JOEL G. WIERSUM and DARLENE WIERSUM, Appellants,
PAUL R. HARDER and LISA W. WIETFELD, Appellees
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kodiak, Steve W. Cole, Judge. Superior Court No. 3KO-08-00064 CI.
Alexander O. Bryner, Feldman Orlansky & Sanders, Anchorage, for Appellants.
Jill C. Wittenbrader, Law Office of Jill Wittenbrader, LLC, Kodiak, for Appellee Harder.
Gregory S. Hunt, Bliss, Wilkens & Clayton, Anchorage, for Appellee Wietfeld.
Before: Fabe, Chief Justice, Carpeneti, Winfree, Stowers, and Maassen, Justices. FABE, Chief Justice, concurring. CARPENETI, Justice, with whom WINFREE, Justice, joins, concurring in part and dissenting in part. WINFREE, Justice, concurring in part and dissenting in part. STOWERS, Justice, with whom MAASSEN, Justice, joins, concurring in part and dissenting in part.
This appeal arises out of a timber trespass action. Paul Harder brought a lawsuit seeking restoration damages against Joel and Darlene Wiersum after the Wiersums cleared trees from Harder's property without his permission. The Wiersums filed a third-party complaint against Harder's sister, Lisa Wietfeld. They sought to apportion fault to Wietfeld, claiming that she had negligently misrepresented that she owned the property where the trees were cut when she gave them permission to remove trees from her property. The superior court granted Wietfeld's summary judgment motion and dismissed the claim against her. The remaining parties proceeded to trial and a jury awarded Harder $161,000 in compensatory restoration damages. The jury also found that Harder was entitled to statutory treble damages. The superior court denied the Wiersums' motions for a directed verdict and judgment notwithstanding the verdict.
The Wiersums appeal, arguing that the superior court erred by dismissing their claim against Wietfeld and by denying their motions for directed verdicts and judgment notwithstanding the verdict. Because we conclude that Wietfeld owed no duty to Harder, we affirm the superior court's grant of summary judgment as to Wietfeld. We also affirm the superior court's denial of the Wiersums' motions for a directed verdict because Harder presented sufficient evidence for the issue of restoration costs to be submitted to the jury. We conclude, however, that the superior court erred by denying the Wiersums' motion for judgment notwithstanding the verdict because the jury's award of restoration damages was objectively unreasonable. We therefore vacate the damages award and order a new trial on damages.
II. FACTS AND PROCEEDINGS
Paul Harder bought land in the Monashka area of Kodiak in 1976. He built a small home on the property in 1981 and lived there for several years. In 1982 he subdivided the property into three lots: Lots 1A, 1B, and 1C.
In 1993 Harder sold Lot 1B, where his house stood, to his sister, Lisa Wietfeld. Over the next 15 years, Harder lived in Washington and Hawaii with his family. He periodically returned to Kodiak to fish and visit the Monashka property. He testified that he intended to build a home on Lot 1A in the future, as this was his favorite area of the property.
In 2002 the Wiersums bought property adjacent to Lot 1A (Harder's property), which overlooks Lot 1B (Wietfeld's property). The Wiersums could see Wietfeld's cabin at the bottom of the hill below their property, and they assumed that Wietfeld owned all of the land between her house and their property.
In 2005 Darlene Wiersum called Wietfeld while Wietfeld was at work to ask if the Wiersums could cut down some trees on Wietfeld's property that might " come down with the wind" and harm their property. Wietfeld gave them permission because she thought the removal of some trees would " let a little more light in." When Wietfeld returned home from work later that day, she discovered that the entire hillside had been cleared. Upset by the number of trees that had been cut, Wietfeld immediately called the Wiersums and left a message instructing them not to cut any more trees. Harder next visited the property in 2007 and discovered the clear-cut hillside. He asked Wietfeld who had cut the trees and informed her that the trees were on his property, not hers.
In March 2008 Harder brought a timber trespass claim against the Wiersums seeking restoration costs and treble damages under AS 09.45.730.  Harder asserted in his complaint that he had intended to let the land " remain in its natural state and planned to build a small cabin in the old growth forest for his retirement." In their answer, the Wiersums asserted that if they were liable for damages, fault must be apportioned to Wietfeld under AS 09.17.080.  They also filed a third-party complaint against Wietfeld, alleging that she had negligently misrepresented to the Wiersums that she owned the property belonging to her brother and again claiming that in the event Harder was entitled to damages, fault must be apportioned between themselves and Wietfeld under AS 09.17.080.
Harder filed a motion for partial summary judgment seeking to establish that he was entitled to treble damages under AS 09.45.730. The Wiersums opposed the motion, arguing that there was a genuine issue of material fact regarding application of one
of the statutory exceptions to treble damages: whether the Wiersums reasonably believed that they had permission from the property owner to cut the trees.  Wietfeld filed a cross-motion for summary judgment, arguing that there was no evidence to support a claim of liability against her.
The superior court denied Harder's motion, ruling that whether the Wiersums' actions were reasonable was a question of fact for the jury to decide. The superior court granted Wietfeld's motion, ruling that the material facts regarding Wietfeld's involvement were undisputed and did not support a claim against her. Accordingly, the superior court dismissed the claim against Wietfeld.
Harder and the Wiersums proceeded to trial in May 2010. Harder testified about his reasons for wanting to restore the land to its original condition. As a boy, he had hiked across the property with his friends while hunting and fishing. He lived in the house that he had built on Lot 1B for several years. Even after he moved out of Alaska, he continued to fish in Kodiak in the summers and periodically spent time at the Monashka property with his family. He testified that he held on to the Monashka property for 34 years and that he intended to build a house and live on Lot 1A once his son graduated from college.
Harder testified that he had " always wanted to keep [Lot] 1A" because it was " a very beautiful piece of property." The property was also very private, because the tall trees screened the neighboring houses from view. But after the trees were cut down, the property " looked totally different" : It was " full of salmonberry bushes, . . . whereas it was just like thick moss before," he had not heard any ravens there since the trees were cut, and he had lost his privacy. Harder concluded: " It's been . . . altered forever, and all I'm asking is that it's repaired. . . . I mean, I don't want money. I want my trees back."
Harder presented expert testimony on the cost of restoring the land. A forester had identified approximately 70 stumps on Harder's property. An arborist testified that it would cost $161,000 to transplant 70 Sitka spruce trees that were nine to ten feet tall and an additional $162,000 to replace the forest ground cover. The arborist testified that it was necessary to purchase the trees from a nursery in British Columbia because it was only possible to get trees up to seven feet tall in Alaska. A horticulturist testified to a different method of transplanting larger trees and estimated it would cost $620,537 to restore Harder's property. He agreed that it would be " much easier" and cheaper to transplant smaller trees. Harder conceded on cross-examination that his property was valued at about $27,500 for tax purposes and that it had not suffered any diminution in market value as a result of the lost trees.
At the conclusion of Harder's evidence, the Wiersums filed a motion for a directed verdict on the issue of restoration costs, arguing that Harder had failed to provide evidence of diminution in the value of his property or any damages due to the loss of the wood from the cut trees. They contended that the restoration appraisal figures offered by Harder's experts were not " reasonably proportionate to a zero diminution in market value" as required by this court's decision in Osborne v. Hurst.  The superior court denied the motion, finding that Harder had presented sufficient evidence to allow the jury to consider the claim.
The Wiersums testified and explained that when they obtained Wietfeld's permission to cut the trees on her property, they believed that she owned the land where the trees were, although they admitted that they did not check public records to verify ownership. The Wiersums then presented evidence from an expert in real estate sales and transactions who testified that in 2005 Harder's property had a listing value of $30,000 - $40,000, and by 2009 would have been listed at $50,000 - $55,000. The expert also testified that the value of the lot would only be " minimally
affected, if at all" by the removal of the trees.
The Wiersums also presented expert testimony from another arborist who estimated restoration would cost about $34,000. The Wiersums' arborist's restoration estimate for Harder's land was based on the value of the trees removed, the cost of transplanting smaller Sitka spruce from other areas of Kodiak, and the addition of funds to compensate for " the value of what can't be replaced," such as 80 to 100 foot tall trees that were " growing in a forested environment where the root zones [were] intertwined, and . . . where you can't just go and replace that exact tree in that environment." The trees that were removed were valued using the " trunk formula method." This method determines the value of a lost tree by first identifying the price of a replacement tree that is " the largest common available size," and then measuring a cross-section of the lost tree and extrapolating its price based on the price of the replacement tree. The arborist testified that this method is used when it is not possible to replace exact trees due to their size or their growth in a forested environment where their root zones are intertwined. He testified that some of the stumps he identified on Harder's land were from " hazardous trees" that would normally receive a negative value because they would have to be removed by the owner before any house could be built on the property. But, in his appraisal, the arborist classified these trees as " habitat in a forest" and gave them a neutral value. The arborist testified that his restoration plan specifically took into account Harder's interest in restoring the privacy that his property had previously enjoyed.
At the conclusion of their evidence, the Wiersums renewed their motion for a directed verdict, arguing that there was no evidence of diminution in the value of Harder's property and that the only restoration cost figures offered into evidence were disproportionate in light of this " zero" diminution in value. They asserted that there was therefore no evidence in the record from which the jury could conclude that an award of restoration costs would be objectively reasonable. The superior court again denied the Wiersums' motion.
The jury found that Harder had a " reason personal"  that justified restoring the property to its previous condition, and it awarded him $161,000 in compensatory restoration damages. The jury also found that Harder was entitled to statutory treble damages. The Wiersums then filed a motion for a judgment notwithstanding the verdict (JNOV), arguing that " the restoration cost damages awarded to the Plaintiff Paul Harder are manifestly unreasonable as a matter of law in light of the zero diminution in the value of Mr. Harder's property that resulted from the trees being cut." The superior court denied the motion and entered a final judgment in favor of Harder. The Wiersums now appeal, arguing that the superior court erred by dismissing their claims against Wietfeld and by denying their directed verdict and JNOV motions.
III. STANDARD OF REVIEW
We review the superior court's grant of summary judgment to Wietfeld de novo.  Summary judgment is appropriate if, viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute over the material facts and the moving party is entitled to judgment as a matter of law. 
We also review de novo the superior court's denial of the Wiersums' directed verdict and JNOV motions.  The " substantive
legal question" is whether, after reviewing the full record presented to the jury in the light most favorable to the non-moving party, a reasonable juror could possibly find in that party's favor.  In reviewing the record, this court does not weigh conflicting evidence or judge witness credibility. 
A. The Superior Court Did Not Err By Granting Wietfeld's Motion For Summary Judgment And Dismissing The Claim Against Her.
The Wiersums brought a third-party complaint seeking to apportion fault to Wietfeld on the theory that she was negligent in misrepresenting her ownership of Harder's property when she gave the Wiersums permission to cut down trees. The superior court granted summary judgment in favor of Wietfeld, finding that she did not owe a duty to the Wiersums.  But we have previously explained that " fault can only be apportioned under AS 09.17.080 to parties who may be liable to the plaintiff for money damages, including third-party defendants and settling parties."  Thus, the Wiersums' liability cannot decrease through apportionment to Wietfeld unless Wietfeld may be liable to Harder for negligence. While the superior court twice ruled that Wietfeld did not owe a duty to the Wiersums, it never addressed whether she owed a duty to Harder. But we are " not bound by the reasoning articulated by the superior court and can affirm a grant of summary judgment on alternative grounds, including grounds not advanced by the superior court or the parties."  We may therefore address the issue of whether Wietfeld owed a duty to Harder when she told the Wiersums that they could cut trees on her property.
1. Wietfeld owed no duty to Harder.
In their complaint, the Wiersums contended that fault must be apportioned to Wietfeld because she was negligent when she failed to disclose to the Wiersums that she did not know exactly where her property lines were and that Harder also owned property in the area.  In essence, their negligence claim was based on the theory that Wietfeld had negligently misrepresented or failed to disclose information to the Wiersums, and her negligence ...