August 01, 2001
No. 2--00--0912

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JUSTICE McLAREN delivered the opinion of the court:

Plaintiffs, Daniel E. and Sheryl Marsella, appeal a jury's award of damages under the Wrongful Tree Cutting Act (Act) (740ILCS 185/0.01 et seq. (West 1996)) for trees wrongfully cut bydefendants, David and Kim Shaffer. Defendants cross-appeal theaward of both treble damages under the Act and common law punitivedamages for the same injury. We affirm in part, reverse in part,and remand the cause with instructions.

Plaintiffs' third amended complaint contained 10 counts: countI alleged negligent property damage to plaintiffs' trees, lawnfurniture, pool, and deck; count II sought punitive damages,alleging intentional property damage to plaintiffs' trees; countIII alleged assault; count IV alleged trespass and sought actualand punitive damages; count V alleged violation of a countyordinance prohibiting open burning; count VI alleged violation ofa village ordinance prohibiting the destruction of trees andshrubs; count VII alleged nuisance for burning of trees and sought an injunction and actual damages; count VIII alleged intentionalnuisance and sought an injunction and actual and punitive damages;count IX alleged violations of the Wrongful Tree Cutting Act; andcount X alleged violation of a zoning ordinance and sought an orderenjoining defendants from building a home on their property. Before trial, the court ruled in defendants' favor on the lastcount. The case went to trial on the remaining nine counts on June8, 1999.

It was undisputed that defendants owned the property adjacentto plaintiffs' property. In September 1996 defendant David Shafferbegan to clear the trees on his property for construction of ahouse. David used a tractor, known as a Bobcat, and chainsaws andthen burned the logs and tree limbs to avoid the cost of disposal.

In the course of clearing trees from his own property onSeptember 22, 1996, David Shaffer crossed onto plaintiffs' propertyand property owned by the Village of Fox River Grove (Village) andremoved some of the trees and bushes. The area affected onplaintiffs' property was part of a conservation easement held bythe Village.

Before trial, the court granted plaintiffs' motion in liminein part, barring portions of the testimony of defendants' treeexpert, George Ware, and the complete testimony of Charles Stewart,defendants' witness, hired by the Village of Fox River Grove toevaluate the damage to the trees on the Village property.

David Shaffer testified that, in response to plaintiff SherylMarsella's complaints about the fire on defendants' property inSeptember 1996, David walked onto plaintiffs' property and sawashes but no damage to the property. David offered to clean theashes from plaintiffs' property. But, over the next several days,David received a barrage of phone calls from governmental agenciesin response to plaintiffs' complaints. Defendants had numerouscampfires on their property in September 1996 that resulted innumerous arguments between David and Sheryl. On September 19,1996, during one of these arguments, Sheryl told David that "shewas going to make our lives miserable." David Shaffer was laterarrested for disorderly conduct due to this altercation.

David Shaffer testified that later when he was clearing treesfrom his own property with a Bobcat, he inadvertently misjudged thelot line, damaging trees and bushes on plaintiffs' property. Theaffected area consisted of heavy thicket, or underbrush, and a fewsmaller trees.

Lawrence R. Hall, an expert arborist, testified on plaintiffs'behalf. Hall stated that, when he inspected the affected area onNovember 8, 1996, he saw a pile of tree branches, old trees, andparts of trees. The pile was approximately 6 to 8 feet high and 30by 20 feet wide. Hall could not tell which trees came fromplaintiffs' property and which came from defendants'. Hall alsocould not tell how many trees had been uprooted from plaintiffs'property. Therefore, by examining an adjacent area of the samesize as the area in question, Hall estimated the number, species,and condition of the damaged trees plus or minus 10%. Hallestimated that the affected area was approximately 2,500 squarefeet. The adjacent area had 31 trees, including box elder, blackcherry, American elm, mulberry, and buckthorn trees. Hall statedthat these trees were of low quality. Using the trunk formulamethod, an accepted valuation method by the International Societyof Arboriculture, Hall valued these trees at $15,448. The trunkformula method considers tree size, market value, location, andspecies to determine the value of a tree.

During cross-examination, Hall stated that the cost ofreplacing the trees would be $8,350, representing the cost ofplanting 33 trees (smaller trees would be placed where the original31 trees stood) six to eight feet tall costing $200 each for a costof $6,600 with an additional $1,750 for removal of debris andrepair work on the existing trees. Hall stated that the cost-of-the-replacement method was not appropriate for this situationbecause replacing the damaged trees would damage the remainingtrees due to their extensive root systems. The replacement treescould not be the same size and species as the trees that wereremoved. Rather, the trees would be replaced by smaller, higherquality trees. However, replacing the trees would not bring thearea back to its previous state.

George Ware, an expert tree scientist, researcher, andconsultant, testified on defendants' behalf. Ware stated that whenhe inspected the affected area on the parties' property on May 23,1998, the area was being cleared. He observed a pile of dead "junktrees" of the buckthorn, black cherry, mulberry, and box elderspecies. Only one tree had a diameter of 8 to 10 inches; theothers were smaller at 4 inches in diameter. Ware could not tellwhich trees came from plaintiffs' property.

Ware disagreed with Hall's analysis in many respects. Warebelieved that the affected area was 1,250 square feet, half aslarge as Hall's estimated size. The adjacent area Hall used tocompare to the affected area was not comparable and the affectedarea could not have contained more than 15 or 16 trees, about halfthe 31 trees estimated by Hall in his report. Ware stated thataerial photos taken before and after plaintiffs' trees were damageddid not support Hall's estimation.

Ware also disagreed with the method of valuation used by Hall,stating the trunk formula method used by Hall was inappropriatebecause it cannot be used to measure the value of trees in awoodland area. Ware had no opinion of the actual value of thedestroyed trees, but Ware opined that Hall placed too high a valueon them. The affected area was in the rear corner of plaintiffs'property and could not be seen from plaintiffs' home.

Ware stated that the more appropriate method for valuing theaffected trees was the cost-of-replacement method. Ware agreedthat the affected trees would be replaced by higher quality trees,but he estimated the number to be only 12 to 15, or about half thenumber of replacement trees Hall recommended.

Kurt Ulrich, superintendent of building and zoning for theVillage of Fox River Grove, testified that, before the trees werecut, the affected area was part of a conservation easement held bythe Village, consisting of trees and brush in their natural state. The affected area was relatively dense with small diameter growthof three or four inches in diameter or less. The trees and brushthinned as they approached plaintiffs' property.

The trial court admitted into evidence videotapes of the pileof dead trees, the clearing of the pile, and the before and afterscenes of the clearing away of the pile of trees. The trial courtalso admitted aerial photos of the affected area taken before andafter the trees were cut.

Over plaintiffs' objection, the trial court modifiedplaintiffs' jury instructions regarding the measure of damages forthe cut trees, informing the jury that plaintiffs were entitled to"three times" the " 'stumpage' value as determined by the jury" andinstructing the jury on the verdict form to determine "three timesthe standing value of the trees cut down on plaintiffs' property." Plaintiffs' version of the instruction and verdict form containedinformation regarding the tripling of damages.

During closing arguments, counsel for the defense madenumerous remarks regarding the tripling of damages. Plaintiffs'objections to these remarks were overruled by the trial court.

The jury returned the following verdict. The jury awarded$10,500, as three times the standing value of the trees, under theAct, $500 and $250 for damages to the deck and the lawn furniture,respectively, and $5,000 for wilful and wanton conduct (punitivedamages) for intentional trespass to the trees. The jury found indefendants' favor on the nuisance count, but then awarded $5,000for wilful and wanton conduct (punitive damages) on the intentionalnuisance count. On the assault counts, the jury found inplaintiffs' favor but awarded no damages.

Judgment was entered on the verdict on June 16, 1999. Thetrial court denied plaintiffs' posttrial motion on October 27,1999, regarding all counts except the nuisance counts (counts VIIand VIII of the third amended complaint). The trial court vacatedthe verdicts on the nuisance counts as irreconcilably inconsistent. On August 7, 2000, the trial court granted plaintiffs leave tovoluntarily dismiss the nuisance counts and declared that the orderwas final and appealable and that there was "no reason to delayenforcement or appeal of this or previous orders." On August 8,2000, plaintiffs filed their notice of appeal, and, on August 28,defendants filed their notice of cross-appeal.

On appeal, plaintiffs argue that the trial court erred byinstructing the jury that damages for the cut trees would betrebled pursuant to the Wrongful Tree Cutting Act. Defendantsassert that the jury was properly instructed because the treblingprovision related is a manner of assessing compensatory and notpunitive damages.

The determination of proper jury instructions lies within thesound discretion of the trial court and will not be disturbed uponreview absent an abuse of that discretion. Department ofTransportation v. Bolis, 313 Ill. App. 3d 982, 987 (2000). Juryinstructions should, taken as a whole, fairly and correctly statethe law and be sufficiently clear so as not to mislead the jury. Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375,388 (2000).

The trial court provided the following instruction to thejury:

"There was in force in the State of Illinois at the timeof the occurrence in question a certain statute, The WrongfulTree Cutting Act, which provides that any party found to havecut any timber or trees which he or she did not have the fulllegal right to cut or caused to be cut shall pay the owner ofthe timber or trees three times its 'stumpage' value asdetermined by the jury. 'Stumpage' value means standingtrees.

The defendants, [sic] have admitted a violation of thisstatute. It is [sic] thus, up to the jury to determine theamount of the damages. You are to determine the stumpagevalue of the trees based upon all the evidence you heard."

The trial court also provided the following verdict form:

"Three times the standing value of the trees

cut down on plaintiffs' property. $_______"

After reviewing the instructions and pertinent provision ofthe Act, we believe that the instructions, taken as a whole,sufficiently stated the law. And, while the verdict form couldhave more clearly reflected the jury's obligations to firstdetermine the stumpage value and then triple that figure, theinstructions, read together, were sufficiently clear.

Further, contrary to plaintiffs' assertion, there is nothingin the language of the statute indicating that the jury cannot betold that the stumpage value must be tripled. We do not believethat this information alone caused confusion or misled the jury. Therefore, the trial court did not abuse its discretion byinstructing the jury regarding this issue.

We recognize that, under the federal cases cited by plaintiffsaddressing the Clayton Act, 15 U.S.C.