 (Finding ofFact 8), and Michael Sutton did not know who owned the yarder, but understood from Cindy Beavertthat she did not own the yarder [and] that the yarder had been abandoned by whoever owned it, and that they owed her money. Id. (Finding ofFact 15). The trial court's conclusions oflaw included additional findings offact. I When

I Ifa determination concerns whether evidence shows that something occurred or existed, it is properly labeled a finding offact, but ifthe determination is made by a process oflegal reasoning from facts in evidence, it is a conclusion oflaw. State v. 12No. 30827-8-111 EagerBeaver inc. v. Bulldog Trucking & Excavation LLC findings are included within conclusions we examine them for what they are, regardless oftheir labeL Miller v. Anderson, 91 Wn. App. 822, 825 n.l, 964 P.2d 365 (1998) (citing Willener v. Sweeting, 107 Wn.2d 388,394, 730 P.2d 45 (1986)). We treat these findings, too, as verities: Atthe request ofthe Defendant, Cindy Beavert, the Defendants, Michael Sutton and Bulldog Trucking went on the land ofthe U.S. Forest Service and salvaged a significantportion ofthe yarder. CP at 578 (Conclusion ofLaw 5), and 

### Mr. Eldredge had no reasonto know his company lacked authorization. The yarder was accessed through Ms. Beavert's locked gate, no indicia of ownership were present, and the yarder's condition suggested it had been abandoned. CP at 579 (Ex. A additional conclusion). The trial court's conclusions oflaw included its conclusion that [i]n order for RCW 4.24.630 to apply, the Plaintiffmust prove Defendant's actions were "wrongful" as defined in the statute.

. . . Since neitherMr. Sutton norBulldog Trucking knew who owned the yarder, and reasonably believed the yarder was on the property owned by Cindy Beavert, their actions were not wrongful[,] CP at 578 (Conclusions ofLaw 5, 6), and that Bulldog Trucking is only liable for the value ofthe yarder. Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986). Stated differently, a finding offact is "an 'assertion that aphenomenon has happened oris orwill be happening independent ofor anterior to any assertion as to its legal effect.'" Moulden & Sons, inc. 

### v. Osaka Landscaping & Nursery, inc., 21 Wn. App. 194, 197,584P.2d 968 (1978) (internal quotation marks omitted) (quotingLeschiimprovement Council v. Wash. State Highway Comm 'n, 84 Wn.2d 271,283,525 P.2d 774,804 P.2d 1 (1974)). 13No.**30827~8~III** 

### EagerBeaverInc. 

### v. Bulldog Trucking & 

### Excavation LLC CP at 579 (Ex. A additional conclusion). These conclusions are supported by the findings. They provide an additional basis for determining that Mr. Sutton and Bulldog were not liable for treble damages under RCW 4.24.630(1). 

### III Attorney fees. 

# I I Eager Beaver requests reasonable attorney fees and expenses under RAP 18.1 and 

# I RCW 4.24.630(1). The statute provides an attorney fee remedy to a party entitled to 

## I 

# I recover under subsection (1) but we have determined that Eager Beaver was not entitled 

### 1 to recover. n l 

# I**~** Thejudgment ofthe trial court is affirmed. 

# I A majority ofthe panel has determined that this opinion will not be printed in the i Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Fiorsmo,

### C~.
Kulik, J.P.T.

14