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Marsella v. Shaffer

August 01, 2001

DANIEL E. MARSELLA AND SHERYL MARSELLA, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES
v.
DAVID SHAFFER AND KIM SHAFFER, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



Appeal from the Circuit Court of McHenry County. No. 96-CH-369 Honorable Haskell M. Pitluck, Judge, Presiding

The opinion of the court was delivered by: Justice McLAREN

UNPUBLISHED

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

Plaintiffs' third amended complaint contained 10 counts: count I alleged negligent property damage to plaintiffs' trees, lawn furniture, pool, and deck; count II sought punitive damages, alleging intentional property damage to plaintiffs' trees; count III alleged assault; count IV alleged trespass and sought actual and punitive damages; count V alleged violation of a county ordinance prohibiting open burning; count VI alleged violation of a village ordinance prohibiting the destruction of trees and shrubs; count VII alleged nuisance for burning of trees and sought an injunction and actual damages; count VIII alleged intentional nuisance and sought an injunction and actual and punitive damages; count IX alleged violations of the Wrongful Tree Cutting Act; and count X alleged violation of a zoning ordinance and sought an order enjoining defendants from building a home on their property. Before trial, the court ruled in defendants' favor on the last count. The case went to trial on the remaining nine counts on June 8, 1999.

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

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

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

David Shaffer testified that, in response to plaintiff Sheryl Marsella's complaints about the fire on defendants' property in September 1996, David walked onto plaintiffs' property and saw ashes but no damage to the property. David offered to clean the ashes from plaintiffs' property. But, over the next several days, David received a barrage of phone calls from governmental agencies in response to plaintiffs' complaints. Defendants had numerous campfires on their property in September 1996 that resulted in numerous arguments between David and Sheryl. On September 19, 1996, during one of these arguments, Sheryl told David that "she was going to make our lives miserable." David Shaffer was later arrested for disorderly conduct due to this altercation.

David Shaffer testified that later when he was clearing trees from his own property with a Bobcat, he inadvertently misjudged the lot line, damaging trees and bushes on plaintiffs' property. The affected area consisted of heavy thicket, or underbrush, and a few smaller trees.

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

During cross-examination, Hall stated that the cost of replacing the trees would be $8,350, representing the cost of planting 33 trees (smaller trees would be placed where the original 31 trees stood) six to eight feet tall costing $200 each for a cost of $6,600 with an additional $1,750 for removal of debris and repair work on the existing trees. Hall stated that the cost-of-the-replacement method was not appropriate for this situation because replacing the damaged trees would damage the remaining trees due to their extensive root systems. The replacement trees could not be the same size and species as the trees that were removed. Rather, the trees would be replaced by smaller, higher quality trees. However, replacing the trees would not bring the area back to its previous state.

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

Ware disagreed with Hall's analysis in many respects. Ware believed that the affected area was 1,250 square feet, half as large as Hall's estimated size. The adjacent area Hall used to compare to the affected area was not comparable and the affected area could not have contained more than 15 or 16 trees, about half the 31 trees estimated by Hall in his report. Ware stated that aerial photos taken before and after plaintiffs' trees were damaged did 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 inappropriate because it cannot be used to measure the value of trees in a woodland area. Ware had no opinion of the actual value of the destroyed trees, but Ware opined that Hall placed too high a value on them. The affected area was ...


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