Timber Trespass, and a Modern Primer on Virginia Principles of Statutory Interpretation
On December 30, 2015, the Virginia Supreme Court issued its to-be-published decision in Chacey v. Garvey, 2015 Va. LEXIS 185. The litigation arose under a claim of “timber trespass,” and related claims, arising under Virginia’s applicable statutory scheme. See Va. Code §§55-331 through 55-335.
The decision immediately caught my eye. First, more than twenty-five years ago, I handled a timber trespass case. That litigation provided me with “a real education,” as the saying goes. I represented the plaintiff, a municipality. The level of attention one receives when his client enjoys a statutory entitlement to treble damages truly amazed me. Ultimately, we settled the case on very reasonable terms.
Also, the Chacey decision provides a succinct, “pithy” application of several Virginia statutory interpretive principles. In my part-time role as an adjunct law professor, I teach a course on legislation. The curriculum extensively explores principles of statutory interpretation, both state and federal. In my view, the Chacey decision supplies a must-read, modern primer on Virginia principles of statutory interpretation. In it, Chief Justice Lemons spoke for a unanimous Court.
The case arose between adjoining landowners, the Chaceys and one Garvey. In 1995, Garvey purchased a 50 acre tract in Fauquier County from the Chaceys. The two households thereafter lived as neighbors, the Chaceys retaining an easement over the Garvey tract for ingress and egress to their property.
In 2008, the Chaceys hired a logging company to remove timber on their property. Garvey thereafter asserted that the company trespassed on her property and, without permission, removed timber from it. Garvey made demand for damages under Va. Code §§55-331 and 55-332, but the Chaceys disputed the claim. Garvey then sued the Chaceys and their logging company. The company settled with Garvey prior to trial.
In the lawsuit, Garvey claimed “damages for timber theft at three times the value of the timber on the stump,” pursuant to Va. Code §55-332(B). In addition, she sought reforestation costs, “the costs of ascertaining the value of the timber,” and attorneys fees. She also sought other property damages, for alleged damage to the access road, fencing and a stone bridge.
Unfortunately for Garvey, she did not timely disclose her expert witness, a consulting arborist. Garvey intended to call the expert to establish the timber’s on the stump value. The trial court heard the Chaceys’ objections, in limine, and excluded the expert from testifying.
The case proceeded to a three-day jury trial. With no expert witness to establish value, the trial court struck Garvey’s case on the timber value issue. But the trial court allowed the jury to decide Garvey’s entitlement to damages for reforestation and legal costs, and other alleged injuries to her property. The trial court specifically ruled that “legal costs” under Va. Code §55-332(B) included attorneys fees. Yet, the trial court ruled that if the jury awarded legal costs, the court would determine the amount of an attorneys fee award.
Garvey prevailed, but the jury awarded relatively nominal damages. The jury’s money damages award totaled just over $15,000. Post-trial, the parties litigated the amount of attorneys fees for inclusion in the legal costs award. Although Garvey claimed over $250,000 in attorneys fees, the trial court awarded her $140,000 of those claimed fees. Even so, this award dwarfed the jury’s award. The Chaceys appealed, assigning several alleged trial court errors.
The Court first addressed the applicable de novo standard of review. It stated that, “an issue of statutory interpretation is a pure question of law.” It then neatly framed several guiding interpretive principles:
When the language of a statute is unambiguous, we are bound by the plain meaning of that language…We must give effect to the legislature's intention as expressed by the language unless a literal interpretation of the language would result in a manifest absurdity…When the words of a statute are unambiguous, we accord the statutory language its plain meaning…If a statute is subject to more than one interpretation, this Court must "apply the interpretation that will carry out the legislative intent behind the statute." [Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)]. As the prevailing party at trial, Garvey is entitled to have the evidence viewed in the light most favorable to her, with all conflicts and inferences resolved in her favor. [Clarification to citation added; other citations omitted].
On the issue of “legal costs,” and whether the statutory phrase includes attorneys fees, the Court noted Virginia’s adherence to the “American Rule.” That rule, in effect, holds that absent a specific contractual or statutory provision providing for attorneys fees, such fees “are not recoverable by a prevailing litigant from the the losing litigant.” The Court then examined the applicable language of Va. Code §55-332(B):
Any person who (i) severs or removes any timber from the land of another without legal right or permission or (ii) authorizes or directs the severing or removal of timber or trees from the land of another without legal right or permission shall be liable to pay to the rightful owner of the timber three times the value of the timber on the stump and shall pay to the rightful owner of the property the reforestation costs incurred not to exceed $450 per acre, the costs of ascertaining the value of the timber, and any directly associated legal costs incurred by the owner of the timber as a result of the trespass. [Emphasis added by the Court].
Significantly, the statutory language does not include the term “attorneys fees” in the phrase, “any directly associated legal costs incurred by the owner.” Thus, the Court examined its prior precedent, and compared the language of other Virginia costs-related statutes.
The Court found relevant the “costs” provision of Va. Code §17.1-601, and its interpretive rulings in Advanced Marine Enterprises, Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 (1998). In so doing, it recalled that in Advanced Marine, “We determined that a trial court’s discretion to award ‘costs’ was limited ‘only to those costs essential for prosecution of the suit, such as filing fees or charges for service of process.’” Id., at 126-27, 501 S.E.2d at 160.
From this discussion, the Court discerned that the “authority for awarding costs and attorney’s fees is in derogation of the common law, and therefore, subject to strict interpretation.” Applying the strict construction rule, the Court held that in Va. Code §55-332(B), the General Assembly spoke in unique phraseology:
Instead of using the well-defined term "costs," the General Assembly provided that the owner was entitled to "any directly associated legal costs incurred by the owner of the timber as a result of the trespass." This particular phrase does not appear anywhere else in the Code of Virginia. It clearly means more than the costs necessary for the prosecution of the suit. However, the General Assembly did not include the right to recover attorney's fees in this statute, something it has done in more than 200 other separate instances.
Therefore, the Court ruled, Garvey could not recover her attorneys fees. By the same token, the statutory language certainly includes more than just those costs essential for the prosecution of the suit. To resolve this issue, the Court remanded the case to the trial court, charging it with the duty to make “a determination of the directly associated legal costs that Garvey incurred as a result of the trespass.”
The Court went on to consider the Chaceys contention that “the trial court erred in permitting Garvey’s timber trespass claim to proceed to the jury because Garvey failed to provide any evidence related to the value of the alleged timber.” Upon its consideration of this assigned error, the Court examined the language of Va. Code §55-332(B) respecting a timber owner’s potential remedies. It concluded:
There is nothing in this provision that states that an owner is only entitled to reforestation costs, legal costs, or the costs of ascertaining the value of the timber after he or she first establishes the value of the timber that was improperly taken. Instead, the statute makes clear that the person who removed the timber "shall be liable to pay" all of these damages to the owner.
As a result, even though Garvey could not recover for the timber’s value, the trial court properly allowed the jury to consider and make award on her other damage claims.
The Court’s ruling on the “legal costs” issue, and its remand of the case to the trial court, may result in a settlement. After all, without an attorneys fee award, Garvey received a very small damages award. In fact, the claimed attorneys fees represent a potential indebtedness to Garvey far exceeding her property damage recovery. Especially considering the exclusion of her expert witness, the attorneys fees ruling could complicate the relationship between attorney and client in further trial court proceedings.
Might the General Assembly consider amending the “legal costs” phraseology in Va. Code §55-332(B), to include attorneys fees? The Chacey result could justify its consideration of such an amendment. The statutory scheme respecting timber trespass, with its potential for treble damages, clearly indicates that the General Assembly empathizes with victimized timber owners. If the attorneys fees incurred to conduct timber trespass litigation possibly can overshadow a potential recovery, how does the statutory scheme benefit victimized timber owners?
Based on these considerations, we may not later see more decisional law arising from the Court’s remand to the trial court. On the other hand, the attorneys fees issue may well attract our legislature’s deserved attention.