from the District Court of Ward County, North Central
Judicial District, the Honorable Todd L. Cresap, Judge.
A. Thompson (argued) and Briana L. Rummel (appeared),
Bismarck, ND, for plaintiff and appellee.
A. Owens (argued) and Daniel M. Traynor (appeared), Devils
Lake, ND, for defendant and appellant.
1] Jeff Moen appeals from a judgment awarding Jason Haider
damages for wrongful injury to timber. Moen argues the
district court abused its discretion in excluding a jury
instruction on treble damages and erred in admitting an
expert's testimony. We affirm the district court's
admission of expert testimony, reverse the district
court's exclusion of a jury instruction on treble
damages, and remand this case for a new trial.
2] Haider owns seven acres of rural property near Foxholm,
North Dakota, of which four acres are homestead and three
acres are farmland. Trees border the homestead on north,
west, and south sides. The Des Lacs River runs nearby, and
Haider's homestead has an earthen dike on the south side
for flood protection. Moen is a farmer who lives
approximately two miles from Haider's property. Before
Haider purchased the property in 2010, Moen farmed the three
acres of farmland. Haider allowed Moen to continue farming
the land and did not charge rent.
3] In September 2012, Haider left the property for over a
week. During Haider's absence, Moen removed eighteen
mature cottonwood trees from the homestead's southern
border. Moen did not contact Haider before removing the
trees. When Haider returned, he discovered the felled trees,
tire tracks in his yard, and damage to the earthen dike.
Haider observed Moen removing other trees on nearby property
and confronted Moen. Moen admitted to removing the trees as
part of a "farming operation." In July 2014, Haider
sued Moen for wrongful injury to timber, civil trespass, and
negligence in a complaint sent to Moen.
4] Haider took only his wrongful injury to timber claim to
trial. At the pretrial conference, Moen sought to exclude
testimony from Haider's tree expert, Paul Beck. Moen
argued Beck was not qualified and his testimony would not
assist the jury. Specifically, Moen argued Beck adjusted a
tree valuation formula without expertise in economics. The
district court denied Moen's motion in limine. During
trial, Moen sought to instruct the jury on treble damages for
wrongful injury to timber under N.D.C.C. § 32-03-30. The
district court denied Moen's requested instruction and
forbade Moen from discussing the treble damages provision in
5] At the close of trial, Moen argued the damages were $10,
700.00. Haider argued his damages totaled $85, 441.14. In a
special verdict, the jury found Moen wrongfully injured
Haider's trees, Haider's actual damages were $40,
500.00, and Moen's destruction of Haider's trees was
not committed under the reasonable belief the land belonged
to Moen. The district court entered judgment on September 8,
2017 for three times the damages plus $4, 597.79 in costs for
a total of $126, 097.79. Moen appeals.
6] Moen argues the district court erred by excluding a jury
instruction and preventing closing statements related to the
treble damages provision in N.D.C.C. § 32-03-30.
"The trial court has broad discretion over the nature
and scope of written questions submitted to the jury, and
appellate review is limited to determining whether there was
an abuse of discretion." Victory Park Apartments,
Inc. v. Axelson, 367 N.W.2d 155, 165 (N.D. 1985).
"A trial court abuses its discretion when it acts
arbitrarily, unconscionably, or unreasonably, when its
decision is not the product of a rational mental process
leading to a reasoned determination, or when it misapplies or
misinterprets the law." Simpson v. Chicago Pneumatic
Tool Co., 2003 ND 31, ¶ 10, 657 N.W.2d 261.
Jury instructions must correctly and adequately inform the
jury of the applicable law and must not mislead or confuse
the jury. When considering the correctness of jury
instructions, we will view them as a whole. The instructions
will be allowed if, as a whole, they fairly advise the jury
of the law on the essential issues in the case. In evaluating
whether the district court abused its discretion in
instructing the jury, we will first determine whether the
district court committed error in its instruction, and then,
if so, whether that error was harmless. Rule 61,
N.D.R.Civ.P., states our harmless-error standard in civil
No error in either the admission or the exclusion of evidence
and no error or defect in any ruling or order or in anything
done or omitted by the court or by any of the parties is
ground for granting a new trial or for setting aside a
verdict or for vacating, modifying or otherwise disturbing a
judgment or order, unless refusal to take such action appears
to the court inconsistent with substantial justice. The court
at every stage of the proceeding ...