Case of the Day – Monday, May 11, 2026

Posted on May 11, 2026 by TLRoot tagged.

BATTLING INSURERS

It’s an awful thing to see two insurance companies, slugging it out toe to toe, fighting each other to the death. Imagine Flo stomping on the GEICO Gecko…

Well, maybe “awful” is a slight overstatement, but today’s case does pit two insurance companies against each other. One insured an engineering firm against professional negligence (malpractice), while the other one insured the company against everything else. And you can bet that they were arguing over who would get the honor of picking up the check.

Compare it to a doctor’s office: if your doctor cuts off your ear when he or she was supposed to be curing your eczema, that would be covered by the professional insurer (assuming a jury thought it might be malpractice). If after you get the ear cut off, you slip and fall on a wet floor while paying, the doctor’s general insurer would cover your sore tush (financially, of course).

The engineering firm, an outfit named Czop/Specter, Inc. (pronounced “czop-specter”), had a contract with the Commonwealth of Pennsylvania to inspect its highways, and — when it found a dangerous condition — to schedule crews to fix it. Czop/Specter had an employee whose credentials were approved by PennDOT, who took special training in highway standards and then performed the inspections. When poor Mr. Cuthbertson (just your average motorist) was hurt by some driver who blew through a stop sign, his lawyer — who had no interest in committing legal malpractice — sued everybody. Claiming that the driver who hit his client couldn’t see a stop sign obscured by trees and foliage, Cuthbertson included the engineering firm Czop/Specter as a defendant in the suit, claiming that Czop/Specter should have identified the obscured sign and had the trees trimmed. Czop/Specter’s insurance companies were fighting over whether the negligence that the plaintiff alleged was covered by the professional liability policy (the cut-off ear) or the general policy (a slip on the wet floor).

The insurers sued in federal court, asking it for a declaratory judgment – simply an order from the court determining whether any damages that might be awarded because of any negligence should be paid by the professional liability insurer or general insurer. The professional liability insurance company claimed that the allegedly negligent inspection wasn’t a professional service, but instead could have been performed by anyone. The general insurer argued the liability wouldn’t belong to it, because its policy specifically excluded inspections from covered acts. The court said that the employee who performed the inspections had to be approved beforehand by PennDOT, had to complete special training and — although not an engineer himself — had other specialized education in herbicide application, which was necessary for the position. The court’s conclusion: you don’t have to be a doctor or lawyer to provide professional services.

Is there a lesson here? The court seemed to suggest that because the claimed negligence didn’t fall under one policy, it necessarily had to fall under the other. But that ain’t necessarily so. It’s entirely possible that Czop/Specter could have found itself being sued for negligence on a matter that no one ever contemplated — a passenger in a car hit because of an obscured sign because of an untrimmed tree because of a negligent inspection — one that was covered by neither policy. A lesson for arborists and tree specialists. You’d be wise to carefully read those boring, tedious, incomprehensible policies.

Lumbermens Mut. Cas. Co. v. Erie Ins. Co., 2007 WL 2916172 (E.D.Pa., Oct. 21, 2007). Donald Cuthbertson, Jr. was injured in an auto accident when another driver drove through a stop sign and collided with the car in which Cuthbertson was riding. Cuthbertson sued in state court, alleging, among other things, that the accident occurred because the driver did not see “an obscured and otherwise difficult to observe stop sign… due to a combination of factors, including tree branches, vegetation, bushes, brush and grass which obstructed visibility of eastbound drivers west of the stop sign.”

Czop/Specter, Inc., held a contract with the Pennsylvania Department of Transportation to perform inspections on the highway and to schedule any work required following the discovery of hazardous road conditions caused by overgrown vegetation. The inspection and scheduling services were performed by Czop’s employee, David Riley. In his complaint, Cuthbertson asserted that Czop was negligent in performing the contract.

Lumbermens Insurance provided a defense to Czop under the terms of an Architects and Engineers Professional Liability Policy that covered claims “arising out of a wrongful act in the performance of ‘professional services’.” Professional services were defined as “those services that the insured is legally qualified to perform for others in the insured’s capacity as an architect, engineer, land surveyor, landscape architect, construction manager or as defined by endorsement to the policy.” Lumbermens claimed that Erie Insurance Exchange — which insured Czop against general claims — had the obligation to defend, because the inspection services weren’t “professional services.” Erie’s policy contains an endorsement excluding from coverage “damages due to any services of a professional nature, including but not limited to… supervisory, inspection, or engineering services.” Erie argued that the services performed by Czop through Riley constituted supervisory and inspection services and, therefore, the claim is excluded from coverage under the Erie policy. The battling insurers asked a federal district court to settle the dispute between them.

The plaintiff argued that the engineering firm inspector had ignored the risk …

Held: Lumbermens must defend Czop from the lawsuit because the services were professional in nature. Under the law, a ‘professional’ act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

In determining whether a particular act is of a professional nature or a ‘professional service,’ a court must look not to the title or character of the party performing the act but to the act itself. Riley’s services under the Engineering Agreement were “services of a professional nature” because the job entailed Riley’s inspection and supervisory services, which could not have been performed by just “anyone” and which were expressly excluded from coverage under the Erie policy. The Engineering Agreement required Czop to submit Riley’s credentials for approval by PennDOT for the position of “Roadside Development Consultant.” Riley was then trained by a PennDOT employee, and he attended mandatory seminars that prioritized needed work and roadside vegetation control. Upon completing his training, Riley conducted inspections to identify hazards, scheduled roadside work to be performed by others in accordance with PennDOT standards, and supervised the contractors performing the work.

The Court found that Riley could not have performed the job without the specialized training he received from PennDoT. Riley did not hold an engineering degree, although Czop is an engineering firm. Riley did, however, have specialized herbicide training which he used in connection with his inspection responsibilities under the Engineering Agreement. One need not be a doctor or a lawyer to render professional services. The job that Czop was paid for was the inspection and supervisory services performed by Riley. His failure to inspect and supervise the trimming of the vegetation that obscured the stop sign — if it happened — would constitute a “wrongful act in the performance of professional services,” as that term was defined in the Lumbermens policy.

– Tom Root

And Now The News …

Posted on May 11, 2026 by TLRoot tagged.

New York City, The New York Times, May 11, 2026: A Warning to Climate Scientists: Don’t Miss the Forest for the Trees

It’s the summer of 2023 and the Canadian forest ecologist Suzanne Simard is sitting tucked in the knobby embrace of an Amazonian tree trunk, imagining that she too is a tree as she “reached out with leaves unfurling to greet the sun.” She can feel the rat-a-tat of woodpeckers on her bark, the stretch of her roots in the soil below. She draws strength from a sense of family: “The trees were in my blood. They were my kin.” But in Simard’s new book, “When the Forest Breathes,” trees are not just supportive relatives. They are teachers and healers, capable of communication and perception, a woodland congregation in which young trees grow “in halos” around their elders. Back in Canada, she describes a forest visit that further amplifies that sense of magic, a moment in which she stands beneath aged cedars, “the supernatural trees, the grandmothers,” listening as they whisper wisdom on the breeze. All of which brings a heady, inspirational quality to her writing as she urges readers to hear the forest as she does. “Nature is waiting for us to listen,” she writes, “and to learn.” The siren quality of her message is almost tangible, as is the allure of gaining knowledge from the Zen master inhabitants of the ancient forests…

Ashland, Ohio, Source, May 10, 2026: A Stroll Through the Ground: Pecan trees can grow this far north

Maybe you’ve wondered about this too — how far north pecan trees can really thrive? In our area, we’re right at the edge of where pecan trees can grow, which makes every successful tree feel like a small victory. If you’ve ever tried growing plants at the edge of their comfort zone, you know how important a little protection from the elements can be. We’re officially in Zone 5, but lately, it feels like our winters have softened, nudging us closer to Zone 6. Maybe you’ve noticed this change, too. That shift is good news for pecan lovers, because it means our yards are becoming more welcoming places for these trees. Seeing my friend’s pecan tree doing well gives me hope that you might have success with one, too. I recently talked with Tom Hunt, the curator of the Mohican Arboretum, who has been growing these hardy pecans since 2010. These pecans brought out the measuring tape. Tom’s story is a great example of how gardeners help each other: he received his pecan nuts from Tom Fox, who got them from John Gordon. John Gordon, in turn, gathered these resilient pecans during expeditions along the northern stretches of the Mississippi — a real team effort that shows how much we all learn from one another…

Science Alert, May 11, 2026: Trees Can Halve The Heat Trapped in Cities, But There’s a Catch

Cities and towns are usually 1–3°C hotter than the surrounding countryside, because asphalt, concrete and brick absorb heat from the sun and radiate it slowly. Some cities can be as much as 7°C hotter. This effect is known as the urban heat island. This can be dangerous, especially in hot countries. In very hot conditions, dehydration and heat exhaustion become real risks. If it gets too hot, it can be lethal. There’s one simple antidote: urban trees. Authorities around the world have planted more trees to counteract the heat. But how effective is this? How much hotter would our cities be without trees? To find out, we analysed data from nearly 9,000 cities around the world, home to about 3.6 billion people. As our new research shows, trees almost halve how much heat is trapped by the urban heat island effect. This cooling is welcome. But it is far from even…

Apartment Therapy, May 9, 2026: I Bought a Gorgeous Fruit Tree Italy Is Famous For — Its Upkeep Is Shockingly Easy

Growing up in Los Angeles meant I was surrounded by citrus trees when I was a kid — and the sour-yet-slightly-sweet fruits led me to a lifelong love of gardening. As a child, I loved tending to my grandparents’ grapefruit plants and picking neon-green limes from a tree in my backyard. So when I recently moved back to Southern California after a stint in New York City, I knew I needed a citrus tree of my own. Like several plants associated with Southern California (including palm trees!), citrus trees are not actually native to the area. They’ve managed to thrive here since before the signing of the Declaration of Independence, and almost 100 years before California became the 31st state. Depending on the time of year, you can spot these bright-tasting fruits peeking out of the shrubbery in expansive groves along SoCal highways, in city parks, on hiking trails, in neighbors’ backyards, and on my balcony in South Pasadena. But creating that lush escape wasn’t easy: My apartment’s only outdoor space is a concrete-coated balcony, three stories up from any soil. “When one thinks of a citrus tree, they might picture something large and shade-providing, rather than what we can grow in a container,” says Kaitlin Mitchell, gardening pro and founder of Rutabaga Tools, where she specializes in plant growth education. “However, if you have a sunny spot that can accommodate a 12- to 18-inch-in-diameter pot, you can start to picture your own potted tree that provides enough fruit for yourself and to share…”

USA Today, May 6, 2026: Del Monte bankruptcy prompts massive peach tree removal in California

California peach growers are set to destroy roughly 420,000 clingstone peach trees after the collapse of a decades-long partnership with Del Monte Foods left farmers without buyers for tens of thousands of tons of fruit. The move comes after the U.S. Department of Agriculture approved up to $9 million in federal relief funding to help California farmers remove about 3,000 acres of peach orchards ahead of the 2026 harvest season, according to a release from Adam Schiff and California lawmakers. The emergency aid comes after the closure of Del Monte processing facilities in two California towns, Modesto and Hughson, a fallout following the food giant’s Chapter 11 bankruptcy filing last year. Here’s what to know about the removal of clingstone peach trees…

Juneau, Alaska, The Alaska Beacon, May 7, 2026: Kodiak fisherman will plead guilty to stealing trees from Alaska’s Tongass National Forest

A commercial fisherman in Kodiak will plead guilty to stealing 16 yellow cedar trees from the Tongass National Forest in Southeast Alaska. Mitchell Keplinger, charged with theft of government property in April, was scheduled to appear in U.S. District Court for the District of Alaska on Wednesday for his formal arraignment. Keplinger signed a plea deal the day after he was charged. Under the terms of the deal, he will avoid jail time but will pay $85,682.17 in restitution and be on probation for three years, a term that may later be reduced to no less than 18 months. That would be significantly lower than the maximum penalty for theft of government property, which can be punished by up to 10 years in prison and a fine of up to $250,000. Keplinger’s attorney did not return a phone call seeking comment on Wednesday. According to the text of the plea deal, Keplinger and his boat, the 54-foot seiner Alinchak, were working in the Sitka herring seine fishery in late March and early April 2024. After the fishery closed, Keplinger used his boat and crew “to harvest Alaska yellow cedar trees on U.S. Forest Service lands near Sawmill Creek, Sugarloaf Mountain and in and around Sitka Sound…”

phys.org, May 7, 2026: Tree communities shape hidden energy flows under European forests

Mixing tree species can lead to better growth in the forest—at least above ground. A new study published in Nature shows that mixed forests had lower activity in the complex belowground ecosystems than previously thought. Researchers suspect this could affect the long-term growth of forests. The study, led by researchers from the Umeå University and Swedish University of Agricultural Sciences, SLU, was an international collaboration between nine universities through the SoilForEurope project. By sampling and identifying the different organisms in forest soils from 64 areas in four European countries, the scientists aimed to better understand how different tree species and their combinations affect how energy moves through the web of life beneath the forest floor. The study shows that tree species play a key role in the function of the soils. Forests containing fast-growing, resource-hungry trees which produce a lot of organic material also show higher activity in the soil, with faster nutrient cycling compared to forests with slower-growing species. Different tree species channel energy into the soil in different ways, either through living roots or fallen leaves, with important consequences for soil life…

Durham, North Carolina, Indy, May 7, 2026: Tree Canopy Loss in Apex is Among the Highest in Wake County. Now the Town is Considering New Protections.

Apex residents said goodbye to local landmark “Oakey” last week, a 140-year-old oak tree off of Hunter Street. The town was forced to fell the aged tree because of its condition: it was no longer “structurally sustainable,” according to Mayor Jacques Gilbert. In other words the tree, which stood only a few feet from the sidewalk, with branches arching over a road in the heart of downtown, was at risk of falling. It’s clear the tree was important to Apex residents. Gilbert’s social media post on April 30 drew more than 400 likes and 50 comments. Later that same day, coincidentally, the town’s Environmental Advisory Board (EAB) encouraged council members to enact stricter tree protections, similar to those in Durham or Charlotte. While Oakey was forced to come down because of age and related safety concerns, other trees across Western Wake are being felled prematurely as the area continues to develop rapidly. At a town council workshop on April 30, staff presented a suite of 10 recommendations for amendments to the town’s Unified Development Ordinance (UDO), or land use rules, which would help preserve and expand the town’s tree canopy…

San Francisco, California, Chronicle, May 5, 2026: Oakland finally decides on fine for landowner who cut down 38 mature trees

After months of debate and visible frustration, the Oakland City Council voted Tuesday to enforce a $1 million fine against a couple who cut down 38 mature trees across their property, a neighbor’s lot and an adjacent city lot on Claremont Avenue. For some, the vote was about more than a single hillside property. It became a test of whether Oakland, which has gained a reputation for permissiveness and lax enforcement, would stand behind its own laws. “We have to decide as a council if the laws mean something, or if they’re just ink on a piece of paper,” Council President Kevin Jenkins said during the meeting. “We have to decide whether Oakland will continue to have the reputation that people can do whatever they want without consequences…”

Burlington, Vermont, WCAX-TV, May 6, 2026: Why are crews cutting trees along Interstate 89?

Why is the state cutting so many trees along Interstate 89 between Montpelier and Burlington? WCAX viewer Andrew from Williamstown emailed that question. We got some answers from officials about several projects going on right now. One is near train tracks in Waterbury. A spokesperson for the New England Central Railroad said a contractor is rock scaling and installing fencing to protect the tracks from potential rockslides. It should finish up in a few weeks. Another tree-clearing project closer to the road is also in Waterbury. VTrans said they do this for safety and to save money. They say it prevents trees from falling onto the highway, improves sight lines for drivers, and allows more sunlight, preventing icing and roadway deterioration…

Nature, May 6, 2026: Trees halve urban heat island effect globally but unequal benefits only modestly mitigate climate-change warming

Although tree cover reduces the urban heat island, no global estimate quantifies air temperature reductions by contemporary or future tree cover, currently and with climate change. Here, we estimate these reductions for all 8,919 large urban areas. Current urban tree cover mitigates 41–49% of the maximum potential air-temperature urban heat island that would occur in the absence of tree canopy. Tree canopy reduces summer air temperature by a population-weighted mean of 0.15 ± 0.03 °C, with wide variation (0.0–2.7 °C), benefiting 914 (805–1040, 95% CI) million people by >0.25 °C. Cooling benefits are greater in already cooler areas: high-income countries and suburbs. Current and plausible future tree cover mitigate only ~10% (6.7–18% and 6.3–17%, respectively) of the median mid-century climate-change warming under a moderate emission scenario. Our results suggest tree canopy expansion in densely settled low-income urban areas is necessary for equitable urban heat island mitigation and climate adaptation…

Denver, Colorado, Denverite, May 6, 2026: Snow downed a tree outside your home? You’re not alone

Denverites drifting off to sleep last night were serenaded by a lullaby of faint snaps, followed by thuds. The extremely wet snow has been collapsing branches across town, leading to obstacles as minor as a twig and a few leaves on the sidewalk this morning. But in some neighborhoods, entire branches or trunks fell, blocking roads or sidewalks, maybe even crushing a parked vehicle. In those serious cases, the city recommends calling 311 to report it. But be warned — it may take a while for an arborist to get to it. Denver Parks and Recreation said that they’ve received 150 reports of downed trees or branches as of this morning. “They’re working all day to clear,” Denver Parks spokesperson Stephanie Figueroa said in an email. Also something to heed: The cost of work to remove a tree or branch impeding a road will be billed to the responsible property owner…

Stillwater, Oklahoma, KOSU Radio, May 4, 2026: Invasive tree-killing beetle found in Wagoner County

Officials with the U.S. Department of Agriculture have confirmed a population of emerald ash borers in Wagoner County. State foresters first announced they were investigating the insect’s presence in the area on April 21. Emerald ash borers are small beetles responsible for destroying hundreds of millions of native ash trees by boring into their bark and feeding on nutrients. Oklahoma’s ash trees are mainly found around lakes, including those in state parks. The beetles can fly up to 10 miles each year, but they primarily hitch rides on firewood. Forestry officials are urging Oklahomans to avoid traveling with wood and instead burn it where they buy it. The emerald ash borer, native to northeastern Asia, was first found in North America in 2002 and has killed off large populations of ash trees in eastern states. Wagoner County joins Carter, Choctaw, Delaware, Love, McCurtain, Murray and Pushmataha counties with confirmed cases. A thinning canopy, branch dieback and D-shaped exit holes are markers of the destructive beetle. The bugs have no significant predators in the U.S. aside from woodpeckers, which usually only reach the larvae once a population has grown and the tree is dead. Last year, Oklahoma foresters began releasing parasitoid wasps to help limit the beetle’s spread…

Colorado Springs, Colorado, Rocky Mountain PBS, May 3, 2026: How Colorado Springs is balancing a new tree planting program in a drought year

In the southeast region of Colorado Springs, where the tree canopy is more sparse than other parts of the city, municipal arborists lug a trailer full of young trees to residents who applied for “Grow Shade Together,” the city’s free tree program. “We’ve been wanting to add more trees ever since we moved in,” said Ann Vasseur, a Colorado Springs resident and recipient of one of the city’s free trees. When Vasseur first moved into her house in the Southborough neighborhood, there were not any trees, she said. Ann Vasseur and her husband, Kenneth Vasseur, applied for a free tree after hearing about it on their local news station in March. The city is planting 3- to 5-year-old trees — which can require up to 25 gallons of water per week, depending on their size — throughout Colorado Springs, despite Colorado experiencing one of its driest years on record. About 98% of Colorado has reached at least Stage 1 drought, according to the U.S. Drought Monitor, the first of four stages. Many cities along the Front Range, including Manitou Springs, Denver, Brighton, Boulder and Arvada have declared Stage 1 drought. Much of the state is currently experiencing Stages 2 through 4, which are severe, extreme and exceptional drought, respectively, according to the same monitor…

ESPN, May 4, 2026: Judge limits tree cutting at golf course Trump aims to renovate

A federal judge told the U.S. government Monday not to cut down more than 10 trees without first providing notice amid a legal dispute at a historic Washington golf course that President Donald Trump plans to renovate. U.S. District Court Judge Ana Reyes said during a remote hearing that she wasn’t going to issue a temporary restraining order just yet in the case brought by the DC Preservation League. She also told the National Park Service that it should first discuss any plans with government lawyers if it is going to cut down more than 10 trees. Monday’s hearing came after the plaintiff’s emergency petition seeking to stop work at the course, citing news reports that major renovations were to begin Monday. Kevin Griess, the superintendent of the National Mall and Memorial Parks for the Park Service, said during the hearing that there was no plan to begin such work Monday but added that a safety assessment was underway. Reyes told the parties she didn’t want to play the role of the “Parks and Rec” department, an allusion to the sitcom, but said she also didn’t want trees being bulldozed…

Philadelphia, Pennsylvania, WPVI-TV, May 4, 2026: Huge tree topples onto rowhomes in Brewerytown; neighbors say they’re not surprised

A large tree toppled onto rowhomes in the Brewerytown section of Philadelphia late Tuesday morning, with residents saying warnings about the tree dated back nearly a year. It happened on the 1400 block of North 27th Street around 11 a.m. Neighbors said concerns about the tree began last summer, after a portion of it fell and caused major damage. “In June or July of last year, the tree that fell down, part of the tree branch fell onto my car and totaled it,” said Lauren Dyenetti, who lives on the block. Jackie Ray, who lives next door to the home that was directly hit by the fallen tree, said she has repeatedly contacted the city about the issue. “I have been calling 311, Parks and Recreation, and so have my other neighbors about getting these trees trimmed,” Ray said. Officials shut down power along the block as a precaution following the collapse. Myles Drayton, whose home was among those affected, said residents had tried for months to get action taken…

Chicago, Illinois, WMAQ-TV, April 30, 2026: A popular tree planted all around the Chicago area will soon be illegal

A popular tree found outside many homes and on walkways across the Chicago area will soon be illegal to sell or grow after an unexpected turn of events. The Illinois Department of Natural Resources has added the Callery pear, also known as the Bradford pear, tree to the Illinois Exotic Weeds Act, the agency announced in October. The invasive trees are currently blooming all around the region “and are now spreading into natural areas.” According to the University of Illinois, the trees were widely planted in the 1950s as “a fast-growing popular ornamental tree despite weak branches that break off easily from storms.” “Callery pear is native to Asia. It was introduced to the U.S. as the cultivar ‘Bradford’ for use in research. It was considered as a potential means to develop resistance to fire blight in edible pears. ‘Bradford’ was then also introduced as an ornamental tree and was widely planted,” the Morton Arboretum stated. Now, decades later, it will be labeled an “exotic weed…”

The Economist, May 3, 2026: The case against trees

Two years ago the authorities tore down a building on Hill Road, a busy street in an overpriced part of Mumbai, to widen it and ease the traffic. But they left in place a large-canopied rain tree that stood in front of the vanished structure. In theory, the road has been widened. In practice, however, the building’s footprint is now an informal car park. The Hill Road tree is not an exception. Across Mumbai traffic is obstructed by trees that remained rooted as lanes were added. It is the same story in other growing cities. The reason for this bizarre state of affairs is that there is a noisy group even more feared by authorities than motorists, who are themselves no pushovers. That is the tree-huggers. India has spent the past 25 years frantically building infrastructure, both in cities and between them. The pace sped up after Narendra Modi, who enjoys few things more than a highway inauguration ceremony, came to power in 2014. Yet a binary idea has taken hold that trees and development are antithetical to each other. This is rather a strange notion for a country that can do with a lot more of both…

Phys.org, May 1, 2026: How oak trees outwit their predators

Spring in the forest: Many insects, particularly caterpillars, hatch just when the trees’ nutrient-rich leaves are still young and soft. This means they find a table laden with food and can start eating straight away. If oak trees are heavily infested by caterpillars in a given year, they react to this the following spring: they delay their leaf emergence by three days. This is unfavorable for the caterpillars. After hatching, they are literally faced with empty plates, because the oak leaves are still firmly hidden in the buds. This strategy is highly effective: the three-day delay is sufficient to drastically reduce the insects’ survival rate. And it reduces the damage caused by feeding on the tree by an impressive 55%. A team of international researchers report this in the journal Nature Ecology & Evolution. “The delaying tactic is more effective for the oak than a chemical defense, such as bitter tannins in the leaves,” says Dr. Soumen Mallick, a postdoc at the University of Würzburg’s Biocentre and lead author of the study. This is because the tree would have to expend a great deal of energy to increase tannin production…

Seattle, Washington, KIRO Radio, May 3, 2026: It’s not always a good idea to trust a random guy with a chainsaw. Here’s how to find a tree service worth hiring in the Puget Sound area

The trees around your home may need more attention than they’re getting. Disease, pests, and extreme Pacific Northwest weather can quietly turn a healthy tree into a hazard. When it’s time to call a professional, the difference between a good hire and a bad one can cost you thousands of dollars or your roof. “ConsumerMan” Herb Weisbaum, a contributing editor at Checkbook.org, joined “Seattle’s Morning News” on KIRO Newsradio with advice on how to hire a reliable tree service in the Puget Sound area. Checkbook is currently offering free ratings for 50 Puget Sound area tree services through June 5 on its website. If someone knocks on your door after a storm offering tree work, walk away. “Just because a company calls itself a tree service does not mean they are able to come to your house, diagnose the problem, and take care of it properly,” Weisbaum said. Seek out multiple estimates from established companies instead. Checkbook priced the removal of a 35-foot oak tree in the Puget Sound area and found quotes ranging from $1,355 to $3,650 for the exact same job. Getting several bids is the single most effective way to avoid overpaying for Seattle area tree removal…

Case of the Day – Friday, May 8, 2026

Posted on May 8, 2026 by TLRoot tagged.

INJUNCTION JUNCTION

To a nonlawyer, nothing sounds as enticing as running to a judge who will immediately express shock and dismay at the shoddy treatment being dumped on the complaining plaintiff, and then issue a thundering injunction to stop the defendants in their tracks.

OK, we’re wrong. To a nonlawyer, a lot of things sound more enticing… a cold beer after a long, hot day of work, the only winning ticket in a $140 million Powerball drawing, watching your neighbor wrap his new Porsche – a car you lust after but could never afford – around a utility pole.

But when a person feels wronged, the urge to have his or her lawyer blast the defendants with both barrels right out of the gate is almost irresistible. So let’s get a temporary restraining order, followed by a preliminary injunction, followed by a first-class trial and a hanging.

But getting a preliminary injunction is not all that easy a thing. First, you have to show that without it, you will be irreparably harmed. That’s not easy, because almost any harm can be repaired, usually by a liberal application of money. Then, you have to show that you’re “likely to succeed on the merits,” a fancy term for proving that you’re going to win when you go to trial. Inasmuch as a trial is when you put on all of your evidence, winning a preliminary injunction means you have to try the case twice, and at the injunction stage, you have not had the benefit of perusing your opponent’s files and harassing him or her in a deposition.

Finally, you have to show that equity is on your side. That’s a fairly squishy concept, but generally, it measures how big a pain it’s going to be for the other party if the injunction is granted. If the injunction is, for example, do not cut down my trees in your easement before we work out whether you have the right to do so, that’s not tough. The cost to the other guy of not cutting them down is not that great, and the cost to you if he does certainly is great, probably irreparable harm.

On the other hand, if – like plaintiff John Haverland in today’s case – you want a mandatory injunction, one which does not prevent something from happening but instead orders that the other guy do something, that’s a much taller order.

Two things to remember: First, getting a preliminary injunction does not mean that you’re going to win the case. We have no idea how John Haverland made out after the trial, or even if there was a trial. Second, because this is New York State, where everything is upside down, the “Supreme Court” is a trial court. New York’s highest court is the New York Court of Appeals.

Go figure.

Haverland v. Lawrence, 800 N.Y.S.2d 347 (Supreme Ct. Suffolk Co., Dec. 1, 2004): Mike Haverland sued his neighbor, Guy Lawrence, and his landscaper. The suit was brought because Guy had his landscaper plant an 80-foot line of 13-foot-tall pine trees along the boundary between the two homes. Mike said the trees were so close to the boundary line that, although their trunks did not cross the line, the root balls (which, of course, were well buried) did.

Mike complained that, besides the root balls, the trees had been staked, and some of the stakes were in his yard. He said Guy’s contractor crossed onto his land while planting the trees and knocked down five of his oak trees and construction stakes marking the site of his new house. Finally, he argued that the pine trees changed the grade slightly, so that water accumulates and floods in a 22-foot strip of his property after a hard rain. This, Mike said, would result in a foot of standing water, making this part of his land unusable.

Mike’s real complaint was that this flooding and the fast-growing roots of the trees would undermine the integrity of the foundation of his house, which had not yet been built. He asked for a preliminary injunction directing that Guy Lawrence and East Hampton Bayberry, Inc., his contractor, remove the pine trees, rootballs and stakes from his land and restore the previous natural grade and surface water flow on Mike’s property.

Mike’s surveyor, David L. Saskas, said he had placed surveyor stakes on Mike’s property to enable Mike’s general contractor to mark the location of the foundation of Mike’s new house. In the course of this survey, he determined that ten large evergreen trees had been planted very near the boundary line with Mike’s property. The trunks of five of these trees were within six inches of the line. and the holes and root balls for these trees extended up to 2½ feet onto Mike’s land. Only two of these ten trees were planted entirely on Guy’s property. The metal stakes and guy wires for the trees extended as much as four feet into Mike’s property. Finally, David said, the planting of the new trees created a small berm that raised the grade of the land extending into Mike’s yard. David offered his opinion that the change of grade altered the run-off pattern of surface water and “contributed” to the flooding on Mike’s land.

Mike’s first cause of action in the complaint was for trespass, and the second alleged commission of a nuisance based on a violation of the East Hampton Town Code Section 255-10-50. Mike also wanted a permanent injunction forcing Guy to restore the old grade so as to return the runoff to its prior state and to remove all trees, stakes and rootballs that were encroaching on his land.

Guy’s contractor argued there was no trespass because Mike’s own surveys showed that all of the tree trunks were on Guy’s land. The contractor said it was conjectural to believe that the tree roots would someday undermine the foundation of Mike’s house. The contractor said any flooding that might occur did not constitute irreparable injury. Instead, the condition was minor and easily remedied.

Guy agreed that the tree trunks did not encroach and argued Mike was just guessing as to the size of the buried rootballs. He said Mike’s claims of flooding were exaggerated, and Mike had no proof that the newly planted trees were responsible for it. He also argued that Mike failed to show how any of the East Hampton Town Code had been violated and that equity is not balanced in Mike’s favor “since removal of the trees and re-grading of the land is a drastic remedy and there are other and less drastic remedies available.” Guy alleged that Mike never said anything about the grade or flooding, but only brought it up after he hired an attorney.

Mike responded that this is a case where the planting of the trees, as opposed to their natural growth, caused the encroachment. Self-help is not an appropriate remedy, Mike argued, because trimming the encroaching part of the trees would kill them. He said it was hardly unfair to make Guy and his contractor “pay for what they would have had to pay originally but for their illegal trespass.”

Held: The Court denied Mike his preliminary injunction.

For a preliminary injunction, Mike had to show (1) a likelihood of ultimate success on the merits; (2) irreparable injury unless the preliminary injunction was granted; and (3) that a balancing of equities favors Mike’s position.” Preliminary injunctive relief is a drastic remedy that will not be granted unless a clear right to the injunction is established under the law and the undisputed facts. The burden to show that an undisputed right rests upon the movant.

The Court held that Mike’s allegation that Guy’s contractor drove across his yard, tore out construction stakes and killed five oaks was enough to show he was likely to prevail on a trespass action. Any unauthorized entry upon the land of another constitutes trespass. The Court said that Mike, to the extent he has alleged (and Guy admitted he had told the contractor to drive over Mike’s land) that the contractor drove over Mike’s land and destroyed property, “has established the likelihood of success on the merits. However, as to the remainder of the complaint, defendants’ submissions in opposition to the application raise numerous and significant triable issues of fact which preclude such a finding.”

Mike’s real problem, the Court ruled, was that he had not shown that he would suffer an irreparable injury if the preliminary injunction was not granted. Mike’s claim that the newly-planted trees have fast-growing roots that will undermine the foundation “lacks specific evidentiary support and is merely speculative and conclusory.” His claim that the foundation will suffer irreparable damage should the flooding continue is contradicted by his admission that the integrity of that foundation will be gradually undermined. The fact that Mike claimed he was temporarily deprived of the use of part of his property because of flooding after heavy rain was not an irreparable injury. Anyway, the Court said, “there is also a sharp factual dispute with regard to the cause of the flooding as well as the frequency and extent of the flooding.”

Finally, the Court held that Mike did not show that equity was on his side. First, the Court said, Mike was seeking a preliminary injunction directing not that Guy abstain from some conduct, but rather that he and his contractor actively do something: remove planted trees and re-grade Mike’s property to restore the previous pattern of surface water runoff. As a general rule, the Court observed, “mandatory injunctions are not favored and will be granted in only the most extraordinary circumstances.” This is especially so where, as here, Mike sought to get the same injunctive relief he sought in the final, permanent injunction. In such a case, “a preliminary injunction will not be granted unless the plaintiff demonstrates, upon clear and undisputed facts, that such relief is imperative and because without it, a trial would be futile.”

The Court weighed the drastic nature of the relief sought against Mike’s conjecture that the tree roots might eventually reach his foundation, as well as the “sharply disputed claim” that Guys’ planting of the trees and re-grading of his property caused extensive flooding, is not enough to prove the existence of the “extraordinary circumstances which would tip the balance of equity in his favor.”

– Tom Root

Case of the Day – Thursday, May 7, 2026

Posted on May 7, 2026 by TLRoot tagged.

BAMBOO-ZLED

The common-law rules governing rules on matters like encroachment can, of course, be modified by meddling legislatures. For example, we all know that if your neighbor’s tree encroaches above or below the soil onto your yard, you have the right of self-help and no more. You do not have the right to force your neighbor to correct things unless the encroachment causes “sensible harm,” and indeed becomes a nuisance.

The law recognizes negligence per se, which is essentially presumed negligence because you broke the law. Likewise, the law can declare that some things constitute nuisances for no better reason than the law says they are.

In Connecticut, where the state has yet to meet a tax or regulation it doesn’t like, there is a statute that declares running bamboo a nuisance. It falls on the homeowner to prevent his or her running bamboo from running into someone else’s yard, whether the encroachment causes harm or not. If you fail to control your running bamboo in accordance with the statute, you are negligent per se, and the bamboo constitutes a statutory nuisance.

Whoever imagined that running bamboo was such a problem in temperate Connecticut? Well, the legislature for one. Generally, it seems to be a common enough problem, with running bamboo making kudzu propagation look like a bonsai tree by comparison.

Whatever the reason Connecticut may have had for enacting a law directed specifically at running bamboo, it seemed to come in handy for Jean Walden when a neighbor’s running bamboo ran into her backyard. She sued, seeking an order requiring her neighbor to remove it.

The neighbor, Nationstar, a mortgage company, filed a motion seeking to apportion the damages between it and Jean. Jean was not much interested in talking about whether she was negligent: as far as the statute and Jean were both concerned, Nationstar let the bamboo encroach, and it was solely liable. Apportionment is premised on the notion that it takes two to tango, an approach that Jean, who considered herself blameless, was not interested in at all.

What ensued was an “angels-on-the-head-of-a-pin” kind of thing, where the court wrestled with whether a negligence action could be found anywhere within Jean’s complex complaint. A negligence claim would justify apportionment. A claim that did not sound in negligence would not.

Walden v. Nationstar Mortgage, LLC, Case No. KNLCV176030465S (Superior Ct. Connecticut, November 27, 2017) 2017 Conn. Super. LEXIS 4963. Nationstar controlled property which contained a colony of running bamboo that had grown beyond the property line into the Walden Property. Jean Waldon had warned Nationstar on a number of occasions to control the bamboo colony so that it would not invade her yard. Nevertheless, Nationstar’s uncontrolled colony of bamboo has crossed onto the Walden Property and started to take over the yard.

Jean hired a lawyer who knew how to plead a complaint. Her suit claimed Nationstar was negligent because it had a duty not to allow the bamboo to encroach onto Jean’s land, but failed to control the bamboo. She also claimed the bamboo colony physically invaded her property without her permission, she had asked Nationstar to do something, but it had not. She complained its failure to act was intentional. Jean also included two counts claiming Nationstar violated Connecticut General Statutes § 22a-16 and § 22a-381e (part of the “Connecticut Environmental Policy Act,” or “CEPA”), creating “an unreasonable harm and future threat of harm to the public trust in the natural resources of the state.” Finally, she alleged that the migration of the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her property.

Nationstar filed a complaint for apportionment, asking that responsibility for the negligence be apportioned between itself and Jean. as the parties responsible for negligence, under General Statutes § 52-572h. Jean quickly amended any mention of “negligence” out of the complaint, and then opposed the apportionment request on the grounds that Nationstar was maintaining a nuisance and that she should not share in any blame for it. Apportionment, she argued, was improper.

Held: Nationstar is entitled to its claim for apportionment and to responsibility for the damage apportioned between it and Jean.

Jean argued that General Statutes § 52-572h – the apportionment statute – does not apply to a violation of the CEPA because such a violation is not based on negligence, and the apportionment complaint cannot rest on any basis other than negligence. The statutory cause of action of the running bamboo, Jean said, is based on nuisance and not negligence. Nationstar retorted that a defendant found liable under CEPA will be deemed negligent by virtue of the violation because such a violation is negligence per se.

General Statutes § 22a-16 provides that “any person… may maintain an action in the superior court… for declaratory and equitable relief against… any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction…”

That is what Jean is doing, the Court said. She was enforcing General Statute § 22a-381e(b), which provides in relevant part that “[n]o person who… allows running bamboo to be planted on his or her property shall permit such bamboo to grow beyond the boundaries of his or her property.” General Statutes § 22a-381e(c) provides in relevant part that “no person shall… allow running bamboo to be planted on his or her property at a location that is forty feet or less from any abutting property…”

Negligence per se, the Court said, “serves to superimpose a legislatively prescribed standard of care on the general standard of care… A violation of the statute or regulation thus establishes a breach of duty when (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent.” Connecticut courts treat a statutory violation as negligence per se in situations in which the statutes… at issue have been enacted for the purpose of ensuring the health and safety of members of the general public.”

The CEPA was enacted to enable people to seek redress in court when someone is polluting the environment, the Court said. Plus, the Appellate Court has held that “§ 22a-16 imposes on the defendants a standard of care, the violation of which constitutes negligence per se.” The two-pronged test applied to establish negligence per se is: (1) that the plaintiff was within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent.”

Here, Jean alleges damage to her property caused by bamboo. She is within the class of persons protected by the anti-bamboo statute. Furthermore, the Court said, the alleged injury suffered by the plaintiff is of the type that CEPA intended to prevent – in this case, the continued violations of the running bamboo going beyond Nationstar’s property and onto Jean’s abutting property.

Jean also argued that the apportionment statute, General Statutes § 52-572h, applies exclusively in negligence cases. Her claim, she said, for nuisance, alleging common-law nuisance and statutory nuisance under General Statutes § 22a-318e(f). Nationstar said that a cause of action for nuisance may be based upon a defendant’s negligent misconduct, and thus, apportionment was permissible.

The Court disagreed with Jean’s alleged statutory nuisance. General Statutes § 22a-318e(f) provides that allowing running bamboo to grow beyond the boundaries of a parcel of property “shall be deemed to be a nuisance,” but Jean just argued in the complaint that the bamboo colony “unreasonably interferes with the peaceable use and enjoyment by the plaintiff of the Walden Property.” That, the Court said, sounds like common law nuisance.

A common-law nuisance claim has four elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff’s] injuries and damages. While there are some similarities between a public and a private nuisance, the two causes of action are distinct. Public nuisance law relates to the interference with a public right, such as public health and safety. Private nuisance law, on the other hand, concerns conduct that interferes with an individual’s private right to the use and enjoyment of his or her land.

Jean was alleging that the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her land; she does not allege interference with a public right. Therefore, the Court said, the nuisance she alleged is a common-law private nuisance. A common-law private nuisance cause of action must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional or the result of the defendant’s negligence.

Thus, a common-law private nuisance can be based on negligence, and Nationstar’s complaint to apportion the liability can go forward.

– Tom Root

Case of the Day – Wednesday, May 6, 2026

Posted on May 6, 2026 by TLRoot tagged.

NO BUTTS ABOUT IT, THE DOG IS NOT RUNNING AT LARGE

Here at Tree and Neighbor Law blog, we get mail… like this letter:

Dear Blogger on All Things Tree and Neighbor Law:

My neighbor walks his dog past my house several times a day. He never has his dog on a leash, and it sometimes runs through my front yard chasing squirrels. The dog has never paid any attention to me or anything else that is not a squirrel, and the owner cleans up after her, so it’s not that. It is just that I think dogs belong on leashes. The other day, I leaned out of my front door and yelled at him that his dog was supposed to be on a leash. He explained that I was mistaken, and that the law only required that he keep his dog under reasonable control.

I have to admit that the dog always comes when her owner calls her, and she stops and sits on command. Still, it offends me that a dog should be unleashed, allowed to chase squirrels, and permitted to be so free. Isn’t my neighbor breaking the law?

Signed, A Grumpy Neighbor

Hey, Grumpy Neighbor, we understand your complaint. Maybe that’s because we know who you are, inasmuch as you’re writing about our 40 lbs. of border collie mix, Winnie. Winnie cares not a whit about people, bicycles or baby strollers. If you’re not a varmint – coyote, raccoon, squirrel or especially a woodchuck – she will ignore you.

Notwithstanding that, Winnie inherited much of the typical border collie temperament and intelligence, being very attentive to commands (even to the point of sitting on the tree lawn, waiting for your signal to cross the street) and quite obedient. Winnie and I walk several miles every morning, exploring the fields, woodlands and streams behind the nearby hospital, and usually hit country trails later in the afternoon for another search for small game.

Come to think about it, Winnie’s better behaved than a lot of neighborhood kids. But no matter, Grumpy Neighbor, because watching her trot by while not being on a leash offends your sensibilities.

Still, we’re reasonable, so when you yelled through your screen door the other day that dogs are supposed to be on leashes, we researched the law to be sure that our recall was right. And it is. There is no law (at least where we live – your results may vary) requiring dogs to be kept on a leash. Instead, our local ordinance – like many – only prohibits dogs from running at large (and owners not cleaning up after them, but that’s another story).

But is Winnie “running at large” when she trots by with us right behind her, simply because she is not leashed? A very good question, deserving a look at what “running at large” is all about… which brings us to a mother suing her daughter over the misadventures of a three-legged goat. And, no, we did not make this up.

Moore v. Spencer, Case No. 06 CA 830 (Ct.App. Carroll Co., Sept. 12, 2007), 2007 Ohio App. LEXIS 4272. Susan and Wayne Moore were Floridians on a Christmas visit to their daughter and son-in-law in Ohio. Susan brought her puppy, a Cairn terrier (whom we’ll refer to as “Fido,” whose actual name was not recorded in the decision). One morning, Susan and her daughter, Laura, went outside with the dog. Laura decided to let Marrif, her three-legged pet goat, out of its enclosure to play with the puppy. The goat and Fido had not previously met, but Laura assured her mother that her goat played well with her friends’ dogs.

It was not to be. Instead of being friendly, Fido began to bark aggressively at Marrif the goat, and in response, the goat postured as though she intended to butt the plucky pup halfway back to the Sunshine State. Susan swooped in to pick up the dog before it learned a sorry lesson from a three-legged goat, but as she bent down to grab her hound, Marrif rammed Susan’s right eye with her horn. Susan suffered significant injuries as a result.

This being America and all, Mom Susan and Dad Wayne promptly sued their own daughter and son-in-law. The kids subsequently won summary judgment after the trial court found that Susan had assumed the risk of her injury. Susan and Wayne appealed.

Held: Susan had no claim against her kids or the kid. She argued that her daughter and son-in-law were responsible because they were in violation of O.R.C. § 951.02. She also claimed that the evidence did not establish that she had assumed the risk.

Section 951.02 of the Ohio Revised Code provides that “no person, who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land…” Susan complained that that was exactly what Laura’s goat had been doing at the time of Susan’s injury, running at large. Because of this statutory violation, Susan contended, Laura was negligent per se, that is, negligent as a matter of law with no further showing of duty or breach necessary. For good measure, Susan alleged regular negligence as well, arguing that because the goat was loose and not penned or tied, Laura had violated the duty of care she owed to Susan when she released Marrif.

Marrif, however, was not “running at large” for purposes of the statute by its own terms, the Court ruled. The goat was on Laura’s property, not public property, at the time of the incident. The Court had previously defined “running at large” in a case concerning a dog, holding that “a dog is at large when a vagrant, when it runs at will, when it is absolutely beyond control or call and is acting on its own initiative, and under circumstances where there is no connection, physical or sympathetic, between the dog and the master…” A dog on its master’s premises is not a vagrant and is not running at large.

The Court said that O.R.C. 951.02 was “designed to prevent trespass by animals and was not to be for the benefit of highway travelers.” Negligence per se is only applicable in trespassing cases. Accordingly, if trespass is not at issue, a plaintiff must plead and establish negligence as it may otherwise arise from the ownership of a domestic animal. Susan admitted that the goat was on Laura’s own property at the time of the incident. Based on Susan’s own testimony, her reliance on O.R.C. 951.02 was misplaced.

Because she could not establish that her daughter violated a statute and thus was negligent per se, Susan had to prove the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. To be sure, Laura owed her mother, who was her social guest, the duty to “exercise ordinary care not to cause injury by any act of the host or by any activities carried on by the host while the guest is on the premises… and to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.” However, Laura was not an insurer of her guest’s safety.

In negligence cases raised against the owners of animals, liability is customarily determined by assessing whether the owner could have reasonably anticipated the event that resulted in injury. Here, nothing in the record established that Laura knew the three-legged Marrif to be “a dangerous, aggressive or otherwise mischievous domestic animal.” Here, the Court observed, it appeared that the puppy Fido’s aggressive bark led to the escalation that resulted in the accident, not any depraved nature on the part of the goat.

Susan had visited her daughter’s property about once a year for about six years before the incident, and she admitted she never saw the goat act in an aggressive manner before. While she never saw the goat running loose unless Laura took it out, on a prior occasion they took Marrif for a walk up the road on a leash.

Based on the undisputed evidence, the Court found that while Laura had a duty to exercise ordinary care and warn of any known dangers on the premises, no single fact tended to show that she could reasonably have anticipated this incident or her mother’s injury. Thus, she was not negligent.

– Tom Root

Case of the Day – Tuesday, May 5, 2026

Posted on May 5, 2026 by TLRoot tagged.

¡CINCO DE MAYO!

Either the aftermath of battle … or the morning after a North American celebration of Cinco de Mayo. The Mexicans, having more sense than we do, make little fuss over May 5th.

Yesterday, on the most blessed Cinco de Mayo – the day of days commemorated in the U.S. to celebrate a surprising but utterly insignificant victory of Mexican forces over the French Army – we hoisted a virtual cerveza to Kelley Rush. Mr. Rush, like the Mexican military, won a meaningless trial court victory on the way to getting routed.

The French invaded Mexico because our neighbor to the south owed reparations to the Second Empire but decided that a siesta was more salubrious than settling up. By contrast, Mr. Rush was looking to be paid for the work he had done for JoAnn Goodwin. Kelley is undoubtedly an arborist and landscaping specialist of the first water, but as a businessman … well, that’s another story.

Mr. Rush bid a job for JoAnn Goodwin. And like Gaul, it was divided into three parts. One part was tree removal, one was landscaping, and one was installation of a drain system. Of course, as soon as the job began, there was mission creep. More trees were to be cut down, and then more, and extra branches were to be hauled away. Rush diligently completed the extra work, but he wasn’t nearly so diligent in getting change orders signed by his customer. This led inevitably to confusion.

Alas, hilarity did not ensue. Instead, JoAnn denied asking for any more trees to be cut down and alleged Rush was overcharging her. Rush said more money was owed. At that point, Kelley “Who Needs a Lawyer?” Rush sued Ms. Goodwin in Justice of the Peace Court, a very informal court in Texas for small issues. He won $4,500. It was his moment, his own victory at Puebla. But recall that after getting his Gallic butt kicked on May 5, 1862, French General Charles de Lorencez responded a year later with a second Battle of Puebla. No one talks much about that one, because the cheese eaters routed the Mexican forces and headed for Mexico City. Like Monsieur General, Ms. Goodwin regrouped, reprovisioned, and came after Mr. Rush again.

In her own second battle, Goodwin appealed to the regular trial court, which was obliged under Texas law to hold a whole new trial. At that trial, Rush’s damages fell from $4,500 to $200, despite the fact he showed the court the contract, two change orders Ms. Goodwin had initialed but not signed and one which he had prepared but she hadn’t even initialed.

The stubborn Mr. Rush appealed the $200 verdict. At the Court of Appeals, Kelley Rush found himself really swimming upstream. His only argument was that the trial court’s decision was contrary to the weight of the evidence, and those cases are hard to win on appeal. To make matters worse, in his zeal to save money, Mr. Rush forgot that sometimes lawyers are good for something. That “something” here would have been to get the documents he was relying on actually admitted into the trial record so the court of appeals had something to look at. Without the missing documents – which Kelly Rush hadn’t introduced into the record – the Court of Appeals said it really had nothing to look at, and the $200 award stood.

Pozole – the national dish of Mexico.

Parenthetically, one would think that the trial court would have helped out layman Kelley Rush on coaching him to introduce the documents into evidence. But it wasn’t required to. We bet Kelley Rush was glad he saved so much money by not hiring one of those overpriced lawyers to help him out!

Lesson: Document your work. Get signatures from the customer. Hire a lawyer when you need one. After all, lawyers hire arborists when they need them. OK, end of lesson … and the pozole’s on!

Rush v. Goodwin, 2007 Tex.App.LEXIS 9035, 2007 WL 3380025 (Tex.App.-Waco 2007). JoAnn Goodwin requested a landscaping bid from Kelley Rush involving three parts: tree removal, landscaping, and construction of a French drain system. After completing the work, Rush complained that he was not paid in full.

Rush complained that he ended up cutting down many more trees than originally agreed to. Both Rush and Goodwin walked the property, and they agreed to have 26 trees cut down. But Rush said that after the initial agreement, the number of trees to be cut down kept changing. He claimed that the final agreement called for removal of 36 large trees, 14 small trees, and 1 large limb from Goodwin’s property, at an agreed-upon price of $200 for each large tree, $100 for each small tree, and $100 for removal of the large limb. The total was $8,700.

At trial, Rush presented an original contract which he had signed and Goodwin had initialed stating that 26 trees were to be cut down at $200 each and a large limb removed for $100, for a total of $5,300. As well, he presented a document only he had signed – a request for the removal of 36 large trees at $200 each, 14 small trees at $100 each, and removal of a large oak branch at $100 – and another he had signed and Goodwin had initialed in part by Goodwin, reflecting an agreement to cut and remove 33 trees at $6,600.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Conco de Mayo celebrant in a period costume. Think of him as a Mexican version of a Civil War re-enactor.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Cinco de Mayo celebrant in a period costume, a Mexican version of a U.S. Civil War re-enactor.

Goodwin contended she only agreed to have 26 large trees removed from her property at $200 per tree. She said that after counting the stumps, only 26 trees had been removed and that even if more than 26 trees had been removed, she never agreed to their removal. She maintained that Rush overcharged her $1,400 to remove trees that were not cut down. In addition to tree removal, the agreement called for removal of vegetation and growth, spreading of dirt, and removal of fences. Rush and Goodwin agreed that the cost of that project would be $3,600. Goodwin paid Rush $1,000 on the landscape agreement and still owed $1,600. She argued that because she overpaid $1,400 on the tree removal and other projects, she did not owe the $1,600 balance.

Rush also argued that after starting the project, Ms. Goodwin asked that extra side projects be performed, and the cost of these projects came to total of $749.94, none of which Goodwin paid. He filed suit without an attorney against Goodwin, seeking relief of only $1,600 but being awarded $4,500 plus court costs. A glorious and unexpected windfall! But Ms. Goodwin appealed to county court, where in a bench trial the court returned Rush to reality, awarding Rush a symbolic $200 with interest.

Rush appealed.

Held: Rush got only his $200 award.

In his appeal, Rush claimed he was underpaid for his work and essentially argued that the $200 damage award was against the great weight and preponderance of the evidence. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof, the appellant must show that the adverse finding is against the great weight of the evidence. The appellate court must weigh all the evidence and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. The appellate court isn’t permitted to pass on the credibility of witnesses or substitute its judgment for that of the trial court.

The Court found that Rush had completely bollixed up the trial. During that proceeding, Rush referred to the various documents he said established the terms of the tree removal and landscape agreement, but he failed to ask the court to admit any of them into evidence. The Court of Appeals said that in order for it to consider the documents, those papers had to have been introduced and admitted at trial. Without them, the Court could only examine the parties’ testimony. That testimony was largely in conflict, and it was the role of the trial court, not the Court of Appeals, to determine which party’s testimony was more believable.

The trial court’s award of only $200 in damages, the Court of Appeal said, was not overwhelmingly against the great weight of the evidence, especially when the alleged contracts were not in evidence.

Oops. Or as the Mexicans say, “¡Ay!”

– Tom Root

Case of the Day – Monday, May 4, 2026

Posted on May 4, 2026 by TLRoot tagged.

BUYING TROUBLE

The Walls never imagined that when they bought the overgrown half-acre next to the old church, they were buying boundary trouble. But as soon as Mr. Wall started clearing the trees and brush, the parishioners next door at the Springfield Missionary Baptist Church started complaining that he was trespassing against them.

Being a careful kind of guy, Mr. Wall stopped until he could have an expert check it out. It turned out he wasn’t on the Church’s land, so he kept clearing the land. The Church was unwilling to forgive him his trespasses. It sued, arguing that while maybe it was the Walls’ land (which would mean he was not trespassing), the Church had acquired it over the years by adverse possession (which meant that he was).

The Walls moved for summary judgment, arguing that the Church’s claim could not bear fruit and asking the trial court to throw the case into the proverbial fire. There were simply no facts, Mr. Wall claimed, supporting the congregants’ claims. Part of the Walls’ claim was that the area was so overgrown – sort of a micro-wilderness – it would have been impossible for the faithful to have wandered in it enough to possess the disputed land within the meaning of adverse possession law.

When a party files for summary judgment, it is incumbent on the other side to show with affidavits and other documentary evidence that genuine questions of fact exist. Here, the Church opposed the Walls’ motion with three affidavits of long-time members that seemed to be pretty much “cookie-cutter” claims that the Church had openly, continuously and hostilely possessed the disputed land for years.

The trial court wasn’t impressed: it threw out the affidavits because the witnesses didn’t adequately describe a boundary fence on the disputed property or even claim that they were familiar with the boundaries. The Court of Appeals, however, reversed – it found that the affidavits were detailed enough to show that a real question existed whether the Church had possessed some of the Walls’ property.

But then on rehearing, the Court reversed its own reversal, concluding that the affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property. That being the case, the Court said, the affidavits did not create a genuine issue of material fact warranting submission of the case to the jury. Someone could only speculate or guess whether the fence was located on the neighboring landowners’ property or on the church property, and the court would not let the Church continue to assault Mr. Wall’s title to the property over such tottering facts.

The moral to the story: it’s never a good idea to file conclusory affidavits. Detail is good, and the more facts you can aver, the better. Here, the Church’s lawyer wrote some mirror-image affidavits that were short enough on fact and long enough on conclusion (and confusion) that the Church got its case tossed.

Springfield Missionary Baptist Church v. Wall, 993 So.2d 469 (Ala.Civ.App. 2008). Springfield Missionary Baptist Church owned land next to a half-acre parcel owned by Robert and Melissa Wall. Robert began clearing the land when the Church contacted him, contending that he had torn down a boundary-line fence and some trees on Church property. Concerned about the allegation, he double-checked the boundary line and determined that he had not crossed it. He then continued with his clearing.

The Church sued the Walls to quiet title to a portion of the Walls’ property. The Walls moved for a summary judgment, arguing that the Church’s deed did not give it title to the disputed strip of land, as the Church had alleged in its complaint, and that, even if the Church was arguing that the fence it claimed had since been destroyed once encroached onto the Walls’ property such that it could claim adverse possession of a portion of the Walls’ property up to that fence, neither of the surveyors who had surveyed the properties and determined the boundary line had indicated an encroachment of any kind on either survey.

The Walls also argued that their property had been “overgrown” and heavily wooded at the time it was purchased in November 2005 and that, because it was in such a condition, no part of it had been susceptible to being used in a manner that could establish adverse possession of any part of the property. The Church countered that the fence that the Walls had destroyed had served as a boundary line between the two properties. It said it had used the property up to the fence as a parking lot and that it had used the area up to the fence for more than 60 years, thus establishing adverse possession of the disputed “strip.”

The Church submitted the affidavits of three long-time church members. In nearly identical affidavits, two of them said they had been parishioners since 1928 and 1934, respectively. Both said that the Church has claimed ownership of the property encompassed by the legal description set out in the 1995 survey, and the Church had been in continuous, actual, open, notorious, and peaceful possession of said land from at least the year 1928 to the present time. Regarding the fence, they both said it had been located on the property for as long as they could remember. A second affidavit executed in opposition to the Walls’ motion for a summary judgment said the Church had been in its present location for over 20 years and that she has been a member of the church for over 20 years. The third member’s affidavit said the old fence that was removed by [the Walls] had been in place as long as [I] can remember and served as the boundary line.” According to her, “the church parking lot went all the way to the fence line,” and that she had walked the boundary line marked by the fence many times.

The trial court struck the Church’s affidavits on the ground that they stated only conclusions regarding adverse possession, rather than statements of fact supporting a finding that the Church had adversely possessed the disputed property. It held that the affidavits failed to adequately describe the fence and because the affiants failed to testify that they were familiar with the legal boundary line of the property. The trial court’s judgment, in addition to striking the affidavits, determined that the church had failed to provide substantial evidence of an encroachment on the Walls’ property.

The trial court granted summary judgment in favor of the Walls.

The Church appealed, arguing that it presented substantial evidence creating a genuine issue of material fact and thus sufficient evidence to preclude entry of summary judgment.

Answer: The part where you claimed to the neighbors' property.

Answer: The part where the Church said to the Walls “thou shall not clear your property because it really belongs to us.”

Held: The Court of Civil Appeals reversed the trial court in a decision in September 2007, but in January 2008 reversed its reversal, thereby upholding the trial court. The Court of Appeals ultimately held that the summary judgment affidavits submitted by church members did not present solely conclusory statements so as to warrant striking the affidavits in their entirety. However, the affidavits didn’t create a controversy warranting a jury trial. The affidavits permitted two equally reasonable inferences as to whether the fence was located on the neighboring landowners’ property, leaving a fact finder to only speculate or guess whether the fence was located on the neighboring landowners’ property.

The Court observed that it was only where evidence points equally to inferences both favorable and unfavorable to the party moving for summary judgment that it lacks probative value, and its use to support one inference more than another, when in fact it will support both with equal plausibility, becomes mere conjecture and speculation.

– Tom Root