FILED 

February 20, 2014 

In the Office of the Clerk of Court 

W A State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DMSION THREE 

EAGER BEAVER., INC., a Washington ) 

Corporation, ) 

) 

Appellant, ) 

) 

v. ) 

) 

BULLDOG TRUCKING & ) 

EXCAVATION, LLC, a Washington ) 

Limited Liability Company, and ) 

MICHAEL AND "JANE DOE" ) 

SUTTON, individually, ) 

) 

Respondents, ) 

) 

CINDY AND "JOHN DOE" BEA VERT, ) 

individually, SEATTLE IRON & ) 

METALS CORPORATION, a ) 

Washington Corporation, ) 

) 

Defendants. ) 

No. 30827-8-III 

UNPUBLISHED OPINION 

SIDDOWAY, J. - Eager Beaver Inc. appeals the trial court's decision, following a 

bench trial, that Eager Beaver did not prove wrongful conduct on the part oftwo 

defendants required to recover treble damages under RCW 4.24.630, a trespass statute. It 

challenges both the trial court's construction ofthe statute and the sufficiency ofthe 

record to support the court's conclusion. While we do not entirely agree with the trial 
I 


i 

i 

I 


I 


No.30827-8-III 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

court's construction of the statute, we reject Eager Beaver's construction. And under any 

construction ofthe statute advanced by the parties, the trial court's findings~all ofwhich 

we treat as verities-support the result. We affirm. 

FACTS AND PROCEDURAL BACKGROUND 

In 2004, Cindy Beavert hired Eager Beaver Inc. to log several acres ofher 

property, located in Leavenworth. Among equipment used by Eager Beaver to perform 

the work was a log yarder. After the work was completed, Eager Beaver parked 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 

yarder periodically to keep the bearings from seizing up and to prevent water from 

collecting in the oil, it is undisputed that the yarder's condition deteriorated significantly 

over the next several years. 

In 2008, Ms. Beavert asked her tenant, 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. When told 

about the yarder, Mr. Eldredge gave Mr. Sutton permission 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. 

2 

No.30827-8-III 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

Ms. Beavert gave Mr. Sutton a key to a locked gate that led to the location of the 

yarder and Mr. Sutton began dismantling it for scrap. Approximately halfWay into 

complete destruction of the 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 scrapping the yarder, and stopped their 

work. Bulldog received $7,530.75 for the scrap that had been cut by that point and sold 

to Seattle Iron & Metals Corporation. Bulldog later paid those proceeds over to Eager 

Beaver. What remained 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 complaint to 

add a claim for damages under RCW 4.24.630(1), which the trial court granted. The 

claims against Seattle Iron were dismissed on summary judgment. 

Eager Beaver then moved for partial summary judgment 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 of the yarder, its highest and best use at 

the time of conversion was as scrap, and its salvage value at that time was $11,000. It 

3 

I 

I 

j 


No. 30827-8-111 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

awarded treble damages under RCW 4.24.630(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. It calculated the damages recoverable against Bulldog-net ofthe 

proceeds for scrap that Eager Beaver had 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 that Bulldog 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 that Eager Beaver's request for 

treble damages under the statute was raised for the first time on the 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). It refused to 

entertain additional evidence as to the Beaverts' liability, concluding that Ms. Beavert's 

liability was clear. When Eager Beaver and the Beaverts thereafter resolved the issues 

4 

No.30827-8-III 

Eager Beaver Inc. 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. It found that 

neither he nor Bulldog acted wrongfully since both believed the yarder had been 

abandoned and that they were authorized by Ms. Beavert to remove it. 

Eager Beaver 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 "whether they were 'going onto the land of another'" as a factor in determining 

their liability. Br. ofAppellant at 1. 

The second is whether the 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. 

5 

No. 30827-8-111 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

1 Application ofRCW 4.24.630(1). 

RCW 4.24.630, entitled "Liability for damage to land and property," provides in 

relevant part: 

Every person who goes onto the land of another and who removes timber, 

crops, minerals, or other similar valuable property from the land, or 

wrongfully causes waste or injury to the land, or wrongfully injures 

personal property or improvements to real estate on the land, is liable to the 

injured party for treble the amount of the damages caused by the removal, 

waste, or injury. 

RCW 4.24.630(1). It goes on to provide that for purposes ofthe section, "a person acts 

'wrongfully' ifthe person intentionally and unreasonably commits the act or acts while 

knowing, or having reason to know, that he or she lacks authorization to so act." Id. 

Eager Beaver argues that since Mr. Sutton went onto forest service land ("the land 

of another") and thereupon "wrongfully injured personal property," then Eager Beaverthe "injured party"-is entitled to treble damages under the statute. It argues that Mr. 

Sutton's subjective belief that the yarder was located on the Beaverts' property was 

irrelevant. Bulldog answers in part that 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. 

RCW 4.24.630(1) is not as explicit as RCW 64.12.030, the timber trespass statute, 

in requiring that the entry onto "the land of anothee' be a trespass. Both statutes speak of 

entry onto "the land of another," but unlike RCW 4.24.630(1), the timber trespass statute 

explicitly frames a claim under the statute as one that involves an invasion ofthe 

6 

NO.30827-8-III 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

plaintiffs interest in the subject land: it states that recovery under the statute is provided 

"in an action by such person" with "such person" referring to the person on whose land 

the timber is located, and it states that the claim is "against the person committing such 

trespasses." Former RCW 64.12.030 (1881). RCW 4.24.630(1) lacks either ofthese 

further direct or indirect references 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 defendant physically 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, stated that "[t]he 

plain language ofthe statute requires a trespass," citing the language "every person who 

goes onto the land of another." Id. at 444. 

Both our Supreme Court and Division One of our court have characterized the 

statute as describing the elements of "statutory trespass." Saddle Mountain Minerals, 

LLC v. 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 out that 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" 'with respect to all lands. '" Id. at 579 (quoting record). In its 

7 

i 

! 

i 

I No.30827-8-III 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC I 

I 
 recent decision in Bird v. Best Plumbing 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 that RCW 4.24.630(1) is 

"much broader than just trespass" 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 "injured party" or in referring to a "trespass." None of the 

decisions cited above have focused on the absence of such language in the statute. 

Statutory construction is a question of law 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 ofSpokane v. Spokane County, 158 Wn.2d 661,673, 146 

P.3d 893 (2006). If a statute's meaning is plain on its face, then the court will give effect 

to that plain meaning as an expression of legislative intent. State ex reI. Citizens Against 

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 if a statute is 

susceptible to two or more reasonable interpretations that it is ambiguous and that we 

8 

NO.30827·8-II1 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

resort to additional canons of statutory construction or legislative history. Dep't of 

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 ofRCW 4.24.630(1), as does RCW 

4.24.630(2), which makes the remedy under subsection (1) unavailable in the event that 

one ofseveral other more specific trespass or trespass immunity statutes applies. And 

under the construction advanced by Eager Beaver, the remedy provided by subsection (I) 

would not be available if Ms. Beavert injured the yarder on her own property yet would 

be available ifshe injured it on adjacent forest service property-an arbitrary and 

irrational result. For these reasons, we reject Eager Beaver's arguments and reaffirm 

Colwell's conclusion that the plain premise ofRCW 4.24.630 is that a defendant has 

physically trespassed on the plaintiffs land. The statute does not apply, then, to injury of 

a private person's property that is located on forest service land open to the public. 

11. 	 Was there an insufficient basis for the trial court's conclusion that 


Mr. Sutton and Bulldog did not know they lacked authorization? 


We will also address the second issue raised by Eager Beaver, 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. It cites 

extensively to deposition testimony, some apparently published during trial, but without 

providing a transcript of other evidence presented in the trial. 

9 

No.30827-8-II1 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

RAP 9.2(b) states that "[a] party should arrange for the transcription of all those 

portions ofthe verbatim report ofproceedings necessary to present the issues raised on 

review." It further provides, "Ifthe party seeking review intends to urge that a verdict or 

finding of fact is not supported by the evidence, the party should include in the record all . 

evidence relevant to the disputed verdict or finding." Id. 

Eager Beaver rationalizes 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. of Resp't at 1. The fact that the trial court's findings 

conflict with the evidence as characterized by Eager Beaver is sufficient for our purposes 

to establish that the evidence was disputed and a report ofproceedings is necessary for 

appeal. 

It is axiomatic that an appellant cannot ask us to decide that evidence' presented to 

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 entitled to rely. Our presumption 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 of fact support the trial court's conclusions 

oflaw. Haberman v. Elledge, 42 Wn. App. 744, 745-46, 713 P.2d 746 (1986). 

10 

No. 30827-8-111 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

As previously observed, the statute provides that for purposes of subsection (l), "a 

person acts 'wrongfully' ifthe person intentionally and unreasonably commits the act or 

acts while knowing, or having 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 of the word "acts" 

in the statutory definition 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, meaning multiple acts] 

while knowing, or having reason to know, that he or she lacks authorization to so 

act, 

or should it be read as: 

A person acts "wrongfully" if the 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 

authorization to so act[.] 

The first construction would require that a plaintiff like Eager Beaver show that a 

defendant's conduct be intentional, unreasonable, and knowing or having reason to know 

of a lack of authorization. The second construction would permit a plaintiff to show that 

a defendant, while perhaps not acting intentionally or unreasonably, at least knew or had 

reason to know of a lack of authorization. For sound reasons that we need not repeat 

here, Division One concluded that the second use of "acts" is as a noun, and that to 

11 

No.30827-8-III 

Eager Beaver Inc. v. Bulldog Trucking & Excavation LLC 

establish that a person has acted wrongfully for purposes ofthe statute, a plaintiff must 

show that he '''intentionally and unreasonably commits an act while knowing or having 

reason to know that he or she lacks aqthority to so act.'" Id. at 579-80 (quoting record); 

accord Borden v. City o/Olympia, 113 Wn. App. 359, 374, 53 P.3d 1020 (2002) (RCW 

4.24.630 requires that a claimant "show that the defendant 'wrongfully' caused waste or 

injury to land, and a defendant acts 'wrongfully' only ifhe or she acts 'intentionally'''); 

Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231,246,23 P.3d 520 (2001) 

("[A]s the plain language ofRCW 4.24.630(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 of Fact 8), and 

Michael Sutton did not know who owned the yarder, but understood from 

Cindy Beavert that 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 of law included additional findings of fact. I When 

I If a determination concerns whether evidence shows that something occurred or 

existed, it is properly labeled a finding of fact, but ifthe determination is made by a 

process of legal reasoning from facts in evidence, it is a conclusion of law. State v. 

12 

No. 30827-8-111 

Eager Beaver 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: 

At the request of the Defendant, Cindy Beavert, the Defendants, Michael 

Sutton and Bulldog Trucking went on the land of the U.S. Forest Service 

and salvaged a significant portion of the yarder. 

CP at 578 (Conclusion of Law 5), and 

Mr. Eldredge had no reason to 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 of law included its conclusion that 

[i]n order for RCW 4.24.630 to apply, the Plaintiff must prove Defendant's 

actions were "wrongful" as defined in the statute . 

. . . Since neither Mr. Sutton nor Bulldog 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 of Law 5, 6), and that 

Bulldog Trucking is only liable for the value of the yarder. 

Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986). Stated differently, a finding 

of fact is "an 'assertion that a phenomenon has happened or is or will be happening 

independent of or anterior to any assertion as to its legal effect.'" Moulden & Sons, inc. 

v. Osaka Landscaping & Nursery, inc., 21 Wn. App. 194, 197,584 P.2d 968 (1978) 

(internal quotation marks omitted) (quoting Leschi improvement Council v. Wash. State 

Highway Comm 'n, 84 Wn.2d 271,283,525 P.2d 774,804 P.2d 1 (1974)). 

13 
No. 30827~8~III 

Eager Beaver Inc. 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 

~ The judgment of the trial court is affirmed. 


I A majority of the panel has determined that this opinion will not be printed in the 


i 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


Fiorsmo, C~. 

Kulik, J.P.T. 

14