Torts — timber trespass – damages — survey expenses

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Wisconsin Court of Appeals

Civil

Torts — timber trespass – damages — survey expenses

In this timber trespass case, the circuit court concluded that Chad and Heidi Stenberg unlawfully harvested trees from Mark and Debra Moioffer’s property, and it awarded the Moioffers $2015.40 in damages. The Moioffers contend they are entitled to recover an additional $1200 as compensation for survey expenses they incurred to determine the location of their property’s common boundary with the Stenbergs’ property. We agree that the circuit court should have directed a verdict in favor of the Moioffers on the issue of survey expenses. We therefore reverse that portion of the judgment declining to award the Moioffers survey expenses and remand with directions that the court award them an additional $1200.

The Moioffers also argue that, because the Stenbergs unreasonably refused to pay a pre-suit demand for damages, the circuit court should have awarded the Moioffers attorney fees and costs, pursuant to Wis. Stat. § 26.09(4). The court held that the Stenbergs’ refusal to pay was reasonable because the Moioffers’ payment demand exceeded the amount they ultimately received at trial. However, the reasonableness of a party’s refusal to pay a demand for damages must be assessed based on the conditions that existed at the time of the refusal, not in light of what eventually happened at trial. We therefore reverse that portion of the judgment denying the Moioffers their attorney fees and costs. We remand for the circuit court to determine, using the proper standard, whether the Stenbergs unreasonably rejected the Moioffers’ payment demand. This opinion will not be published.

2012AP50 Moioffer v. Stenberg

Dist III, Polk County, Kutz, J., Per Curiam

Attorneys: For Appellant: Miller, Steven L., River Falls; For Respondent: Anderson, Bruce P., Balsam Lake; Crahan, Jean-Marie, Milwaukee