{ "id": 256258, "name": "DANIEL E. MARSELLA et al., Plaintiffs Appellants and Cross-Appellees, v. DAVID SHAFFER et al., Defendants-Appellees and Cross-Appellants", "name_abbreviation": "Marsella v. Shaffer", "decision_date": "2001-08-01", "docket_number": "No. 2 \u2014 00\u20140912", "first_page": "134", "last_page": "143", "citations": [ { "type": "official", "cite": "324 Ill. App. 3d 134" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "111 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3167435 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "361" }, { "page": "361" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0350-01" ] }, { "cite": "194 Ill. App. 3d 504", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498889 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0504-01" ] }, { "cite": "221 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5798141 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "849" }, { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0842-01" ] }, { "cite": "232 Ill. App. 3d 323", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498769 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0323-01" ] }, { "cite": "317 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026015 ], "year": 2000, "pin_cites": [ { "page": "1038" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/1026-01" ] }, { "cite": "498 F.2d 1240", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 169494 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/498/1240-01" ] }, { "cite": "533 F.2d 1081", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1003806 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/533/1081-01" ] }, { "cite": "15 U.S.C. \u00a7 15", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 375", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186533 ], "year": 2000, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0375-01" ] }, { "cite": "313 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186503 ], "year": 2000, "pin_cites": [ { "page": "987" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0982-01" ] } ], "analysis": { "cardinality": 930, "char_count": 22958, "ocr_confidence": 0.772, "pagerank": { "raw": 5.989406066647367e-08, "percentile": 0.37217942049903296 }, "sha256": "1734cfae7f2edaa72474dcdff70cbdb893f26c1c31fd52327483760442dc1441", "simhash": "1:4ff04e0c6b0773d0", "word_count": 3771 }, "last_updated": "2023-07-14T20:56:29.143572+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DANIEL E. MARSELLA et al., Plaintiffs Appellants and Cross-Appellees, v. DAVID SHAFFER et al., Defendants-Appellees and Cross-Appellants." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiffs, Daniel E. and Sheryl Marsella, appeal a jury\u2019s 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.\nPlaintiffs\u2019 third amended complaint contained 10 counts: count I alleged negligent property damage to plaintiffs\u2019 trees, lawn furniture, pool, and deck; count II sought punitive damages, alleging intentional property damage to plaintiffs\u2019 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\u2019 favor on the last count. The case went to trial on the remaining nine counts on June 8, 1999.\nIt was undisputed that defendants owned the property adjacent to plaintiffs\u2019 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.\nIn the course of clearing trees from his own property on September 22, 1996, David Shaffer crossed onto plaintiffs\u2019 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\u2019 property was part of a conservation easement held by the Village.\nBefore trial, the court granted plaintiffs\u2019 motion in limine in part, barring portions of the testimony of defendants\u2019 tree expert, George Ware, and the complete testimony of Charles Stewart, defendants\u2019 witness, hired by the Village of Fox River Grove to evaluate the damage to the trees on the Village property.\nDavid Shaffer testified that, in response to plaintiff Sheryl Marsel-la\u2019s complaints about the fire on defendants\u2019 property in September 1996, David walked onto plaintiffs\u2019 property and saw ashes but no damage to the property. David offered to clean the ashes from plaintiffs\u2019 property. But, over the next several days, David received a barrage of phone calls from governmental agencies in response to plaintiffs\u2019 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 \u201cshe was going to make our lives miserable.\u201d David Shaffer was later arrested for disorderly conduct due to this altercation.\nDavid 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\u2019 property. The affected area consisted of heavy thicket, or underbrush, and a few smaller trees.\nLawrence R. Hall, an expert arborist, testified on plaintiffs\u2019 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\u2019 property and which came from defendants\u2019. Hall also could not tell how many trees had been uprooted from plaintiffs\u2019 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 Arboricul-ture, 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.\nDuring 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-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.\nGeorge Ware, an expert tree scientist, researcher, and consultant, testified on defendants\u2019 behalf. Ware stated that when he inspected the affected area on the parties\u2019 property on May 23, 1998, the area was being cleared. He observed a pile of dead \u201cjunk trees\u201d 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\u2019 property.\nWare disagreed with Hall\u2019s analysis in many respects. Ware believed that the affected area was 1,250 square feet, half as large as Hall\u2019s 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\u2019 trees were damaged did not support Hall\u2019s estimation.\nWare 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 in the rear corner of plaintiffs\u2019 property and could not be seen from plaintiffs\u2019 home.\nWare stated that the more appropriate method for valuing the affected trees was the cost-of-replacement method. Ware agreed that the affected trees would be replaced by higher quality trees, but he estimated the number to be only 12 to 15, or about half the number of replacement trees Hall recommended.\nKurt Ulrich, superintendent of building and zoning for the Village of Fox River Grove, testified that, before the trees were cut, the affected area was part of a conservation easement held by the Village, consisting of trees and brush in their natural state. The affected area was relatively dense with small diameter growth of three or four inches in diameter or less. The trees and brush thinned as they approached plaintiffs\u2019 property.\nThe trial court admitted into evidence videotapes of the pile of dead trees, the clearing of the pile, and the before and after scenes of the clearing away of the pile of trees. The trial court also admitted aerial photos of the affected area taken before and after the trees were cut.\nOver plaintiffs\u2019 objection, the trial court modified plaintiffs\u2019 jury instructions regarding the measure of damages for the cut trees, informing the jury that plaintiffs were entitled to \u201cthree times\u201d the \u201c \u2018stumpage\u2019 value as determined by the jury\u201d and instructing the jury on the verdict form to determine \u201cthree times the standing value of the trees cut down on plaintiffs\u2019 property.\u201d Plaintiffs\u2019 version of the instruction and verdict form contained information regarding the tripling of damages.\nDuring closing arguments, counsel for the defense made numerous remarks regarding the tripling of damages. Plaintiffs\u2019 objections to these remarks were overruled by the trial court.\nThe jury returned the following verdict. The jury awarded $10,500, as three times the standing value of the trees, under the Act, $500 and $250 for damages to the deck and the lawn furniture, respectively, and $5,000 for wilful and wanton conduct (punitive damages) for intentional trespass to the trees. The jury found in defendants\u2019 favor on the nuisance count, but then awarded $5,000 for wilful and wanton conduct (punitive damages) on the intentional nuisance count. On the assault counts, the jury found in plaintiffs\u2019 favor but awarded no damages.\nJudgment was entered on the verdict on June 16, 1999. The trial court denied plaintiffs\u2019 posttrial motion on October 27, 1999, regarding all counts except the nuisance counts (counts VII and VIII of the third amended complaint). The trial court vacated the verdicts on the nuisance counts as irreconcilably inconsistent. On August 7, 2000, the trial court granted plaintiffs leave to voluntarily dismiss the nuisance counts and declared that the order was final and appealable and that there was \u201cno reason to delay enforcement or appeal of this or previous orders.\u201d On August 8, 2000, plaintiffs filed their notice of appeal, and, on August 28, defendants filed their notice of cross-appeal.\nOn appeal, plaintiffs argue that the trial court erred by instructing the jury that damages for the cut trees would be trebled pursuant to the Wrongful Tree Cutting Act. Defendants assert that the jury was properly instructed because the trebling provision is a manner of assessing compensatory and not punitive damages.\n\u20221 The determination of proper jury instructions lies within the sound discretion of the trial court and will not be disturbed upon review absent an abuse of that discretion. Department of Transportation v. Bolis, 313 Ill. App. 3d 982, 987 (2000). Jury instructions should, taken as a whole, fairly and correctly state the 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).\n\u20222 The trial court provided the following instruction to the jury:\n\u201cThere was in force in the State of Illinois at the time of the occurrence in question a certain statute, The Wrongful Tree Cutting Act, which provides that any party found to have cut any timber or trees which he or she did not have the full legal right to cut or caused to be cut shall pay the owner of the timber or trees three times its \u2018stumpage\u2019 value as determined by the jury. \u2018Stumpage\u2019 value means standing trees.\nThe defendants, [sic] have admitted a violation of this statute. It is [sic] thus, up to the jury to determine the amount of the damages. You are to determine the stumpage value of the trees based upon all the evidence you heard.\u201d\nThe trial court also provided the following verdict form:\n\u201cThree times the standing value of the trees cut down on plaintiffs\u2019 property. $_\u201d\nAfter reviewing the instructions and pertinent provision of the Act, we believe that the instructions, taken as a whole, sufficiently stated the law. And, while the verdict form could have more clearly reflected the jury\u2019s obligations to first determine the stumpage value and then triple that figure, the instructions, read together, were sufficiently clear.\nFurther, contrary to plaintiffs\u2019 assertion, there is nothing in the language of the statute indicating that the jury cannot be told that the stumpage value must be tripled. We do not believe that this information alone caused confusion or misled the jury. Therefore, the trial court did not abuse its discretion by instructing the jury regarding this issue.\nWe recognize that, under the federal cases cited by plaintiffs addressing the Clayton Act, 15 U.S.C. \u00a7 15 (1994) (Noble v. McClatchy Newspapers, 533 F.2d 1081 (9th Cir. 1976); Pollock & Riley, Inc. v. Pearl Brewing Co., 498 F.2d 1240 (5th Cir. 1974)), the jury may not be told of the trebling provision. However, we believe that the jury is entitled to and should know the law as contained in the Wrongful Tree Cutting Act. The Act expressly provides that the measure of damages is three times the stumpage value. 740 ILCS 185/2 (West 1996). We see no reason to keep this from the jury. The federal cases cited by plaintiffs are distinguishable from the case at bar because the cases addressed a federal statute not at issue here. Thus, these cases are not controlling.\nNext, plaintiffs argue that the trial court abused its discretion by allowing improper statements during defense counsel\u2019s closing argument and that they are entitled to a new trial. Defendants assert that the statements were not improper and that, even if they were, plaintiffs are not entitled to a new trial because the statements did not prejudice plaintiffs. We agree with plaintiffs.\n\u20223 Generally, during closing argument, counsel is allowed broad latitude in drawing reasonable conclusions from the evidence. Becht v. Palac, 317 Ill. App. 3d 1026, 1038 (2000). Improper statements made during closing argument do not require reversal unless the statements resulted in substantial prejudice to the opposing party. Ramirez v. City of Chicago, 318 Il. App. 3d 18, 26 (2000).\n\u20224 Plaintiffs cite numerous instances of improper argument. Defense counsel told the jury during closing argument that when determining the value of the cut trees \u201cyou have to factor in that you\u2019re going to triple it\u201d and \u201c[tjhen you triple it.\u201d Defense counsel stated that plaintiffs were \u201clooking for\u201d \u201c$15,000 times three,\u201d and \u201c[tjhat\u2019s $45,000 they want for the damage to this small area at the very rear of their property.\u201d Defense counsel then stated that \u201c[tjhey want $45,000 for this section right back here (indicating), which she acknowledged she paid $50,000 for the whole lot and they\u2019re looking for $45,000,\u201d and \u201cfor $10,000 they could probably buy 50 of them and put them back there in beautiful, pristine condition; and they\u2019re more than compensated. They don\u2019t want this. They want this punishment thing. They want to stick it to him.\u201d\nDefense counsel completely misstated the law and, essentially, asked the jury to ignore the legislature\u2019s mandate that the stumpage value was to be determined and then tripled. Defense counsel essentially told the jury that it could choose to ignore the legislature\u2019s mandate to punish defendants and simply award plaintiffs actual damages only. This is not what the legislature intended. Defense counsel told the jury not to first determine the stumpage value of the trees and then triple it as section 2 of the Act provides. Instead, defense counsel invited the jury to ignore this statutory method of determining damages and to consider the trebling effect in its determination of the value of the trees. The Act directs the fact finder to first determine the stumpage value of the trees and, after that amount has been determined, to triple it. See 740 ILCS 185/2 (West 1996). The tripling effect is not to be considered when determining the stumpage value. Thus, defense counsel made blatant misstatements of the law, and the trial court abused its discretion by overruling plaintiffs\u2019 objections.\n\u20225 Having determined that the treble damages argument presented by defense counsel in the instant case constituted error, we must determine whether the error prejudiced plaintiffs and requires reversal. In determining whether improper statements were prejudicial, we must consider their likely effect upon the jury. Ramirez, 318 Ill. App. 3d at 30.\nBy awarding $10,500 as three times the stumpage value of the trees, the jury necessarily found that the value of the trees before trebling was $3,500. However, there is no testimony to support this figure. Hall, plaintiffs\u2019 expert, testified that the stumpage value of the trees was $15,448, based on the trunk formula method, a method commonly used in the industry. Hall also stated that the replacement value of the trees was $8,350 \u2014 $6,600 for the trees at $200 each, and $1,750 for other costs, such as tree repair. Ware, defendants\u2019 expert, stated that Hall\u2019s figures were inflated, but Ware did not provide a specific stumpage value for the trees. Ware did opine that only 12 to 15 trees needed to be replanted. Ware did not provide an opinion as to the cost of planting the new trees. Therefore, the lowest possible value supported by testimony was $4,150 \u2014 $2,400 for the cost of 12 trees, using Hall\u2019s cost of $200 a tree, plus $1,750 for other costs, including repair of existing trees. Trebling this figure would result in an award of $12,450, which is $1,950 more than the jury\u2019s award in this case. The jury\u2019s award of damages for the cut trees indicates a strong likelihood that the jury accepted the formula suggested by defense counsel\u2019s improper statements