Blevins v. Metzgar ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DENNIS D. & DIANE M. BLEVINS, )
)
Plaintiffs, )
)
v. ) C.A. No.: N16C-06-061 EMD
)
HOPE L. METZGAR AND ROBERT O. )
METZGAR, JR., )
)
Defendants. )
)
)
)
MEMORANDUM OPINION DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This civil action involves the cutting and removal of trees from a residential property in
Townsend, Delaware. Through the complaint, Plaintiffs Diane and Dennis Blevins assert claims
for Timber Trespass, Trespass to Chattels, and Conversion against Defendants Hope and Robert
Metzgar. The Metzgars have asserted counterclaims for Unjust Enrichment, Malicious
Prosecution/Bad Faith, and Abuse of Process. Before the Court is (i) Defendants’ Motion for
Summary Judgment (the “Motion”) filed by the Metzgars; and (ii) Plaintiffs’ Response in
Opposition to Defendants’ Motion for Summary Judgment (the “Response”) filed by the Blevins.
For the reason set forth below, the Court DENIES the Motion.
BACKGROUND
The Blevins own and reside at 151 Lloyd Guessford Road in Townsend, Delaware
(Parcel No. 1401900180) (the “Blevins Property”). The Blevins Property consists of
approximately 2.12 acres of land. The Blevins purchased the Blevins Property in 2012. The
Blevins, however, did not begin residing on the Blevins Property until 2015.
The Metzgars own 149 Lloyd Guessford Road in Townsend, Delaware (Parcel No.
1401900208) (the “Metzgar Property”). The Metzgars purchased the Metzgar Property in 1996
and have resided on this property ever since. The Metzgar Property is in the shape of a “popsicle
stick” and consists of approximately 6.8 acres of land. The Blevins Property and the Metzgar
Property are adjacent to each other. The Metzgars’ home sits about ten feet from the Blevins’
property line.1
The Blevins allege that from April 22, 2015 to May 25, 2015, the Metzgars entered the
Blevins Property and cut down approximately forty feet of trees and foliage. The Blevins
contend that the Metzgars kept the timber for their own use. The Blevins surmise that the
Metzgars cut the trees in order to create a more direct access to the rear of their property where a
large patio had recently been installed.
The Metzgars admit to removing the trees, but claim they did not know the trees were on
the Blevins Property. Additionally, the Metzgars claim that the trees and other vegetation
removed were either dead or had no value. The Metzgars further justify removing the trees
because the trees were at risk of falling on the Metzgars’ home. The Metzgars contend that since
they removed the trees, the Blevins have mulched, planted shrubs and flowers, and otherwise
improved the area.
On June 7, 2016, the Blevins filed a Complaint against the Metzgars for Timber Trespass,
Trespass to Chattels, and Conversion. The Complaint states that the Metzgars are liable to the
Blevins for the replacement value of the trees, including the cost for reestablishment of the forest
area.
The Metzgars filed their Answer and Counterclaims on July 21, 2016. The Metzgars
counterclaim for Unjust Enrichment, Malicious Prosecution/Bad Faith, and Abuse of Process.
1
See Defs.’Answer Ex. A–B (tax maps of the two properties).
2
The Answer states that the Metzgars enriched the Blevins by removing dead and dangerous trees
from their property, and that the Blevins have brought this action in an effort to harass and
intimidate the Metzgars.
PARTIES’ CONTENTIONS
The Metzgars move for summary judgment on all three counts in the Complaint. As to
the Count I claim for Timber Trespass, the Metzgars allege that the Blevins have shown no
evidence of damages based on a legally accepted tree valuation method or reliably established
the area denuded by the Metzgars. As to the Counts II and III claims for Trespass to Chattels
and Conversion, the Metzgars allege that the claims fail because they are for real property, not
personal property.
The Blevins contend that their expert relies on the replacement cost valuation method,
which is a legally accepted tree valuation method. The Blevins further contend that they
sufficiently established an estimate of the disturbed area for purposes of assessing damages.
Finally, the Blevins argue that their claims for Conversion and Trespass to Chattels are
permissible because trees, once cut, become personal property.
LEGAL STANDARD
The standard of review on a motion for summary judgment is well-settled. The Court’s
principal function when considering a motion for summary judgment is to examine the record to
determine whether genuine issues of material fact exist, “but not to decide such issues.”2
Summary judgment will be granted if, after viewing the record in a light most favorable to a
nonmoving party, no genuine issues of material fact exist and the moving party is entitled to
2
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B.
Cannon& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
3
judgment as a matter of law.3 If, however, the record reveals that material facts are in dispute, or
if the factual record has not been developed thoroughly enough to allow the Court to apply the
law to the factual record, then summary judgment will not be granted.4 The moving party bears
the initial burden of demonstrating that the undisputed facts support his claims or defenses.5 If
the motion is properly supported, then the burden shifts to the non-moving party to demonstrate
that there are material issues of fact for the resolution by the ultimate fact-finder.6
DISCUSSION
A. SUMMARY JUDGMENT IS NOT APPROPRIATE ON THE TIMBER TRESPASS CLAIM
BECAUSE THE BLEVINS HAVE PROVEN DAMAGES
The Metzgars first move for summary on the Timber Trespass claim. The Timber
Trespass Statute, 25 Del C. § 1401, provides that:
In civil actions brought for an act of timber trespass the court shall have the
authority to determine whether such trespass was unintentional or willful and
award damages accordingly. If the plaintiff shall satisfy the court that the metes
and bounds of his property at the place of the trespass were appropriately
established and marked by reasonably permanent and visible markers, or establish
that the trespasser was on notice that the rights of the plaintiff were in jeopardy,
the court shall find that the trespass was willful and shall award exemplary
damages equal to triple the fair value of the trees removed plus the cost of
litigation. If, however, the court shall find that the trespass was unintentional, the
court may award the plaintiff damages equal to the conversion value of the trees
taken or damaged plus cost of litigation.7
3
Id.
4
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244 at *3
(Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under any
circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order to
clarify the application of law to the circumstances.”).
5
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
6
See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
7
25 Del. C. § 1401(b).
4
In drafting Section 1401, the Delaware General Assembly carved out an exception to the
general rule for calculating damages in Timber Trespass cases.8 The general rule applied by
courts in calculating damages is the difference between the value of the property “before and
after destruction of trees.”9 The Delaware Supreme Court further expanded on the general rule
and held that where the trees were for personal enjoyment or have ascetic value to the owner,
courts should use replacement costs as the measure of damages.10
The Metzgars argue that summary judgment is appropriate on the Timber Trespass claim
because the Blevins’ expert, Russell F. Carlson, does not utilize the replacement cost or before
and after methods for valuing the damages. The Court does not agree with the Metzgars’
characterization of Mr. Russell’s report and the Blevins’ claim.11
The Complaint alleges that the Metzgars are liable to the Blevins for the replacement cost
of the trees.12 To support this contention, the Blevins hired Mr. Carlson, an arborist, to assess the
value of the trees. Mr. Carlson surveyed the area purportedly denuded by the Metzgars and
found several tree stumps and larger surface roots indicating where previous vegetation had
been, but noted that much of the evidence had been destroyed through the process of “stump
grinding.”13 Based on an inability to assess the value of the trees removed, Mr. Carlson valued
the trees based on a “restoration plan.” While not labeling his valuation method the
“replacement cost” method, Mr. Carlson’s “restoration plan” is, in essence, the cost required to
replace the trees. Mr. Carlson’s proposed “restoration plan” includes “costs for purchasing trees
8
J.S.F. Properties, L.L.C. v. McCann, C.A. No. 07A-03-001, 2009 WL 1163494, at *2 (Del. Super. Apr. 30, 2009)
(“The Delaware General Assembly, in drafting the Timber Trespass Statute, carved out an exception to the general
rule by explicitly calling for damages to be calculated in terms of the ‘fair value of the trees removed.’”).
9
Id. See also Farny v. Bestfield Builders, Inc., 391 A.2d 212, 214 (Del. Super. 1978).
10
J.S.F. Properties, L.L.C. v. McCann, 985 A.2d 390 (Table) (Del. 2009); Farny, 391 A.2d at 214.
11
For purposes of this memorandum opinion, the Court incorporates by reference and relies upon the reasoning in
the Order Defendants’ Daubert Motion to Exclude Plaintiffs’ Proposed Expert Evidence entered by the Court on
June 6, 2017.
12
Compl. ¶ 13.
13
March 22, 2016 Rep. of Russell Carlson, RCA p. 1.
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and shrubs of various species and sizes, preparing the site, planting the trees and shrubs, and
finishing the mulch layer throughout the affected area.”14 Based on these projections, Mr.
Carlson estimates the value of the trees destroyed by the timber trespass to be $33,241.15
The Court finds that these purported damages are sufficiently specific to create a genuine
issue as to material fact with respect to the Timber Trespass claim. Moreover, while the
Metzgars contest this damages figure based on the size of the disturbed area, this is not an issue
to be resolved on summary judgment.
The Metzgars also argue that summary judgment is appropriate on the Timber Trespass
claim because Mr. Carlson does not precisely identify the area denuded by the Metzgars. This is
argument is also misplaced. Here, Mr. Carlson provides an estimate of the disturbed area. The
Blevins also measured the area and provided an estimate of the size. The Metzgars have cited no
case law that requires an exact measurement of the disturbed area.16 While the Metzgars and
their expert may estimate the area differently, this further demonstrates that there are genuine
issues as to material facts. As such, the Court finds that the Metzgars are not entitled to
summary judgment on this claim.
All of this is not to say that the Court will award damages. If, after hearing the evidence
at trial, the fact finder concludes that the Blevins failed to prove damages, the Court can enter
judgment in favor of the Metzgars on the Timber Trespass claim.17 Alternatively, if after hearing
the evidence at trial, the jury concludes that the Blevins’ damages are substantially less than
14
March 22, 2016 Rep. of Russell Carlson, RCA p. 2–3.
15
Id at 3.
16
But cf. J.S.F. Properties, L.L.C. v. McCann, C.A. No. 07A-03-001, 2009 WL 1163494, at *2 (Del. Super. Apr. 30,
2009) (“It is unreasonable to expect Plaintiffs to have an exact inventory of every tree on their once heavily wooded
property.”).
17
See Acierno v. Goldstein, C.A. 20056, 2005 WL 3111993, at *6 (Del. Ch. Nov. 16, 2005) (dismissing the
defendants’ timber trespass claim on the basis that defendants’ “utterly failed to prove damages,” where at trial there
was no evidence in the record that would allow the Court to determine the value of the trees).
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proffered by Mr. Carlson, the jury can make an award commensurate with the evidence.18 At
this stage in the litigation, however, the amount of damage to the Blevins Property is disputed by
the parties such that summary judgment is not appropriate.
B. SUMMARY JUDGMENT IS NOT APPROPRIATE ON THE TRESPASS TO CHATTELS
AND CONVERSION CLAIMS BECAUSE THE TREES, ONCE CUT, CONSTITUTE
PERSONAL PROPERTY
The Metzgars next move for summary judgment on the Trespass to Chattels and
Conversion claims on the basis that the trees are real, not personal, property. The essence of the
torts of trespass to chattels and conversion is “the interference with a right of personal
property.”19 The United States Supreme Court clarified that timber, once cut, constitutes
personal property:
While timber is standing, it constitutes a part of the realty, but on being severed
from the soil, its character is changed and it becomes personalty, but such change
does not affect title to the timber, but it continues as the property of the owner of
the land and can be pursued wherever carried, and all remedies are open to the
owner which the law affords in other cases of the wrongful removal or conversion
of personal property.20
Here, the Complaint states that the Metzgars cut down trees on the Blevins Property and
kept the timber for their own use.21 The Complaint further alleges that the Metzgars’ actions
damaged the trees and ultimately deprived the Blevins of the use of their trees. While the trees
may have been real property at one time, the moment the Metzgars cut the trees from the soil, the
trees became the Blevins’ personal property. Therefore, summary judgment is not appropriate
on the Trespass to Chattels and the Conversion claims under the theory advanced by the
Metzgars.
18
Farny, 391 A.2d at 214.
19
Int’l. Bus. Mach. Corp. v. Comdisco, Inc., 1991 WL 269965, at *14 (Del. Super. Dec. 4, 1991).
20
Schulenberg v. Harriman, 88 U.S. 44, 46 (U.S. 1874).
21
Compl. ¶¶ 5–6.
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CONCLUSION
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is
DENIED.
Dated: June 8, 2017
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
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