Case of the Day – Monday, July 28, 2014


Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained, but Denise steadfastly ignored their remonstrances. The neighbors sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

YouSnoozeYouLoseDenise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument she included in Denise’s scattershot but untimely defense— was her contention that the cost to replace the trees wasn’t the right measure of damages, and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in value of the property, or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate. and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

Stitch2The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, Not Reported in N.W.2d, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding that to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served, but she didn’t answer, and the Bolognas got a default judgment. Thereafter, they presented an affidavit of a certified arborist that the cost of landscape restoration was $24,050. At this point, Pevarnek began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise Pevarnek should be relieved from her default judgment, and the Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

perfectThe rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.


And Now The News …




trees140728, New York City, July 28, 2014: First national study measures trees’ impact on health

Those trees taking up precious sidewalk real estate are earning their keep. In the first nationwide study of trees’ impact on air pollution, the U.S. Forest Service found that trees save more than 850 lives annually and prevent 670,000 serious respiratory complications. Though trees only contributed to an average air quality improvement of less than 1 percent, they are responsible for an estimated savings of $6.8 billion annually in health spending, according to the study …

New York Daily News, July 27, 2014: Five majestic trees chopped down in shocking Bayside Hills arborcide

Four ash trees and one American sycamore were felled from the former Keil Brothers Garden Center site. It will cost $340,000 to replace the city-owned trees, which were at least 30 years old, officials said …

Pickering, North Carolina, News Advertiser, July 28, 2014: Ugly monstrosity visible after Hydro One cuts down trees in Pickering

Pickering residents who live near a Hydro One transfer station aren’t enjoying the view, after hundreds of trees were cut down to improve security around the site. Hydro One recently removed about 300 mature trees surrounding a large transfer station on Dixie Road, north of Finch Avenue. A company spokeswoman says the trees were cut down after an attempted break-in …

New York Times, July 27, 2014: Column: Protecting trees from dog urine

Street trees, especially in New York City, live a hard life …

Toronto, Ontario, National Post, July 25, 2014: Editorial: Kill the trees before they kill us

This summer, the National Post editorial board presents readers with a special series of articles on the everyday menaces that may kill or permanently disfigure you. Earlier this year, a child fell out of tree in Regina Beach, a small town in south central Saskatchewan, and broke a leg. In response, CBC News reported on Wednesday, the provincial Ministry of Parks, Culture and Sport is planning to cut the tree down, lest other children suffer similar accidents. This is the correct step. Not only will it prevent this leafy monster from hurting any more children, it will serve as a warning to other trees in the Last Mountain Lake recreational area. The message is clear: Hurt a child, face the chain saw …

Joyce Kilmer -  "Trees" poet was probably an "x-y" chromosome carrier ...

Sorry, Bill … “Trees” poet Joyce Kilmer was probably an “x-y” chromosome carrier.

Calgary, Alberta, Herald, July 24, 2014: Columnist: Lovely trees are backdrop for landscape plan

Citing poet Joyce Kilmer and “her” poem about trees, columnist Bill Brooks lists all the reasons why homeowners should plant trees …

Tallahassee, Florida, Democrat, July 24, 2014: Think twice before chopping down dead trees

What is the most important tree in the forest? Tallahasseean Jim Stevenson, former chief naturalist of Florida State Parks and chief of the Office of Resource Management, would say it is any dead one. Living trees obviously provide food, shelter and places to rear the next generation of wildlife. Dead trees do all of that and more …

Niagara This Week, Thorold, Ontario, July 25, 2014: Residents want action on replacing beetle-ravaged trees

They said it was coming, and now the destruction of the Emerald ash borer is becoming all too evident for homeowners in many parts of Thorold. Residents of one street, aghast at the sight of trees ravaged by the iridescent little beetle, have called on the city to do something about the deteriorating state of ash trees on their boulevards …

Bolivar, Missouri, News, July 24, 2014: Troubles with pear trees

Almost daily, starting in April, while out and about, people ask about trouble with pear trees. Anyone who owns ornamental pear trees or intends to plant them should become more fully informed on the following complex set of problems …

Washington Post, July 24, 2014: Deadly fungus spreads in Everglades, killing trees

A fungus carried by an invasive beetle from southeast Asia is felling trees across the Everglades, and experts have not found a way to stop the blight from spreading …, July 25, 2014: Novel cost effective process to transform unwanted forest trees into structural building material

Without management of natural waste such as fallen timbers too small to be milled, forests risk insect and disease infestation and high concentrations of fuel buildup or fire. Current international economic conditions deter such management due to low market values for small trees …

Go to Live Science site to see full-size map

Go to Live Science site to see full-size map

Live Science, July 23, 2014: Trees: Unlikely culprits in ozone pollution Pollution from forests? As this map shows, trees do emit compounds that can worsen ozone and increase aerosols in the atmosphere.  But the facts are rather complex, no matter what President Reagan may have once said about our forest of “polluters” … Union County, New Jersey, Independent Press, July 24, 2014: Berkeley Heights Environmental Commission study determines the cost of trees Over the past three years volunteers under the auspices of the Berkeley Heights Environmental Commission have been carrying out a survey of the trees along the right of way on township streets. When residents see the volunteers measuring the trees, they often ask what’s happening. The easy answer is the township wants to know the condition of the trees, which so far number more than 4,600. But much more is involved … KYTV, Springfield, Missouri, July 23, 2014: Tree disease wipes out pear, crab apple trees across Ozarks Trees provide valuable privacy and much-needed shade on hot summer days. A mysterious disease is wiping out many trees around the area, though, and it is not easy to save them. “I’m appalled. I just cannot imagine why somebody didn’t catch this,” Marilyn Richards of Nixa said about the tree disease. Outside Richards’ house you will hear the unmistakable crunch of dead leaves, even though it is the middle of the summer. Richards and many of her neighbors in Nixa are watching their beloved pear and crab apple trees shrivel up and die … Montreal, Quebec, Gazette, July 23, 2014: Once an asset, now a liability, Beaconsfield home surrounded by ash trees What sold Patrick and Liane Boyle on the house they bought in Beaconsfield six years ago was its well-treed lot. Their home in Beacon Hill, a leafy neighbourhood just east of St-Charles Blvd. and north of Highway 20, is surrounded by 17 mature ash trees that shade the house in summer and enhance the property’s overall appeal. But with the arrival of the emerald ash borer in southwestern Quebec – including two confirmed infestations in the West Island this spring, one in Pierrefonds-Roxboro, the other in Pointe-Claire – the trees are becoming more of a liability than an asset … North Coast Weekly Journal, Eureka, California, July 23, 2014: Letter – The little trees matter Growth in the big trees left behind is unimportant to a commercial forest operator. What’s important to everyone is the relative health of the rest of the forest while it still produces enough lumber to make a profit Googlefiber140723KMBC-TV, Kansas City, Missouri, July 17, 2014: Google Fiber installation generates some homeowner complaints As Google Fiber rapidly expands into more Kansas and Missouri cities, mounting complaints about the installation are filed by homeowners who wonder if the promise of super-fast Internet is worth the hassle. “It’s like they just came and took over my property,” one resident said. “I thought that was rude and wrong …” Dunwoody, Georgia, Crier, July 22, 2014: City tries to referee dispute over neighbors’ trees Dan and Niki Keiser want to keep trees in their front yard that they’ve enjoyed for the nearly 18 years they’ve lived at the home on Tilly Mill Road adjacent to Kingswood United Methodist Church. Next door, their new neighbors Debi and Nitzan Tzuberi have asked the city to remove trees that they say block their view as they try to safely exit their driveway. On Friday, six trees were removed adjacent to the road, all on church property … Lincoln, Nebraska, Journal Star, July 19, 2014: Simply Trees: The long lives of trees are complicated Some trees can live a long time — a very long time — thousands of years, in fact. This seems especially remarkable considering that for most trees, the very thin layer of living tissues just under the bark (the cambium) is put down new every year. A tree more or less regrows itself every year while clinging to the scaffolding of its old wood. And just imagine all the threats an old tree has dealt with since its sprouting: storms, wind, droughts, floods, heat, cold, fires, animals, hungry insects, diseases and, of course, people … KPIX-TV, San Francisco, July 22, 2014: Diseased Palm Trees Along San Francisco’s Embarcadero To Undergo Costly Removal, Replacement Some of the iconic palm trees that line San Francisco’s Embarcadero are dying. The tropical trees, infected by a fungal disease that will require both their removal and replacement, are getting some close attention so the disease doesn’t spread … Medford, Oregon, Mail Tribune, July 17, 2014: Eagle Point homeowner anguished after trees cut Carole Mercer was shocked to arrive home at her 160-acre Eagle Point ranch last week to find that tree pruners contracted by Pacific Power had, as she described it, “butchered” a row of Australian willow trees. Mercer said the 20-year-old trees, which she watered and grew herself, had been sliced down one side to keep branches away from power lines. Power company officials say the work was necessary and followed national standards for tree trimming … meriden140722Meriden, Connecticut, Record Journal, July 22, 2014: Bid request shows Wallingford is exploring downtown trees option A recent bid request could indicate a desire on the town’s behalf to replace some downtown trees with a species other than the Callery pear. The town recently removed 28 Callery pear trees on Quinnipiac Street and replaced them with the same species. Members of the Greening Committee suggested that some of the trees be replaced with another species to provide variety. “Our proposal detailed how installing the right tree in the right place and then maintaining them is cheaper than cutting them down and replacing them on a 15-year cycle,” said a member of the Committee … Spokane, Washington, Spokesman, July 22, 2014: Columnist: Conserve our tax dollars, not our trees I got a case of government heartburn when the Spokane City Council voted 6-0 Monday night to start buying only recycled paper. Especially since doing so will cost nearly six grand more a year than the city pays now for politically incorrect old-paper paper. The council members call this going green. To me it’s a typical waste of greenbacks … Burlington, Vermont, Free Press, July 19, 2014: Trees fall, debate rises in Fairfield The local selectboard of this rural Northwest Vermont community ordered hundreds of trees chopped down to reduce the risk of hazardous blow downs and power outages such as those caused by a nasty ice storm that walloped the town last December. The mess of that storm is fresh in local memory. Yet not everyone is happy to hear the whine of the saw and the mechanical moan of the wood chipper this summer … Sandusky, Ohio, Register, July 21, 2014: Melissa meets Melissa, she speaks for the trees A local reporter goes on the job with SWCD worker taking inventory of city’s trees … More tree vandalism – Youngstown, Ohio, Vindicator, July 21, 2014: 29 fruit trees destroyed by vandals About half of the fruit trees at the Food Forest, which provides free freshly grown fruit to the needy, were cut down overnight. “It came as a shock,” said R. Mason Carratt, who founded the Food Forest on the city’s South Side. Carratt said early today he found 29 of about 50 fruit trees — pears, apples, cherries, plums and peaches — cut with what appears to be pruning shears … WAVE-TV, Louisville, Kentucky, July 21, 2014: Vandals damage trees, rock wall in Louisville park Not in our park: That’s the word from leaders at The Parklands of Floyd’s Fork after vandals destroyed new trees and a hand laid rock wall inside the east Louisville gem over the weekend. Monday, park leaders said they want the people responsible for the vandalism arrested. “We can’t let stuff like this stand,” said Parklands Parks Director Scott Martin … 1000oaktree140721Los Angeles Times, July 21, 2014: Thousand Oaks redevelopment sparks public outcry to save the trees There are trees, and then, when you grow up in a city called Thousand Oaks, there are trees. The oak tree isn’t just in the city seal; it’s in the city’s DNA. So earlier this year, when the owner of a prominent shopping center began chopping down more than 170 trees to make way for progress, Brockwell and many other residents had the same response: “This has to be illegal …” Cleveland, Ohio, Plain Dealer, July 18, 2014: Beetle infestation taking toll on one town’s trees It’s hard to believe that something as small as a beetle can kill a tree. But that’s what’s been happening to Medina’s ash trees in recent years. So far, city foresters have removed about 500 dead or dying ash trees infested with emerald ash borer. When all is said and done, the city will have to remove 1,900 ash trees from tree lawns and urban forests … Phoenix, Arizona Republic, July 18, 2014: Group tries to save downtown Phoenix trees from destruction Workers have transformed a vacant lot in downtown Phoenix into a temporary nursery filled with Indian rosewood trees. The trees, removed from the construction site of what will become Arizona State University’s Sandra Day O’Connor College of Law, will sit there throughout the summer … New York Daily News, July 20, 2014: City has removed more than 2,400 damaged trees in Brooklyn since Hurricane Sandy A tree dies in Brooklyn. That has been the storyline since Hurricane Sandy, whose devastation is still being felt. The city has removed more than 2,400 trees from borough neighborhoods that were flooded during the destructive storm in 2012, and countless others are headed for the chipper as forestry staffers continue to inventory the flood-damaged foliage …

Someday, cars might grow on trees ...

Someday, cars might grow on trees …, July 17, 2014: In fifty years, carbon fiber will be spun from trees Carbon fiber is one of the strongest and most resilient materials on the market, used in everything from car frames to body armor. It’s also incredibly expensive to make. But one plant biologist says that in fifty years, we’ll be growing it on trees … Fort Erie, Ontario, Post, July 17, 2014: Trees employ natural defense against virus High up on the west side of a hemlock was an unusual dense clump. This was an anomaly – an unusual growth called the Witch’s Broom. An air borne virus some years ago reached the upper branches. In order to protect its self the tree grew a great number of miniature tree-like growths … KBTX-TV, Bryan/College Station, Texas, July 17, 2014: Crepe Myrtle caper – who cut the trees in Northgate? Who cut the beautiful flowering crepe myrtle trees at a Northgate business in College Station? They were trimmed back so much that one expert says they’re permanently damaged. Now police are investigating. A crepe myrtle caper is brewing in Northgate … KCRG-TV, Cedar Rapids, Iowa, July 15, 2014: Iowa town treating ash trees with injections Mount Vernon is a frontline city in the battle against the Emerald Ash Borer. City officials don’t have any cases to report yet, but last year the beetle was discovered seven miles away. To make sure Mount Vernon isn’t next, the city is inoculating about 300 ash trees on public space with an insecticide called TREE-age. It kills Emerald Ash Borer larvae, which live under the bark and destroy trees by disrupting nutrient flows … Agrinews, Lasalle, Illinois, July 17, 2014: Canker disease threatens walnut trees Thousand cankers disease recently was confirmed in Indiana, putting the disease threateningly close to Illinois walnut trees. Indiana joins Maryland, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia and eight western states with the disease, which is the result of a complex in which black walnut trees are attacked by the walnut twig beetle … treeonhouse140717WWLP-TV, Springfield, Massachusetts, July 16, 2014: Some trees are more susceptible to severe weather Since the beginning of July severe thunderstorms with strong damaging winds have brought down trees across New England and here in western Massachusetts. There are certain trees that are more likely to come down. “A lot of the trees that have been falling that I’ve seen personally and on your broadcast are trees that have two leaders and are attached and that have crotch attachments and it’s a common type of failure,” said consulting arborist Charles McCarthy … West Island Gazette, Montreal, Quebec, July 16, 2014: Town aims to save remaining ash trees; Proposed bylaw amendment puts more responsibility to fight ash borers on homeowners Beaconsfield is proposing a bylaw amendment that would require homeowners to report an emerald ash borer beetle presence, and to cut down ash trees on their property if located with a 100-metre radius of a confirmed infestation case. The bylaw amendment aims to limit the spread of the destructive insect within Beaconsfield. There are about 3,200 ash trees on city property and an estimated 10,000 on private property, excluding the local forests … KTAR Radio, Phoenix, Arizona, July 15, 2014: Tree expert has advice to help protect trees from storm damage Hundreds of trees have been snapped off or pulled out of the ground during the monsoon. They’ve come down on cars, homes and power lines. There’s no guarantee when it comes to saving trees from powerful winds but there are steps homeowners can take to give trees a fighting chance. Jeff Harper with Harper’s Nursery said pruning trees and not overwatering them is the best way to protect them during Arizona’s monsoon … North Coast Journal, Humboldt County, California, July 17, 2014: Big trees: Old-growth gurus talk about growing forests for the future How forest stewardship can promote old-growth functions that benefit “climate, wildlife, water, and a sustained resource economy … burglar140716KTLA-TV, Los Angeles, July 16, 2014: Vandal sought for cutting down more than a dozen trees in Anaheim Hills Police were looking for the person responsible for cutting down more than a dozen trees at Ronald Reagan Park in Anaheim Hills. It happened sometime between Saturday night and Sunday morning. Police said 13 trees were chopped down, likely with an ax, and left lying on the ground at the park … Jackson, Mississippi, Clarion Ledger, July 15, 2014: Oxford unhappy with tree trimming Dr. Ralph Vance received a big shock recently when he looked out his window at his Old Taylor Road home. He could see a lot farther than he used to be able to and he wasn’t happy about it. The new view came after the Mississippi Department of Transportation knocked down dozens of trees on and near his property to make way for bridge expansion and new roundabouts … Savannah, Georgia, Morning News, July 15, 2014: Study shows tree canopy shrinking in Chatham County Three football fields. That’s how much tree canopy Chatham County lost every day on average over the last 15 years, a new analysis reveals … KECI-TV, Missoula, Montana, July 15, 2014: Historic trees focus of concern in Hamilton construction project The city of Hamilton is upgrading its water lines for better flow and fire safety. Right now, there’s a $300,000 project on three blocks getting a new main, plus curbs and sidewalks. But what’s getting most attention there are the neighborhood’s signature shade trees. They’re an old story … twigb140715KOIN-TV, Portland, Oregon, July 14, 2014: Twig beetle killing black walnut trees in Oregon Jennifer Beugli has lived in her Salem home for 25 years. She’s fallen in love with her towering walnut tree. But about two years ago, the same fungus suspected of killing off other black walnuts in the neighborhood began killing her tree. Durham, North Carolina, Herald-Sun, July 14, 2014: Keeping your trees healthy in the summer months Drought stress can kill young or newly established plants, and it can stress mature or established plants to the point where they become vulnerable to other pests or pathogens. Signs of water stress include drooping branches, curling or shedding leaves and premature fruit drop. On mature trees symptoms can include shedding branches and “fluxing,” a condition where brown fluid seeps out of old wound areas, causing discoloration and sometimes a sour smell … Nixa, Missouri, Express, July 14, 2014: MDC urges proper pruning to help storm-damaged trees Recent storms have left many trees in need of a little after-storm care. Trees that lost limbs may threaten the safety of homeowners and are at risk for decline or even death. The Missouri Department of Conservation has advice about how to determine which trees are salvageable and how to nurse them back to health … Model D, Detroit, Michigan, July 15, 2014: After 25 years of growth in the city, the Greening of Detroit comes of age The average lifespan of an urban tree is just 20 percent what it would be in the wild. For every tree that’s planted in Detroit, four are lost. A number of stressors contribute to this high mortality rate: compacted soil, nutrient deficiencies, and greater susceptibility to pests. Improper pruning doesn’t help matters, and neither do the wounds inflicted by people and machines … Arkansas Times, July 14, 2014: Whose trees these are, they think they’ll know Two years ago, new shrubbery at St, Bartholomew’s Church was stolen. Last month, the new pastor planted 20 small evergreens around the church. Seven were promptly stolen. They’ve been replaced. But all 20 have now received some white identifying paint … southbend140714South Bend, Indiana, Tribune, July 13, 2014: Trees will rebound from storm; ash borer is real threat You can almost follow the path of the straight-line wind that blasted through two weeks ago. Keller Park remains littered, with roots splayed into the air. The park’s losses add up to six or seven mammoth trees, although it looks like more. Cleanup will end in a couple of weeks at Keller and months later at other area parks. Park officials and tree experts say that the wake of this storm, which gusted up to 80 mph, will prove that a tiny green insect, the Emerald Ash Borer, is more damaging … Louisville, Kentucky, Courier-Journal, July 11, 2014: Ash Borer wiping out Kentucky trees Five years after the emerald ash borer arrived in Kentucky from the north where it killed more than 25 million trees, the full force of this Asian invader is being felt across the Bluegrass … KXAN-TV, Austin, Texas, July 10, 2014:  Trees scorched in Bastrop fires get second life The wildfires that raged through Bastrop County three years ago left behind thousands of charred, dead trees.  Many of the trees burned in the fire are still standing, but crews are working to remove them so they can be turned into fuel. That is the silver lining. The 27,000 acres of trees will be shredded and become useful again. “It’s turned into a wood-fuel pellet and then it’s exported to Liverpool, England, to a German utilities company called Drax,” said Dennis Parker with Go Green International. “They use the wood pellets to make power, instead of coal, so it’s just converted into clean energy …” Kansas City Star, July 13, 2014: New trees along Platte County trail are dying or distressed Bad timing and miscommunication have created a troubled start for trees along the new multi-use 152 Trail in Platte County. Earlier this summer, a 3-mile section of the trail opened between Ambassador Drive and Line Creek Parkway. Hundreds of new trees were planted along the trail near the end of June as a supplement the greenery that already grew in the area. That was not the ideal time for installation. Now, many of the multiple varieties of oak, maple, bald cypress and linden trees are showing distress or look dead … Wickedlocal, Danvers, Massachusetts, July 13, 2014: Munching moths threaten state’s trees Ken Gooch, supervisor of the DCR Forest Health Program, sits in a small plane and looks down. Spread below him are the coastlines, hills and forests of the North Shore. “I can see pockets of dead trees,” Gooch said. “This has been probably some of the worst that I’ve seen.” In the last year, Gooch has mapped 16,596 acres of defoliation across the state. And just about all of it caused by one particular insect — the winter moth … Newton County Times, Jasper, Arkansas, July 1, 2014: The best protection for trees? You The United States Department of Agriculture (USDA) has designated August as Tree Check Month to keep our trees strong and healthy now and for future generations to enjoy. Even more, it can be a family affair. It’s a chance to teach kids about the impact they can have in saving our nation’s trees from a devastating pest, the Asian longhorned beetle (ALB) … The, July 12, 2014: Why trees are good – and bad When you walk into a forest you immediately notice the smell, a woodsy aroma that’s soothing and invigorating at the same time. That aroma comes from gases that trees give off and it’s most noticeable when trees are concentrated in groups. The gases contain biogenic aerosols — particulate matter that originates from plants. When exposed to oxygen in the atmosphere these particulates cling to other particulates in the air, gradually growing larger, forming clouds that reflect the suns heat, cooling the earth and forming raindrops. But there is a bad side to the gases that trees emit also. Trees emit isoprene, a chemical manufactured to protect leaves from oxygen damage and temperature fluctuations. A study recently completed by researchers at the University of North Carolina at Chapel Hill found that isoprene unites with air pollutants such as nitrogen oxides emitted by cars and coal burning plants to form harmful particulates at least partially responsible for lung cancer, asthma, and other lung disorders … ficus140711San Francisco Chronicle, July 10, 2014: City may be up a tree with falling ficus woes A tree falls in San Francisco’s Russian Hill neighborhood, but the question is not whether it makes a sound. The question is what can be done to keep such trees from sending splayed branches into busy Hyde Street – as one did Monday evening, toppling over a sport utility vehicle near Union Street and disrupting cable car service. The answer is important, given that the tree was the third in the neighborhood in the past three years to crash down … Nashville Tennessean, July 10, 2014: Hillsboro Cove developer removed too many trees The controversial Hillsboro Cove subdivision ran into a hurdle this week as Williamson County planning commissioners withdrew the development’s revised final plat review from its agenda. Grove Park Construction is developing the 34-acre luxury subdivision, where the average sale price for a home will be $1.3 million. But too many trees were removed from the property during construction, violating the county’s vegetation buffer requirements for the development … WFLD-TV, Chicago, July 10, 2014: Chicago forestry crews to trim more trees in 2014 The city of Chicago is announcing plans to trim 15,000 more trees this year than in 2013. Mayor Rahm Emanuel and the Department of Streets and Sanitation made the announcement this week. Emanuel says the proper maintenance of the city’s estimated 580,000 parkway trees is a “necessary investment” in the city’s neighborhoods … Wellesley, Massachusetts, Townsman, July 10, 2014: Wellesley developer told to stop work after cutting trees without a permit A Wellesley developer has been told to cease and desist immediately after he began working on a site, and cutting trees that were omitted from a tree removal plan, before a permit for the work had been formally issued … WBOC-TV, Salisbury, Maryland, July 10, 2014: Rehobeth tree ordinance would require more shade trees The Rehoboth Beach Planning Commission will discuss a proposed tree ordinance at Friday’s meeting. This new version attempts to increase and maintain the tree canopy in Rehoboth Beach. Previously, the ordinance required owners of property 5,000 square feet or more to have three trees in their yard. The new ordinance would specify the trees must be shade trees, or 30 feet or taller …, Downers Grove, Illinois, July 9, 2014: Bulk of trees on former Ide tree farm to be mulched, moved off site While developers of the Timber’s Edge residential subdivision will salvage one acre of spruce and pine trees across the former Ide Tree Farm, the bulk of them will be mulched and taken off the 55-acre property. On Tuesday, the trees – overgrown because they weren’t harvested over the winter – still stood on the property, but by Wednesday construction equipment removed thousands of the trees in just a day’s work … stopFE140710The Almanac, South Hills area, Pittsburgh, July 9, 2014: Windermere residents protest First Energy clear-cutting trees Homeowners are protesting First Energy’s plan to clear-cut trees and spray herbicide along a seven mile stretch in Peters Township before the end of August. A First Energy spokesman said the work is mandatory to prevent trees from damaging a transmission line over the next decade. Now residents are organizing a meeting in an attempt to seek a compromise or prepare legal action … Carmel Valley, California, News, July 9, 2014: Despite complaints, Torrey pines trees unlikely to be removed in Carmel Valley area A local resident complained to the Torrey Hills Community Planning board in June that she and other homeowners in her community purchased homes sold as “premium ocean view homes” but that view never materialized due a cluster of Torrey pine trees. Board Chair Kathryn Burton told the resident that the planning board does not have any authority when it comes to the trees. According to the assistant deputy director of the open space division and maintenance assessment districts of the parks and recreation department, the San Diego Municipal Code provides certain protections for Torrey pines on public land — they can only be removed for public safety and the health of the tree …, New York City, July 9, 2014: Treeless block ‘stands out like sore thumb,’ residents say Nearly four months after workers finished tearing up and repaving a highly trafficked Broadway sidewalk to make way for new retail development, residents want to know why no trees have been planted on the block … Manchester, New Hampshire, Union Leader, July 9, 2014: Nashua talking trees to improve life in city With more trees being cut down along Main Street this summer, a city alderman is hoping to create a tree policy that will protect and maintain the community’s remaining tree population. 
“Once you cut a tree down, you can’t undo it. Many of the trees in Nashua have been here longer than most of us,” said Alderman-at-Large Diane Sheehan. “We need to be careful with how we change something that is designed to be permanent …” Mobile Press-Register, July 9, 2014: Should Alabama Power change the way it trims trees in Mobile? Alabama Power Co. trims just below and around its power lines for safety and reliability, and it works with the city of Mobile’s Urban Forestry Department to meet their expectations, an official with the company said Wednesday. Beth Thomas, external affairs manager in Mobile, admitted that the power company is also aware of public criticism of its tree trimming programWJZ-TV, Baltimore, July 9, 2014: Toppled trees kill child, injure several at summer camp A fast-moving storm claimed the life of a 12-year-old boy when trees toppled down onto a group of more than 100 children heading for shelter at a Maryland camp. At least eight other kids were injured … Asianbeetle140709WCPO-TV, Cincinnati, Ohio, July 8, 2014: Asian longhorned beetle infestation leads to the removal of 49,000 trees in Clermont County The Asian longhorned beetle continues to terrorize trees and hardwood in Clermont County, Ohio, leading to the removal of over 49,000 trees to prevent further infestation … KOB-TV, Albuquerque, New Mexico, July 8, 2014: Outdoor rebates offered for maintaining trees People in the metro have done a great job of conserving water, but in the process some have neglected their trees and they’re in bad shape. Now the water authority is offering what it calls Tree-Bates. Ask anyone who owns trees and they’ll tell you maintaining them isn’t cheap. Virginia Mendoza has 17 on her property, but Virginia didn’t know she could be saving money with “Tree-Bates.” The Albuquerque Bernalillo County Water Utility Authority will reimburse you up to $100 on fertilizer, irrigation equipment or professional tree servicing. It doesn’t cover buying a new tree or removing one … WSET-TV, Lynchburg, Virginia, July 8, 2014: Bedford County trees could be cut down by power company They’ve stood for more than two centuries, now three trees in Bedford County could be cut down in a matter of days. The trees are on Byron Davis’ land in Forest. Dominion Virginia Power has a 125-foot right of way on the property. The power company is clearing trees to make room enough to center and rebuild a transmission line. Two of the old trees are within the right of way. The third is just outside … Medina, Ohio, Gazette, July 8, 2014: Medina losing 1,900 trees to Emerald Ash Borer Medina residents will be seeing less foliage lining some city streets in the coming years as the city’s Forestry Department battles an invasive insect: the emerald ash borer. Parks Director Jansen Wehrley said the lost ash trees will be replaced with other types of trees. It started in 2012 and over the next three to five years, the city will remove 1,900 ash trees from tree lawns and urban forests in many of the city’s neighborhoods … Green Industry Pros, July 8, 2014: How to gain a competitive edge with native trees Incorporating native plants in landscape designs has become a hallmark of sustainable landscaping. It can also prove to be a very effective way to build stronger relationships with your residential clients while keeping competitors at bay. The key is developing the knowledge and skills necessary to become an “expert” on using native plants—something most landscape contractors still lack … walnutcat140708KHOU-TV, Houston, Texas, July 7, 2014: Walnut caterpillars strip pecan trees in Fort Bend County, Texas Heidi Keener says her home used to be a pecan farm. “That’s why we live out here,” she says, “because of the beautiful trees and scenery.” But in early June, hordes of walnut caterpillars stripped her trees bare within days. The cold winter, combined with plenty of rain in recent weeks, allowed for the large volume of caterpillars, and that the loss of foliage puts a great stress on the pecan trees … UPI, July 7, 2014: NBA star Kevin Garnett sued by neighbors for not trimming his trees The neighbor of NBA star Kevin Garnett has filed a lawsuit claiming that untrimmed trees on the player’s property are obstructing the view of his Malibu home. The “Big Ticket” is facing a big lawsuit from his neighbor because of a construction project he began at his $9.5 million mansion last year … Holland, Michigan, Sentinel, July 6, 2014: Hundreds of dead, dying ash trees in Holland are coming down When the work is all done, more than 1,200 ash trees will be removed — and that’s just within the city of Holland. On Tuesday, an active ash tree removal program will begin along 32nd Street. On one block alone, there are 14 trees that have to come down. From Central Avenue to Ottawa Avenue, there are 47 more … Cary, North Carolina, News, July 7, 2014: Cary’s hemlock trees infested again Cary officials says a recent inspection of its 235 eastern hemlock trees yielded the discovery of hemlock woolly adelgids, aphid-like insects that can damage trees while feeding on their sap … WHAG-TV, Hagerstown, Maryland, July 7, 2014: Crews begin trimming and removing trees to prevent power outages Crews with Asplundh Tree Company began removing trees along Catoctin Hollow Road on Monday for Potomac Edison. They say there are more than 140 trees that are either dead or in the way of power lines where they could fall on to, and as a result, they need to be removed . . . Worcester, Massachusetts, Telegram, July 8, 2014: 500 Green Hill trees to be removed because of Asian longhorned beetles Some 500 trees lining a section of a Worcester area golf course are slated for removal as part of the U.S. Department of Agriculture’s efforts to eradicate the Asian longhorned beetle . . . balsamwolly140707Detroit Free Press, July 3, 2014: Michigan bans fir trees, timber from some states due to pest Michigan officials have announced a quarantine that prevents the shipment of fir trees and timber products from infested states into Michigan. It’s an effort to keep the state’s estimated 14 million fir trees safe from the balsam woolly adelgid, an insect that can kill the trees … Lamar, Colorado, Ledger, July 6, 2014: Trees and utility lines: proper placement for safety When a tree is trimmed or removed near utility lines, it’s for good reason – it is the wrong tree type, and in the wrong place, and could cause interruptions to service. Utility services in the United States have become such an expected part of our daily lives that they are often taken for granted … Grand Rapids, Michigan, Rapidan, July 3, 2014: Should we keep our trees? Our community has set firm goals for tree canopy. Green Grand Rapids, the City’s Urban Forest Plan, Climate Resiliency Plan and the Sustainability Plan all highlight the City’s 40% tree canopy goal. It’s not just an arbitrary number to be aimed for; it’s become a symbol of Grand Rapids’ sustainability and environmentally-minded culture. Trees are part of our community fabric and we want more … Quad City Times, Davenport, Iowa, July 6, 2014: Webinar is all about trees Because weather patterns over the past couple of years have taken a toll on landscape trees, and because the emerald ash borer is advancing across Iowa, trees will be the theme of a three-part garden webinar starting July 15th offered by the Iowa Master Gardener program and Iowa State University Extension and Outreach … Bangor, Maine, Daily News, July 5, 2014: Ailing pine trees prompt calls to Maine Forest Service State forestry officials have been receiving numerous calls about a disease affecting white pine trees, but they say there should be no rush to cut them down because the trees may yet survive … EAB140703New York Times, June 30, 2014: After the trees disappear – ash forests after Emerald Ash Borers destroy them This past winter was the coldest Detroit had experienced in 36 years. Across the upper Midwest, cities shivered, and more than 90 percent of the surface area of the Great Lakes froze solid. It seemed like ideal weather to kill an unwanted insect. But it did little to stop the emerald ash borer, an invasive Asian beetle that is devastating ash trees from Minnesota to New York … WJAC-TV, Johnstown, Pennsylvania, July 1, 2014: Arborists point to hundreds of reasons why trees fall A tree expert said nobody is to blame for two trees falling on moving vehicles in Somerset County in just a week’s time. Police called both incidents “freak accidents.” But believe it or not, they’re not the only occurrences in Pennsylvania this week. A man was just killed Monday night in Warren County when a tree hit his car. “(PennDOT) tries to keep a regular maintenance interval or schedule so to speak, but they can’t be everywhere at once and this is obviously a big problem,” said Ryan Beeghley. With thousands upon thousands of miles of roadway throughout the state, and even more trees lining them, it’s nearly impossible for the state, or any organization, to continually keep a proactive watch — not to mention there are hundreds of reasons why a tree can fall … Syracuse Post-Standard, July 2, 2014: Hemlock trees’ worst enemy, the wooly adelgid, found in Skaneateles Lake watershed A tiny insect that can kill towering hemlock trees has been found in the Skaneateles Lake watershed. The discovery in May of the hemlock wooly adeldgid in the town of Spafford is a disturbing find for homeowners who value the tall hemlocks for their beauty and shade. It’s also bad news for the city of Syracuse, which draws drinking water from the lake … Global News Canada, July 3, 2014: BC Hydro cuts down trees from private property for safety reasons A West Vancouver homeowner is irate at BC Hydro for cutting down more than a dozen trees on her property. “We’ve been on the property for 19 years, and they’ve always very nicely trimmed, sometimes over-trimmed, but they always worked with us,” said Darlene Holmes, who owns the home. Not this year. About 15 trees have been taken down by BC Hydro. They say it’s to ensure the trees can’t damage a transmission line that runs next to the home. Holmes claims it could decrease the property value by $200,000 … Baltimore Sun, July 2, 2014: Rodgers Forge residents rally for trees Angry Rodgers Forge residents are rallying around nine 100- to 250-year-old trees that could be cut down during expansion of Dumbarton Middle School. Neighbors gathered with signs in support of the trees June 27 despite assurances the day before that the trees will be spared … treefall140702Cedar Rapids, Iowa, Gazette, July 1, 2014: Down trees keep landscape services busy Storms are big business for area tree services. Jeff Scherf, owner of JC’s Tree Service in Cedar Rapids, said he has received enough calls since the torrential rain and wind passed Monday to keep him busy for the next two to three months. “I’ve probably received between 150 to 175 calls in 24 hours. My voice mail is full. I can’t even get through it because the phone keeps ringing,” he said. That means he has to prioritize. Trees that are laying on someone’s house or car, or that are in danger of falling on a house, are first in line. Everyone else just has to wait, he said …, June 30, 2014: Project of the Week: How to install a tree ring As you’re working to improve your lawn and garden, here’s a great project to consider… How about enhancing an existing tree with a tree ring? CTV News, Winnipeg, Manitoba, June 30, 2014: Trees damaged by weekend storms could pose threat Nearly 700 trees came crashing down in Winnipeg this weekend as a result of some wicked winds. On Monday, city crews were out with aerial lifts and wood chippers to clean up leftover trees and branches that had fallen, and some that may do so soon … Moultrie, Georgia, Observer, July 1, 2014: Researchers work to breed cones out of pine trees A world-renowned University of Georgia turfgrass scientist is embarking on a different research journey — breeding coneless pine trees. 

Wayne Hanna, 71, retired in 2008 after 37 years as a turfgrass scientist who helped breed some of the top turfgrasses used by homeowners and sports field managers today. Now working part-time with the UGA College of Agricultural and Environmental Sciences, Hannah hopes to have similar success studying pine trees … Waterloo, Ontario, Record, July 1, 2014: Protect your property – prune your trees Pruning the trees on your property can add curb appeal and enhance your view. However, pruning also improves the health of your trees, while safely protecting your property and those around you. Corrective pruning mitigates safety risks that can arise from storm damage. The service is required when trees begin to grow in a wayward direction, or at an odd angle or shape … Windsor, Ontario, Star, July 1, 2014: Fight growing in Olde Walkerville to save the trees Opposition is taking root in Old Walkerville against a city plan to cut down 25 trees as part of a major streetscaping project. Many of the trees will be replaced once Wyandotte Street East, between Gladstone Avenue and Argyle Road, is redone at a cost of $3.8 million, which also includes updating part of Devonshire Road. “We have some very good trees on these blocks and we want them saved,” said Elaine Weeks, managing editor of Walkerville Publishing and an area resident who is leading the charge against the tree-chopping. “It’s ridiculous to even have to be here protesting…”   TNLBGray

Case of the Day – Friday, July 25, 2014


Evil-Spawn-1Another day, another neighbor-from-hell story.  Mrs. Dahlquist and her evil spawn, Jeff Zube, lived in pretty close proximity to several neighbors, including the Careys. The constant obscenities, threats, spitting from balconies onto the neighbors, rotten eggs and lit cigarette butts got a little wearing on the Careys. They finally sought an anti-harrassment order under a California statute — Section 527.6 of the Code of Civil Procedure — to get Ma Dahlquist’s gang of two to stop.

Common law provides no remedy to restrain a neighbor who unfortunately has a sewer for a mouth and a tar pit for a soul, sad to say.  Statutes like the California’s CCP §527.6 are not all that common, but they are becoming more and more so, because – and here we can all bemoan the erosion of the Republic – neighbors like Joe and Dorothy (who’ll mow your lawn for you and deliver warm brownies from time to time – are getting to be scarcer, and next-door harridans like Ms. D and her whelp are becoming more common.

The lesson in today’s case is that if you’re going to be nasty to one neighbor, be sweet to the others. If you’re a jerk to everyone, expect some piling on. Not surprisingly, that happened here: complainants against Ms. Dahlquist and fil came out of the woodwork, with everyone on the block more than happy to cite the constant bird-flipping, the obscene insults and the general squalor that surrounded the harpie and her mordent boy.

CarrieDahlquist and Zube of course denied everything. Movie fans will remember the memorable Blues Brothers scene with Jake Blue (John Belishi) telling a gun-totin’ Mystery Woman (Carrie Fisher) that “it wasn’t my fault!”  In the face of rather detailed, graphic even, descriptions of the Dahlquist/Zube misconduct by the neighborhood, the trial court didn’t believe a word of it.

BelushiThe Dahlquist/Zube gang appealed. Appellate courts expect that, winner or loser, a party will give the court a reasonably complete and balanced assessment of the record below. Not Dahlquist and Zube. If the fact didn’t fit with their world-view,  they just left it out.  That didn’t leave much in their recitation of the “facts.”  The Court of Appeals wasn’t detained long by this creative pleading: it held that the record below amply made out a pattern of harassment that was such that would cause a reasonable person to suffer substantial emotional distress. It certainly did for the Careys, and the Court found that under the circumstances, a three-year order was fully justified.

Carey v. Dahlquist, Not Reported in Cal.Rptr.3d, 2007 WL 4555793 (Cal.App. 1 Dist.) Dahlquist and Carey live next door to each other in Sausalito, California. Dahlquisht’s 19 year old son, Zube, lives with her. Carey filed a Section 527.6 petition alleging that, among other things, her neighbor Dahlquist screamed obscenities at her and used “constant foul language, verbal comments (‘this is war’) and written threats.” Dahlquist had also “ordered tree people onto my property and cut down (removed two 30 ft high trees).” Carey requested an order that Dahlquist stay away from her, and that “she not be able to come out on her deck and scream obsenities [sic] at me or my husband as I go up and down my stairs.” In addition, Carey asked the court to order that Dahlquist “not hire workmen to come onto my property and destroy my property” and that she “pay for the survey and replace the trees she removed.”

The same day, Carey filed an application for a temporary restraining order against young Zube, alleging that in a two-page list of “confrontations” with Zube, that he had thrown eggs from his balcony, shouted obscenities at her husband as he came up the stairs, threw poppers onto the stairs while Carey and her husband were walking up the stairs, made “exceptional noise” from Zube’s stereo, and that on multiple occasions when lighted cigarette butts were found on the wooden stairs at Carey’s house. Neighbors provided affidavits complaining of similar acts.

The record also contained a declaration from Jeff Zube’s father claiming that Carey was a chronic complainer, and anyway, young Zube would be leaving soon for Santa Barbara to attend college. Nevertheless, the trial court granted the petition as to both Zube and Dahlquist, holding Zube had “an out-of-control and extremely disrespectful side of you and I’ve seen it in court, and I’ve heard it from the testimony.” The court found that Carey and her witnesses were credible and that the testimony of Dahlquist and Zube was not. It issued a 3-year restraining order, and Dahlquist and Zube appealed.

restraining-order1Held: The order was upheld. Section 527.6 provides that a person who has suffered harassment as defined in the statute may seek an injunction prohibiting harassment as provided in this section. “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. A “course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.

The Court decided that Carey had provided clear and convincing evidence of a knowing and willful course of conduct by Dahlquist. She described confrontations with Dahlquist in which Dahlquist threatened legal action against her and shouted obscenities at her husband as he came up the stairs. Carey found Dahlquist’s behavior threatening. Carey’s neighbor testified that he, too, had been on the receiving end of threatening and harassing behavior from Dahlquist, including her falsely accusing his wife of leaving an obscene message on her voice mail. The Court held that the trial judge had found substantial evidence on which the base the issuance of a permanent injunction.

badpennyAs for Zube, the evidence established that he had thrown lighted cigarettes on the wooden stairs leading to Carey’s home, that he had spit on the deck, and had thrown poppers on the stairs while Carey was walking up them and also shouted obscenities at Carey. Neighbors confirmed that this sort of behavior had been directed at them as well. Substantial evidence, therefore, supports the trial court’s issuance of the permanent injunction. The continuing course of harassing conduct by Zube and Dahlquist left both Carey and her husband fearful and distressed. This showing was sufficient to indicate a reasonable probability that the course of conduct would continue into the future. It didn’t matter that Zube was leaving for college. The trial court found his other testimony lacked credibility, and the Court of Appeals said it was entitled to disregard his representation that he was leaving.

Even if he did, like bad penny, he’d probably return.


Case of the Day – Thursday, July 24, 2014


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.


Case of the Day – Wednesday, July 23, 2014



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 signs 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 Google having neighbor problems Kansas City 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.


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.


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.

Case of the Day – Tuesday, July 22, 2014


Every good trial lawyer knows how to employ the Chewbacca Defense.

Every good trial lawyer knows how to employ the “Chewbacca Defense” to his or her client’s benefit.

Sometimes you wonder when you read a decision, “What were they thinking?  That does not make sense.”

Today’s case is something like that.  The facts are straightforward enough. Smith sold a gas station-restaurant-bar to Mendonsa, but carefully secured Mendonsa’s promise that he wouldn’t let the trees on the plot get so high that they shaded Smith’s adjacent orchard. Wouldn’t you know it, Mendonsa at some point decided he liked tall trees, or he didn’t like trimming tree, or he couldn’t find his clippers, or something. He let the trees grow, and they shaded four of Smith’s something-berry trees (we have no idea what he was raising in the orchard, but this being California, they probably weren’t plantain trees).

Anyway, Smith sued, and Mendonsa, for some foolish reason, fought the action. The trial court of course found for Smith, and then worked some rump math, figuring the past damages were about $140.00 a year (this was 1952, when a dollar was worth a bit more than now), and multiplied over three years, the damages were $420.00. The Court also enjoined Mendonsa from maintaining trees over 15 feet or branches which were hanging over on Smith’s land.

On appeal, Mendonsa complained that the damage calculations were too imprecise, and that the injunction was unduly burdensome on him. The Court of Appeals disagreed, finding the calculations pretty good for an uncertain case, and anyway complaining that “[t]he wrong was that of the appellants and they are not in a favored position to urge the technical rules governing awards of damages.”

This case may be the legal equivalent of this - what were they thinking?

This case may be the legal equivalent of this – what were they thinking?

Huh? In the words of South Park’s parody of Johnnie Cochran in the legendary Chewbacca defense: “that does not make sense.” If the wrongdoer isn’t entitled to argue that the court has to follow the “technical rules” of assessing damages, then who is? It’s a cinch the plaintiff isn’t going to do anything to restrain the court in calculating damages. This is probably one of those “hard cases make bad law” kind of decisions … but even so, it’s hard to feel much sorrow for Mr. Mendonsa, who should have been enjoined and been made to pay damages.

A deal’s a deal, after all.

Smith v. Mendonsa, 108 Cal.App.2d 540, 238 P.2d 1039 (Ct.App. Cal. 1952). Smith entered into an agreement with Mendonsa concerning the use of a gas station, restaurant and bar he had sold to him. Mendonsa agreed that he would permit no trees to remain on the site which exceeded a height of 15 feet;, and that if any tree got taller than that height, Smith would have the right to remove the same. The purpose of the agreement was to prevent the shading of Smith’s orchard next door. land and to prevent trees on the appellants’ property from overhanging it. Mendonsa let the trees get too tall, and Smith sued to enforce the deal. The trial court agreed with Smith, and awarded him money damages for past violation as well as an injunction prohibiting Mendonsa from maintaining any tree in excess of 15 feet in height or from permitting branches of any tree to overhang the orchard. Mensonda appealed, complaining that the damages awarded weren’t supported by the record and that the injunction was too harsh.

Held:    The damages and injunction were upheld. The Court observed that the record showed that the shading of the orchard trees near the appellants’ property line was detrimental to the growth of the trees themselves and would, during some seasons, decrease the yield of fruit on the affected trees. Four trees were affected, the evidence showed, the Court found, and while the proof of damage was not exact, it nonetheless gave some fairly definite basis for computation.

Mendomsa let the trees get a little too tall ...

Mendonsa let the trees get a little too tall …

With respect to growing crops, the measure of damages is the market value of the probable yield without detriment, minus the cost of producing and marketing, and minus the return actually received. The damages awarded amounted to about $140 per year, and the period of the damage was three years. Additionally, there was damage in that the trees themselves were retarded in growth by the shade.

The Court concluded that the record furnished adequate support for the award made. Anyway, the Court said, Mendonsa was in the wrong, and thus he was not in any position to demand application of the technical rules governing awards of damages. Where a party has suffered damage, the Court held, a liberal rule should be applied in allowing a court or jury to determine the amount, and that, given proof of damage, uncertainty as to the exact amount is no reason for denying recovery.

As for the injunction, the Court held, in cases involving promises as to use of property, injunctive relief — depending upon inadequacy of damages — may be granted. A deal is a deal, the Court seemed to say, and where Mendonsa made the promise to keep the trees trimmed back and then violated it, the award of a perpetual injunction from maintaining any tree in excess of the agreed-upon height and from permitting branches to overhang was not an abuse of the trial court’s discretion.

It is, after all, the duty of the court to encourage the keeping of agreements properly made and to give adequate remedy for breach thereof when it occurs, particularly where breach is deliberate and wrong is willful.


Case of the Day – Monday, July 21, 2014


revveduplikeadeuce140721Hey, none of us really knew what the lyrics were to that great piece of mid ‘70s music by Manfred Mann’s Earth Band (written and first recorded by Bruce Springsteen). You know, Springsteen wrote the second line as “cut up like a deuce.” Not until Manfred Mann rewrote the line to be “revved up like a deuce,” did the mondegreen of the line famously become a reference to a feminine hygiene product.

Anyway, we digress. We’re really talking light and soybeans here.  Last weekend, the vigilent treeandneighborlawblog editors read a book review for a new tome on light pollution called The End of Night.”  It reminded us how soybeans like the dark, and the plight of Farmer Smalley.

Farmer Smalley raises soybeans in Wyandot County, Ohio. When the Ohio Department of Transportation installed high mast lighting at the US 30/US 23 interchange, Mr. Smalley’s soybeans would not flower and flourish under the bright nighttime lights. This is apparently not an unknown effect. He sued the DOT in the Ohio Court of Claims, seeking damages in a self-written complaint.

soybeans140721The Clerk heard the matter administratively, and concluded that the lights were not a nuisance, apparently because of the benefit such lights had for the motoring public. However, the loss of two acres of beans did constitute a constitutional “taking of property” for which he should be compensated. The damages were pretty meager for 2007: $512 plus his $25 filing fee.

Still, the Clerk did not dismiss out of hand the notion that light pollution could constitute a nuisance in some circumstances, those where the social benefit of the light was insignificant next to the interference caused the neighbor.

A few months later, the full Court of Claims reversed the judgment. It held that the Ohio constitution did not permit compensation for consequential damages to property, only for the actual taking of property. Because of that. Farmer Smalley’s loss was not compensable.

Even so, both the Court and the Clerk apparently accepted the notion that the light pollution damaged Smalley’s property. It was just that the damage, however real, could not be compensated.

lightpoll140721Smalley v. Ohio Dept. of Transp., 142 Ohio Misc.2d 27, 869 N.E.2d 777, 2007 -Ohio- 1932 (Ohio Ct.Cl., Mar. 15, 2007). Farmer Smalley has a soybean field next to a four-lane highway intersection. The Ohio Department of Transportation constructed high-mast lighting at the intersection in 2005, and since then, and Farmer Smalley’s soybeans failed to mature during the growing season. Smalley was forced to mow down two acres of failed crop, a failure he attributes to the lighting. He lost about 120 bushels of beans, which — at $6.00 a bushel — were worth $720.

Farmer Smalley sued the DOT in the Ohio Court of Claims. DOT admitted it had installed the mast lighting, which it said was intended to “safely illuminate the expressway.” DOT argued the installed lights “are the safest and most efficient lighting source given the traffic flow and lighting required at interchanges.” It admitted that light did “occasionally bleed onto adjacent property [and] there is little doubt that defendant’s light encroaches upon plaintiff’s property.” It argued, however, that it could not be held liable for any damage to plaintiff’s bean crop caused by its light encroachment. It also argued that Farmer Smalley’s cost to raising the beans was $256.47 an acre, reducing his net loss to $512.94.

Held: The Clerk of the Court held that the light pollution was not a nuisance. However, he found that the actual harm suffered by farmer was different in kind from harm suffered by general public, as required to establish a taking under “Takings Clause” of Ohio Constitution.

It appears that farmer Smalley filed his complaint himself, because DOT flailed about in its defense, as if it wasn’t sure where the farmer was going. It argued at length that its lighting was not a nuisance, because Smalley had offered no proof that DOT was negligent in erecting the lighting. It asked the Court to weigh the benefit that the high mast lighting gave to thousands of motorists against the harm the lights caused plaintiff in destroying two acres of his bean crop.

lights140721The Clerk sagely noted that DOT “… essentially proposed that plaintiff should have to bear a financial burden for his crop loss in a situation where he was legally using his land for a specific valuable purpose and the harm caused was attributable to the acts of DOT.”

He defined an absolute nuisance as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another. Such a nuisance was the doing of anything without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his or her legal rights, or the collecting and keeping on one’s premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. A qualified nuisance, on the other hand, was distinguished from absolute nuisance as being dependent upon negligence consists of anything lawfully but so negligently or carelessly done or permitted as to create a potential and unreasonable risk of harm which, in due course, results in injury to another.

Considering the utility of the high mast lighting to the motoring public, the Clerk correctly concluded that the lighting was neither an absolute nor qualified nuisance. But that didn’t mean that Mr. Smalley was out of luck. Under the “Takings Clause,” any taking — whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises — entitles the owner to compensation. In order to establish a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right, and such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Something more than loss of market value or loss of comfortable enjoyment of the property is needed, to constitute a taking under the “Takings Clause:” governmental activity must physically displace a person from space in which he was entitled to exercise dominion consistent with the rights of ownership. To constitute a taking actual harm suffered by the plaintiff must differ in kind rather than in degree from the general public.

Later, the full court reversed on different grounds, holding that the Ohio Constitution did not permit compensation for less than a full loss of land.

Nevertheless, the notion that light can constitute a nuisance and that a property owner suffering from light shining onto his or her land from another location, appears to be accepted.