Leslie Pendergrast, App-cross Resp v. Robert Matichuk, Resp-cross App ( 2015 )


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  •       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    LESLIE M. PENDERGRAST,
    as an individual,                               No. 71726-0-1
    Appellant,                        DIVISION ONE
    v.
    ROBERT MATICHUK and JANE DOE                    PUBLISHED OPINION
    MATICHUK, as individuals and in
    their marital capacity; BANK OF THE
    PACIFIC, a Washington State
    corporation; BLAINE PROPERTIES
    L.L.C., a Washington State limited
    liability company; MARK R. and
    CYNTHIA A. SANFORD, as
    individuals and in their marital                FILED: August 31, 2015
    capacity; and GINA M.
    LINGENFELTER and JOHN DOE
    LINGENFELTER, as individuals and
    in their marital capacity,
    Respondents.
    Leach, J. — In his poem "Mending Wall," Robert Frost observed, "Before I
    built a wall I'd ask to know / What I was walling in or walling out, / And to whom I
    was like to give offense."1 This case illustrates the wisdom of Frost's observation
    in the context of an existing fence.    Robert Matichuk moved a fence and cut
    down a tree over the objection of adjacent property owner, Leslie Pendergrast.
    1 The Poetry of Robert Frost: The Collected Poems, Complete and
    Unabridged, 33 (Edward Connery Lathem ed., Henry Holt & Co. 1969).
    NO. 71726-0-1/2
    The trial court ruled on summary judgment that Pendergrast established
    ownership of the disputed land through boundary by common grantor, and a jury
    later awarded her damages for trespass and timber trespass.
    Pendergrast appeals the trial court's refusal to treble the noneconomic
    damages portion of the jury's timber trespass award. Matichuk cross appeals.
    First, he challenges the summary judgment order, claiming that he and the
    common grantor had no agreement that a fence and not the deed description
    defined the common boundary. He also requests attorney fees and costs for
    defending against the lis pendens Pendergrast filed. And he argues that the trial
    court erred by denying his motion for a new trial or reduction of noneconomic
    damages.
    Because both Matichuk's and Pendergrast's "manifestations of ownership"
    showed they recognized the fence as the true boundary, we hold that no genuine
    issue of material fact prevented the trial court from ruling as a matter of law that
    Pendergrast established boundary by common grantor. We deny Matichuk's
    request for attorney fees and costs under the lis pendens statute. We also
    conclude that the trial court did not abuse its discretion by denying Matichuk's
    motion for a new trial or reduction of noneconomic damages. Finally, the plain
    language of former RCW 64.12.030 (1881) entitles Pendergrast to treble the
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    NO. 71726-0-1/3
    amount of both the economic and noneconomic damages awarded for timber
    trespass. We remand for further proceedings consistent with this opinion.
    FACTS
    Tali and Cyrus Conine (collectively Conine) owned property in Blaine,
    Washington, which they divided into separate parcels. In April 2006, Conine sold
    Robert Matichuk and his wife the vacant western parcel, described in the deed as
    "the south 75 feet of Lot 30, Block 5, Perley's Replat."    Matichuk planned to
    develop condominiums on the property. A six-foot wooden board fence ran
    along a portion of the east boundary, separating Matichuk's parcel from property
    Conine retained.       Before purchase, Matichuk paced the dimensions of the
    property. He concluded from his site visit that he "didn't know where the fence
    was in relation to the property line" but did nothing further to investigate the
    parcel's boundaries.
    In September 2006, Conine sold Leslie Pendergrast the eastern parcel,
    which the fence separated from the Matichuk property. The deed described the
    parcel as "LOT 5 & 6, BLOCK 5 PLAT OF PERLEY'S SUBDIV." The fence ran
    the length of the western boundary of Pendergrast's property, which had a house
    on it. A large tree with a tree house stood near the fence, on Pendergrast's side.
    Pendergrast maintained and used the entire fenced area as her backyard from
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    NO. 71726-0-1/4
    2006 until 2009. She had plans to renovate the property to create a unique
    maritime-themed bed-and-breakfast.
    Neither Matichuk's nor Pendergrast's deed mentions the fence. The real
    estate listing Pendergrast reviewed before purchasing her property described the
    parcel as "fenced-partially."       On the seller disclosure statement, Conine
    answered "No" to the question of whether any encroachments or boundary
    disputes existed related to the property.
    In June 2008, Matichuk commissioned a survey of his property for his
    building permit application.       The survey, which used the deed description,
    showed the fence and tree located entirely on Matichuk's property.2             On
    September 11, 2008, the city of Blaine conditionally approved Matichuk's plans
    for a fourplex on the property.3
    In January 2009, Matichuk told Pendergrast in a letter that the fence was
    "6-8 feet" onto his property and that he intended to move it "in the near future" to
    the "common property line." On April 21, 2009, Pendergrast responded through
    counsel, demanding that Matichuk not move the fence and claiming ownership of
    the property "encompassed by the fence." Pendergrast contended that "this
    fence was located in its existing location by the common owner of your
    2 Pendergrast's own survey later confirmed Matichuk's findings.
    3 The Matichuks later submitted a revised site plan to develop two duplex
    buildings, which the city approved in November 2009.
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    NO. 71726-0-1/5
    respective properties and effectively becomes the agreed boundary, taking
    precedence over any boundary that may have been located by a surveyor." In
    an April 24, 2009, letter, Pendergrast's counsel warned Conine that Conine was
    "liable for damages for misrepresenting the condition of the property" as subject
    to no encroachments or boundary disputes.
    Despite Pendergrast's demand, Matichuk moved the fence to the deed
    line. Matichuk also cut down and removed the tree and tree house.
    On February 26, 2010, Pendergrast filed suit to quiet title and for
    ejectment, trespass, and unlawful detainer.     Pendergrast also recorded a lis
    pendens against Matichuk's property.
    On October 31, 2012, Matichuk filed a motion for summary judgment,
    seeking to dismiss Pendergrast's quiet title claim because Pendergrast could not
    establish any right to the disputed property, either by boundary by agreement or
    boundary by common grantor. On November 21, 2012, Pendergrast filed a
    response and cross motion for summary judgment.
    On January 4, 2013, the trial court granted Matichuk's motion to dismiss
    Pendergrast's boundary by agreement claim but denied Matichuk's motion to
    dismiss Pendergrast's common grantor claim. The court granted Pendergrast's
    cross motion to quiet title based on boundary by common grantor. The court
    denied Matichuk's motion for reconsideration.
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    NO. 71726-0-1/6
    On July 5, 2013, Pendergrast amended her complaint to add claims for
    abatement. She also added as a party Blaine Properties LLC, the entity to which
    Matichuk had transferred the property.
    At trial, the jury considered Pendergrast's claims for trespass, timber
    trespass, unlawful detainer, ejectment, and abatement in light of the trial court's
    earlier summary judgment ruling that the disputed property belonged to
    Pendergrast.   The jury found Matichuk and Blaine Properties LLC liable for
    trespass, awarding economic damages of $5,200 and noneconomic damages of
    $75,000. The jury also found Matichuk liable for timber trespass and awarded
    Pendergrast $3,310 in economic damages and $40,000 in noneconomic
    damages.    The trial court trebled the economic damages for timber trespass
    under former RCW 64.12.030. However, the court denied Pendergrast's request
    to treble the noneconomic damages under the timber trespass statute "because
    such a trebling is not specifically provided in [former] RCW 64.12.030, which, as
    a penal or punitive statute, should be interpreted and applied literally and
    narrowly." The court denied Matichuk's motion for a new trial or reduction of
    noneconomic damages.
    Pendergrast appeals the trial court's refusal to treble her noneconomic
    timber trespass damages. Matichuk cross appeals the trial court's order granting
    Pendergrast's cross motion for summary judgment. Matichuk also cross appeals
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    NO. 71726-0-1/7
    the court's findings of fact and conclusions of law and order denying Matichuk's
    motion for a new trial or reduction of noneconomic damages. Matichuk requests
    attorney fees and costs on remand under RCW 4.28.328(3) for defending against
    the lis pendens.
    ANALYSIS
    Matichuk's Cross Appeal
    As a threshold matter, we address Matichuk's claim that the trial court
    erred by granting Pendergrast's cross motion for summary judgment based on
    the common grantor doctrine. We review a trial court order granting summary
    judgment de novo, engaging in the same inquiry as the trial court.4 Summary
    judgment is proper "if the pleadings, depositions, answers to interrogatories, and
    admissions on file, together with the affidavits, if any, show that there is no
    genuine issue as to any material fact and that the moving party is entitled to a
    judgment as a matter of law."5 We view the facts and any reasonable inferences
    from those facts in the light most favorable to the nonmoving party.6
    4 Weden v. San Juan County, 
    135 Wash. 2d 678
    , 689, 
    958 P.2d 273
    (1998).
    5 CR 56(c).
    6 Fed. Way Sch. Dist. No. 210 v. State, 
    167 Wash. 2d 514
    , 523, 
    219 P.3d 941
    (2009).
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    NO. 71726-0-1/8
    Common Grantor Doctrine
    An action to quiet title is an equitable proceeding "'designed to resolve
    competing claims of ownership.'"7        Generally, a bona fide purchaser of an
    interest in real property is entitled to rely on record title.8 The common grantor
    doctrine protects an original grantee acquiring property in "good faith reliance on
    the boundary description provided by the common grantor who originally owned
    both lots in their entirety" and thus had power to determine the location of the
    boundary.9
    A common boundary established by a grantor who owns land on both
    sides of the line binds that grantor.10         Even absent formal agreement, this
    boundary binds grantees if the land was sold and purchased with reference to
    the line and the parties agreed about the identical tract of land transferred by the
    sale.11
    Application of the common grantor doctrine presents two questions: (1)
    was there an agreed boundary established between the common grantor and
    
    7 Walker v
    . Quality Loan Serv. Corp., 
    176 Wash. App. 294
    , 322, 
    308 P.3d 716
    (2013) (quoting Kobza v. Tripp, 
    105 Wash. App. 90
    , 95, 
    18 P.3d 621
    (2001)).
    8 Levien v. Fiala, 
    79 Wash. App. 294
    , 299, 
    902 P.2d 170
    (1995).
    9 
    Levien, 79 Wash. App. at 302
    ; Thompson v. Bain. 
    28 Wash. 2d 590
    , 592-93,
    
    183 P.2d 785
    (1947).
    10 Winans v. Ross, 
    35 Wash. App. 238
    , 240, 
    666 P.2d 908
    (1983) (citing
    Fralick v. Clark County, 
    22 Wash. App. 156
    , 159, 
    589 P.2d 273
    (1978)).
    11 
    Winans, 35 Wash. App. at 240
    ; Kronawetter v. Tamoshan, Inc., 14 Wn.
    App. 820, 826, 
    545 P.2d 1230
    (1976); 
    Thompson, 28 Wash. 2d at 592
    .
    -8-
    NO. 71726-0-1/9
    original grantee, and (2) if so, would a visual examination of the property show
    subsequent purchasers that the deed line no longer functioned as the true
    boundary?12    The parties' manifestations of ownership after the sale can
    establish an agreement.13 The party asserting boundary by common grantor has
    the burden of proof.14
    Here, both Matichuk and Pendergrast are grantees of Conine, the original
    grantor. Pendergrast, who acquired her property after Matichuk, maintains that
    she and Conine had the necessary meeting of the minds that Pendergrast's
    parcel extended to the fence. To support this, she points to the listing agreement
    and seller disclosure form she relied on, as well as her three years of use of the
    property up to and including the fence. Matichuk asserts that he had no such
    agreement with Conine—that he purchased based solely on the legal description.
    The parties do not dispute that Conine, as their common grantor,
    conveyed their respective parcels as separate properties divided by a six-foot
    fence. They also do not dispute that the real estate listing Pendergrast received
    before purchasing her parcel described it as "fenced-partially" and that on the
    seller disclosure form Conine answered "No" to the question of whether any
    encroachments     or     boundary disputes   existed   related   to the   property.
    12 
    Fralick, 22 Wash. App. at 160
    .
    13 
    Winans, 35 Wash. App. at 241
    .
    14 See Martin v. Hobbs, 
    44 Wash. 2d 787
    , 791, 
    270 P.2d 1067
    (1954).
    -9-
    NO. 71726-0-1/10
    Pendergrast testified, and Matichuk does not dispute, that Pendergrast occupied
    and cared for the property up to the fence line from 2006 to 2009. Pendergrast
    also testified that she observed Matichuk walking and working on his property.
    Matichuk disputes he was "using" his vacant property, claiming that he was
    working on building permits based on the legal description in the deed. But when
    deposed, he conceded that when he paced off the property's dimensions before
    his purchase, he "came to the conclusion the fence was not on the property line.
    Actually, let me rephrase that, I came to the conclusion I didn't know where the
    fence was in relation to the property line." He also acknowledged that the fence
    "appeared to relate to" the adjacent property, but he did not inquire further about
    the true boundary. And he conceded that when he moved the fence and cut the
    tree, he knew that Pendergrast was asserting ownership of the disputed property.
    Matichuk does not dispute that he made no attempt to use any of the
    property on Pendergrast's side of the fence before moving it in 2009, roughly a
    year after commissioning his survey and three years after purchasing the lot. But
    he argues that at best, his failure to assert ownership immediately and remove
    the fence at the time of purchase, "with nothing more, creates only an inference
    of an agreement between Matichuk and Conine, and is not actual proof of one."
    We disagree.     Both parties' conduct, from before they purchased until
    Matichuk announced he intended to move the fence, showed an understanding
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    NO. 71726-0-1/11
    that they owned adjacent parcels separated by the fence.              And a visual
    examination of the property gave notice that the fence functioned as the true
    boundary. The realty listing agreement and seller disclosure form further support
    the conclusion that Conine intended to sell the parcels in relation to the fence.
    Matichuk emphasizes that he testified that "the purchase was made based
    on the property dimensions described in the deed" and that he never discussed
    the purchase with Conine. "There is nothing in the record to suggest that the
    Matichuks were informed that there was an agreement establishing a boundary
    at the fence line." But in Winans v. Ross,15 Division Two of this court rejected
    this argument: "A formal, or specific, or separate contract as to the boundary line
    between the parties is not necessary." The court also rejected the argument that
    because the parties purchased their lots by legal description only, there was no
    agreement between them as grantees that the fence was the boundary.16 The
    court held that as long as "substantial evidence supports the conclusion that the
    fence provided notice to subsequent purchasers that it was the boundary," this
    boundary would bind those purchasers.17
    Here, Matichuk's deposition testimony shows that before he purchased his
    property, he had notice of a discrepancy between the deed description and the
    15 
    35 Wash. App. 238
    , 241, 
    666 P.2d 908
    (1983) (citing 
    Thompson, 28 Wash. 2d at 592
    ).
    16 
    Winans, 35 Wash. App. at 241
    -42.
    17 
    Winans. 35 Wash. App. at 242
    .
    -11-
    NO. 71726-0-1/12
    property he measured by pacing to the fence and that the fence "appeared to
    relate to" the adjoining property, which Conine retained for five months before
    selling it to Pendergrast. Presumably Conine did not intend to sell the disputed
    property to both Matichuk and Pendergrast, as would have occurred if Conine
    had sold Matichuk the property described in the deed and then, five month later,
    sold Pendergrast an adjacent lot described as "fenced-partially." Conine sold two
    adjacent properties separated by an unambiguous visual boundary, the six-foot
    board fence.
    Unlike some cases where a court has not found a well-defined boundary
    line for purposes of boundary by common grantor or other doctrines, such as
    mutual recognition and acquiescence,18 here the record discloses no reason for
    the existence of the fence other than to function as a boundary between the
    properties. Matichuk and Pendergrast manifested ownership of their separate
    18 See, e.g., Merriman v. Cokelev, 
    168 Wash. 2d 627
    , 631-32, 
    230 P.3d 162
    (2010) (three survey markers overgrown with blackberry bushes and weeds not a
    clear and well-defined line); Waldorf v. Cole, 
    61 Wash. 2d 251
    , 255, 
    377 P.2d 862
    (1963) (rockery against a dirt bank was an insufficient boundary marker); Scott v.
    Slater, 
    42 Wash. 2d 366
    , 368-69, 
    255 P.2d 377
    (1953) (row of pear trees of varying
    shapes and sizes, which did not terminate at a well-defined point, not a clear and
    well-defined line), overruled on other grounds by Chaplin v. Sanders, 
    100 Wash. 2d 853
    , 861 n.2, 
    676 P.2d 431
    (1984); Skov v. MacKenzie-Richardson, Inc., 
    48 Wash. 2d 710
    , 716, 
    296 P.2d 521
    (1956) ("occasional grazing" insufficient to
    establish boundary line); Green v. Hooper, 
    149 Wash. App. 627
    , 642, 
    205 P.3d 134
    (2009) (short retaining wall extending only partially into beach area, with no other
    physical designations, insufficient to establish boundary line); Fralick, 22 Wn.
    App. at 160 ("lower falls" designation, without fence or other marking, insufficient
    to give visual notice of boundary).
    -12-
    NO. 71726-0-1/13
    properties in relation to the fence. Matichuk does not show any genuine issue of
    material fact that would preclude summary judgment. The trial court did not err in
    granting Pendergrast's cross motion and quieting title in her based on boundary
    by common grantor.
    Attorney Fees under RCW 4.28.328(3)
    In his cross appeal, Matichuk also argues that the lis pendens statute
    entitles him to an award of attorney fees and costs.       RCW 4.28.320 allows a
    party to an action affecting title to real property to file with the county auditor a
    notice of the pendency of the action, or lis pendens. A lis pendens clouds title to
    the property.   RCW 4.28.328(3) imposes liability for actual damages upon a
    claimant who files one without "substantial justification" and, in the court's
    discretion, for reasonable attorney fees and costs incurred in defending the
    action. Here, Pendergrast had substantial justification for filing the lis pendens.
    We deny Matichuk's request.
    Noneconomic Damages
    Next, Matichuk contends that even if this court affirms the trial court's
    summary judgment order, it should still reverse the trial court's denial of
    Matichuk's motion for a new trial or reduction of noneconomic damages. CR 59
    authorizes the trial court to vacate a verdict and order a new trial when, among
    other circumstances, an award of damages was "so excessive or inadequate as
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    NO. 71726-0-1/14
    unmistakably to indicate that the verdict must have been the result of passion or
    prejudice" or where "substantial justice has not been done."19 Alternatively, the
    trial court may increase or reduce a damages award.20
    The amount of damages presents a question of fact.21           "'An appellate
    court will not disturb an award of damages made by a jury unless it is outside the
    range of substantial evidence in the record, or shocks the conscience of the
    court, or appears to have been arrived at as the result of passion or prejudice."'22
    A damages award "'shocks the conscience'" if it is "'flagrantly outrageous and
    extravagant.'"23   And passion and prejudice must be "'unmistakable'" for the
    reviewing court to disturb the jury's award.24
    Substantial evidence exists if it is "'sufficient to persuade a fair-minded,
    rational person of the truth of the finding.'"25 A plaintiff is not required to prove
    that his or her distress was severe, but an award must be in proportion to the
    19 CR 59(a)(5), (9).
    20 RCW 4.76.030.
    21 Bunch v. King County Dep't of Youth Servs., 
    155 Wash. 2d 165
    , 179, 
    116 P.3d 381
    (2005).
    22 
    Bunch, 155 Wash. 2d at 179
    (quoting Bingaman v. Grays Harbor Cmty.
    Hosp., 
    103 Wash. 2d 831
    , 835, 
    699 P.2d 1230
    (1985)).
    23 
    Bunch, 155 Wash. 2d at 179
    (quoting 
    Bingaman, 103 Wash. 2d at 836-37
    ).
    24 
    Bunch, 155 Wash. 2d at 179
    (quoting 
    Bingaman, 103 Wash. 2d at 836
    ); RCW
    4.76.030.
    25 State v. Lew, 
    156 Wash. 2d 709
    , 733, 
    132 P.3d 1076
    (2006) (quoting
    State v. Mendez, 
    137 Wash. 2d 208
    , 214, 
    970 P.2d 722
    (1999)).
    -14-
    NO. 71726-0-1/15
    injury suffered.26 And while damages "need not be proved with mathematical
    certainty," they "must be supported by competent evidence."27
    We review a trial court's denial of a motion for a new trial or for reduction
    of damages for abuse of discretion.28 A court abuses its discretion when it
    makes a "'manifestly unreasonable'" decision, rests the decision on facts
    unsupported by the record, or applies an incorrect legal standard.29            The
    reviewing court strongly presumes the jury's verdict is correct, and a trial court's
    denial of a reduction of damages strengthens the verdict.30
    Matichuk argues that Pendergrast's proof of noneconomic damages,
    which the court's instructions defined as "[mjental anguish, emotional distress,
    and inconvenience experienced by the Plaintiff as a result of the trespass or
    timber trespass," was "limited." He emphasizes that there was no evidence that
    she consulted a health care professional and that no one testified on her behalf
    26 Nord v. Shoreline Sav. Ass'n, 
    116 Wash. 2d 477
    , 483-85, 
    805 P.2d 800
    (1991); Hill v. GTE Directories Sales Corp., 
    71 Wash. App. 132
    , 139-40, 
    856 P.2d 746
    (1993).
    27 
    Hill, 71 Wash. App. at 140
    (citing Rasor v. Retail Credit Co., 
    87 Wash. 2d 516
    , 530-31, 
    554 P.2d 1041
    (1976)).
    28 
    Bunch, 155 Wash. 2d at 180
    ; Cox v. Gen. Motors Corp., 
    64 Wash. App. 823
    ,
    826, 827P.2d 1052(1992).
    29 State v. Sisouvanh. 
    175 Wash. 2d 607
    , 623, 
    290 P.3d 942
    (2012) (internal
    quotation marks omitted) (quoting State v. Rohrich, 
    175 Wash. 2d 647
    , 654, 
    71 P.3d 638
    (2003)).
    30 
    Bunch, 155 Wash. 2d at 179
    -80 (citing Sofie v. Fibreboard Corp., 
    112 Wash. 2d 636
    , 654, 
    771 P.2d 711
    , 
    780 P.2d 260
    (1989); Wash. State Physicians
    Ins. Exch. & Ass'n v. Fisons Corp., 
    122 Wash. 2d 299
    , 330, 
    858 P.2d 1054
    (1993)).
    -15-
    NO. 71726-0-1/16
    about her anxiety and distress.     Our Supreme Court has held, however, that
    "such evidence is not strictly required; our cases require evidence of anguish and
    distress, and this can be provided by the plaintiff's own testimony."31
    Matichuk cites Hill v. GTE Directories Sales Corp.32 to support his
    argument that "insufficient credible evidence" supported the jury's verdict of a
    total of $115,000 in noneconomic damages. But we distinguish Hill. In that case,
    Division Three of this court affirmed a trial court's order reducing a damages
    award after finding that the jury erred by awarding economic damages "clearly
    outside the range of the evidence" and basing a large noneconomic damages
    award on only "meager" evidence.33        Here, the trial court denied Matichuk's
    motion for reduction of damages, which strengthens the jury's verdict. As in Hi]],
    here "[t]he trial court was in the better position to make that determination and is
    to be accorded room for the exercise of its sound discretion."34
    Matichuk also attributes Pendergrast's stress to several other factors
    besides the boundary dispute:        insurance issues arising from a plumbing
    emergency in the house, other properties in foreclosure, and the pressures of
    providing for her adult children. He points out that although Pendergrast blamed
    31 
    Bunch, 155 Wash. 2d at 181
    (citing 
    Nord, 116 Wash. 2d at 487
    ).
    32 
    71 Wash. App. 132
    , 
    856 P.2d 746
    (1993).
    33 
    HiU, 71 Wash. App. at 139-40
    .
    34 
    Hill, 71 Wash. App. at 140
    (citing Washburn v. Beatt Eguip. Co., 
    120 Wash. 2d 246
    , 279, 
    840 P.2d 860
    (1992); 
    Bingaman, 103 Wash. 2d at 835
    ).
    -16-
    NO. 71726-0-1/17
    the loss of her dream of a bed-and-breakfast on Matichuk, she did not file a
    building permit for a planned swimming pool or garage renovation. And he
    questions whether the health problems she testified about would even allow her
    to operate such a business.
    Contrary to Matichuk's contentions, Pendergrast presented evidence
    sufficient to support the award of noneconomic damages. Pendergrast testified
    that she planned to build a swimming pool in the backyard and construct a
    unique deck in the tree as a vista point for Drayton Harbor and White Rock,
    Canada. She believed that these features, together with renovations to convert
    the detached garage into a honeymoon cottage, would make her bed-and-
    breakfast unique among local establishments.      She testified that by January
    2009, she had finished remodeling the interior of the house and was preparing to
    begin work on the backyard. She said that when she received Matichuk's letter,
    she "felt like somebody had slugged [her] in the stomach" and was "in tears."
    She testified further that she felt "violated, trespassed       upon. ... I was
    devastated. .. . [P]utting that fence into this new location stopped everything
    because now I didn't have the proper setback that I needed to continue with the
    uniqueness of the bed and breakfast." She testified that the stress made her feel
    "almost catatonic" and that when Matichuk cut down the tree, she had "an
    overwhelming feeling of a point of no return." She stated that the conflict had
    -17-
    NO. 71726-0-1/18
    affected her health "[v]ery negatively" and that after the project stalled, "I was
    sick, I was sick over it. And I still am because it's five years down the road."
    Pendergrast presented sufficient evidence to convince a fair-minded, rational
    person that she suffered "mental anguish, emotional distress, or inconvenience,"
    which sufficiently supports an award for damages.35
    Matichuk also emphasizes that the jury's awards of noneconomic
    damages for trespass and timber trespass were "more than fourteen times the
    economic verdict"     and   "more than twelve times the       economic verdict,"
    respectively.   But the jury uses the evidence presented for an award of
    noneconomic damages, not the economic damages award. And a court may not
    overturn a jury verdict merely because of its size.36 Matichuk fails to show that
    the jury's award of noneconomic damages here falls outside the range of
    evidence or is so excessive as to be "'flagrantly outrageous and extravagant,'"
    particularly in light of the trial court's denial of a reduction and this court's
    presumption that a jury verdict is correct.37
    Matichuk also contends that "the jury wanted to go further than it was
    instructed it could do" and demonstrated "its passion to punish the defendants"
    when it asked the court if it should award attorney fees. But this question from
    35 Bunch, 155Wn.2dat181.
    36 Thompson v. Berta Enter., Inc., 
    72 Wash. App. 531
    , 543, 
    864 P.2d 983
    (1994).
    37 See 
    Bunch, 155 Wash. 2d at 182
    .
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    NO. 71726-0-1/19
    the jury, without more, does not demonstrate passion and prejudice, which must
    be "of such manifest clarity as to make it unmistakable" before it will justify
    reduction of a jury verdict.38 Nor does the fact that the jury found Matichuk and
    Matichuk's corporate entity, but not the three other defendants, liable for trespass
    prove passion and prejudice. Matichuk's contentions do not establish "anything
    untoward in the proceedings that justifies setting the verdict aside based on
    passion and prejudice."39 The trial court did not abuse its discretion by denying
    Matichuk's motion for a new trial or reduction of noneconomic damages.
    Treble Damages
    Pendergrast raises one issue on appeal, contending that the trial court
    erred when it refused to treble the jury's award of noneconomic damages. We
    hold that the unambiguous language of former RCW 64.12.030 required the trial
    court treble the jury's noneconomic damages award.
    The meaning of a statute presents a question of law we review de novo.40
    When construing a statute, our primary objective is to ascertain and carry out the
    legislature's intent.41   Statutory interpretation begins with the statute's plain
    meaning, which we discern from the ordinary meaning of its language in the
    38 
    Bingaman, 103 Wash. 2d at 836
    (citing James v. Robeck. 
    79 Wash. 2d 864
    ,
    870, 
    490 P.2d 878
    (1971)).
    39 Bunch, 155Wn.2dat183.
    40 Broughton Lumber Co. v. BNSF Ry., 
    174 Wash. 2d 619
    , 624, 
    278 P.3d 173
    (2012).
    41 State v. Gray, 
    174 Wash. 2d 920
    , 926, 
    280 P.3d 1110
    (2012).
    -19-
    NO. 71726-0-1/20
    context of the statute, related statutory provisions, and the statutory scheme as a
    whole.42   If the statute's meaning is unambiguous, the inquiry ends.43            Our
    system of government does not allocate to the judicial branch the function of
    improving or changing the law by inserting an exception into a statute's text that
    the legislature did not provide.
    "Washington, unlike other states, employs a very restrictive approach to
    punitive damages [and] prohibits the recovery of punitive damages as a violation
    of public policy unless expressly authorized by statute."44             Former RCW
    64.12.030 provides a specific punitive remedy for an intentional timber trespass:
    Whenever any person shall cut down, girdle or otherwise injure, or
    carry off any tree, timber or shrub on the land of another person,
    ... if judgment be given for the plaintiff, it shall be given for treble
    the amount of damages claimed or assessed therefor, as the case
    may be.
    The timber trespass statute has three purposes: (1) to punish a voluntary
    offender, (2) "to provide, by trebling the actual present damages, a rough
    measure for future damages," and (3) "[t]o discourage persons from carelessly or
    intentionally removing another's merchantable shrubs or trees on the gamble that
    the enterprise will be profitable if actual damages only are incurred."45 Timber
    42 Lake v. Woodcreek Homeowners Ass'n, 
    169 Wash. 2d 516
    , 526, 243 P.3d
    1283(2010).
    43 
    Lake, 169 Wash. 2d at 526
    .
    44 Broughton 
    Lumber, 174 Wash. 2d at 638
    n.14 (citing Barr v. Interbav
    Citizens Bank, 
    96 Wash. 2d 692
    , 697, 
    635 P.2d 441
    , 
    649 P.2d 827
    (1982)).
    45 Guavv.Wash.Nat.GasCo., 
    62 Wash. 2d 473
    , 476, 
    383 P.2d 296
    (1963).
    -20-
    NO. 71726-0-1/21
    trespass damages must be reasonable in relation to the value of the property.46
    The legislature mandated the punitive aspect of the trebling provision and did not
    leave it to the discretion of the courts.47 Because the timber trespass statute is
    penal and not merely remedial, courts strictly construe it.48 The statute makes
    the remedy available in the case of a "willful" trespass only; the court cannot
    impose treble damages for a "casual or involuntary" trespass or one based on a
    mistaken belief of ownership of the land.49
    Former RCW 64.12.030 contains no limitation on the type of damages
    subject to trebling. Pendergrast argues, "The legislative mandate could not be
    clearer and that is to simply treble any damages assessed for a timber trespass."
    She cites Birchlerv. Castello Land Co.,50 in which our Supreme Court held that a
    prevailing plaintiff may recover noneconomic damages in a timber trespass
    action. Matichuk counters that "historically cases have confined treble damages
    to the injury to the vegetation itself." He argues that even after Birchler, "[t]he
    addition of emotional distress damages to the remedies available does not, in
    46 Allvn v. Boe, 
    87 Wash. App. 722
    , 734-35, 
    943 P.2d 364
    (1997).
    47 Happy Bunch, LLC v. Grandview N., LLC, 
    142 Wash. App. 81
    , 96, 
    173 P.3d 959
    (2007) (citing Pearce v. G.R. Kirk Co., 
    92 Wash. 2d 869
    , 875, 602 P.2d
    357(1979)).
    48 Broughton 
    Lumber, 174 Wash. 2d at 633
    (quoting Bailey v. Havden, 65
    Wash. 57,61, 
    117 P. 720
    (1911)); Birchlerv. Castello Land Co., 133Wn.2d 106,
    110, 
    942 P.2d 968
    (1997).
    49 Former RCW 64.12.040 (1881); 
    Birchler, 133 Wash. 2d at 109-10
    .
    50133Wn.2d 106, 116, 
    942 P.2d 968
    (1997).
    -21-
    NO. 71726-0-1/22
    and of itself, require that those additional damages be trebled," noting that the
    Birchler court expressly declined to address this question.51 But Matichuk cites
    no authority approving a court's limitation or contraction of a statute's plain
    language.
    Certain other Washington statutes with similar provisions explicitly limit
    treble damages to actual, economic damages. The Insurance Fair Conduct Act,
    chapter 48.30 RCW, provides that the superior court may increase an award to
    "an amount not to exceed three times the actual damages."52 The Consumer
    Protection Act, chapter 19.86 RCW, allows the court to increase an award "to an
    amount not to exceed three times the actual damages sustained," but not to
    exceed $25,000.53
    By contrast, in the 18 years since our Supreme Court decided Birchler, the
    legislature has not amended the timber trespass statute to limit the types of
    damages subject to trebling.    If the legislature meant only "actual damages" or
    "economic damages only" by its use of the word "damages" in former RCW
    64.12.030, then the legislature's use of the word "actual" and "economic" in the
    statutes described above is superfluous.      Wherever possible, courts construe
    51 The court's stated reason was the plaintiff's failure to raise the issue at
    anytime before oral argument. 
    Birchler, 133 Wash. 2d at 110
    n.3.
    52 RCW 48.30.015(2).
    53 RCW 19.86.090.
    -22-
    NO. 71726-0-1/23
    statutes so that no portion is superfluous, and "[statutes should be interpreted so
    as to not leave one statute mere surplusage."54
    Moreover, RCW 4.24.630, a separate statute that applies to liability for
    damage to land and property in situations not covered by former RCW
    64.12.030, does not expressly exclude noneconomic damages from those
    subject to trebling under the statute. It provides that one who "wrongfully causes
    waste or injury to the land ... is liable to the injured party for treble the amount of
    the damages caused by the removal, waste, or injury."55 Recoverable damages
    "include, but are not limited to, damages for the market value of the property
    removed or injured, and for injury to the land, including the costs of restoration,"
    as well as reimbursement of reasonable costs, "including but not limited to"
    reasonable attorney fees and costs related to investigation and litigation.56
    "It is clear that treble damages will be imposed upon trespassers cutting
    timber under [former] RCW 64.12.030, unless those trespassing exculpate
    themselves under the provisions of [former] RCW 64.12.040."57 The jury found
    that the mitigating circumstances of former RCW 64.12.040 did not apply to
    Matichuk's cutting of the tree. Former RCW 64.12.030 unambiguously requires
    54 Sim v. Wash. State Parks & Recreation Comm'n, 
    90 Wash. 2d 378
    , 383,
    
    583 P.2d 1193
    (1978); Schrempp v. Munro, 
    116 Wash. 2d 929
    , 934, 
    809 P.2d 1381
    (1991).
    55 RCW 4.24.630(1).
    56 RCW 4.24.630(1) (emphasis added).
    57 Smith v. Shiflett, 
    66 Wash. 2d 462
    , 464-65, 
    403 P.2d 364
    (1965).
    -23-
    NO. 71726-0-1/24
    that the court award "treble the amount of damages claimed or assessed" for a
    timber trespass. Under Birchler, "damages claimed or assessed" may include
    noneconomic damages. And in the years since our Supreme Court decided
    Birchler. the legislature has not limited the types of damages subject to trebling.
    We hold that Pendergrast is entitled to treble the amount of all timber trespass
    damages.
    CONCLUSION
    We affirm the trial court's order on summary judgment quieting title to the
    disputed property in Pendergrast based on boundary by common grantor. We
    deny Matichuk's request for attorney fees under the lis pendens statute and
    affirm the trial court's denial of Matichuk's motion for a new trial or reduction of
    noneconomic damages.        We hold that the plain language of former RCW
    64.12.030 entitles Pendergrast to treble the amount of all damages awarded for
    timber trespass. We remand for further proceedings consistent with this opinion.
    WE CONCUR:
    /
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    -24-