Case of the Day – Thursday, April 15, 2021

THEY’RE BA-A-A-ACK!

Yesterday, 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 (a) built nail-studded fences; (b) peered at their neighbors with an array of surveillance cameras that the NSA would covet, or (c) 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 Trump Tower. “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.”

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.

– Tom Root

TNLBGray140407

And Now The News …

Portland, Oregon, Oregon Public Broadcasting, April 14, 2021: Arborists say ODOT post-fires tree cutting is
excessive, rushed

Oregon has a lot of cleanup work to do after more than 1 million acres of land burned in last year’s wildfires. That cleanup involves removing burned trees near roads and structures that could fall and create safety hazards. But which burned trees are truly hazardous and need to be removed? More than 20 conservation groups sent a letter Tuesday to Interior Secretary Deb Haaland and Agriculture Secretary Tom Vilsack opposing the post-fire roadside logging proposed or actively being carried out by federal agencies. And a growing number of people are sounding alarms over excessive tree-cutting along scenic highways and protected rivers as the Oregon Department of Transportation and its contractors proceed with plans to cut nearly 300,000 trees deemed as hazardous. The critics include arborists who have worked on the project and say the reckless tree-cutting operations across the state are being mismanaged and need to be stopped…

Washington, D.C., Post, April 14, 2021: Maryland lawmakers vote to let developers replace cut trees by preserving existing forest

Maryland lawmakers voted late Monday to allow developers and home builders to replace some trees they cut down by preserving existing forest, a measure that local planning officials said was necessary to keep development moving. The legislation, passed in the final hours of the General Assembly session, came in response to a state attorney general opinion in October that said local planners had erred for decades in allowing developers to offset tree losses by preserving forest off-site. The state’s 1991 Forest Conservation Act, the opinion said, required that developers offset cleared trees by planting new ones. The legislation, sponsored by Del. James W. Gilchrist (D-Montgomery), would allow developers and builders to resume buying “credits” from “forest mitigation banks” created by farmers and other landowners who agree to preserve the required acreage. Planners in some counties had allowed that practice for decades but stopped it in the fall, following the attorney general’s opinion that it was improper…

Norfolk, Virginia, Virginian-Pilot, April 14, 2021: ‘The tree is the biggest asset the lot had’: ‘Spider oak’ draws couple to Virginia Beach’s North End

Home builders are trained to focus on certain elements of a plot of land. Zoning, surveying and demolition are among them. But for builder Chip Iuliano and his wife, Lisa, who were shopping for their own personal residence, a brawny southern live oak on the edge of a North End property sealed the deal from the beginning. “That was one of the things that drew us to the lot,” said Lisa Iuliano. “That tree is gorgeous sitting on the corner.” Known by neighbors as the “spider oak,” the tree’s burly branches spread low from its trunk like the legs of an oversized arachnid. This gentle giant has stood its ground on the corner of 88th Street and Atlantic Avenue for more than a century…

Kansas City, Missouri, Star, April 14, 2021: Sneaky thieves are cutting down large trees in Tennessee. What’s behind crime spree?

An unusual crime alert was issued this week in Tennessee, involving thefts of something most people ignore: Trees. Hardwoods are vanishing in the night thanks to thieves who are experts at getting in and out without being noticed, the state’s Department of Agriculture warns. “We’ve had reports of oak trees, poplar, and some hickory stolen in Middle and East Tennessee,” Agricultural Crime Unit Special Agent LaLonna Kuehn said in a news release. Last month, the National Park Service reported more than a dozen trees disappearing from Chickamauga & Chattanooga National Military Park in northern Georgia, “including several old-growth oaks.” A park ranger noticed a road where there should be no road and evidence trees were being dragged away. An arrest was made and the suspect took a plea deal, the National Park Service said. The motive is big money, Tennessee officials said. Timber prices are up — particularly for some species — and that is enticing thieves to take risks in the illegal logging trade…

Yahoo News, April 12, 2021: How tree pruning can reduce the risks during spring storms

Experts say proper tree pruning can reduce the risk of property damage and injuries during spring severe weather season and the upcoming hurricane season. When the winds pick up, trees can come crashing down. A thunderstorm snapped a tree near Shreveport, Louisiana, hitting a mobile home and killing a man inside. An EF-1 tornado in north Louisiana sent trees toppling over, one injuring a grandmother inside this home. She was trapped inside her house for hours after an EF-3 tornado in central Alabama until crews and neighbors could cut their way through and get her to safety… Everybody loves trees, but trees are very heavy. And they can be deadly if they’re not taken care of… Pat Edmonds owns Edmonds Tree Service and says above-average rainfall across much of the South means more trees are uprooting and toppling over… The biggest safety risk is large trees growing too close to homes. It may cost hundreds or thousands of dollars, but Edmonds says removing a hazardous tree is worth the investment…

Phys.org, April 13, 2021: Airborne laser scanning of gaps in Amazon rainforest helps explain tree mortality

A group of researchers led by Brazilians has used an innovative model to map gaps in the Amazon rainforest and identify factors that contribute to tree mortality. Water stress, soil fertility, and anthropic forest degradation have the most influence on gap dynamics in the world’s largest and most biodiverse tropical rainforest, according to an article on the study published in Scientific Reports. Forest gaps are most frequent in the areas with the highest levels of soil fertility, possibly because the abundance of organic material drives faster tree growth and shorter life cycles. The main method of data collection used in the study was LiDAR (light detection and ranging), a remote sensing method that uses pulsed laser light. Coverage extended to remote parts of the Brazilian Amazon where fieldwork is very difficult and satellite images can be imprecise, owing mainly to heavy cloud…

Cherry Hill, New Jersey, Courier-Post, April 12, 2021: Lawsuit: Borough ‘disregarded’ warnings before historic tree fell onto house

A local woman claims borough officials ignored her warnings about the dangerous condition of a historic tree here — a massive black oak that ultimately fell during a storm and destroyed her house. Brenda Zadjeika has sued the municipality and its Shade Tree Commission, contending they “disregard” her concerns about the centuries-old tree on the 200 block of Lake Street. Her lawsuit also alleges negligence by New Jersey-American Water Co., which owned the property where the tree stood. That site holds a pump house across the street from Zadjeika’s former home at the corner of Lake and Colonial Avenue. The tree, which was some 60 feet high and had a six-foot diameter, toppled during a thunderstorm on June 3, 2020. Almost three weeks earlier, Zadjeika had contacted borough officials about the tree’s “apparent dead trunk” and expressed fear “of the tree possibly falling” on her house, says the suit. She previously had alerted the borough in April 2020 that branches had dropped from the tree onto Lake Street and had made complaints in October 2019 and April 2015, the suit says. “It was in pretty bad shape,” the homeowner’s lawyer, Dennis Crawford, said of the tree. “Brenda put the township on notice and it’s something that could have easily been avoided,” said the Audubon attorney…

Phys.org, April 13, 2021: Cascading effects of noise on plants persist over long periods and after noise is removed

Though noise may change moment by moment for humans, it has a more lasting effect on trees and plants.
A new Cal Poly study reveals that human noise pollution affects the diversity of plant life in an ecosystem even after the noise has been removed. This is the first study that explores the long-term effects of noise on plant communities. It was published in the Proceedings of the Royal Society B. In a study conducted twelve years ago near natural gas wells in New Mexico, researchers found that there were 75% fewer piñon pine seedlings in noisy sites as in quiet ones. This was most likely due to the noise driving away the Woodhouse’s scrub jay, which plants thousands of pine seeds while storing them to eat during the winter months. A research team recently returned to the sites to find out whether the piñon pine had recovered over time. Because companies change the sites where they use noisy compressors to help produce natural gas, some of the previously noisy sites had become quiet. In these areas, there were fewer seedlings and saplings compared to sites that didn’t have compressors added to the wellpad to speed up gas extraction. The decrease in saplings results from the time when the site was noisy, but the decrease in seedlings shows that piñon pine seeds still weren’t sprouting once the noise was removed. “The effects of human noise pollution are growing into the structure of these woodland communities,” said biology professor and senior author Clint Francis. “What we’re seeing is that removal of the noise doesn’t necessarily immediately result in a recovery of ecological function…”

Phys.org, April 12, 2021: States are growing fewer trees. Forest owners say that’s a problem

When wildfires ripped through Oregon last Labor Day, they burned huge swaths of forest, including 63,000 acres of smaller, private lands. Oregon state law requires forest owners to replant their land within two years of a wildfire, but many haven’t been able to: They used to rely heavily on state-run tree nurseries, but Oregon closed its nursery more than a decade ago. “We’re scratching our heads over this trying to address the need from the fire,” said Glenn Ahrens, a forester with the Oregon State University extension service. Seedlings are hard to come by. Large, commercial nurseries typically grow large tree orders on contract, supplying industrial timber companies that plan operations years in advance. State-run nurseries provide a more diverse array of species to landowners, allowing smaller orders on short notice. Many of the family foresters hit by the Oregon fires have struggled to obtain seedlings from the private sector. The seedling problem is not unique to Oregon. Eight states have closed their nurseries, most in the past two decades, according to a survey by the National Association of State Foresters. Twenty-nine states still operate nursery programs, though many have closed some of their facilities…

Swampscott, Massachusetts, Wicked Local, April 12, 2021: Swampscott tree huggers keep to-do list full

The half-dozen residents who sit on the Swampscott Tree Advisory Taskforce are quite the industrious bunch. Members dutifully assist the Swampscott Department of Public Works in the protection, planting and care of the town’s public trees – from developing policies to securing resources. “Swampscott trees are important: The town would be a very different place without them,” Swampscott resident Verena Karsten, who serves on the advisory task force, in a Friday call. “They play a critical part in everything: For animal life, for climate change, for public shade, for our quality of life.” Concerned residents established the advisory task force in 2018 after a conveyor belt of big storms wreaked havoc on Swampscott trees. “We had a couple nor’easters that took down a lot of our public-shade trees,” said Karsten. “So we started this group, and we’ve been meeting monthly ever since.” The advisory task force’s latest project – Swampscott Town Hall Tree Replacement – seeks community input and financial support to replace a former European beech situated next to the entrance of town hall. DPW crew members got rid of the massive, 70-year-old tree because it posed a safety hazard after a couple big storms took off a few of its limbs. The task force invites community members to vote on the next tree from a list of three species: scarlet oak, American sweetgum and American basswood…

Orlando, Florida, WFTV, April 12, 2021: Orlando woman frustrated after she says city tree fell on top of her home

A Parramore woman says a tree from the city of Orlando’s right of way fell on her home. The city has paid out claims for damages like this in the past, but 9 Investigates learned they don’t plan to do so in this case. 9 Investigates first looked into the issue of old or dying trees in downtown Orlando back in 2018, during hurricane season. At the time, we learned that settlements had been paid for trees that fell on a person, or when a city tree was flagged for removal prior to the tree falling. The tree that once stood next to the home at 825 S. Parramore Ave. was never flagged for removal, and the city determined it wasn’t negligent in its maintenance, even after the homeowner said a private company cut some of its root system out to add a sidewalk right next to it. There is now a code enforcement warning on the front door of Frances Claxton’s home of 21 years. “It’s a city tree, so it was very frustrating. You think you’re doing the best you can, and nobody’s helping you,” Claxton said. Claxton was forced out of her home in September 2020, after the huge oak tree landed right on top of her roof. “The fire department, police department, code enforcement, city of Orlando, the apartment complex, everybody was out here, and the tree was laying over my entire house,” Claxton recalled. 9 Investigates has looked into what some call “time-bomb trees” in communities lined with laurel or live oaks across Orlando, where five years ago, a man won a $1.1 million judgment against the city after a downtown tree that had been flagged for removal fell and seriously hurt him…

Nature, April 12, 2021: Trees outside forests are an underestimated resource in a country with low forest cover

Trees outside forests (TOF) are an underrepresented resource in forest poor nations. As a result of their frequent omission from national forest resource assessments and a lack of readily available very-high-resolution remotely sensed imagery, TOF status and characterization has until now, been unknown. Here, we assess the capacity of openly available 10 m ESA Sentinel constellation satellite imagery for mapping TOF extent at the national level in Bangladesh. In addition, we estimate canopy height for TOF using a TanDEM-X DEM. We map 2,233,578 ha of TOF in Bangladesh with a mean canopy height of 7.3 m. We map 31 and 53% more TOF than existing estimates of TOF and forest, respectively. We find TOF in Bangladesh is nationally fragmented as a consequence of agricultural activity, yet is capable of maintaining connectedness between remaining stands. Now, TOF accounting is feasible at the national scale using readily available datasets, enabling the mainstream inclusion of TOF in national forest resource assessments for other countries…

Pittsburgh, Pennsylvania, Post-Gazette, April 12, 2021: Pittsburgh’s goal to plant more trees must include a plan for ongoing maintenance

Pittsburgh’s Shade Tree Commission is embarking on a strategy to bring more street trees to low-income neighborhoods, part of an ambitious goal to plant 100,000 trees over the next decade. That’s a laudable effort that will benefit the targeted communities, but the city must also commit to maintaining existing trees if for no other reason than the liability involved. The commission recently reported on its findings that show “low-income and Black communities disproportionately have fewer city street trees and thus see less of the benefits of trees.” To that end, the commission plans to identify 10 low-income neighborhoods for tree plantings, urban forest education and cyclical tree maintenance schedules. While planting the trees to benefit these often neglected communities rightly is a top priority, maintenance of existing trees is equally important. Maintenance entails pruning, sidewalk repair and stump removal. Poorly maintained trees have been an ongoing problem for the city. An audit by Controller Michael Lamb of the city’s law department found that the majority of liability claims made against the city in 2016 and 2017 were from damage caused by city-maintained trees. Tens of thousands of dollars were paid out in claims from trees falling on cars or from tree-root damage to sidewalks, utility lines and buildings…

Charleston, West Virginia, Herald-Dispatch, April 11, 2021: Tree damage from ice storms still plagues some state park trail networks

The ice storms that hit West Virginia in mid-February damaged a lot of trees, and some of those fallen trees and limbs blocked state park hiking trails. “Most of our areas didn’t have significant reports of damage,” said Brett McMillian, the state’s deputy chief of parks. “In the cases where there was significant damage, park staffs or volunteers have been working to get the trails cleared.” McMillian said the ice storm’s timing was actually pretty fortunate. “It happened just before we started into our spring maintenance programs,” he added. “We would have been out inspecting and clearing the trails anyway.” The storm hit the state’s westernmost counties hardest. McMillian said trail damage was worst at Cabwaylingo State Forest, in southeastern Wayne County. “We had some concerns that we might not be able to open the Cabwaylingo section of the Hatfield-McCoy Trail network (on March 1) as planned,” he added. “But our people were able to work with the Hatfield-McCoy people to get everything cleared on time.” Ice also damaged trees at Beech Fork State Park in northern Wayne County. Park superintendent Dillard Price said the storm toppled entire trees onto several popular trails…

Yahoo.com, April 9, 2021: Black descendants of Bruce’s Beach owner could get Manhattan Beach land back under plan

Descendants of a Black family that once owned a thriving oceanfront resort in Manhattan Beach could get the property back under state legislation announced Friday. Backers of the proposal, which will be introduced by state Sen. Steven Bradford (D-Gardena) on Monday, say it is the first step toward correcting a historic injustice when the city seized the resort of Charles and Willa Bruce and forced Black beachgoers out of town 100 years ago. The bill, if passed, would allow Los Angeles County, which currently runs a lifeguard center on the site, to transfer the property to the Bruce family. State legislation is necessary to lift the restriction that the state placed on the property when it transferred the two parcels to L.A. County in 1995. “We stand here today to introduce a bill that will correct this gross injustice and allow the land to be returned to the Bruce family,” Bradford said Friday. “It is my hope that this legislation will not be the last in a series of actions by the state to address centuries of atrocious actions against Black Americans…”

Cedar Rapids, Iowa, Gazette, April 11, 2021: Planting Forward: Companies and workers restore trees taken by derecho

I grew up on J Avenue in northwest Cedar Rapids, a neighborhood typical for much of the city, with lots of friends and helpful neighbors. It was a great place to be a kid. I had no idea that the magic of this community, its neighborhood spirit, would be central to my later life successes, let alone in response to community disasters. Our first business, Teleconnect, opened in 1980. Our primary competitor was the largest corporation in the world! However, at 33, I knew how our community worked, and I was completely confident we could create a compelling product that businesses here would purchase, and they did. This community acts as an incubator for many local companies, dating back to the city’s founding. And in times of disasters, we shine. The 2008 flood was a real testament to how our community pulls together. Some cities would have withered; Cedar Rapids has prospered. We all witnessed “community” — neighbors helping neighbors, sand bagging, rescues. No fatalities. This past year, a derecho struck our city in the midst of a pandemic. Again, the community responded. Neighbors helping neighbors. People moving in with others. Food, generators, chain saws, you name it: If you asked for something, someone seemed to be there with it. Immediately following the derecho, my friend and business partner Steve Knapp came up with a simple but brilliant solution to help our employees at Fiberutilities Group (FG) recover from the storm. Steve realized that the disaster was an opportunity for employees to learn the importance of native trees to our environment…

Albany, New York, Times Union, April 8, 2021: Have you seen this bug? Hemlock Woolly Adelgid is killing New York’s trees

A tiny invasive insect is killing hemlock trees in the Adirondacks and your help is needed to spot the pest before it is too late. The Lake George watershed is home to the highest concentration of Eastern hemlocks in the state. Hemlocks play a vital role as a foundation species, hosting spiders and keeping streams level by absorbing excess groundwater in the spring and fall. The trees also insulate snowpack, which slows the melting process and ultimately helps freshwater streams and cold water fish species — like brook trout and salmon — thrive. But these valuable trees have a predator. This past summer, Hemlock Woolly Adelgid (HWA) infestations were found in and around the Lake George Islands and later in the fall at Shelving Rock, Buck Mountain Trailhead, on Dome Island, and several other locations in northern Saratoga County. HWA is a tiny, invasive insect that slowly kills hemlocks. It can hitch a ride on birds or small mammals, blow in the wind or move with lumber. “Our hemlock trees are not adaptive to a piercing, sucking pest like this, and we have no natural predator or controls in our ecosystem,” said Caroline Marschner of the New York State Hemlock Initiative with Cornell University. Native to Asia and the Pacific Northwest, HWA was first found in the lower Hudson Valley and Long Island in 1985, according to the Department of Environmental Conservation…

Smithsonian Magazine, April 8, 2021: To Fight Climate Change With Trees, America Needs More Seedlings

Many government commitments to fight climate change hinge on planting huge numbers of trees in hopes that the plants will remove carbon dioxide from the atmosphere and store it in their trunks. Scientists have criticized the suggestion that mass tree planting could be a climate change panacea, but a new study suggests there may not even be enough seeds to reach the lofty reforestation goals of initiatives such as the World Economic Forum’s one trillion tree campaign. In the United States, the “Trillion Trees Act” proposed planting 24 billion trees over the next 30 years. A 2020 analysis from the World Resources Institute stated that there was ample space to achieve 60 billion new trees by 2040, if all suitable land across the country was reforested without reducing food production. The new study was published last month in the journal Frontiers in Forest and Global Change. The U.S. would need to double its current seedling production—and then some—to plant roughly 30 billion trees, which is the amount the authors estimated would fit on the lower 48 states’ natural and agricultural lands, reports Kyla Mandel for National Geographic. “You can’t plant a tree until you grow it. And you can’t grow it in the nursery until you have the seed,” Joe Fargione, science director for The Nature Conservancy’s North America Region and the study’s lead author, tells National Geographic. Per the study, U.S. seedling production is currently around 1.3 billion a year, which means adding 30 billion trees by 2040 would require increasing annual production by 1.7 billion seedlings, a 2.3-fold increase that would raise total production to 3 billion baby trees…

Agence France Press, April 8, 2021: To date, no tree has been verified to be 6,000 or more years old

An image of a large baobab has been shared hundreds of times on Facebook alongside claims that the tree is 6,000 years old and located in Tanzania. But experts say that no tree in the world has been discovered that is this old to date. The oldest living tree on record is a bristlecone pine in the United States. The Facebook post with the photo of the baobab has been shared more than 260 times since it was uploaded on April 3, 2021. No tree in the world has been verified to be 6,000 or more years old. In 2019, Snopes debunked a similar claim featuring this photograph. AFP Fact Check was unable to track down the exact tree in the Facebook post, but identified some key clues. The image has been circulating online since at least 2004. It shows a large baobab (Adansonia digitata) in an unknown location. Early postings claim that the photograph was taken in Senegal, not Tanzania. Based on a study published in the scientific journal Nature Plants, the oldest baobab tree on record lived in Zimbabwe and was estimated to be 2,450 years old when it died…

Canadian Broadcasting Corporation, April 8, 2021: B.C. trees are being turned into wood pellets — and that’s bad for the climate and workforce, critics say

Piles and piles of raw logs stacked in the yards of wood pellet mills in northern British Columbia were one red flag. Now, a new report from the Canadian Centre for Policy Alternatives (CCPA) think-tank has caught the attention of environmental groups and a forestry workers’ union, who are concerned about companies chipping whole trees into pellets and exporting them for biofuel. They say the practice harms the environment and generates little employment, and are calling on the province to suspend the approval of new wood-pellet mills and conduct an independent review of the industry’s activities. “I don’t think that that is something we want from a climate perspective, from a jobs perspective, or from an ecological perspective,” said Ben Parfitt, CCPA policy analyst and the author of the report, which was released April 7. Parfitt’s research shows roughly 12 per cent of everything logged in B.C. becomes wood pellets. Pellets are primarily meant to be made from wood waste generated by pulp and saw mills. The report was released after the CCPA received photographs taken in March by an environmental organization that show large numbers of logs in pellet-mill yards in northern B.C. “Whole trees, indeed whole tracts of forest, are being logged with the express purpose of turning trees into a product that is then burned,” the report says…

TNLBGray140407

Case of the Day – Wednesday, April 14, 2021

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. An article we read 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 were 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 the 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.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, April 13, 2021

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.

Some would say "disaster." Tal Mims said "opportunity."

     Some would say “disaster.” Tal Mims said “opportunity.”

But 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.

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 the Mims’ homeowner’s policy. Both Stills and the Mims appealed.

Held: The trial court’s dismissal of State Farm Insurance was upheld. Stills argued that her claim was based on the Mims’ negligence in cutting the tree down, and not on any property defect, making the insured location issue irrelevant. Both Stills and the Mims asserted that the business pursuit exclusion did not apply, because the 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 the Mims argued that her claim did not arise from any business pursuit by the Mims, but rather, the claim was based on the Mims’ personal liability and involved activities that were 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 the Mims’ State Farm policy. The Mims were not seeking coverage for an accident that occurred on Tal’s 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, in Newmanthe defendant’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 Tal 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, Mal 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.

– Tom Root

TNLBGray

Case of the Day – Monday, April 12, 2021

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 the clients who are driving the train …

Here we are, on what would have been Tax Week. The year is fleeting (and maybe the pandemic is ebbing)…

Meanwhile, those fun-loving Murrells of Rolling Hills, California, are back for an encore performance! 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 the Case of the Day for Friday, April 9, 2021 (funny, it seems like only last week). Lest you think that decision was the end of the saga, I now bring you Murrell II, the Very Expensive Sequel.

If you’re the kind of person who remembers what kind of mayo you had on your sandwich at lunch a week ago last Thursday (Duke’s), 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 Chinese viewers thought that it was confusing missing the White Walkers’ message in Game of Thrones!

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, 2011 Cal. App. Unpub. LEXIS 772 (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.

Stormy Daniels probably wasn’t smiling when she was told to pay the Trump’s legal fees – reportedly $840 an hour for one attorney – and it’s a cinch the Murrells weren’t grinning at what they owed for the Association’s lawyer’s bill, either.

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.

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.

– Tom Root

TNLBGray140407

Case of the Day – Friday, April 9, 2021

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 includes anyone driving a vehicle worth less than a hundred grand – appears to have been banned.

It’s unlikely the late Rodney King would have lived here.

Remember Rodney? Decades before George Floyd and #Blacklivesmatter, Rodney King was the poster child for police brutality against minorities, or – if you roll this way – he was the man who should have known better than to be driving around after dark while engaged in 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 to 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, 2007 Cal. App. Unpub. LEXIS 5321, 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.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, April 8, 2021

DON QUIXOTE GETS WINDMILLED

quixote150416A Yankee landowner ­– we’ll call him El Ingenioso Hidalgo Don Juan Roberto Hamilton de la Vermancha – was furious at the Holland Town select board when it announced plans to widen the road in front of his house. He complained to the Town, and it scaled back the plans. That wasn’t good enough for our hero: He sued.

The case went to the Supreme Court of Vermont twice, where our landowner proved his point. The Court held that the Holland Town tree warden couldn’t cut down the trees in front of Don Hamilton’s house without holding a hearing first.

A tree warden is a concept unique to New England, a municipal official given powers by statute to make decisions about the cutting and trimming of diseased or hazard trees. The tree warden’s powers are defined by statute.

In today’s case, when all the legal dust had settled, the Town succeeded in widening the road, the tree warden was able to cut down the trees standing in the way of progress, and all necessary hearings were held, with everyone – including Don Hamilton receiving due process, that is, the “process that is due.”

For Don Hamilton’s considerable efforts in protecting the due process rights of all landowners who might have the tree warden try to cut down healthy trees without a prior hearing, the plaintiff was rewarded with damages … of one dollar.

Of course, Don Juan Roberto Hamilton used two lawyers and spent about $30,000 in pursuit of his glorious quest, and for reasons you can read about in the full case, he didn’t win any attorneys’ fees. But he has his dollar, and the sense of satisfaction that he stepped up and made a difference.

road150416Hamilton v. Town of Holland, 950 A.2d 1183, 2007 VT 133 (Sup.Ct. Vt., 2007). John Robert Hamilton owned property on Lackey Road. In 2001, the Town select board decided to widen a half-mile section of Lackey Road because the section was not wide enough to allow large vehicles – such as a truck, snowplow or school bus – to pass each other safely. The Town engaged the assistance of the State District/Regional Highway Commission in selecting and marking the trees that needed to be removed for the road project.

As originally planned, the road-widening project required removal of many trees, and would have required blasting, digging drainage ditches, and installing culverts. John objected to the tree-cutting proposal. The select board voted to go ahead with the project anyway, but it scaled back the road and reduced the number of trees to be cut.

John sued for a declaratory and injunctive relief, seeking to prevent the Town from cutting down the trees. He argued that the Town must follow the statutory procedures for altering a public highway, including performing a survey of the road, before proceeding with the widening project. The Town argued that it had authority to maintain Lackey Road, and that widening the road is part of the Town’s maintenance responsibility. The Town also argued that the Town’s tree warden was not required to hold a hearing before removing the trees, because they were a hazard to the public. The trial court granted summary judgment for the Town, and John appealed.

The Vermont Supreme Court reversed the decision, holding that the record did not support the court’s grant of summary judgment, because while the trial court had grounded its decision in part on the fact that the trees to be cut were all located within the right-of-way for Lackey Road, and that all of the work would take place within that right-of-way, the location of the right-of-way and the trees to be cut was an issue of fact that was not resolved. The Supreme Court also agreed with the landowner that state law on tree wardens did not grant the tree warden authority to cut public shade trees under the “public hazard” exception unless the trees themselves presented the public safety hazard.

On remand, John amended his complaint, raising a 42 U.S.C. §1983 claim of deprivation of his constitutional right to due process. The due process claim was based on the failure of the tree warden to hold a hearing prior to removing the trees in question. He also claimed trespass and conversion of trees, both of which claims were grounded in state law. The trial court concluded that the road project was “more extensive than routine maintenance,” but that fact alone did not constitute “a major alteration to the road as that term is defined in state law.” Therefore, the court held, the project did not trigger the requirements of 19 V.S.A. §704 for a survey.

The trial court also concluded that the tree warden’s failure to hold a hearing on the proposed cuttings violated 24 V.S.A. §2509, but that John wasn’t injured by the violation. The court awarded nominal damages in the amount of $1.00 for his §1983 claim, and — because of these nominal damages, John was the prevailing party under federal law and entitled to attorney’s fees. The Town appealed, and landowner cross-appealed.

dollar150416

John Hamilton only won a dollar – but what a nice dollar it must have been!

Held: The trial court’s determination that the widening was not a major alteration was upheld. According to the statute, “ ‘[a]ltered’ means a major physical change in the highway such as a change in width from a single lane to two lanes.” If the change constituted an alteration, then the Town was required to comply with 19 V.S.A. §704, which required expensive studies of project before it was undertaken.

The project involved cutting fifteen trees in front of John’s property, a total of thirty to thirty-nine trees along the entire length of the road, and regarding and adding gravel. John argued that the original project was much more extensive, but the Court said that the Town’s response to his original complaint — to scale back the project — was an appropriate response, and the statute had to be applied to what was finally done, not what was originally planned. The Court observed that the project did not widen Lackey Road from one lane to two, but rather all of the work was done within the existing right-of-way. No culverts were installed or blasting done. Ditches were improved and gravel spread, which appeared to be “maintenance” under state law. Trees were removed, but such removal is specifically contemplated as a matter of maintenance by 19 V.S.A. §904. The Court agreed with the Town that all the work it performed indeed qualified as maintenance. As such, the Town did not need to perform the survey requirements found in §704.

John had spent $2,000 planting new trees, but he admitted the new planting took place in an area different from where the Town proposed to cut trees and was completed before any cutting by the Town. The Court thus found that John’s plantings were not related to the roadwork.

Inasmuch as John did prove a deprivation of due process and a violation of his property rights in the removal of trees located in the Town’s adjacent right-of-way, the superior court was correct to award him nominal damages of $1.00. Because the Town cut down the trees without holding a tree-warden hearing, the Court said, John’s due-process rights were violated regardless of his inability to prove loss or damage.

– Tom Root

TNLBGray140407