Case of the Day – Monday, April 27, 2015

STICK IT TO THE MAN …

Tal Mims owned a rental house. He also owned a landscaping company. So when Rosemary Stills, his tenant, called to say a tree had fallen on the house, who better to come over to clean up the mess that Tal’s landscaping crew? It seemed like perfect synergy.  It also was a bit redolent of the 60s mantra,stick it to the man.” That is, if the “man” in question is a State Farm agent.

TreeonhouseBut things got worse. While the tree was being cut up, a large branch fell on the tenant’s son, breaking his leg. The tenant sued Tal, and then she added his homeowner’s insurance carrier as a defendant. Then both the plaintiff and the defendant Tal ganged up on the insurance company.

The policy pretty plainly excluded bodily injury and property damage “arising out of the rental or holding for rental of any part of any premises by any insured” and “arising out of premises owned or rented to any insured, which is not an insured location.” But Tal and Rosemary argued that while the falling tree related to the rental property, the accident — which occurred while it was being cut up — did not. Tal Mims argued rather disingenuously that he was acting on his own behalf at the time of the accident and that he was not engaged in any business pursuit or employment.

Here’s the problem, the Court said. While throttling insurance companies is something courts do fairly often, the companies still are free to limit coverage so long as the limitations do not conflict with statutory provisions or public policy. The business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. Here, the Court said, the property on which the accident occurred was never listed in his homeowner’s policy, but instead happened on another piece of property that should have been covered by its own policy. Besides, the accident happened because Tal was removing a tree from the roof of the rental house. The Court guessed that if Tal had left the tree on the roof, it would have badly affected the value of the house.

That being true, the Court said, this was pretty clearly a project related to a rental property, and pretty clearly excluded from the Tal’s insurance policy, a happy ending for common sense but not so happy for Tal and Rosemary, both of whom hoped State Farm’s deep pocket would solve their problems.

Stills v. Mims, 973 So.2d 118 (La.App., 2007). Stills rented her home from Tal and Tommie Lee Mims. Tal operated a business named Tal’s Custom Landscaping, Inc. When a storm caused a tree to fall on the roof of the home. Stills informed Tal of the damage, and he came to remove the tree. In doing so, a limb fell from the roof onto the ground and injured Stills’ son, LeWilliam. stickit150427Stills sued Tal and Tommie Lee Mims, and added State Farm as a defendant. She alleged State Farm had in effect at the time of the accident a policy covering the Mims’ actions of the defendants.

State Farm filed a motion for summary judgment asserting that the homeowner’s policy issued to Tal Mims was for his personal residence at 2508 Lindholm Street, and that State Farm never issued a policy for 604 Central Avenue, where the accident occurred. State Farm asserted that the liability and medical payments coverages provided in the policy excluded bodily injury and property damage “arising out of the rental or holding for rental of any part of any premises by any insured” and “arising out of premises owned or rented to any insured, which is not an insured location.” The trial court granted summary judgment in favor of State Farm, finding no coverage under Mims’ homeowner’s policy. Both Stills and Mims appealed.

Held: The trial court’s dismissal of State Farm Insurance was upheld. Stills argued that her claim was based on Mims’ negligence in cutting the tree down, and not on any property defect, making the insured location issue irrelevant. Both Stills and Mims asserted that the business pursuit exclusion did not apply, because Mims’ actions fell under the exception for activities ordinarily incident to non-business pursuits.

Mims denied being in the business of renting homes. He claimed that he was acting on his own behalf at the time of the accident and that he was not engaged in any business pursuit or employment. The Court noted that insurance companies are free to limit coverage so long as the limitations do not conflict with statutory provisions or public policy. Exclusions must be strictly construed against the insurer with any ambiguities construed in favor of the insured. The insurer bears the burden of proving the applicability of an exclusion to a claimed loss.

The Court said that the business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. For example, the commercial risks of a business would typically be covered by a commercial liability policy, whereas the risks associated with a rental dwelling would typically be insured by rental property insurance. The removal of the risks associated with business enterprises or rental properties helps to lower the rates of homeowner’s insurance by eliminating non-essential coverages.

Stills and Mims argue that her claim does not arise from any business pursuit by Mims, but rather, the claim is based on his personal liability and involves activities that are ordinarily incident to non-business pursuits. They cited Blue Ridge Insurance Co. v. Newman — where the Court found that such a tree mishap was covered by a homeowners’ policy – in support of their position. But the Court said Blue Ridge was different. First, plaintiff Newman’s property on which the tree was located was insured under his homeowner’s policy. Here, the house leased by Stills was not insured under Mims’ State Farm policy. Mims was not seeking coverage for an accident that occurred on his insured residence, but instead, the Court held, he sought to have his homeowner’s insurance cover an incident that occurred on an unrelated rental location that should have been insured by some other policy. The very purpose behind the business pursuits exclusion, the Court said, supported a finding of no coverage.

scamSecond, Newman’s property had been his family’s home since 1965, and had only been rented to a friend for less than a year prior to when the accident occurred. In Mims’ case, there was no indication that the Stills residence was anything other than a rental property.

Third, Newman’s house was vacant when the tree fell, whereas Stills and her son were residing in the Central Avenue home when the tree fell on it. Fourth, the damage in Blue Ridge arose when the tree from Newman’s property fell on a neighboring property. Here, the existence of the tree on the property and its falling during the storm did not cause the damage. Instead, young LeWilliam’s injury arose from Mims’ removal of the tree from the roof of the rental dwelling.

Finally, the Blue Ridge court’s major consideration was that the mere existence of the tree on the property had no bearing on the use of the property- as a rental. The fact that a tree fell on the roof of the rental home in this case, particularly if left there, would likely affect the suitability of Stills’ rental dwelling. While the existence, or maintenance, of a tree on Newman’s family property was an activity usually incident to non-business pursuits, Mims’ removal of a fallen tree from the roof of a rental dwelling by Stills was clearly not.

Pretty clever argument, the Court conceded – but State Farm was not liable.

TNLBGray

And Now The News …

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detroitmap150427Detroit, Michigan, Free Press, April 26, 2015: Detroit aims to link green with growth

What makes a city “green?” That’s a key question as Detroit digs out of decades of economic distress and rebuilds. Detroit has shown signs of revitalization, at least in its central core and in scattered neighborhoods. But will a turnaround city also be a clean and healthy city? Or could it turn into another pollution-plagued Beijing, where rapid economic growth has led to poisonous air?

Columbus, Ohio, Dispatch, April 26, 2015: Life gets unfurled by trees in spring

Spring is everywhere right now, a riot of greens, pinks and yellows blossoming on trees and popping out of the ground.
The explosion of color is a beautiful and welcome sign that winter is behind us and summer is around the corner. But by the time these flowers and leaves burst forth from their branches, a slew of highly complex biological processes have occurred, hidden from our sight. One tiny green leaf unfurling on a warm spring day requires a lot of energy from a tree that was dormant through the winter, protecting itself and its buds from freezing …

dallas1250427Dallas, Texas, Dallas Magazine, April 24, 2015 (May 2015 edition), Dallas hates trees – What’s at stake? Just an urban canopy worth $9 billion

The only barrier between Dallas’s trees and a bulldozer is Article X of the city development code. But the ordinance—on the books since 1994 and misleadingly titled “Landscape and Tree Preservation Regulations”—has never offered much resistance, which is why it has been up for revision almost from the beginning. The City Council is expected to finally vote on an amended version later this year, and an update might make it harder for southern Dallas development. But that won’t solve the city’s tree problem, because it’s not just the trees in District 4 that are in danger. They all are. In addition to a weak, development-friendly tree preservation ordinance that doesn’t actually preserve trees, there is no management plan in place for the Great Trinity Forest, and no staff in place to implement a plan if we did have one. The city has no forestry division—Dallas is one of the largest U.S. cities without one—and only hired its first forester less than a decade ago. The tree canopy is under attack in every corner of Dallas, as decades of shortsighted policy decisions begin to take their toll …

Cullman, Alabama, Times, April 24, 2015: Airport board seeks runway improvements

The Cullman Regional Airport Board is pursuing a property deal to improve the approach to the publicly owned airport’s runway and agreed to raise the pay for its manager Thursday. The board authorized its attorney to continue negotiations over three tracts of land adjacent to the south end of the runway. Cullman Mayor Max Townson, a board member, said the airport hopes to work out an agreement so trees on the land can be cut down to create a better approach to the runway. The board would also have to obtain air easements allowing aircraft to fly in the area …

Sioux City, Iowa, Journal, April 26, 2015: Mulch helps trees grow faster and other tree-growing tips

If you wish your trees would grow faster, just surround them with mulch. When my son was a kid, his 4-H project compared the growth of a maple mulched with wood chips to a nearby maple surrounded by sod. The idea of mulching a tree was new to us at that time, and we were astounded at how much faster the mulched tree grew. University and arboretum research confirms that mulched trees grow faster. On average, mulch gives a tree a gain of about 20 percent. Why? Gary Watson, who has done extensive research on the subject at Morton Arboretum in Lisle, Ill., says that when trees and grass are grown together, grass outcompetes the tree roots for soil moisture and nutrients. “There are few places in the natural landscape where both trees and grass thrive together,” Watson points out. “There is no reason we should expect them to thrive together in the landscape …”

topped150424Muncie, Indiana, Star Press, April 23, 2015: Topping trees can damage plants

Lindsey Purcell compares the pruned trees at Medical Consultants, 800 S. Tillotson Ave., to a bad haircut. “Oh, goodness,” he commented after The Star Press showed him a photograph of the topped trees at the medical multi-specialty group’s facility. “That is a perfect example of how not to prune a tree. It just kills me to see that continue in our urban forests of Indiana.” It can also kill trees, according to the Arbor Day Foundation. Friday is national Arbor Day, an annual observance celebrating the role of trees in our lives and promoting tree planting and care …

 

Albuquerque, New Mexico, Journal, April 23, 2015: Work to remove dangerous dead trees in the Carson National Forest closes Canjilon Lakes area

A chunk of the Carson National Forest, including the area surrounding the popular Canjilon Lakes, will be closed for at least the next year while officials decide how best to safely remove uncounted numbers of dead and dying trees. “More than 70 percent, 80 percent of the mature spruce, fir and aspen have been dying because of insects, diseases and drought,” said Kathy DeLucas, spokeswoman for the U.S. Forest Service. The two popular fishing lakes are about 40 miles north of Española, New Mexico. The closure will cover about 1,100 acres, with the most significant damage in an area of about 250 acres. That includes the fishing lakes and a 48-site campground. “We’re closing it for at least this year, maybe longer for safety reasons,” she said. “We have concerns about trees falling on fishermen, picnickers and campers …”

 

upper150424Lansing, Michigan, News, April 23, 2015: After U.P. energy crisis, trees could be key to peninsula’s energy future

The Upper Peninsula has been through the electricity wringer recently, leaving some Yoopers hoping for a U.P. energy solution and, well, looking around them. “We seek a U.P. solution to a U.P. problem,” said Melissa Davis, President of Keweenaw Renewable Energy Coalition, at a Michigan Energy Innovation Business Council conference this week. One thing her organization is looking at is the possibility that the U.P. could generate power from biomass, which is plant-based material that’s often a byproduct from the forest products industry.  “The forest products industry has been using the same byproduct wood fiber for their energy needs for centuries,” Melow said …

 

hammock150424Charleston, South Carolina, Post & Courier, April 24, 2015: Opinion – Healthy trees worth hammock ban

Charleston wants people to hang out in city parks, just as long as they aren’t hanging in a hammock. That’s the gist of a new ordinance given initial approval by City Council this month that would ban hammocks from the city’s public parks, recreational facilities and playgrounds. Apparently, hammock-hangers seeking peace and quiet in Charleston’s green spaces could be imperiling the very nature they are trying to enjoy. According to city officials, portable hammocks can harm trees when the straps used to attach them wear down the bark or bend trunks. Damaged bark leaves trees susceptible to disease and insect infestation. And Charleston parks are hardly alone in nixing napping between two trees. Dozens of university campuses, national parks and other public places nationwide have outlawed hammocks, citing the threat they pose to arboreal denizens. Their concern is understandable …

 

Laguna Beach, California, Coastline Pilot, April 24, 2015: District looks into removing newly planted trees

The Laguna Beach Unified School District board is considering removing some or all of the 80 trees planted around the Laguna Beach High School baseball field after neighbors complained about potential view blockages and fire hazards. The board directed district staff Tuesday to research costs to remove the trees planted on 60,000 square feet of slope along St. Ann’s Drive and Wilson Street. Crews planted five types of trees last fall but residents have called for their removal. The neighbors are most concerned about 10 lemon-scented gum trees, a kind of eucalyptus, and 10 coast live oaks, for their potential heights. Lemon-scented gums can reach 90 feet tall while the oaks can rise 70 feet, according to a district staff report. Residents are also leery of 18 red flowering gum trees because they claim flowers stain the sidewalks and the trees also drop sap …

 

Omaha, Nebraska, KETV, April 23, 2015: Arborists discuss warning signs for trees

Arborist T.J. Clark, of Green Tree Company, is trying to figure out how to get a massive tree off a Glenwood home. He was amazed by the force of the impact. “I’ve been doing trees for 28 years, and this is probably the most damage I have seen to a house,” Clark said. “This one actually went all the way through into the basement. It actually splintered all the floor joists in the basement.” A rotten crotch of the tree was the cause of the disaster. “Basically, water just gets in there, and it sits and it decays over time,” Clark said. This can happen to older trees …

 

Big 10 Network, April 24, 2015: University of Maryland works to save trees in College Park and beyond

It’s National Arbor Day, and people across the country are taking time to acknowledge the importance of trees and forests. However, the University of Maryland celebrated the holiday a bit early this year for a couple of reasons. First, the state’s official Arbor Day is always designated as the first Wednesday in April (also the first day of the month this year). The second reason was that Maryland was among a select few institutions recognized by the Arbor Day Foundation’s Tree Campus USA program for its commitment to urban forest management and engaging staff and students in conservation goals in 2014. The school achieved that honor by meeting all of Tree Campus USA’s five standards. Those include maintaining a tree advisory committee, a campus tree-care plan, an annual budget for maintaining that plan, an Arbor Day observance and student service-learning project. But the university’s advocacy for trees extends beyond College Park. One of the best examples of that is the ongoing research being conducted by University of Maryland professor Safa Motesharrei and his colleagues. Their recent paper, published in Nature Communications, argues that global deforestation is having a negative impact on climate change and agriculture …

 

arborday150422Rockford, Illinois, Register Star, April 21, 2015: City of Rockford hopes to plant 1,000 trees in 2015

The city of Rockford hopes to plant 1,000 trees this year as it continues efforts to make up for lost canopy caused by the destructive emerald ash borer. But the forestry department needs to hear from residents who want new trees in their parkway to reach that goal, said Mark Stockman, the city’s street and forestry superintendent. Friday is Arbor Day, a holiday on which people are encouraged to plant  trees. Mayor Larry Morrissey and city staff celebrated early  with a planting celebration at an elementary school in southwest Rockford. Students helped plant two tulip trees near the school’s entrance. The tree is named for its large, bright orange and yellow flowers that resemble tulips. But it takes years for the tree to mature to the point where it flowers.  “You’ll probably be in high school before you see the first flowers on these trees,” Stockman told students. “But in the meantime, you’ll need to take good care of them …”

 

Idaho Falls, Idaho, KIDK-TV, April 22, 2015: Firefighters: Remove trees to protect home from wildfires

Wildfire season is fast approaching and local firefighters say the vast majority of homes in eastern Idaho are at extra risk because of one thing you may not have considered: trees and other plant life. Firefighters with the Pocatello Fire Department are recommending homeowners build a 30-foot defense zone around their homes in which they remove all flammable materials. “You have to think of, ‘What do I have around my house that might help the fire spread?’” said Tom Sanford, assistant chief of public safety at the Pocatello Fire Department. Dead leaves, pine needles, twigs and wood stacks are prime kindling, Sanford said. He said trees are another threat most people don’t think about. “If you have trees near your house, the trees will catch fire and they produce a lot of BTU – heat output – and they’ll start your house on fire,” said Sanford …

 

building150422Forbes, April 22, 2015: May the forest be with you: Using whole trees in building construction

If there was ever a way to combine high tech and high touch as John Naisbitt stated in High Tech, High Touch, his 1999 follow-up to his 1982 bestseller Megatrends, “embracing technology that preserves our humanness”, WholeTrees Architecture & Structures of Madison, Wisconsin epitomizes it. WholeTrees is an innovative company that has hit it out of the park in terms of innovating on technology while providing a substantial impact return, all while having one of the most gorgeous and aesthetically pleasing product lines you’ll ever see. WholeTrees uses trees as turn-key structural systems in commercial and residential building construction. Until you see the photos, however, the description doesn’t do justice to the warmth of their offering …

 

Chicago, Illinois, Sun-Times, April 23, 2015: 157 million Chicago-area trees improve life and the environment

Trees absorb carbon and produce oxygen, clean pollutants from the air, reduce energy cost and flooding, and provide habitat for wildlife. They add character to our communities, increase property values, reduce crime, and improve health and wellness. There are 157 million trees in the seven-county Chicago region. When you tally the dollar value of the energy saved, pollution captured, and carbon stored by trees, it adds up to $242 million annually. And you can’t put a price on the beauty and pleasure they provide in over-scheduled, technology-driven lives …

 

Burlington, Vermont, WCAX-TV, April 22, 2015: Burlington arborist tracks trees with new digital database

How many trees do you pass in a day and not even notice? For one man in Burlington, that’s almost impossible. And now with the help of a new high-tech radar tracking system and digital database, the details are one click away … On this Earth Day, the focus is on the new. Crews delivered Princeton variety trees to North Beach Wednesday. It’s a type of American elm that is resistant to Dutch elm disease, a disease that destroyed about 10,000 trees in Burlington by 1980 …

 

vangogh150422

Van Gogh would have been right at home in Naptown.

Indianapolis, Indiana, WXIN-TV, April 20, 2015: Indianapolis man says his ear was bitten off while fighting with a neighbor

An Indianapolis man says his ear was bitten off after a neighborhood feud went too far. “If I bit his ear off, I’m sorry. This wouldn’t have happened if he would have just left us alone like I asked him to,” said Frank Walton. “The only thing that is left of my ear is the inner part and my lobe,” said Michael Bragg. Bragg says he fought with Walton on Saturday. He claims it stems from the numerous noise complaints he has filed against Walton in the past. “It looked like someone bit it, chewed it and spit it out,” said Bragg.  “Every neighborhood has got your bad apple in the barrel. Unfortunately, ours lives right across the street,” said Bragg …

Stevens Point, Wisconsin, Journal, April 21, 2015: County resident wants compensation for trees

A Portage County resident upset that the highway department cut down trees from his property is requesting compensation for his losses. Dennis Laidlaw filed a claim against the county for $159,564.06 after multiple trees were cut down on his property, including an oak tree that was approximately 150 years old, according to the claim. The County Board denied the claim at its Tuesday meeting, referring it to the corporation counsel’s office.  Portage County Highway Commissioner Nathan Check said the county sent notices to people along Highway X who would be affected by the planned brush and tree removal to clear the right of way. He said the right of way is measured 33 feet from the center of the road …

drought150422Bakersfield, California, The Californian, April 21, 2015: Caltrans: Freeway trees may perish from drought

Two weeks before a state board considers requiring 30 percent cuts from local water agencies, a Caltrans official said Tuesday the agency has reduced its water usage by about half in the Bakersfield area. John Liu, Caltrans’ director of maintenance and operations for District 6, which includes Bakersfield, said that equates to a savings of hundreds of millions of gallons districtwide. But he warned a Keep Bakersfield Beautiful committee the region’s trees are dry from the drought and some may die. “We don’t want the trees to die, but they are going to be under some stress, especially if we have a hot summer,” Liu told members of KBB’s freeway litter program ad hoc committee …

Cincinnati, Ohio, Enquirer, April 22, 2015: Trees, like pets, require maintenance

The storm season is here and a fallen tree claimed its first victim (“Woman dead after tree crushes car” April 20). The question is, how do we keep such a tragedy from occurring? Much of it depends on proper tree maintenance. When the summer heat comes, are the trees in our yard watered for a sufficient period of time for the water to penetrate the lower levels of soil, which encourages the tree to put down deeper roots? If not, a windstorm may fell the tree because its roots have grown shallowly. Have an arborist (tree doctor, not your local door-to-door cut-your-tree-down guys) visit to check the general health of the trees and follow the arborist’s feeding recommendations. Yes, trees need nutrients. If not, storm damage may come in the form of split or broken trunks similar to the one that killed the woman on Reading Road. Insect damage must be treated or the strength of the entire tree is at risk …

Scientific American, April 21, 2015: Cutting down trees may save a sprawling forest

Following years of debate surrounding the project, top Forest Service officials yesterday hailed a key step forward for the nation’s largest forest restoration initiative. The agency yesterday announced that Coconino National Forest Supervisor Earl Stewart and Kaibab National Forest Supervisor Mike Williams have signed the final decision document for the Four Forest Restoration Initiative’s first environmental impact statement (EIS). It is the largest restoration project ever analyzed in the agency’s history, the Forest Service said. The Four Forest Restoration Initiative, or 4FRI, is a public-private collaborative project initiated in 2010 that ultimately aims to thin 2.4 million acres of dangerously overgrown ponderosa pine forest in northern Arizona …

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New York City, Daily News, April 20, 2015: Falling trees fatally crush women in Cincinnati and Atlanta

Two freak accidents involving falling trees, some 460 miles and hours apart, claimed the lives of two women in Cincinnati and Atlanta over the weekend, officials said. Jacqueline Carr, 65, was cruising in her Chevy up Reading Road in Cincinnati’s Bond Hill neighborhood around 3:40 p.m. Sunday when a massive tree uprooted and fell directly on her car, crushing her. In a completely unrelated incident, around 2:30 a.m. Monday, a massive oak tree crashed onto a house sitting along Oakcliff Road in northwest Atlanta, killing a 60-year-old schoolteacher, family told WSB-TV. Patricia Pusha was crushed but her brother, who lives in the basement, escaped, a neighbor told the TV station …

Cedar Grove, New Jersey, April 20, 2015: Summonses issued after dozens of trees removed from Cedar Grove Reservoir

A Hawthorne-based tree service company and a Newark city official have been summoned to appear in Cedar Grove Municipal Court after failing to obtain a permit to remove trees surrounding the Cedar Grove Reservoir.  In total, an estimated 50 trees were removed near the curve where Reservoir Drive turns into Normal Avenue, according to John D’Ascensio, the code enforcement official who wrote the complaints. While the Cedar Grove Reservoir is owned by Newark, the city must still follow Cedar Grove ordinances. “The thing that’s kind of discerning is the fact that you have a facility there, you didn’t suddenly wake up one morning and say, ‘We’re going to cut the trees,'” D’Ascensio said. “There were bids involved I’m sure, there were all kinds of processes. Just call the town and give us a heads up …”

DCtrees150421Washington, D.C., Washington Post, April 20, 2015: D.C. has 13,000 open spots for trees. Here’s how you can fill them

In Ward 1, there are 162 empty tree boxes designed to have a tree planted in them. In Ward 5, that number skyrockets to 3,728 empty tree boxes.These numbers come from the District Department of Transportation’s Urban Forestry Administration, which is responsible for maintaining and increasing the number of trees in the city’s public spaces.  District resident Emanuel Feld, 23, culled through this city data to create an interactive map in which residents can see where the city has vacant tree boxes and lodge a request with the city to plant some. The site, GetDCTrees.org, launched Wednesday and Feld hopes it results in a more equal distribution of trees throughout the District …

Huffington Post, April 20, 2015: A thousand angry women say no to genetically engineered trees

On March 5th, a thousand angry women descended on a facility in Brazil where the biotechnology company, FuturaGene, was growing genetically engineered eucalyptus trees. Later that day, a meeting of the Brazilian Biosafety Commission (CTNBio) was scheduled to announce their decision about whether or not to allow commercial release of the GE eucalyptus. The women, members of the Brazilian Landless Workers Movement, or MST, and several other social movements in Brazil were angry. They broke into the facility and ripped up tree seedlings. They made clear their determination to prevent the release of GE eucalyptus because they have direct experience with the harms resulting from existing large plantations of non-GE eucalyptus, and they know that faster-growing engineered trees will have even greater impacts …

The Street, April 20, 2015: Landscape Concepts Management addresses the shortage and rising cost of trees

Trees are in high demand. During the recession nursery growers planted fewer trees and many nurseries went out of business. Prices were low, tree inventories were high, and for the last two years that cycle has been reversing itself. When arborists closed their nurseries due to the weak economy, they had an abundance of trees that weren’t sold, which meant their production decreased. Now that the economy is stronger we have a shortage of trees and an abundance of “buyers …”

pollen150420New York City, New York Magazine, April 17, 2015: ‘Pollen Tsunami’ and too many male trees will cause allergy season to be worse than normal

This week, New Yorkers emerged from their darkened studio apartments, blinking and stretching, to greet their first 70-degree day since October. But as the cotton dresses and sandals are resurrected from storage, so too are the eye drops and bottles of Allegra. “Although spring is off to a slow start, now we are starting to see catch up when it comes to a massive pollen surge, the ‘double whammy’ that combines tree and grass pollen, peaking over mid spring and beyond,” said allergist Dr. Clifford Bassett, who noted “this year’s season will be one of the toughest in years.” Why, exactly? Dr. Bassett points to a number of factors. First off, heavy winter precipitation means the soil and roots of allergenic plants are especially hydrated, priming them to release higher levels of pollen than after a dryer winter. But because temperatures have been so cold recently, plants haven’t begun to bloom yet. Doug Simonian, a lead forecaster with NY Metro Weather, said that colder temperatures have delayed the onset of allergy season, but “as soon as we get into a more rainy and warm pattern everything that’s been kind of holding back could really start to explode around early May or so.” Dr. Bassett calls this phenomenon the “pollen tsunami”: Once it’s warm enough for plants to bloom, tree-pollen production will also coincide with the onset of grass allergies, meaning sufferers will be forced to cope with two different powerful allergens at once …

North Platte, Nebraska, KNOP-TV, April 20, 2015: Trees planted in fire-damaged areas of Nebraska Panhandle

More than 40,000 trees are being planted in northwest Nebraska again this spring to help the area recover from the 2012 wildfires. Crews from the Nebraska National Forest and Grasslands have planted 41,300 seedlings this month in areas that were heavily damaged by fire. The plantings are part of a 10-year plan. Last year, 42,500 seedlings were planted, and another 40,000 trees will be planted next spring …

pinebark150420Valdosta, Georgia, Daily Times, April 19, 2015: City of Valdosta removes infested trees

“Moonlight through the pines” could be a memory without the proper action. Valdosta City Arbor Division staff removed three trees from Station Four of the Valdosta Fire Department Thursday. Valdosta City Arborist Kevin Jenkins took charge of the operation. The staff observed dying trees on Station Four’s property at the corner of Jerry Jones and Gornto during a routine monitoring to evaluate trees. Jenkins’ staff investigated and concluded the dying trees were under attack by Pine Bark Beetles. The most obvious sign of a tree’s death is its fading canopy. For weeks after the initial attack, the tree canopy turns from green to yellowish-green to red …

Hamilton, Montana, Ravelli Republic, April 18, 2015: Protect those trees: Hamilton arborist creating urban forest management plan

Sylvia McNeill likes to say that trees are hiding in plain sight. After all, most people take trees for granted. They’ll make sure to keep their lawns watered and then mow it once a week, but hardly take notice of the decades-old tree that’s the centerpiece of their landscape. “The only time that people take trees into consideration is when the leaves begin to fall or they start bumping their heads into a branch when they are mowing their lawns,” said the longtime Hamilton arborist. “It’s a love/hate relationship.” McNeill is hoping to change that for the people who live, work and play in Hamilton. The city of Hamilton has decided that it needs to develop an urban forestry strategic management plan focused on the nearly 1,600 trees it owns along the edge of city streets. The plan’s goal is to provide a tool for the city to efficiently and cost-effectively maintain and enhance its urban forest resource …

Des Moines, Iowa, Register, April 17, 2015: Courtyard more important than saving two trees

Many articles have been written about the reasons why Iowa State University plans to remove two historic trees from its campus [“ISU students fight to save historic trees,” April 8]. A demand for student housing and site being set aside (according to the 1991 Campus Master Plan) for “future student housing” are two of the more popular excuses that have been produced. In a response letter, President Steven Leath wrote, “We had three firms look at ways to designing the building to meet our needs and minimize impacts to the site and all three designs impacted the these trees.” What is not clear is what exactly “our needs” are and what specifically was told to KWK Architects regarding the trees. After meeting with Pete Englin, the director of residence at ISU, the reason for the removal of the trees became apparent. The upper administration is responsible for specific site plan decisions of this development. They valued the building layout and a “contiguous courtyard” as more important to the site design than saving either of the trees. They knew these trees existed and their history could have required the architect to build around them. But, Englin explained, they had other priorities …

nyc150417Fast Company Magazine, April 16, 2015: All of New York City’s 592,130 trees, mapped

For a big, concrete-laden city, New York has plenty of foliage. At last count, there were 592,130 trees sprouting from the asphalt, and that doesn’t include parks and cemeteries. You can see most of them mapped in these lovely visualizations, created by Jill Hubley, a Brooklyn-based web designer, using the city’s 2005 tree census. “I was interested in creating a spatial distribution so that one could see the overall trends at a glance, or focus on a particular neighborhood or block,” she writes …

Science Daily, April 16, 2015: Flourishing faster: How to make trees grow bigger and quicker

Scientists at The University of Manchester have discovered a way to make trees grow bigger and faster, which could increase supplies of renewable resources and help trees cope with the effects of climate change. In the study, published in Current Biology, the team successfully manipulated two genes in poplar trees in order to make them grow larger and more quickly than usual. Professor Simon Turner from the Faculty of Life Sciences led the research: “The rate at which trees grow is determined by the rate of cell division in the stem. We have identified two genes that are able to drive cell division in the stem and so override the normal growth pattern …

bonsai150417Hampshire, Massachusetts, Daily Gazette, April 16, 2015: The bonsai trees of King Street shouldn’t look that way

Having worked to maintain the city’s “Tree City USA” designation as a member of the former Northampton Tree Committee and landscape architect, I was disheartened to notice the widespread hacking that occurred to the trees at the Lia car dealerships — not just for the trees themselves, but for the adverse impact it will create along the King Street corridor. These plantings were presented in a site plan to the Planning Board to satisfy the city’s requirement for “shade trees” (per zoning ordinance requirements), further illustrated in the “Highway Business District Landscaping Standards.” A shade tree by definition is one planted or valued for its shade; these are necessarily larger growing species, suitable as street trees in creating both a visual and functional effect. In my experience, I know the Planning Board would not allow smaller-growing or even most medium-sized trees to satisfy this requirement. There appears to be little justification for such drastic and unconventional pruning and topping practices, and no respectable arborist can justify such work …

Woodlands, Texas, Bay Area Citizen, April 17, 2015: Holes in trees: Hazards or harmless?

Hazardous trees pose a danger to people and property. When storms or high winds hit, limbs – and often whole trees – fall to the ground. “Many fatal accidents and millions of dollars in property damage can be averted if homeowners heed the warning signs of a hazardous tree,” explains Tchukki Andersen, BCMA, CTSP* and staff arborist for the Tree Care Industry Association (TCIA). “By not paying attention to your trees, you are potentially placing your property, even your life, in jeopardy.” Fortunately, one can often read the clues that indicate a tree is prone to failure. For instance, if a tree has large branches attached with tight, V-shaped forks, you should consider having those branches removed or lightened. Other warning signs of structural instability include cracks in the trunk or major limbs, hollow and decayed areas, or the presence of extensive dead wood. Mushrooms growing from the base of the tree or under its canopy may be a sign of root decay. Remember to be thorough in your evaluation; the absence of fungus growth does not necessarily mean the tree is healthy …

Rochester, New York, WHEC-TV, April 16, 2015: East Rochester village officials to remove hundreds of trees that could be dangerous

It was just a case of a man being in the wrong place at the wrong time, but a freak accident two years ago has officials making changes now to keep you safe. You might remember, back in 2013, when a Pittsford man was killed after a tree fell on top of his car while he was driving in East Rochester. Officials said the tree was diseased, but there was really no way to know that just by looking at it. Now the village says there are hundreds more that could be dangerous. The village is now working to remove those trees. Officials say they wish they didn’t have to do this, but it all comes down to safety. Jenny Lloyd says, “I am devastated, I love this park …”

beaver150416Fargo, North Dakota, Forum, April 15, 2015: To save trees, Park Board approves beaver cull

Experts will begin trapping and killing beavers living along the Red River this fall or next spring, in an effort to spare trees from the animals’ teeth. The Park Board on Tuesday voted unanimously to approve the cull, which will be handled by the U.S. Department of Agriculture. Beavers have been chewing into too many trees, causing financial damage and much consternation, park officials said. “Ever since I’ve been here, we’ve known there’s been beaver damage to our trees,” Parks Director Dave Leker told the Park Board. “It’s just gradually, over the past five years, getting worse …”

Mother Earth News, April 15, 2015: Help your trees by burning firewood

Home heating is a significant cost for those living in the Catskills, Hudson Valley and New York State. Residents that are able to save on this cost will have more money to allocate towards other things: home improvement projects, planting fruit trees inside a deer exclosure, building a greenhouse, or even buying healthier food. Currently, the predominant choices for home heating are electric, fuel oil, kerosene, natural gas, or wood. As a Forester and Arborist, I know there are plenty of trees; they may not be where we want them or as healthy as we’d like, but they are there nonetheless. Contrary to what some may perceive, forests in New York State are growing two to three times faster than they are being harvested. The misperception probably is derived from the fact that most of the state’s residents originate from more populated regions where development is all too familiar. In upstate New York, farm abandonment occurred throughout the 20th century. Although sunlight is no longer used to fatten cows upon lush pastures for butter and milk, its energy is being stored in other ways; wood …

Sioux Falls, South Dakota, Argus Leader, April 15, 2015: Jury: $160,000 for trees killed by herbicide

Richard Krier had a plan when he bought his land south of Hartford in 1968. “I love pine trees. My father took me out to the Black Hills on a hunting trip when I was 19 years old, and I’ve loved them ever since,” Krier said. “I thought, ‘If I ever get some property, I’m going to line it with ponderosa pines.’ ” That’s why Krier got so upset when he caught sprayers with the Hartford Farmer’s Elevator pelting fields of herbicide-resistant crops to the north and west of his property with a Round-Up-style weed killer in June 2010. More than 200 ponderosas along the edge of his acreage were dead within a year. The trees beyond the property line survived. He blamed the herbicides, but the elevator owners blamed “saturated soil.” Last week, a jury awarded Krier almost $160,000 to pay for clean-up and replacement of the trees …

Salem, Oregon, Statesman Journal, April 15, 2015: You can have lots of trees, but not be a Tree City

Trees are widespread enough that their presence is assumed. One might also assume that recognition for trees would be common in east valley cities. Not so. As Arbor Day approaches (April 24), Oregon Department of Forestry announced the state’s celebrated “Tree Cities,” 56 total — no North Santiam Canyon and few east valley towns are on that list. East-valley exceptions are Lebanon, Sweet Home, Gervais and Oregon City. Why so few? The answer probably lies within the Tree City criteria more than, say, a lack of viable municipal tree empathy …

Durango, Colorado, Herald, April 15, 2015: ‘Trees aren’t sitting ducks’

Once one hears about the more than 100 bark beetles native to Colorado, who enjoy fine dining on our trees, it becomes amazing we have any forests at all. Dan West, the entomologist for the Colorado State Forest Service, presented the family tree of bark beetles attacking different trees in our forests and ideas of how homeowners can see what’s happening on that property Wednesday at the La Plata County Fairgrounds. One tip: Don’t stack green, uncured firewood under or next to trees, because any insects inhabiting the firewood can migrate to the trees. “But trees aren’t sitting ducks out there,” Colorado State Forest Entomologist Dan West told about 30 people who attended a forest-health workshop Wednesday evening at the La Plata County Fairgrounds. “They’re defending themselves. Healthy trees will flush resin out a duct, and when a female beetle tries to get in and lay her eggs, she’ll get stuck and die.” The problem that is leading to so much die-off in places such as Wolf Creek Pass is that many trees are not healthy because of the lingering drought – they’re stressed …

wasp150415East Lansing, Michigan, Michigan State University, April 14, 2015: Trees and drought:As Michigan’s climate continues to change, summer drought frequency is expected to increase in length and severity

Drought affects trees in a variety of ways depending on many conditions. Water stress may kill a tree or, more commonly, predispose it to a wide variety of ailments. Some of these ailments may not become visible for several years. Root systems draw water from the soil. That water moves throughout the tree to maintain chemical reactions in the living cells. As trees respire, water is expelled and “leaks out” through small pores in the leaves, twigs, branches and trunk. During dry periods, the larger humidity difference inside and outside the tree causes increased water loss. Higher temperatures accelerate cell metabolism, which requires additional amounts of water. The response to water stress involves closing the many small pores and drawing more water from the soil …

Sacramento, California, KOVR-TV, April 14, 2015: California drought forces Modesto farmer to uproot healthy trees after 27 years

A Modesto grower is digging up his walnut trees as California’s drought becomes more severe. Last summer, Paul Wenger thought his grove was strong enough to handle another drought. Instead, a reduction in water allocations this year has him forced to take down the old trees in order to give his new trees a chance at surviving the drought. Wenger took down the trees on Tuesday 27 years after he planted them. There’s nothing wrong with the trees, and they still produce walnuts. But Wenger’s irrigation district by nearly 30 percent.  “We really don’t have groundwater availability,” he said. We’re waiting for a couple of wells to get drilled. So with 16 inches we need to be able to salvage some of the water from these orchards for our other orchards.” Cutting back on watering isn’t possible. Wenger says walnut trees need to stay hydrated up until September’s harvest ...

exeter150415Exeter, UK, Express & Echo, April 15, 2015: Exeter trees mapped from space as part of ground-breaking pilot scheme

Exeter’s trees are being mapped from space. Space age technology is being used to help pin-point trees in Exeter as part of a ground-breaking pilot scheme. As part of the Space for Smarter Government Program Exeter City Council has secured £38,000 of funding from the UK Space Agency to help develop a tree management system that will allow officers to report the exact location and details of fallen or damaged trees in the city. The system uses satellite positioning, navigation and timing technology, which is able to pick up natural objects such as trees. If the scheme proves successful it could be expanded further so that members of the public can use it on smartphones or mobile devices …

San Diego, California, KGTV, April 14, 2015: Old Town project to wipe out rare trees

Old Town residents are upset that a city improvement project that will remove nearly two dozen rare trees. Spanish Pepper trees have lined Juan Street for upwards of a century. All twenty of them are slated to be removed and replaced with new trees. One of them is on Mike Armstrong’s property. “So now we are going to take out these trees that need little to no watering and replace them with new saplings that are going to require a lot of watering,” said Armstrong. The city is in the middle of an $8 million infrastructure project. The water main, storm drain and sidewalk are all being replaced. The digging will cut right through the tree roots. The city has not confirmed what type of trees will go in their place. Neighbors argue the situation makes no sense. “Here, we’re trying to save water, and here they’re going to have to water the new trees a lot because they would be new trees,” said Ken Ralph, who lives nearby …

New York City, Transmission & Distribution World, April 14, 2015: Jersey Central P&L trimmed trees along 3,300 miles of power lines in March

Jersey Central Power & Light planned to trim trees in 60 municipalities during March to help maintain proper clearances around electrical equipment and help prevent tree-related damage. The work is part of JCP&L’s approximately $24 million tree trimming program that will be performed in 2015 along more than 3,300 miles of lines across its 13-county service area in northern and central New Jersey. “Our tree trimming program is one of the proactive steps we take to help reduce the number of outages our customers might experience,” said Anthony Hurley, JCP&L vice president of Operations. “Tree trimming work makes a difference. In 2014, we saw a 22 percent decrease in tree-related outages compared to the previous year, which we attribute mainly to the tree maintenance work we have done in the past.” JCP&L’s tree trimming program is conducted by certified forestry contractors including: Aspen Tree Expert Company, Asplundh Tree Expert Company, Davey Tree Expert Company, Jaflo Inc., Lewis Tree Service, and Nelson Tree Service Inc. …

prune150414Las Vegas, Nevada, KVVU-TV, April 13, 2015: 300 trees accidentally pruned to roots at Vegas park

It’s being called a mix-up. Over the weekend, hundreds of trees were accidentally pruned at an historic site in Southern Nevada. On the south side of Floyd Lamb Park at Tule Springs, about 300 trees were trimmed to roots. The city of Las Vegas is now dealing with the damage. On Saturday, about 100 youth and adult volunteers cleaned that area of the park. They were tasked with picking up trash, pulling weeds and pruning. They went a bit too far. “It was just a big misunderstanding in regards to the communication lines. The group thought they were doing exactly what they thought they were told to do, and city staff didn’t think they followed exact instructions,” Las Vegas Councilman Steve Ross said …

LaCrosse, Wisconsin, April 13, 2015: City of La Crosse trying to keep downtown trees alive

The city of La Crosse is looking to make improvements to the trees in the downtown area. Over the years, the trees have suffered through space limitation, lack of food, and vandalism. City engineers are trying to improve the area around the trees with larger tree boxes and water permeable concrete. It’s part of the city’s streetscaping and improvement plan. The goal is to give the trees a better chance to survive for years to come. “We’re really focusing on those sections of streets where we’ve seen multiple trees in a row that are now longer in place and replacing with some of those trees maybe not all of them, but the ones we are replacing them with have a higher quality of local environment and a better chance of surviving,” said Matthew Nett with the city …

Orlando, Florida, WKMG-TV, April 13, 2015: Fungus killing palm trees statewide

Ersi Braun told Local 6 she misses her three towering queen palms, not only the shade but also the beauty. “The crown part was not growing and everything around it was just falling off,” said Braun, a resident of Casselberry’s Lakehurst subdivision. Braun had three queen palms, each of them 14 years old. She called in an expert to diagnose the wilting and was told she had to cut them down. “The beauty of the home was gone,” said Braun. “Because the palm trees in this state, that’s what’s beautiful to look at.” Braun’s trees likely suffered from a fungal infection known as Fusarium Wilt. According to the University of Florida IFAS Extension, Fusarium Wilt affects the queen palm and the Mexican fan palm …

Butte, Montana, Montana Standard, April 14, 2015: Essex man sentenced for stealing 1,000-plus trees from forest

An Essex man has been fined $5,000, placed on probation for a year, and ordered to pay $11,420 in restitution for cutting down more than 1,000 trees in the Flathead National Forest. Charles McAlpine pleaded guilty to cutting trees on public lands and aiding and abetting the same in January. He was sentenced in federal court in Missoula last month. The U.S. Forest Service estimated the value of the timber at almost $37,000. Court documents indicate McAlpine’s property abuts the Flathead National Forest. They also say McAlpine claimed the trees were infested with beetles, and the Forest Service had been slow in implementing a fuel reduction program. The Forest Service says McAlpine sold the publicly owned timber for firewood …

eab150413Chicago, Illinois, Sun-Times, April 12, 2015: City focuses on planting as more trees lost to emerald ash borer

The arrival of spring marks the start of forestry officials’ yearly battle against the destructive emerald ash borer, an invasive species of beetle that could eventually claim all ash trees. In the years since the beetle was found in Illinois, the city has spent considerable resources treating trees for the infestation — while the county forest preserves and the Chicago Botanic Garden have focused more on tree removal. The city Department of Streets and Sanitation completed the inoculation of all viable parkway ash trees in 2014, according to department spokeswoman Molly Poppe. After a break to let the treatment work, the process will begin again in 2016 …

San Antonio Express-News, April 13, 2015: Old trees turned to mulch for SAWS pipeline project

Rancher Edgar Castillo wasn’t happy when he learned that the San Antonio Water System wanted to use part of his rustic property in South Bexar County for a massive water pipeline. Things got worse when he found out that the route cuts through his favorite part of the property: a densely wooded area that Castillo said he had preserved for wildlife habitat. “They cut almost all of it,” Castillo said after SAWS contractors arrived on Easter Sunday to start clearing an 80-foot-wide strip of trees and brush along the eastern edge of his land on Campbellton Road. “And I’m not saying they cut the trees and used the wood for lumber or something,” Castillo added. “They used these mulching machines that just wrap around a tree, and in a matter of minutes the tree’s gone. It’s all mulch.” While tree-protection ordinances in San Antonio compel real estate developers to preserve at least some trees, Castillo complains that an arm of the city — SAWS — is destroying habitat and ignoring other options. “I asked them, ‘Why can’t you just go 8 feet on the other side of my fence into this property that has less trees?’” he said …

scale150413Charlotte, North Carolina, Observer, April 11, 2015: Urban bug wars heating up on oak trees of the Carolinas

If you’re swatting at more insects this summer in the city, you might blame the pavement. Sidewalks, along with other urban fixtures like parking lots and buildings, are contributing to a misbalance between two of nature’s rivals: pest insects and the predatory bugs that normally keep each other’s population in check. It’s the heat these surfaces absorb that’s causing the issue. Cities are inherently warmer than rural areas because they have fewer plants to provide shade. The more asphalt, concrete and brick – the more heat, and in some cases, the more pest insects, like P. quercifex, which thrive in warmer conditions …

Albuquerque, New Mexico, KRQE-TV, April 10, 2015: Mistletoe killing trees at New Mexico lake

They breathe life into the world, but trees at one New Mexico lake have had the life taken out of them. They are being attacked by an invasive killer, and drastic measures are being taken to stop the plague. Escondida Lake in Socorro has a little less shade these days. Seven trees surrounding the lake had to be cut down, and the culprit is a Christmas staple. Mistletoe, a poisonous parasite, is killing the trees, primarily cottonwoods. “I noticed the last 15 to 20 years, I noticed the mistletoe, but I never thought anything of it that it was killing the trees,” said Michael Jojola, Socorro County’s Facility Director of Maintenance and Solid Waste. He hopes another 18 trees in danger will survive. “We cut them down to try to save them, and 90 percent of the trees we cut on top were hollowed out, so we’re hoping that these trees will retake again,” Jojola said …

Santa Rosa, California, Press-Democrat, April 12, 2015: Developer plans to fell dozens of old oak trees in Windsor

More than three dozen large oak trees, a few estimated to be 300 years old, are on the chopping block to make way for Bell Village, the large Windsor residential project that has rekindled a debate over the pace and intensity of growth in Sonoma County’s youngest city. The loss of the trees to pave the way for 387 apartments proposed by Southern California developers is particularly painful in a town that has a stately valley oak as its logo and proudly displays banners with images of the trees and acorns. Several Town Council members last week toured the site of the former Windsorland trailer and RV park where Bell Village is planned, specifically to get a better grasp of the tree removal concerns being voiced by some of their constituents. Councilman Sam Salmon, the most vocal critic of Bell Village, calls the removal of the oaks wholesale destruction and was critical of the project’s layout and design for not sparing more trees …

Columbus, Ohio, WBNS-TV, April 12, 2015: Thousands of central Ohio ash trees succumbing to borer

Central Ohio has been especially hard hit by the ravages of a killer insect that has destroyed tens of thousands of majestic ash trees the last few years. The Columbus Dispatch reports that American Electric Power has a crew dedicated to cutting down dead and dying ash trees before they fall on power lines. AEP took down 13,000 ash trees last year alone.
The city of Columbus has spent about $4.5 million to remove 17,000 ash trees since 2011. The removal of 450 ash trees on a city golf course has dramatically altered its layout ...

rescue150410High Point, North Carolina, WGHP-TV, April 9, 2015: Firefighters train to rescue victims out of trees ahead of busy season

With spring comes severe weather; and with severe weather, come downed trees. Firefighters in the Piedmont Triad want to make sure that, if downed trees put someone in danger, they’re ready to rescue them. “One of the reasons [why] fires are so dangerous, is because [they are] unpredictable and trees are the same way,” said Winston-Salem Fire Captain Eric Compton, who also owns Compton’s Tree Service. Compton’s company was hired by the city of Kernersville to clear some trees at Fourth of July Park. Compton used this opportunity to use the trees as a platform for training Winston-Salem and Kernersville firefighters to rescue people stuck in trees. Compton says every year at least 120 deaths result from people doing tree work across the United States. He says many times, homeowners attempt to do the tree work on their own, and if they’re not properly trained or don’t have the right equipment they can get in trouble within seconds …

Little Rock, Arkansas, KARK-TV, April 9, 2015: Traps set in Arkansas for insects known to destroy trees

Purple prism shaped boxes are hanging high in the branches of three trees on the University of Arkansas campus. The boxes are not for decoration. They are traps intended to catch the half-inch long bugs known as emerald ash borers. The emerald ash borer, an invasive insect from Asia first discovered in the U.S. in Michigan in 2002, was discovered in southern Arkansas in August 2014. In September, the Arkansas State Plant Board imposed an emergency quarantine in 25 counties to slow spread of the tiny green beetle …

blossoms150410Washington, D.C., Smithsonian Magazine, April 9, 2015: Washington D.C.’s cherry trees are very good at planning for the future

On March 26, 1912, a donation from Japan arrived in Washington, D.C. ― 3,020 ornamental cherry trees, sparking one of the biggest springtime annual attractions in the capital city: the viewing of the cherry blossoms. But planning to see them can be tricky, since the peak blooming time is completely driven by the weather, and can change from year to year. However, according to Greg Huse, an arborist with Smithsonian Gardens, the blossoms are on the trees almost the entire year. “The blooms that people come to see each spring were actually created almost a year earlier. In the late summer and early fall, the tree begins to release a protein called an FT protein, which triggers the tree to start forming new flower buds for the following year. The buds are fully formed by the time the tree goes dormant in the winter …

Seattle, Washington, KING-TV, April 9, 2015: SLU residents fight to save mature trees

It’s a branch of the city that’s become an urban jungle filled with a particular type of bird. “Five yellow cranes right in the middle, four of them you can see from here,” said Hellmet Golde, peering out a window at the Mirabella Retirement Community off of Denny Way. “There’s development on every block, from Denny Way to Valley,” said John Pehrson, who, along with Golde, has lived at Mirabella for the past six years. The men, aged 88 and 85 respectively, say they’ve been fascinated at the growth. But when they saw the plans for a new complex across the street, they weren’t smiling. “There is very little green space,” said Pehrson, as he pointed down to the small pocket park on Fairview. “It seems like a travesty to take down trees that are 70 years old in the middle of this development.” Those trees are part of a small private park near The Seattle Times old headquarters. A Canadian developer Onni had submitted plans to bulldoze the trees as part of a massive mixed use development. Pehrson, Golde and a group of Mirabella residents cried foul. “It gives shelter to the birds and it’s important for ecological reasons,” said Hellmet. They also vowed to take extreme measures, even for a pair of octogenarians …

sturbridge150409Worcester, Massachusetts, Telegram & Gazette, April 7, 2015: Sturbridge is warned: Trees under siege

Sturbridge’s longstanding tree warden believes the Common is being beaten to death by public use and, if the town doesn’t drastically change its ways, there will be no large trees for future generations to enjoy. Thomas A. Chamberland, tree warden since 1984, gave that grim forecast during Monday night’s selectmen meeting — the same forecast he’s been giving for several years. “If we don’t drastically change how we do things on the Common, we won’t ever leave a 3- or 4-feet in diameter tree for the future generations to enjoy on the Common,” Mr. Chamberland said. “They will just never grow because there is nothing you can do to keep them and have them grow and have the activities at the level that we are currently seeing, never mind … increasing on the Common …”

Lewiston, Idaho, Tribune, April 8, 2015: Logging of dead, burned trees in Idaho forest discussed

The Nez Perce-Clearwater National Forest wants to salvage logs from thousands of acres burned in last summer’s Johnson Bar Fire near Lowell. The agency is seeking public comments on a draft environmental impact statement that would allow loggers to harvest dead trees on 2,300 to 2,900 acres and yield an estimated 20 million board feet of timber …

motel150409Ann Arbor, Michigan, News, April 8, 2015: City concerned about proposed hotel’s impact on landmark trees

The Ann Arbor Planning Commission postponed voting early Wednesday morning on a proposed extended-stay hotel on South State Street. The city’s planning staff recommended the postponement to allow the developer additional time to address landscaping and engineering issues, including concerns about the impact to a number of landmark trees. Pennsylvania-based Stellar Hospitality wants to build a 134-room Staybridge Suites hotel with a freestanding retail building on the east side of State Street south of Research Park Drive ...

Walnut Creek, California, Contra Costa Times, April 8, 2015: Campaign renewed to stop disease killing Northern California oak trees

Scientists tracking the spread of the Sudden Oak Death disease in Northern California are renewing their campaign to involve residents in spotting outbreaks, especially in highly susceptible bay laurel trees that spread the infection to oaks. In the largest “Sudden Oak Death Blitz” to date, researchers are seeking help in 21 coastal California communities from San Luis Obispo to Mendocino County this spring. The invasive disease is killing California’s tanoak, coast live oak, California black oak, Shreve’s oak and canyon live oak trees in California. It is the primary cause of tree mortality in coastal California, with more than 3 million trees having died in 15 counties, including Alameda, Contra Costa, Marin, Monterey, Napa, San Mateo, Santa Clara, Santa Cruz and Solano since its discovery in the mid-1990s, according to a news release from the California Oak Mortality Task Force …

Saginaw, Michigan, WNEM-TV, April 8, 2015: DNR responds after camper upset over dozens of trees cut down

A local man is upset because he said the Department of Natural Resources ruined the beauty of two Mid-Michigan campgrounds by cutting down too many trees. “This is where we were planning on having our big family camping trip this year,” Jon St. Croix said. He is no longer planning to bring his family to the state forest in Gladwin County, because the campgrounds don’t look or feel the same after dozens of trees were cut down. Rick Myrick, a forester for the Michigan DNR, said there have been two major issues with the trees. Some of the trees were identified as hazardous. While removing the hazardous trees, crews found large holes in others. Those holes are evidence of oak wilt, a fungal disease that typically infects red oaks. “At the forest level it’s a difficult disease to eradicate so we had to take some pretty proactive measures,” Myrick said …

sidewalk150408Los Angeles, Los Angeles Times, April 7, 2015: Opinion Los Angeles, fix the sidewalks but save the trees

After years of neglect, Los Angeles is about to begin a nearly $1.4-billion effort to repair miles of cracked and busted sidewalks. The big question is what the city will do with the trees that caused the damage in the first place? Can Los Angeles keep its big trees and have smooth sidewalks? Most of the city’s sidewalks were broken by trees and tree roots. When Los Angeles was built, developers planted large fast-growing species, like the American Sweetgum, Evergreen Ash and Southern Magnolia, without considering or preparing for the fact that these giant trees would eventually become too large for their little square of dirt next the sidewalk …

New York City, New York Times, April 8, 2015: Indian police shoot and kill 20 said to be illegally cutting down trees

The Indian police and forestry officials on Tuesday fatally shot 20 loggers whom they suspected of illegally cutting down endangered red sandalwood trees, whose wood can be sold in China and Japan for hundreds of thousands of dollars a ton. Government officials offered varying explanations of the killings, which were condemned by activists and political figures as an excessive use of force …

drone150408London, UK, RT Network, April 8, 2015: Green side of drones: Flying bots may plant 1 billion trees a year

An Oxford-based startup has an ambitious plan to combat deforestation by planting 1 billion trees a year by using drones. BioCarbon Engineering is exploring new precision planting methods and mapping techniques to achieve this goal.  “We are going to change the world 1 billion trees at a time,” said CEO and former NASA engineer Lauren Fletcher

Des Moines, Iowa, Register, April 7, 2015: ISU students fight to save historic campus trees

Iowa State University students read about the planned removal of two historic trees on campus in The Des Moines Register last week and took action to try to stop it. Senior Jenna Kurtz said she was so upset that she launched a petition on change.org which has gathered more than 1,600 supporters in five days. A “savethetrees” Facebook page was also started. Numerous comments questioning the plan were listed under a quote from environmentalist and author René Dubos: “People shape themselves through decisions that shape their environment …”

Nashville, Tennessee, The Tennessean, April 7, 2015: Robertson County man falls 18 feet while trimming trees

A Robertson County man was flown to Vanderbilt University Medical Center Tuesday after he fell some 18 feet from a ladder while trimming trees in his yard, emergency workers said. The victim, 58-year-old man whose identity has not been released, was awake and talking when first responders arrived at the scene, but he had lost consciousness prior to their arrival, according to Robertson County Emergency Medical Services Assistant Director Russell Gupton. “He was leaning to trim a branch on a tree near the house, and the ladder was extended to about 18 feet,” Gupton said. “When he trimmed one of those limbs, it caused the ladder to become unstable. The ladder fell and he fell with it …”

drought150407Sacramento, California, KXTV, April 6, 2015: Lacking water, valley growers rip out trees

Business picks up for tree removal professionals when growers can’t get all of the water they need for their orchards because of the drought. Video report …

Madison, Wisconsin, Wisconsin State Journal: Does tapping maple trees cause harm?

Does tapping maple trees cause harm? Springtime is the season for tapping maple trees for sap that will be turned into sweet maple syrup. Maple trees are not harmed by the tapping process unless a tap is deeper than 2 1/2 inches into the tree, where it is possible to hit the heart of the tree, said Gretchen Grape, Wisconsin Maple Syrup Producers Association executive director. When tapping a tree, there should be a complete hands-length away from a previous tap entry point to keep the tree healthy and free from unnecessary stress, Grape said …

San Diego, California, KPBS-TV, April 6, 2015: Urban trees can have second life as lumber

We all know trees provide shade, shelter for animals, and filter pollutants from the air. But what is the best use for landscape trees after they are cut down? Palomar College cabinet and furniture technology department professor Jack Stone explained how urban forestry extends the usefulness of trees. “If we plant the right trees, and we plant them in the right places, we can use those trees as trees as we’re used to,” Stone said. “But then when they reach the end of their useful life we can harvest them, mill the lumber into useable lumber, and then use it as product …”

Lompoc, California, Record, April 7, 2015: Evergreen trees have their place

Deciduous trees that were bare all winter are now foliating and making shade. They sure will be appreciated when the weather gets warmer through summer. They will defoliate next autumn, in time to let warming sunlight through while winter is cool. Their lifestyles are naturally compatible with those of the people who live with them. They really have the system down. Evergreen trees are good at what they do as well. They obscure unwanted views and provide privacy all year. If given adequate space and located far enough away from the home and neighboring homes, their shade should not be a problem. Like any other feature in the landscape, properly selected and strategically placed evergreens are quite functional …

Tahoe150406Reno, Nevada, Gazette-Journal, April 5, 2015: Tahoe hotel owner fined for removal of trees

A Lake Tahoe hotel owner has been fined $40,000 for removing four mature pine trees because he wanted to enhance the resort’s lake views.The Tahoe Regional Planning Agency Governing Board last week approved a settlement agreement with James Demetriades, owner of the Landing Resort and Spa in South Lake Tahoe, California. The deal also requires Demetriades to plant four Jeffrey pines in “similar locations” where the trees were cut down …

Times of Trenton, April 4, 2015: Letter: Don’t sacrifice trees and wetlands for solar installation

The Sierra Club opposes the proposed clear-cutting of environmentally sensitive forests at Six Flags for a solar array. Paul Mulshine not only got it wrong in his column “Tree-huggers pine for leveling a forest” (April 2), but he didn’t call us for our position. The Sierra Club believes that cutting down forests for solar panels undermines clean energy. We support renewable energy, but we have to do it right. The proposed solar site contains bald eagle habitat, high-quality wetlands and important headwater streams for Barnegat Bay. Not only will the site carry nutrient pollution from animals at Safari Park, but pollution from the solar farm will enter the bay. We should not be sacrificing clean water for solar. Cutting 18,000 trees will add more flooding and emissions, since the original trees absorbed carbon and cleaned our air. Six Flags plans to re-plant the trees, but it will take at least 30 years for the forest to return to its original state …

Quartz, April 5, 2015: This designer doesn’t make chairs. He grows them—from trees

Can nature prove to be the best furniture designer? Early prototypes of chairs growing from a field in Derbyshire in the British countryside is showing exciting possibilities. “We’ve taken a complete rethink of how wood is used as a material,” said designer Gavin Munro. His production method upends traditional furniture manufacturing processes that involve cutting down trees, trucking logs, sawing the wood, then gluing back them together, generating a lot of industrial and ecological waste in the process …

chair 150406San Diego, California, XETV, April 2, 2015: Something is killing San Diego’s iconic oak trees

More than 100,000 oak trees in San Diego County have been devoured by an invasive, non-native beetle. The goldspotted oak borer beetle is killing San Diego’s oak trees by burrowing into the trees, and hatching it’s larvae that restricts the water and food conducting tissue in the tree. The insect is thought to have hitched a ride in firewood purchased from Arizona, and biologists say Pine Valley is Ground Zero for the infestation. Researchers say the beetle is not a pest in Arizona, because it has effective natural predators to keep the population in check. But, California has no known predators, therefore the beetles are becoming rampant. The drought it making things worse; the warmer temperatures and the lack of rainfall from the climate change continues to weaken the region’s oak trees …

The Easterner, April 5, 2015, EWU campus mall trees are gone – what’s next?

Walking through the campus mall today, I noticed something different. The cherry blossoms that so beautifully filled the mall are now gone, feeling empty and unwelcoming. One of the things I always tell people about Eastern is we have a beautiful campus and when families visit, they are impressed by what they see. Between the oranges, yellows and reds of fall and the pinks and greens of spring, campus is beautiful for a good chunk of the year. I can’t help but wonder why such a big part of campus would be made to look so boring. It’s upsetting. There are some parts of campus that need to be spruced up a bit. Right outside of Patterson Hall there is a hole in the ground and next to it, lying on the ground, is a car barricade …

Looking for an older news story we featured on this page?  Check our Prior News Links page.

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Case of the Day – Friday, April 24, 2015

LOOKING FOR THE DEEP POCKET

deeppocket150424In the legal world, a “deep pocket” – or sacculus profundis for you Latin scholars out there – is a defendant who possesses the wherewithal to pay a big damage award and who has the misfortune to be related to the plaintiff’s claim sufficiently to get a court to order the purse to be opened. Generally, the deeper the pocket (and the greater the dearth of alternative deep pockets), the more willing a plaintiff is to stretch the claim to encompass the deep pocket’s participation. Today’s case illustrates the point.

The Nelsons needed to have their trees trimmed, so they called Julian Rodriguez Landscape and Tree Service, the same tree service they and their neighbors had used many times before. The outfit seemed competent and efficient, and the Nelsons found over the years that they could simply tell the tree service owner what they wanted, and he’d make the decisions on how to do it.

During the course of the Nelsons’ dealings with Rodriguez Landscape, no one had ever asked whether the company was licensed. That, after all, was more a state requirement than a practical one. Julian Rodriguez Landscape and Tree Service did good work, and the price was right. What more does a homeowner need to know?

On the day in question, however, things didn’t go so well. Luis Flores, one of Julian’s workers, was using a polesaw when it came into contact with a high voltage line, killing him. Unsurprisingly, investigation bore out that Rodriguez Landscape had cut a few corners, technicalities such as obtaining a state license and paying workers’ compensation on its employees. Sadly, the late Mr. Flores left a family was left without a breadwinner, and no money would flow from workers’ comp to compensate the survivors for their loss.

Luckily for the Flores next-of-kin, they hired a creative personal injury lawyer whose ad probably ran on daytime TV and appeared on the back of the phonebook.  Their lawyer correctly identified the Nelsons and their homeowners’ insurance policy as the only money tree available for trimming by the Flores family.  Thus, he put together a wrongful death action for the family that argued that (1) under California workers’ comp law, homeowners who hire unlicensed contractors are deemed employers of the contractors’ workers for workers’ comp purposes; and (2) an obscure California criminal statute made workers and employers criminally liable if any tools came within six feet of a high voltage line. Therefore, the Flores’ legal theory went, the Nelsons – as de facto employers of Mr. Flores – were liable to his family because he died when he touched the high voltage line.

The Flores family couldn’t sell this very creative theory to the trial court, but the California Court of Appeals loved it. Unhappy with the gossamer thin argument connecting them to Mr. Flores’ accident, the Nelsons took the issue to the California Supreme Court.

The California Supreme Court let reason prevail. The purpose of the statute, the Court said, was to protect third parties from injury because a tree trimmer’s equipment comes into contact with a high voltage line. The statute was never intended to protect a worker who foolishly contacts a power line by letting him or her collect from the employer for the worker’s own negligence.  That being the case, the Court said, it wasn’t necessary to figure out whether the homeowners would be considered Mr. Flores’ employer as a matter of law.

Proper use of a polesaw ... which did't happen in today's case.

Proper use of a polesaw … which did’t happen in today’s case.

A lesson here:  In California – in fact, anywhere – a prudent homeowner will make sure the arborist or tree service contractor is licensed, regardless of whether a license has anything to do with competence or skill.  And service providers should volunteer to customers proof of their credentials, not just because it looks professional, but because it’s the kind of attention to detail now that helps avoid lawsuits then.

Julian Rodriguez didn’t pay attention to detail, and the Nelsons never asked.  Years of expensive litigation resulted, and at the end of the day, the Flores widow and kids were left destitute.  In fact, the only people who were better off for it all were the lawyers.

Ramirez v. Nelson, 44 Cal. 4th 908, 80 Cal.Rptr. 3d 728, 188 P.3d 659 (Sup.Ct. Cal. 2008). Homeowners Thomas and Vivian Nelson had a number of trees, including a large eucalyptus tree, in their back yard. Every few years, Southern California Edison trims the eucalyptus tree trimmed so that its branches do not reach the very visible high voltage electrical lines that run above the tree. When Southern California Edison’s tree trimmers gave the Nelsons notice they would trim the eucalyptus tree in 2004, but failed to show up when they were expected, the Nelsons hired Julian Rodriguez Landscape and Tree Service — an unlicensed contractor, although the Nelsons didn’t know this — to “top” and trim several trees in their backyard, including the eucalyptus tree. The Nelsons and their neighbors had used Rodriguez Landscape four or five times in the past to top and trim trees, and everyone thought the company did professional work trimming trees.

The Nelsons left it to Rodriguez’s good judgment as to how, or to what height, to top and trim the trees, and they neither supervised the trimming, nor did they furnish the tools for the job. A few hours after the job began, Mrs. Nelson heard men shouting and saw them running to the eucalyptus tree. She went out onto her deck, and saw tree trimmer Luis Flores hanging in the eucalyptus tree from his safety harness. He had been had been killed by electrocution when his polesaw – made of aluminum and wood – contacted the power lines.

Luis’s family sued the Nelsons, alleging negligence and wrongful death. The Flores argued that the Nelsons knew the high voltage lines constituted a dangerous condition on their property, knew the utility company responsible for the power lines had in the past trimmed the tree on which the decedent was working when electrocuted, and knew or should have known Rodriguez and his workers were unlicensed contractors. Nonetheless, the Flores asserted, the Nelsons negligently failed to warn or act as reasonable homeowners would have acted under similar circumstances in contracting with Rodriguez to trim the tree in question.

The Flores family argued that California Penal Code §385(b) made it a misdemeanor for any person, either personally “or through an employee,” to move any tool or equipment within six feet of a high voltage overhead line. They contended that the late Mr. Flores had been the Nelsons’ employee by operation of law under Labor Code §2750.5, making the Nelsons vicariously liable for any breach of the duty of care embodied in the law.

The Nelsons argued they had hired Rodriguez Landscaping to perform domestic tree trimming services, that Mr. Flores was contractor Rodriguez Landscaping’s employee, not theirs; that they didn’t owe him a duty of care under §385(b), and that the duty of care owed to him was simply that of reasonable homeowners acting under circumstances similar to those giving rise to the fatal accident.

Mr. Flores’ status as the homeowners’ “employee at law” under Labor Code §2750.5 was pivotal to the contested claim that the homeowners should be found liable. The trial court refused to allow the plaintiffs to refer to Mr. Flores as the Nelsons’ employee, and refused jury instructions on Penal Code §385(b) or plaintiffs’ proposed negligence per se theory of the case.

The jury found for the Nelsons.

The Court of Appeal reversed the judgment, concluding Mr. Flores was the Nelsons’ employee at law under Labor Code §2750.5, and that Nelsons were liable for violating the statutory duty of care embodied in Penal Code §385(b). The Nelsons appealed to the Supreme Court of California.

Held:  The Nelsons were not liable. The Supreme Court held that even if they were deemed to be the employers of Mr. Flores because they had hired an unlicensed contractor to trim trees — for purposes of liability for workers’ injuries — they owed no statutory duty of care under Penal Code §385(b).

Under the test for a statutory presumption of a failure to exercise due care based on violation of a statute, the Court said, a trial court must determine as a matter of law whether the death or injury resulted from an occurrence of the kind which the statute was designed to prevent, and whether the person suffering the death or the injury was one of the class of persons for whose protection the statute was adopted. If a plaintiff is not within the protected class of persons that a statute was designed to protect, or if the injury did not result from an occurrence of the nature which the transgressed statute was designed to prevent, then the statutory “negligence per se” doctrine has no application to the negligence claim.

The

The “reasonable man” – he wears both a belt and suspenders.

Here, the statute prohibiting moving tools and equipment within six feet of power lines augments the common law “reasonable person” standard of care owed to the general public with regard to the activity of moving or operating equipment in close proximity to power lines, by setting forth a standard of care making it a misdemeanor to move or operate tools and equipment within six feet of a power line, and by assigning strict liability for its violation.

The standard of care imposed by the statute amplifies the duty owed by people using tools or operating equipment near power lines to anyone in the world at large who might be injured by such conduct. However, it did not protect Mr. Flores from himself, and it certainly did not create a separate duty or standard of care owed by an employer to an employee engaged in the operation of tools or equipment in close proximity to high voltage lines. The statutory standard did not prescribe any particular course of conduct employers must take, or refrain from taking, in order to ensure their employees’ safety, or establish any standard of conduct with regard to supervision of employees engaged in such activity.

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Case of the Day – Thursday, April 23, 2014

THEY’RE BA-A-A-ACK!

judge140724Yesterday, we reported on the 2008 Gertz v. Estes decision, in which the Gertzes were told to remove their 8-foot tall “spite fence.” Why anyone thought that people who built nail-studded fences, peered at their neighbors with an array of surveillance cameras that the NSA would covet, or heckled the Estes family with a PA system, would be impressed with a court order is a good question. You can just hear them through the loudspeaker:Court order? I don’t need no stinkin’ court order.”

A “spite fence,” after all, isn’t something that one constructs accidentally, or even negligently. Why the Gertzes should be expected to pay attention to some old fool in a black robe …

Hadrian's Wall - Did the Picts think it was a "spite fence?"

Hadrian’s Wall – Did the Picts think it was a “spite fence?”

Ever since the first recorded “spite fence” – not including Hadrian’s Wallwas first used by San Francisco millionaire Charles Crocker to try to force a neighbor to sell his property for the construction of the Crocker Mansion – “spite fences” have required intent.

You have to intend to harass a neighbor with the fence. And if you set out to harass and oppress, it’s not terribly likely that you’re going to be brought up short by some man or woman in a fancy black robe.

Charlie Crocker's fence (highlighted in orange) - definitely a "spite fence."

Charlie Crocker’s fence (highlighted in orange) – definitely a “spite fence.”

The Gertzes ignored the 2008 court order until the Estes family dragged them back into court. That was when the Gertzes suddenly announced that they had lopped off the top two feet of the fence. Now it was only six feet tall, studded with nails and festooned with more surveillance devices than the 38th parallel. “Gee,” the Gertzes told the trial court, “now it’s under seven feet – guess it’s not a ‘spite fence’ anymore.”

The Court did what courts do – used procedural rulings to achieve substantive ends. The Court ruled that the Gertzes were trying an “end run” on the prior decision, when they should have raised the reduced height on appeal. Thus, the Gertz motion was thrown out. The Court made clear that the Gertzes’ real problem was that they hadn’t read the 2008 order carefully: it wasn’t the height of the fence alone, it was the intent and the ugliness that made it a “spite fence.” It was still a “spite fence,” albeit it a shorter one. The fence still had to go.

Gertz v. Estes, 922 N.E.2d 135 (Ind.App. 2010). The unsavory neighbor Gertzes had been told to take down the “spite fence” which separated their home from the Estes property. The fence was a doozy, too – while the Gertzes had gotten permission from the town to build a 7-foot tall fence, they had put up an 8-foot fence just a few inches from the property line, studded it with thousands of nails protruding on the Estes side, painted “no trespassing” and “do not climb” notices all over the fence, and equipped the structure with surveillance cameras. There was a PA system, too, which the Gertzes used to make disparaging comments to and about the Estes family on various occasion.

The Berlin Wall - President Reagan could have said, "Mr. Gorbachev - tear down this 'spite fence'!"

The Berlin Wall – President Reagan could have said, “Mr. Gorbachev – tear down this ‘spite fence’!”

After a bench trial, the trial court found that the “fence was maliciously erected and now maintained for the purpose of annoying the Estes family” based upon the “course of conduct exhibited by Gertze [sic] toward Estes.” Holding that the fence was thus a nuisance, the court ordered the Gertzes to remove it. For good measure, the judge found that the “surveillance of the Estes property and the use of a loudspeaker to harass and annoy Estes constitute[d] an invasion of privacy” and said that all had to go, too.

The Gertzes appealed the trial court’s order, arguing that: (1) the trial court erred by applying the “spite fence” statute to them because they had obtained a local permit for the fence; and (2) the trial court erred by finding that the fence was unnecessary and that the public address system was used to make disparaging comments about the Estes family. The trial court was upheld in Gertz v. Estes, 879 N.E.2d 617 (Ind.Ct.App.2008), and the Indiana Supreme Court denied further review.

On September 12, 2008, the Esteses filed a petition for rule to show cause. The Esteses alleged that the Gertzes had failed to remove the fence, cameras, or public address system and had continued to harass and threaten them. The Gertzes answered by asking the trial court to let them remove the top one foot of the fence rather than the entire fence. The Gertzes said they had already removed the top two feet of the fence, so it was no longer a “spite fence.”

The trial court found that cutting a foot off of the top of the fence didn’t comply with the prior order, because the fence’s height was only one of the factors making it a spite fence. The trial court concluded that the “fence is, and remains, a nuisance.” The Gertses appealed.

Held: The Gertzes’ reduction of the fence’s height didn’t matter: the fence had to go. The Court noted that Indiana Code Section 32-26-10-1, which governs ”spite fences,” provides: “A structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.”

Now this is a spite fence.

Now this is a spite fence.

The Court held that the Gertzes were just asking for a mulligan. Their petition was really just a motion for relief from the 2008 judgment under Indiana Trial Rule 60(B), and that rule won’t serve as a substitute for a direct appeal. The Gertzes filed a direct appeal of the trial court’s order requiring them to remove the fence. Although the trial court’s remedy of removal of the fence was an issue available to them, they did not raise any argument on appeal about keeping the fence if they only reduced the height.

What’s more, the trial judge’s order that they remove the fence was not based solely upon the height, but instead on a variety of factors. The appellate court held that the Gertzes showed nothing justifying the extraordinary remedy of modification of the trial court’s judgment.

Meanwhile, the Estes – who had had enough of the expensive litigation – argued that they were entitled to appellate attorney fees because the Gertzes’ appeal was meritless. The court was hesitant to award such fees where the appeal was not “utterly devoid of all plausibility.” The Court said that although “the Gertzes’ brief fails to fully comply with the Appellate Rules and that their argument on appeal fails, we cannot say that their arguments were ‘utterly devoid of all plausibility’.” It refused to order the Gertzes to pay the Esteses’ fees, but cautioned “the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees.” The Court “encourage[d] the Gertzes to fully comply with the trial court’s order and protective orders.”

Good luck with that.

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Case of the Day – Wednesday, April 22, 2015

LIKE A GOOD NEIGHBOR

Would you rather have your insurance agent appear?  Really?

Would you rather have your insurance agent appear? Really?

The Estes, like the rest of us, have probably seen those insipid commercials where the insurance-challenged protagonist sings a major insurance company’s jingle offkey, and his or her local agent magically appears. It never made much sense to us. Meaning no disrespect to insurance – which after all is just a transaction in which you bet something bad’s gonna happen to you, and the insurance company bets it won’t – but if we could warble a stanza and have someone appear, it sure wouldn’t be an insurance agent.

Back to our topic. The article in today’s And Now the News about an Indianapolis man having his ear bitten off by his neighbor made us think about truly rotten neighbors, you know, the ones without community relations teams and emergency satisfaction 800 numbers. The Estes probably have less of an idea of what a good neighbor is than most people, except to suspect it sure isn’t the people next door to them, the Gertzes. The Gertzes are a little bit weird, and we don’t mean that in a good way.

A dispute about a suburban boundary line ended up with the Gertzes training a battery of surveillance cameras on their former friends, the Estes. If that wasn’t enough, Mrs. Gertz began using a loudspeaker to hurl insults — rather graphic ones which left the court blushing — at the Estes daughters. And then there was the fence.

Robert Frost said that good fences make good neighbors, but he hardly had this fence in mind: an 8-foot tall monstrosity painted orange and black, studded with thousands of protruding nails and large warnings against climbing and trespassing painted on the Estes’ side like so much gang graffiti. In fact, the whole thing looked rather more like the Berlin Wall come to Hebron, Indiana.

LlamasThe Estes sued under the “spite fence” statute. The Gertzes protested that they hadn’t built a spite fence, but rather just a modest enclosure to protect some delicate saplings they had planted, as well as to permit the raising of alpacas and llamas. After all, they didn’t want any errantly roaming cattle to gnaw on the young trees or, for that matter, to let the llamas and alpacas flee to return to South America. The Court wasn’t convinced. After all, the Gertzes’ permit application called the fence “residential,” not “agricultural.” Second, the fence didn’t enclose the young trees, making it useless as a cattle barrier. Finally, the cameras, the loudspeaker and the studded fence — not to mention the testimony of deteriorating relations between the plaintiff and defendant — made it clear to the Court that the fence was erected maliciously.

Alpacas

The Gertzes could hardly let their alpaca herd hotfoot it back to Bolivia, now, could they?

The Gertzes also tried a creative technical argument that because a permit had been issued for the fence, the Indiana “spite fence” statute had been trumped by local approval. The Court noted that the permit was for a 7-foot fence, not the 8-foot plus fence the Gertzes had put up, and anyway, a local permit did not excuse compliance with the statute.

So the court settled matters, and everyone kissed and made up. There was lemonade toasts all around, right? Lest you think that, stay tuned tomorrow for … [drum roll] … Gertz v. Estes, the sequel.

Gertz v. Estes, 879 N.E.2d 617 (Ct.App. Ind., 2008). Oh, the neighbors from hell! David and Nichelle Gertz started out liking their neighbors, Douglas and Susan Estes, but that fell apart. David and Nichelle had multiple surveillance cameras trained on their neighbors — even when they purported to get along — but after the boundary line was disputed, things got so bad that the Estes notified the Gertzses that they intended to install a fence, but before they could do so, the Gertzses built one of their own. The Gertzses applied for and obtained a local permit to build a 7-foot high fence, but the final fence was 8 feet high, 720 feet long, and with thousands of nails protruding on the Estes’ side up to a half inch. The words “NO CLIMBING” and “NO TRESPASSING” were painted in orange and black on the middle horizontal slat, and two more cameras — for a total of seven surveillance cameras — were installed on top of the fence.

cameras

The Gertzes also used a public address system to aggravate the Estes, including making “lewd comments” to the Estes’ daughters, which the Court blushingly refused to repeat in the opinion. The Gertzes called the sheriff at least eighteen times to report various activities of Douglas and Susan Estes.

The Estes sued under Indiana’s “spite fence” statute for removal of the fence. The Gertzes testified that the fence was necessary to protect eighteen-inch tree seedlings they had planted. The fence did not enclose any area, but the Gertzes said they intended to enclose the fence at some point so that they could raise llamas, alpacas, or sheep. The trial court found that there was “no justifiable or necessary reason for the fence installed by [David and Nichelle] to exceed six (6) feet . . .” Furthermore, it found that “the fence was maliciously erected and now maintained for the purpose of annoying [Douglas and Susan].” The trial court ordered the fence removed, and the Gertzes appealed.

SurveillHeld: The fence had to go. The Court found that the evidence and the reasonable inferences drawn from it fully supported the trial court’s findings. As to the Gertzes’ defense that it was for agricultural purposes, the Court observed that their permit application indicated that the “use” of the fence was “residential” and the fence did not form an enclosure, making it useless for livestock. The Court said that the Gertzes’ conduct and the extraordinary nature of the fence overcame David’s assertion that the 8-foot fence was intended to protect eighteen-inch tree seedlings.

Likewise, the fact that a local permit was granted to build a 7-foot wooden fence parallel to the property line did not trump the “spite fence” statute. That statute defines as a nuisance any fence unnecessarily exceeding a height of six feet and maliciously erected for purpose of annoying neighbors. This fence exceeded six feet unnecessarily, and clearly resulted from a deteriorating, antagonistic relationship between the Gertzes and their neighbors. The nails on fence protruding between quarter- and one-half inch from the fence and the surveillance cameras clearly supported the finding that the fence was built out of malice, and was therefore a nuisance.

The Gertzes wisely didn’t challenge the trial court’s order that the PA system had to go, too.

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Case of the Day – Tuesday, April 21, 2015

MURRELL II – WINNING THE BATTLE BUT LOSING THE WAR …

So many say.  But it's their clients who are driving the train ...

So many say. But it’s their clients who are driving the train …

Those fun-loving Murrells of Rolling Hills, California, are back for an encore prformance! The couple’s quixotic effort to hold their condo association liable for all sorts of alleged backroom dealing and breach of trust in cutting down their trees to improve the view of their neighbors, the Fullers, was covered in our Case of the Day for April 20, 2015 (funny, it seems like only yesterday). Lest you think that the decision we covered was the end of the saga, we bring you Murrell II, the Very Expensive Sequel.

If you’re the kind of person who remembers what kind of mayo was on your sandwich at lunch a week ago last Thursday, you’ll recall that the Rolling Hills Community Association held an easement across the Murrell’s’ property for “[r]oads, streets, or bridle trails, parkways and park areas[, p]oles, wires and conduits for the transmission of electricity…; [p]ublic and private sewers, storm water drains, land drains, and pipes, water systems, water, heating and gas mains or pipes; and … [a]ny other method of conducting and performing any public or quasi-public utility service or function on, over and under the surface of the ground.” The easement gave the Association the right to trim or cut trees within its limits. The Fullers, whose view of the ocean was obscured by the Murrells’ trees, convinced the RHCA to trim back some of the Murrells’ trees and whack down a few others, so that they could enjoy the million-dollar vista they had paid for when they bought their place.

That’s “long story short.” The actual history of the tortured litigation and thundering herd of parties is byzantine with a small “b”, and is amply (if not completely) recounted in the full opinion. The Murrells ended up suing the Fullers, the RHCA, and an individual member of the RHCA board (who was seemingly picked at random). There were counterclaims and crossclaims. When the 2007 dust settled, the board member was dismissed, and judgments or pieces of judgments were rendered against the RHCA and the Murrells. Board member Donald Crocker was held not to have breached any duty. And a judge ordered the Murrells to pay more than $700,000 in legal fees for the Fullers and RHCA.

And you thought that it was confusing if you missed a couple episodes of Downton Abbey!

Naturally, everyone appealed. And that brings us to today’s 2011 decision.

Recollect that the Murrells argued the RHCA had no right to cut down trees to improve someone else’s view. In today’s case, they added the argument that the community association should have been equitably estopped from cutting down the trees because it had approved the Murrells’ construction of an addition to their home with a wall of windows, and the Fullers had not objected. Both parties, the Murrells contended, had lulled them into building something that depended on their trees for privacy, and the defendants could not fairly be allowed to strip their privacy away by cutting down those trees, even if it otherwise had the legal right to do so.

The Court of Appeals made short work of the Murrells’ latest lament. First, it concluded that the easement let the RHCA cut down trees for any reason it liked. As for the “equitable estoppel” argument, the judges held that “[t]he Murrells fail to cite pertinent authority that RHCA should be estopped from removing a tree on its easement because of the Murrells’ addition plans.” The decision was not elegant, but then, the Court pretty clearly thought the argument was so foolish as to not deserve much analysis.

Much of the remainder of the decision is dedicated to the Murrells’ complaints about how much they were forced to pay for the RHCA’s and Fullers’ attorneys. The lengthy recitation is mind numbing (unless you happen to be a lawyer, in which case $250.00 an hour for a second-year associate who carries your briefcase is a “feel good” story).  The Murrells ended up winning $30,000 from RHCA and nothing from the Fullers. It cost them $500,000 in legal fees for themselves and another $492,000 in the defendants’ legal fees, all to fight for their recently departed Aleppo pine tree.

pyrric140710“Another such victory and I am undone!” King Pyrrhus is reputed to have said. So could the Merrills. At the same time, most of us find it difficult to imagine being able to drop $1.6 million on a legal battle over some trimmed trees.

Oh, to live in Rancho Palos Verde Estates. Or at least to be able to afford to do so …

Murrell v. Rolling Hills Community Association, Case No. B202019 (Ct.App. Cal., Jan. 31, 2011). A contentious and costly feud over trees and a neighbor’s view has spawned multiple legal actions, cross-actions, five appeals and two cross-appeals. To obtain an unobstructed ocean view, the Fullers wanted certain trees on “the Murrell property” trimmed or removed. The Murrells, who sought to preserve privacy, resisted. So began a decade-plus dispute.

After many attempts to mediate, the case went to trial in 2007. The Fullers obtained judgment in full against the Murrells in the amount of $10,000, and the Murrells obtained judgment in the amount of $30,000 against RHCA on RHCA’s breach of its covenants, conditions and restrictions (CC&Rs) and breach of fiduciary duty.

The Murrells incurred $892,000 in attorney fees. They were awarded $400,000 as attorney fees against RHCA but were ordered to pay $159,000 as attorney fees to RHCA on a separate claim and $334,000 as attorney fees to the Fullers.

The Murrells claimed the CC&Rs did not authorize RHCA to “trim, top and/or remove trees and foliage on the Murrell property” for the purpose of providing the Fullers with an ocean view. The Fullers sued in turn for injunctive and declaratory relief that they had the right to have the trees cut or trimmed. The Murrells also sued RHCA for breach of the CC&Rs, breach of fiduciary duty, trespass, and conversion, alleging that by going onto the Murrell property and removing a pine tree in order to benefit the Fullers’ view at the expense of the Murrells’ privacy, RHCA acted contrary to the CC&Rs and its fiduciary duty to act in good faith and fair dealing.

In so doing, the Murrells claimed RHCA violated the CC&Rs because they did not empower RHCA “to remove trees in the easement on the Murrell property for any reason unrelated to the express and implied purposes of the easement, which are the creation of and maintenance of roads, bridle trails, utilities, parkways, park areas, above ground poles, wires and conduits as well as sewers, drains, pipes and below ground conduits.” denied the complaint’s material allegations and pleaded 17 affirmative defenses.

The trial court granted summary judgment to the RHCA. The Murrells contended summary judgment was improper on the grounds that neither RHCA nor the trial court addressed their equitable estoppel claim. The Murrells argued the CC&Rs cannot be interpreted to authorize RHCA to remove the pine tree, which was on RHCA’s easement, for the purpose of enhancing the Fullers’ view. They further argued that even if such authority existed, questions of fact existed regarding whether RHCA complied with its fiduciary duty to the Murrells in light of expert evidence that removal of the pine tree was unnecessary to improve the Fullers’ view.

The Murrells argued RHCA was estopped from asserting any right to remove the pine tree for the reason RHCA and the Fullers did not complain to the Murrells about their plans to construct an addition to their residence involving floor to ceiling windows, and in reliance on this “silence, ” the Murrells constructed this addition with the expectation that their “foliage and mature trees[, including the pine tree ]” would preserve their privacy.” The Court held that the Murrells failed to cite pertinent authority that RHCA should be estopped from removing a tree on its easement because of their addition plans. The estoppel argument failed.

Britney Spears, shown here in one of her less glam moments, spent over a million on lawyers just to get through rehab.  But the Murrells and Fullers weren't far behind ...

Britney Spears, shown here in one of her less glam moments, spent over a million on lawyers just to get through rehab. But the Murrells and Fullers weren’t far behind …

The Murrells also contended RHCA was not authorized to remove the tree to enhance the Fullers’ view, which was not a reason recognized as an easement use under section 2(b) of article V under the CC&Rs. The Court held that the “fallacy of their position lies in their misinterpretation of the pertinent provisions of the CC&R’s. When viewed in context, these provisions reveal RHCA has the right to remove trees located in its easement, without regard to purpose.”

The Court said that the “language of the CC&Rs governs if it is clear and explicit, and we interpret the words in their ordinary and popular sense unless a contrary intent is shown.” The Court interpreted the CC&Rs “to make them lawful, operative, definite, reasonable and capable of being carried into effect, and [to] avoid an interpretation that would make them harsh, unjust or inequitable.” Here, it was uncontroverted that the Murrell property is burdened by an easement in favor of RHCA and that the pine tree was located on this easement portion of that property. RHCA had the right to remove trees located on that portion of the Murrell property burdened by its easement. The Court said that the unambiguous language of the CC&Rs in the phrase “in or along any easements” referred to the physical location of the tree which RHCA is authorized to remove rather than to any particular qualifying reason for its removal, for example, solely for an easement use or purpose. Thus, the fact that enhancing a member’s view is not an enumerated easement use is inconsequential.

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Case of the Day, Monday, April 20, 2015

NO, RODNEY, WE CAN’T JUST GET ALONG

Rodney King (1965-2012), whose DUI stop turned into a beating at the hands of the police,  making him an unwitting icon  of racial injustice and a plainspoken advocate for understanding.

Rodney King (1965-2012), whose DUI stop turned into a beating at the hands of the police, making him both  an unwitting symbol of racial injustice and a plainspoken advocate for understanding.

From California, the land of pleasant living … we take you to a war zone. Compton? South LA? No, it’s the City of Rolling Hills, California, perched on the Rancho Palos Verde peninsula, a place where poverty – which in includes anyone driving a vehicle worth less than a hundred grand – appears to have been banned.

It’s unlikely Rodney King would have lived here.

Remember Rodney? The man who should have known better than to be driving around after dark while being Black? After some of the police officers involved in his beating were acquitted, rioting ensued. Rodney’s plaintive plea for peace, which went viral before going viral became fashionable, asked, “can we all get along?”

Amid its 23 miles of horse trails, the 690 homes and the 26 miles of roads, the people in Rolling Hills apparently cannot.  The Fullers made it a habit to complain about the Murrells’ trees because it spoiled their view (something people on Rodney’s side of town probably didn’t worry much about).  The Murrells kept trying to get along, acceding to trim job after trim job, until they had finally had enough.  But they didn’t sue the Fullers.  Instead, they sued the Rolling Hills board of directors, and specifically Donald Crocker, for having caved in to years and years of the Fullers’ fulminations about the trees.

Naturally, Mr. Crocker, who was a volunteer board member, didn’t much like being sued.  After all, he said, he was just doing his job.  And the Court agreed.  In California, as is the case in many places, directors of corporations, for-profit and not-for-profit alike, are protected by a “business judgment rule.” The rules shields directors from liability when they have acted in good faith, haven’t engaged in self-dealing and have acted on an informed basis.  (Note:  the “business judgment rule” varies from state to state, and can be rather nuanced.   You should not assume that the application of the “business judgment rule” in this case represents what would happen in your own state).

Besides, the Court said, the Murrells shouldn’t be allowed to benefit after leading the Board and everyone else to believe that year after year they were agreeing – however reluctantly ­­– to the tree trimming, and only when they reached the breaking point, did they decide sue for everything that had ever happened.

Sgt. Joe Friday, iconic LA cop who would not have approved of the   Rodney King beating,  but would have used the Murrells' prior acquiescence against them, just as the court did.

Sgt. Joe Friday, the iconic LA cop.  Joe would not have approved of the Rodney King beating, but he would have used the Murrells’ prior acquiescence against them, just as the court did.

There are a couple of morals here. One is that if you just try to get along, your efforts to do so “can and will be used against you in a court of law,” as Sgt. Joe Friday liked to tell defendants. The second, and more basic moral, sadly enough, is that turning the other cheek in Rolling Hills is just an invitation to your neighbor to smite you on that one, too.

Sorry, Rodney. Guess we can’t “just get along.” That’s why there are lawyers and courts.

Murrell v. Crocker, Not Reported in Cal.Rptr.3d, 2007 WL 1839478 (Cal. App. 2 Dist., June 28, 2007). The Murrells and Fullers are neighbors in Rolling Hills, California. They are members of the Rolling Hills Community Association, a nonprofit cooperative corporation governed by a five-member board of directors, one of whom is Mr. Crocker.

A governing document called the CC&R sets out the rights and obligations among the RHCA, the Murrells and the Fullers. According to the CC&R, in order to improve the view and to protect adjoining property, the RHCA has the authority to cut back or trim trees and shrubs on a member’s property. The RHCA also has a 10-foot wide easement along the boundary of each lot in which it has the right to remove trees or shrubs.

In 1997, the RHCA passed a resolution establishing procedures for maintaining and improving views. At that time, the Fullers demanded that the Murrells remove foliage to create a view for the Fullers. To be good neighbors and to avoid a dispute, the Murrells did so. In 2000, the Fullers brought a view complaint to the RHCA, which “caused the removal” of five trees and the trimming of an additional 12 trees on the Murrell property.

In 2002, the Board adopted yet another resolution, which contained more detailed procedures to maintain and improve views.

The next year, the Fullers submitted a second view complaint to the RHCA, which recommended that two of the Murrells’ trees be trimmed. The Murrells did so, but the Fullers complained that the trees were not trimmed enough, and in 2004 the Board ordered that a pine in the RHCA easement be removed and that other trees not on the easement be severely trimmed.

Finally the Murrells had had enough. They sued Crocker and the RHCA Board for taking actions inconsistent with their fiduciary duties and the CC&Rs, including failing or refusing to inform other Board members that the CC&Rs did not permit the removal of trees or other plantings from the portion of the Murrells’ property outside of the easement; adopting resolutions inconsistent with the powers granted to the RHCA under the CC&Rs; letting the Fullers pretty much call the shots, and trimming of trees so that the trees would not grow back for three or four years.

Crocker moved for summary judgment on the grounds that he had no individual liability to the Murrells, and that the claims in the complaint were specious. He complained that the first view complaint was resolved by an agreement between the Murrells and the Fullers after meetings with the Committee and an arborist. He argued the Murrells had agreed or acquiesced to almost all of the trimming. Although George Murrell denied any such agreement, he felt that because the Committee and the Board had a negative attitude toward him and his wife, he “had no choice but to play along with the concept that some agreement had been reached as the Association Board and View Committee were claiming.” His wife said she had been trying to “avoid a confrontation in the hope that the … Board would, in the end, make some effort to protect some aspect of our privacy.”

The trial court dismissed Crocker as a party. The Murrells appealed.

The Palos Verde peninsula offers stunning vistas of the Pacific Ocean, when the neighbors' trees aren't in the way.

The Palos Verde peninsula offers stunning vistas of the Pacific Ocean, when the neighbors’ trees aren’t in the way.

Held: Crocker was dismissed as a party. The Court noted that under California law, directors of nonprofit corporations, such as a homeowners association, are fiduciaries who are required to exercise their powers in accordance with the duties imposed by the Corporations Code. A director fulfills his duty to a member of the association by strictly enforcing the provisions of the CC&Rs but has no fiduciary duty to exercise his discretion one way or the other with regard to a member so long as the director’s conduct conforms to the standard set out in § 7231 of the Corporations Code.

That section of the law sets out the standard of care for directors of nonprofit corporations, known as “California’s statutory business judgment rule,” providing that a “director shall perform the duties of a director … in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use in similar circumstances.” In performing such duties, a director “shall be entitled to rely on information, opinions, reports or statements … prepared or presented by … one or more officers or employees of the corporation whom the director believes to be reliable and competent in the matters presented; counsel … or a committee of the board upon which the director does not serve … so long as, in any such case, the director acts in good faith, after reasonable inquiry when the need therefore is indicated by the circumstances and without knowledge that would cause such reliance to be unwarranted.” A person who performs the duties of a director according to the rule has no liability based upon any alleged failure to discharge his or her obligations as a director.

Here, Crocker provided a declaration that he performed his duties in connection with both view complaints in good faith and with due care within the meaning of the rule, and the Murrells had no evidence to the contrary. The Court found that Crocker’s only involvement with the Murrells or the Fullers has been in public meetings of the RHCA or in officially sanctioned trips to their property, that he has no personal relationship with either the Murrells or the Fullers and had no personal interest in the outcome of their dispute, that Crocker was not the “primary driving force” behind the alleged improper treatment of the Murrells, that the votes were unanimous in all Board actions regarding the Murrells and the Fullers, and that he did not knowingly or with reckless disregard for the truth take any action, or encourage any other Board member, to take any action inconsistent with a Board member’s fiduciary duties or the CC&Rs.

The Court also noted that the Murrells had admitted that they engaged in conduct leading Crocker and the RHCA to believe that the Fullers and the Murrells had come to agreements involving the removal and trimming of the trees. The Court held that because there was no reason for Crocker to suspect that the Murrells were laboring under any mistake as to their legal rights, there was no duty for him to make any disclosures on the point. Any unexpressed position on the part of the Murrells concerning the view complaints did not, the Court said, create an issue of fact as to Crocker’s good faith compliance with his duties.

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