Case of the Day – Tuesday, January 22, 2019

THE CONTRACT SAYS WHAT?

springsnow160321For the first time in 20 years, my snowdrops poked their little green shoots through the cold soil in late December. But with the arrival of Winter Storm Paul Newman this past weekend, they are buried under 8 inches of snow. Which is good, because they are not usually seen until the second week of February, here in the Great Lakes Basin just 30 miles south of the Canadian border.

My wonder dog Winnie found yesterday morning’s walk, at -7 degrees, a little nippy, but today will be about 40 degrees warmer. She’ll find it more to her liking, unlike a dog who was walked on a cold spring day six years years ago in Utah.

Landscaper Superior Property Management Services, Inc., had been hired by the Waterbury Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. The parties had a standard contract, one that – among other things – called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

The contract was just a formality. Superior has been in business since the sequoias were seedlings, and its crews knew what needed to be done. They often went beyond the literal terms of the contract, which – as was typical for landscaping contracts – were not especially detailed. Over the seasons, Superior maintained Shanty Acres very well, and the contract was repeatedly renewed. The Happy Homeowners Association was indeed happy.

Then one cold, spring day, condominium resident Colleen Hill ventured outside to walk her dog. When she followed the cavorting canine onto the lawn, she tripped over a basal shoot growing from a tree root, fell, and hurt herself. She sued both Superior and the Association, claiming that Superior owed her a duty of care because of what it agreed to do in the contract. Superior, she alleged, was negligent in not trimming the basal shoots.

But how could Superior owe Colleen Hill a duty? Its contract was with the Association, and the Association thought Superior had done a fine job. True, Superior prided itself on doing more than the contract called for, but that was what a good landscaper did. Thus, Superior’s crews normally trimmed basal roots … but if Colleen’s complaint was to be believed, it appears Superior’s workers may have overlooked the shoots that proved a snare to her feet.

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not ...

Superior should have trimmed the exposed roots, Colleen said, whether the contract said it should or not …

The courts finally concluded that Superior owed Colleen no duty. Its obligations were to the Association, and those obligations were those spelled out in the contract, not what additional services Superior might gratuitously provide. The landscaper won in the end, but only after four years of expensive litigation.

So what does the professional arborist or landscaper learn from Superior’s legal travails? The first lesson is to read the contract form he or she is using. Does it adequately define the services being provided? If the arborist will be performing more services than those described in the contract, those probably should be described in the contract.

At minimum, the contract should clearly provide that any services provided beyond those required by the contract are being provided as a courtesy only, and that the contract does not establish a duty between the arborist and anyone other than the client.

Will this be enough to save the arborist from frivolous lawsuits? Probably not in this society. But an ounce of careful contract drafting now may be worth a pound of lawyers later.

Hill v. Superior Property Management, Inc., Case No. 20120428 (Utah Supreme Ct., 2013). Superior Property Management had held the contract to maintain premises for the Waterbury Homeowners Association for years. The form contract called for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season” and to “trim . . . small and lower branches” on trees. After resident Colleen Hill, while walking her dog one early spring day, tripped on a growth from a tree root, she sued Superior for negligence because it had not trimmed the root.

Held: The landscaper didn’t owe Colleen a duty of care. As the Supreme Court of Utah observed, the “law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no such duty attaches with regard to omissions except in cases of a special relationship.”

The Court agreed that sometimes, such a special relationship might be rooted in a contract. But it held that neither specific obligation in the contract – the obligation to mow the grass weekly and edge bi-weekly “throughout the normal growing season,” or the obligation to “trim . . . small and lower branches” on trees – created a duty flowing from the landscaping company and the injured property owner.

Lesson: No contract is the ultimate contract, but that doesn't mean you shouldn't try for comprehensiveness in drafting ...

Lesson: No contract can plan for every contingency, but that doesn’t mean you shouldn’t try for comprehensiveness in drafting whenever possible …

The Court noted that “in the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract … Even assuming that Superior’s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions required Superior to perform the acts it is now charged with omitting.” The Justices analyzed the contract provisions, pointing out that the accident happened in early spring, outside of the “normal growing season.” What’s more, the dictionary definition of “branch” is “a stem growing from the trunk or from a limb of a tree” or a “shoot or secondary stem growing from the main stem.” Therefore, the Court reasoned, “the ‘branches’ to be trimmed under Superior’s maintenance contract are protrusions from the main trunk only, not separate shoots stemming from the tree’s roots. Superior could not be in breach for failing to trim back those shoots.”

Maybe so, argued the homeowner, but regardless of what the contract may have said, the landscaper’s obligations “were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time.” The Court rejected this dangerous notion, declaring that there “is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.” The Justices reasoned that “where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for … extracontractual, course-of-performance acts relied on” by Ms. Hill. “If we were to impose a duty in connection with those acts,” the Court said, “we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance. In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law – by the standards governing liability for a voluntary undertaking, a theory we … find unavailing.”

– Tom Root

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And Now The News …

St. Paul, Minnesota, Pioneer-Press, January 21, 2019: Vacationing N.D. couple killed when tree falls on their rental house in San Diego

A vacationing North Dakota couple was killed early Monday after a tree with a trunk as wide as a car fell onto the house they were renting. A roughly 75-foot-tall pine tree fell onto the house around 6:15 a.m., when there were strong gusts of wind. The ground had also been saturated from recent rains. The couple, Troy and Jessica Nelson, ran a promotional products and decorated apparel company, Trojan Promotions, in Grand Forks, N.D. They were staying at a vacation rental house in the Point Loma Heights neighborhood of San Diego for the weekend after attending an industry expo last week, said Phoebee Stensland, the graphic designer and social media director for Trojan Promotions. A third person, Jessica Nelson’s brother Ryan Langerud, was also in the house at the time the tree fell, Stensland said. He survived. The house is listed on VRBO as a vacation rental. It has nearly all five-star reviews…

Raleigh, North Carolina, WRAL-TV, January 21, 2019: 2 groups planting trees in Louisiana wetlands

At least two groups are planting trees in Louisiana’s wetlands to restore swamps and help slow coastal erosion. The Coalition to Restore Coastal Louisiana has nine events scheduled from next Friday, Jan. 25, in Mereaux, in St. Bernard Parish, to Saturday, Feb. 15, in the Tangipahoa Parish community of Akers. America’s Wetland Foundation will be working Saturday, Feb. 9, at the Pointe aux Chenes Wildlife Management Area in Terrebonne Parish. Both groups are looking for volunteers to plant the trees. The coalition says it wants to plant 5,000 trees in two areas: along the Lake Maurepas landbridge in Akers, also called Manchac, and in the St. Bernard Parish central wetlands unit. It says its “C.R.U.S.H. Project,” for Communities Restoring Urban Swamp Habitat, will help restore and sustain wetlands in the Pontchartrain Basin watershed and get people talking about coastal restoration. It says the Environmental Protection Agency and the Lake Pontchartrain Basin Foundation are helping with the project…

Middletown, Connecticut, Press, January 22, 2019: OSHA, Middletown police investigating death of Eversource lineman killed by tree

The Eversource sub-contractor killed by a falling tree Sunday while restoring power to the Millbrook Road area was the father of twin boys and an adult daughter, according to NBC Connecticut. The man has been identified as Howard A. Duffy III, 43, of East Haddam, an equipment operator for Riggs Distler who had a fiancé, twin 10-year-old sons and a 22-year-old daughter. “He would tell me every day what he was doing for work. Really enjoyed it. He was making a good life now,” his father Howard Duffy told NBC Connecticut. “It’s hard to explain. Just…just overwhelmed,” Duffy said of his son’s death. The Occupational Safety and Health Administration and city police are now investigating the accident which happened during a snowy ice storm. The sub-contractor was working in frigid temperatures to restore power near 1233 Millbrook Road at around 3:20 p.m. when the incident occurred, according to Middletown police Lt. Heather Desmond. Middletown police have not officially released the identity of the Eversource contractor killed during the storm…

Missoula, Montana, Missoulian, January 21, 2019: Can biotech save trees? Study raises more questions than answers

Opinion polls might matter as much as genetic experiments in protecting America’s trees, according to a new study of biotechnology and forest health. “We struggled with that a lot, and didn’t come up with an answer,” said Diana Six, a University of Montana tree pathology researcher and co-author of the national study. “There are a lot of people who don’t want to see genetically modified natural forests. It will affect their lives and how they interact with the forest. Is wilderness still wilderness if the trees are all human products?” But there are lots of tree species at risk of dying, and people value them for timber, shade, fruit, scenery and many other things. New lab techniques of gene editing, gene silencing, and controlled genetic mutation hold promise of blocking pests like insects, fungi and disease. Letting those modifications loose in the wild raises lots of unknown ecological and ethical questions. So the U.S. Forest Service, Environmental Protection Agency and other policy makers asked the National Academies of Sciences, Engineering and Medicine to produce a “consensus study” showing how trees might be protected through genetic engineering…

Phys.org, January 17, 2019: Researchers race against extinction to uncover tree’s cancer-fighting properties

Three Chinese fir trees on a nature reserve in Southeastern China are the last of their kind. As their existence is threatened by human disturbance and climate change, researchers are hurrying to learn everything they can about the tree—which might inspire new and more effective ways to treat various cancers. Chemists in China were initially studying the tree, Abies beshanzuensis, to look for molecules that might be able to treat diabetes and obesity. Using only bark and needles that fell from the trees, in order to not further disturb the small population, researchers found that the tree’s makeup wasn’t as effective as they’d hoped in treating these diseases. The tree’s healing powers looked grim until Mingji Dai, an organic chemist at Purdue University, started tinkering with some of its molecules in his lab. His team created synthetic versions of two, and then a few analogs, which have minor structural modifications. In collaboration with Zhong-Yin Zhang, a distinguished professor of medicinal chemistry at Purdue, he found that one of the synthetic analogs was a potent and selective inhibitor of SHP2, an increasingly popular target for cancer treatment. The findings were published in the Journal of the American Chemical Society. “This is one of the most important anti-cancer targets in the pharmaceutical industry right now, for a wide variety of tumors,” Dai said. “A lot of companies are trying to develop drugs that work against SHP2…”

Cleveland, Ohio, Plain Dealer, January 17, 2019: Bad things can and do happen to good trees. Always check the credentials of your tree care specialist

I hope Rabbi Harold Kushner will forgive me for the obvious take-off of the title of his 1981 book, “When Bad Things Happen to Good People,” but the older I get, the more accurate it becomes as applied to trees. This time of year is especially hard for a tree nerd like me. With their leaves gone, the butchery done to perfectly healthy trees is no longer hidden. Now, before you nod your head and start thinking about what utility companies do to street trees in your city, what they do is a separate issue. They simply cut branches away from utility wires in order to prevent problems. They don’t function under the same rules that govern most arborists. They’re essentially not subject to private or public oversight. They’re only tasked with keeping the grid functioning. I just needed to clear that up before we start. Tree care “professionals” come in all forms. Big companies with names you know, small companies, and even ones with badly stenciled names on their trucks. But for me, the best way to determine if a current or potential tree care or landscape company is capable is to ask this question: Are they “tree doctors” or “tree undertakers?” There is a tremendous difference. Are they going to care for your tree, or do they just cut things off and cut things down? If you don’t know the difference, your tree(s) will suffer. They are often less safe after the work is done. How do I know this? Science…

Salisbury, North Carolina, Post, January 17, 2019: Don’t forget about the trees in winter months

Did you know that trees fall into a couple of basic categories? Trees are either evergreen or deciduous, which may help to explain how trees deal with the cold winter. Evergreens usually have some kind of needles and keep their foliage throughout the winter months. An exception would be the live oak or Southern magnolia which have leaves all season long. Deciduous trees like the maple and most of the oaks shed their leaves in winter to reduce winter damage. An exception would be the bald cyprus, like the ones along Arlington Street here in Salisbury, which drop their needles in the winter. Although evergreen and deciduous trees handle the winter cold a little differently they both have a similar strategy to keep from freezing in the winter – sap. Sap, which acts like an antifreeze, takes a little longer to freeze than water and usually doesn’t freeze solid. Pine trees produce sap that can be super sticky and is flammable. Most hardwood sap is watery but can be very sweet like maple sap used to make maple syrup…

Roanoke, Virginia, Times, January 17, 2019: Court filing asks judge to deny Mountain Valley’s request for injunction against tree-sitters

A federal judge should not act as an “enforcer” for the Mountain Valley Pipeline by using her power to remove two protesters from trees blocking the path of the controversial pipeline, supporters are arguing in court. U.S. District Court Judge Elizabeth Dillon was asked in a brief filed Wednesday to deny Mountain Valley’s request for a preliminary injunction, which the company says it needs to evict two people identified in court records only as “Tree-sitter 1” and “Tree-sitter 2.” Since early September, two protesters have been living in tree stands about 50 feet above the forest floor on a steep mountainside in eastern Montgomery County, frustrating Mountain Valley’s efforts to complete tree-cutting. But Mountain Valley is “improperly seeking to enlist this Court to act as its enforcer in its dealings with persons opposing pipeline activities and construction,” Roanoke attorney John Fishwick wrote in a friend-of-the-court brief in support of the tree-sitters. Fishwick does not represent the actual protesters, who have kept to their perches rather than attend court proceedings and defend themselves against Mountain Valley’s civil action…

Roseburg, Oregon, News-Review, January 16, 2019: Ahead of storm, power company works to trim trees damaged by recent droughts

A powerful Pacific storm that began drenching the West Coast on Wednesday is expected to include rain for Douglas County through Friday, according to The National Weather Service. Rain in Douglas County should persist through Monday, according to forecasts. As much as 0.61 inches of rain could fall in Roseburg through Friday afternoon. Wind gust could reach 26 mph Thursday. As always during powerful storms, Douglas Electric Cooperative, which covers about 2,200 square miles in the area, is expecting downed trees and branches to cause power outages, said Don Utley, arborist with the company. Extreme droughts in recent years are damaging trees across the region, Utley said, and that’s increasing the number of trees at-risk of falling on power lines. Douglas Electric recently increased funding and staff for its right-of-way program, which is tasked with trimming and removing trees at-risk of falling on power lines. “We’ve been upping it since 2015 and we’ve gotten more aggressive in the removal of these dead trees,” Utley said. The company invested more in the program to stave-off future costs of responding to power outages, he said…

Greensboro, North Carolina, WFMY-TV, January 16, 2019: Tree company accused of price gouging

According to court records, a Browns Summit family had to have three trees removed after Michael blew through, and the company billed them $37,000. This after another company quoted only $800 for the job. So now NC Attorney General Josh Stien is suing National Emergency Restoration Services to get that family’s money back. The suit also asks the court to ban the company from doing business in North Carolina. We’ve reached out to National Emergency Restoration Services multiple times, and we’re still waiting to hear back. This is the sixth case of price gouging that AG has sued over in recent months…

New Haven, Connecticut, Register, January 16, 2019: ‘Frosty had the last laugh’: Vandal tries to run over giant snowman, hits tree stump instead

A would-be vandal was stumped after they tried to run over a 9-foot snowman in Kentucky, only to find it had been built over a large tree stump. Cody Lutz told KCCI that he, his fiancee and his soon-to-be sister-in-law made the oversized snowman in Petersburg, Kentucky, while enjoying the winter weather this past weekend. Lutz said his fiancee’s sister was “elated to experience the biggest snowfall she’s ever seen.” Lutz said he decided to use a tree stump as the base for the snowman. After coming home from work, Lutz said he found tire tracks leading up to the snowman, leading him to believe that someone tried to run over the giant snowman, which they had named Frosty. There’s now a massive stump now exposed, with a snowy imprint of a bumper stuck to it. “You reap what you sow,” Lutz said. “Still standing and still smiling, Frosty certainly had the last laugh…”

Columbia, Missouri, KOMU-TV, January 16, 2019: Upcoming winter weather could contribute to mid-Missouri tree damage

Lately, mid-Missourians have had the chance to build a snowman or go sledding and then eventually warm up next to a fire. But behind all of this fun, the snow is actually causing a lot of trouble for the trees in the area. The arctic blast that had swept through mid-Missouri left tree limbs on the ground and trucks split in half. The weight from the snow piled on until the branches snapped under pressure. One Columbia resident explained how he’s seen first-hand a tree break due to snow. Joe Burch, a resident of the First Ward in Columbia, MO, explains that he was sitting on his couch when he and his friends heard a loud noise outside. “I thought it was a car backfiring because it was so loud,” Burch says. He realized that the tree in his front yard had snapped due to the additional weight from the snow and landed on his gutter. “If the tree would have fallen five feet to the left, it could have really damaged my place and went through the window,” Burch says. Rachel Eckert, a frequent runner at Stephens Lake Park, explains that she hopes that the trees will be okay once the snow melts away. “It’s really going to ruin my view when I run,” Eckert says. With another snowstorm projected to come in on Friday, tree specialists are warning people. Stewart Scott is a tree care expert at Cevet Tree Care located in mid-Missouri. Scott is offering advice on how to prevent further damage to the trees…

San Francisco, California, Chronicle, January 16, 2019: Protesters, police square off over tree removal at People’s Park in Berkeley

A steady drizzle fell Tuesday morning as a dozen protesters and several dozen police squared off while UC Berkeley crews cut down what officials said were five damaged and diseased trees in People’s Park. Protesters milled around the east side of the park, where construction crews arrived just after 5 a.m. to take down the pines and cedars behind police tape. At least 50 California Highway Patrol and University of California Police Department officers were on scene. “Everything we do around protests and situations like this is informed by our desire to avoid conflict if at all possible, and having a large number of officers is a good way to achieve that,” said UC Berkeley spokesman Dan Mogulof. The school has a memorandum of understanding with CHP to provide additional officers if needed, he added…

Springfield, Massachusetts, Republican, January 15, 2019: After wood taken from Ledges, South Hadley imposes new rules for cutting trees

After allegations that an unknown person made off with wood from the Ledges Golf Course, Town Administrator Michael J. Sullivan has imposed new protocols for the cutting and removal of trees. Sullivan said he investigated after receiving an anonymous phone message about a person who took cuttings from the golf course. “There was some tree limbs and branches taken by an unknown person, reported by the Ledges IGM Superintendent when asked during the inquiry. He did not know the person or get his license plate,” Sullivan stated in an email. IGM, a Florida-based company, manages the golf course. “I met with IGM, the contractor who now manages Ledges, and we developed a new protocol where anytime trees are being considered to be cut on the property, they will be inspected by the Town Tree Warden prior,” he said…

Oakland, California, Eastbay Times, January 15, 2019: Grassroots group repeats call to end PG&E’s tree-removal project in Lafayette

Emboldened with news about PG&E’s bankruptcy filing Monday and the hobbled utility’s uncertain future, a grassroots group is repeating its call for Lafayette to end its tree-removal agreement with the utility company. “I’m here to formally ask that — once and for all — we start the process to unwind the tree-cutting agreement with PG&E,” Michael Dawson of Save Lafayette Trees told the City Council on Monday. In 2017, Lafayette and Pacific Gas & Electric entered into an agreement to uproot 272 trees as part of the utility’s $500 million Community Pipeline Safety Initiative. “At this point, the Lafayette trees issue has not changed,” said PG&E spokesman Jeff Smith in an email Tuesday. “We will let you know of any future developments.” PG&E, facing as much as $30 billion in liability for damages from two years of wildfires, filed for bankruptcy protection Monday, which sent the company’s shares plunging more than 50 percent. On Sunday, PG&E announced the departure of CEO Geisha Williams, who left with a $2.5 million cash severance…

Westmoreland, UK, Gazette, January 15, 2019: Splitting bark on any tree or shrub should set alarm bells ringing

It’s a 30-year-old mountain ash (Sorbus), which has limped along for the last two years and has some large cracks/mini fissures in its bark. I’m not able to see the tree in person as it’s the other end of the country but I’m convinced that the likelihood of bad news is likely to be on the horizon. Splitting bark on any tree or shrub should set alarm bells ringing and should never be overlooked. It is possible for trunks to split due to freezing where damage may have occurred in the past, creating cavities or spaces where water can enter and then freeze. This, however, is not normally the reason for it happening – underlying disease is normally to blame…

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Case of the Day – Martin Luther King, Jr., Day 2019

SOME THINGS EVEN A COURT CAN’T DO

The majestic courage shown by the Selma marchers 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today's plaintiff.

The courage shown by the Selma marchers over 50 years ago, as well as by countless others who, by acts large and small, defended the equality we now identify as a bedrock principle of our society and legal system, fortunately cannot be undone by knuckleheads like today’s plaintiff.

For a country that was supposed to be sailing into a post-racial world after the election of President Obama in 2008, we’ve had a rough time of it recently.  In race relations, 21st century-style, there is the deadly serious (such as Ferguson, Chicago, Cleveland and Charleston) – the merely reprehensible (a busload of drunk, rich white kids being stupid, callow and mean, all at the same time) – the head-scratching (trees can be racist?), and a President who is or is not racist, depending on your political viewpoint. That last issue, and exactly how he may have referred to the governance and economics of Haiti, El Salvador and some countries in Africa, are a suitable launching point for a trip into the absurd. The absurd is something we’ll look at today, on Dr. Martin Luther King’s birthday commemoration.

Sigmund Freud was famously but questionably credited with having said “sometimes a cigar is just a cigar.” In today’s case, a matter of trespass to trees was somehow recast into a federal civil rights action by the plaintiff, who was a man with a litany of offenses committed against his ancestors which he wanted to redress.

Mr. Brewer apparently trespassed on Mr. Lance’s property and removed three trees. Rather than an appropriate trespass to trees action (with a request for treble damages) in South Carolina courts, Mr. Lance went for broke, suing Mr. Brewer for violation of his civil rights under 42 U.S.C. § 1983.

A § 1983 action is a powerful one, authorizing a federal court action to be brought against persons who, under color of state law, deprive another of his civil rights. It has been used against those who discriminate in housing, police officers who wrongly beat suspects, employment discrimination, and even in zoning decisions.

But § 1983 doesn’t do everything. Here, Mr. Lance argued that not only had Mr. Brewer falsely claimed to have the County’s permission to cut down the trees, but Mr. Brewer’s grandfather had defrauded Mr. Lance’s cousin in a land deal about 40 years before. When the Federal magistrate judge recommended dismissal of the § 1983 action, Mr. Lance objected, arguing rather ineloquently that ““GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction.”

cartoon150313Destruction was something the federal court was willing to risk, holding that no matter how it tried to construe Mr. Lance’s complaint, there just wasn’t a civil rights violation alleged. Of course, he was free to pursue his complaint in state court, and we assume he did so.

Lance v. Brewer, Slip Copy, 2007 U.S. Dist. LEXIS 30247, 2007 WL 1219636 (D.S.C., Apr. 24, 2007). In late 2005 Defendant Brewer cut down three large trees and other tree limbs on Plaintiff Lance’s property without permission. Lance asserted that Brewer, who ran a business named Don’s Scrap Metal and Iron, sold these trees for profit but that he and his relatives did not receive any profit. Lance alleged that Brewer told him the county gave him permission to cut down the trees, but according to Lance, a county employee told him that the Brewer did not have permission to cut down the trees. In addition to these claims, Lance argued that Brewer’s grandfather purchased the property adjoining his property forty to fifty years ago by “fooling” Lance’s cousin into selling 20 acres of river-front property for $200.00.

Lance alleges Brewer’s actions constitute racism and discrimination under 42 U.S.C § 1983, and he seeks $85,000.00 on behalf of the heirs of his cousin, Willie Lance. A U.S. Magistrate Judge recommended that Lance’s claim be dismissed. Lance disagreed, and sought rejection of the Report & Recommendation.

Dr. King stood for equality and justice… not nonsense.

Held: Lance’s tree-cutting-as-civil-rights case was dismissed. The Court observed that the Plaintiff had objected to Report and Recommendation, because “GOD ALMIGHTY does not like what you Racist people are doing, and GOD will show it very soon by punishment, and Destruction. The United States Court has Federal Jurisdiction, because this is a Civil Rights Violation.” The Court said, “[t]he Plaintiff’s unsubstantiated statement that the Court has federal jurisdiction because this is a civil rights violation does not change the fact that even liberally construing the Plaintiff’s complaint, it fails to state a claim for a federal civil rights violation.” Here, Brewer is a private individual.

What’s more, Lance tried to state a claim pursuant to § 1981. The Court held that Lance has failed to allege an essential element of a § 1981 claim, that there is a contract or property law right enjoyed by white citizens but not by the Plaintiff, who is black. The Court concluded that, tree or no tree, no federal question was raised by Lance’s claim, and thus jurisdiction did not exist.

– Tom Root

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Case of the Day – Friday, January 18, 2019

SO WHAT IF YOUR NEIGHBOR BUGS YOU?

You remember that neighbor kid when you were young, the one who was always threatening to tattle to his mother or father about your alleged misdeeds?

All right, you never committed misdeeds. I did, however, and I remember my neighbor Rick, who would run to his parents at the drop of a hat. One July 4th, he told them I was responsible for some shenanigans that resulted in his burning his eyebrows off – I won’t go into details – and I was only saved because I happened to be 500 miles away at summer camp at the time.

Even then, his parents blamed me.

Some people never grow out of that urge to tattle and whine. When they become adults, they like to call the police, complain to the zoning people, and even sue. Many times, they complain about conduct that is legal (or nearly so), but merely bothersome: the neighbor puts her garbage out early, or shovels his walks late or not at all, or never weeds the garden, or parks his truck on the street, or his boat in the yard…

Nuisance is the legal doctrine that lets you bend your neighbor’s conduct to your whims. It is not easy to prove a nuisance, nor should it be. It must be an unreasonable, unwarranted or unlawful use of one’s property, and even then, the use has to annoy, inconvenience or disturb you enough that the law will presume damage.

In today’s case, the neighbor’s stand of trees bugged Chuck Merriam – literally. But swarms of disgusting insects was not enough to convince the court to boss around Chuck’s neighbor for his benefit.

Merriam v. McConnell, 31 Ill.App.2d 241 (Ct.App. Illinois 1961). Charles Merriam and next-door neighbor Jean McConnell lived in a well-populated residential area of Northfield. Jean was growing a large number of box elder trees on her property. As part of the box elder ecosystem, Jean played host to box elder bugs – ugly, black and red, three-quarter inch long insects – that infest the box elders every summer. Swarms of the bugs migrated from the trees to Chuck’s house and yard, endangering his “comfortable and peaceable use and enjoyment” of his residence, impairing the value of his property, and “embarrassing and distressing” his guests. The bugs invade Chuck’s residence and mess the furniture and draperies, which are expensive and time consuming to clean.

Chuck complained to Jean repeatedly, but she was powerless to keep the bugs out unless she cut down the trees, which she was not about to do. Chuck asked for $150.00 in damage (this being 1961) and for an injunction to get rid of the trees.

The trial court dismissed Chuck’s complaint, and he appealed.

Held: Jean’s box elders were not a nuisance, and Chuck had no basis for an injunction against her maintenance and growing of box elder trees or, alternatively, the control of the box elder bugs.

Chuck’s complaint was based on the theory of private nuisance. In general, a private nuisance is an individual wrong arising from an unreasonable, unwarrantable or unlawful use of one’s property producing so much annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage.

This means that the complaint, in order to be successful, ought to allege facts that justify the inference that the defendants are using their property in an unreasonable, unwarrantable or unlawful way.

The Court cited Michalson v. Nutting for the notion that “an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and penetration of roots overhead and into adjoining property of others.” The Michalson court thought it “wiser” to adopt the common law practice of leaving the neighbor to his own protection “if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

The Court noted that no Illinois precedent enjoined the operation of natural forces. Instead, only where “a human agency has intervened in a negligent, careless or willful way to turn the natural creation into a nuisance, as for instance, where cities have polluted natural water courses, or an individual has done so.” The court said

a nuisance cannot arise from the neglect of one to remove that which exists or arises from purely natural causes. But, when the result is traceable to artificial causes, or where the hand of man has, in any essential measure, contributed thereto, the person committing the wrongful act cannot excuse himself from liability upon the ground that natural causes conspired with his act to produce the ill results.

The Court observed that Chuck asked that Jean be forced to take “necessary steps” to limit the bugs to her property. “On its face,” the Court said, “this prayer is obviously impossible. Plaintiff does not suggest how the defendant could limit the bugs to her property. He asks that defendant be restrained from growing box elder trees upon her property. There is nothing unlawful about growing of box elder trees: Jean may grow trees to whatever extent she wishes on her own property. “The fact that box elder bugs may annually infest the trees, in our opinion, does not make the trees a private nuisance nor does the conjunction of the bugs and the trees constitute a private nuisance.”

The law requires that Jean would have to be guilty of some carelessness, negligence or willfulness in bringing, or helping to bring, about a harmful condition in order to entitle Chuck to the relief he sought in his complaint.

The Court concluded:

When a person moves to a wooded suburban area he should know that he is going to a place where nature abounds; where trees add to the pleasure of suburban life; and where the shade of trees, leaves, overreaching branches, roots, squirrels, birds, insects and the countless species of nature tend to disregard property lines. The effects of nature are incidents of suburban living…

We think that reversing the decree before us would probably expose property owners, especially in wooded suburban areas, to much vexation. And, it might result in adding the weight of “clothes-line” disputes, which ought to be settled amicably by neighbors, to the mounting burden of law suits now impeding the administration of justice… Equity should not lend its jurisdiction to the control or abatement of natural forces as though they were nuisances.

– Tom Root

TNLBGray

Case of the Day – Thursday, January 17, 2019

SITTING ON YOUR RIGHTS

Equity is a beautiful thing.

There was a time, back in merry olde England, went the courts of law had gotten so hidebound and formalistic that your average aggrieved peasant couldn’t catch a break. So people who needed something more than what the law could provide would petition the Lord Chancellor.

Thus began the courts of chancery, known more commonly as courts of equity. A court of equity is authorized to apply principles of equity, as opposed to those of law, to cases brought before it.

Equity courts hear lawsuits and petitions requesting remedies other than damages, such as writs, injunctions, and specific performance. Most equity courts were eventually merged with courts of law, but some American states, including Delaware, Mississippi, New Jersey, South Carolina, and Tennessee, preserve the distinctions between law and equity and between courts of law and courts of equity.

Today’s case, being from Tennessee, started with a Chancellor (something like this fellow), because what the plaintiffs really wanted was an injunction, a court order that the owner of the hedge trim it. But it ended up in Tennessee Supreme Court.

At its root, equity is nothing more than fairness. Note how equity creeps into this case, not only in the application of the Massachusetts Rule – and how much a creature of equity is that? – but in the observation at the end of the decision that laches should prevent Bill Granberry from getting any relief from his claim.

Bill sat on his rights. If he had sued Penelope when the hedge was still short and young, the outcome might have been different.

Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721 (Supreme Ct. Tenn. 1949): Bill Granberry and Penelope Jones each owned a residence on adjoining lots in Tullahoma. Due to the narrow frontage, Bill’s residence is a little less than five feet from the boundary line between the properties.

Penny planted an evergreen shrubbery hedge entirely on her side and within a few inches of the boundary line. The hedge has grown to a height of about twenty feet and its branches and foliage have grown over the boundary line and over Bill’s property to the extent that they rub the side of his house and enter his open windows.

Bill sued for an injunction that would require Penny to trim the hedge back to the boundary line. For good measure, he also asked for decree requiring her to move the hedge entirely or at least to cut it down to a height of not more than 24 inches and to keep it that way, and for damages.

Penny demurred (which is legalese for saying to the court “even if everything he says is true, Bill’s got nothing coming). Penny argued that she had the legal right to grow the shrubbery on her own property to any height she desired, and if any of the branches or foliage protruded onto Bill’s land, his remedy was only to cut the hedge to the extent of the protrusion. The trial court overruled her demurrer, and Penny appealed.

Held: Penny’s demurrer was correct: Bill’s remedy was limited to self-help.

The court reversed the lower court’s decree which had overruled defendants’ demurrer to the complainant’s bill, seeking inter alia to enjoin defendants from permitting their hedge to extend onto his land. The court dismissed the bill.

Noting that it could “find no Tennessee case where resort to a Court of equity has been attempted on the facts alleged by this bill,” the Supremes ruled that every owner of land has dominion of the soil, and above and below to any extent he or she may choose to occupy it. As against adjoining property owners, the owner of a lot may plant shade trees or cover it with a thick forest, and the injury done to them by the mere shade of the trees is damnum absque injuria.

No landowner has a cause of action from the mere fact that the branches of an innocuous tree belonging to an adjoining landowner overhang his or her premises. The afflicted owner’s right to cut off the overhanging branches back to the property line is considered a sufficient remedy, the Court said, citing the Massachusetts Rule.

The principle, the Court said, is that an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others.

Bill argued that the overhanging branches and foliage had caused the outside wall of his home to rot and decay, and the sills and woodwork have been caused to rot to such an extent that they will have to be replaced by reason of the constant leaning against them of the hedge.

The Court was a mite troubled that it obviously had taken many years for the hedge had grown to its current size. Bill could have taken action when the hedge was much smaller, and the damage to him and burden to Penny – were she to be required to cut the hedge – would have been much less. “The long acquiescence and laches upon the part of [Bill] without any notice to [Penny] and with no attempt to aid himself,” the Court wrote, “is clearly the cause of the damage for which he seeks equitable relief. Of course, the Courts are open to [Bill] if in legally aiding himself he is improperly interfered with by [Penny] or her brother. Our conclusion, also, is without prejudice to whatever rights, if any, [Bill] may have for recovery of the expense to which he may be put now or hereafter in cutting the overhanging branches or foliage.”

– Tom Root

TNLBGray

Case of the Day – Wednesday, January 16, 2019

THERE ARE LEGAL COSTS, AND THEN THERE ARE LEGAL COSTS

fees160104Let nothing come between a lawyer and his fee.

You might be cynical, and see today’s case as nothing more than a lawyer worried about collecting a large and unwarranted fee. But the case is much more than that.

The facts are rather prosaic. Some landowners failed to carefully mark the common boundary with their neighbor before setting a timber company loose on the property. Sure enough, the cutters harvested some of the neighbor’s trees. That much wasn’t an issue.

When Valarie Garvey sued the Chaceys for timber tress, property damage and a collection of related causes of action, the Chaceys hired some aggressive litigators. Their lawyers knew that the best trial defense often is a good pretrial offense. They fought tooth-and-nail before trial, gaining their best tactical high ground when Valerie’s lawyer inexplicably didn’t identify the plaintiff’s timber expert by the pretrial deadlines.

The expert was crucial, because he was going to testify as to the value of the timber that had been wrongfully cut. But once the expert established the value of the missing trees, Section 55-332 of the Virginia Code would let Valerie Garvey collect three times the value of the wrongly-cut timber, plus reforestation costs, plus other damages to the property (such as the private road the timber harvesters ripped up) plus “legal costs directly related to the trespass.” In short, it looked like a big payday for Valerie Garvey. She just had to do one thing. She had to prove the value of the stolen timber.

Alas, she screwed it up. Perhaps it would be more appropriate to say her lawyer screwed it up. Without the expert, Valerie had no way to get the value of the timber into evidence. When the jury decided the case, it was able to award her the princely sum of $15,135.00 (only a fraction of the reforestation costs she estimated to be $ 78,000.)

expert160104Valerie’s lawyer, trying to save a case that was going south pretty fast, successfully convinced the trial court that the “directly associated legal costs incurred by the owner of the timber as a result of the trespass” included attorneys’ fees. Valerie claimed she had spent over $135,000 in legal fees, and the trial court awarded even more than that – $165,000 – in fees.

I doubt that Valerie’s lawyer was going to get all of that pile of cash. In fact, Val had every right to be as mad as a wet hen over counsel’s missing the expert witness deadline. I suspect that the lawyer and client had made a deal to salvage something out of the case, and counsel would had ended up with little more than cabfare (but no malpractice claims). Unfortunately, we’ll never know, because on appeal, the Chaceys convinced the Virginia Supreme Court that whatever “directly associated legal costs” might be, they are not “attorneys fees.” The Supreme Court was impressed that wherever the legislature intended to authorize the award of attorneys fees – in over 200 statutes in the Code – it was able to clearly say so.

The Chaceys – not satisfied with hitting a triple – swung for the fence. They asked the Supreme Court to rule that where a plaintiff claiming timber trespass did not prove the value of the missing timber, the case should be thrown out. The Supreme Court disagreed. Proving a timber trespass does not require that one prove the value of the purloined pines. Of course, not doing so cuts the plaintiff out of a lot of damages, but the offense does not depend on proven damages. It just requires that a trespass to timber occur, whether the tree is worth anything or not.

As for Valerie’s attorney, I suspect he marched straight from the courtroom to his malpractice carrier’s office.

reforest160104Chacey v. Garvey, 295 Va. 1, 781 S.E.2d 357 (Supreme Court of Virginia, 2015). In 1995, Valerie Garvey bought 50 acres of land from Allan and Susan Chacey. The Chaceys retained ownership of adjacent property, and they reserved to themselves an easement over Garvey’s property as a means for ingress and egress to their property.

At the end of 2012, Garvey sued the Chaceys and Blue Ridge Forestry Consultants, Inc., alleging timber theft and trespass. Garvey said the Chaceys had hired a logging company a few years previously to remove some timber located on their property, and that the company had trespassed on her property and removed timber without her permission. She alleged that she was entitled to damages for timber theft at three times the value of the timber on the stump, as well as reforestation costs not to exceed $450 an acre, the costs of ascertaining the value of the timber, and her attorney’s fees. She also asked for $30,000 for damages to her property caused by the trespass, including damage to the road, fencing, and the stone bridge.

Prior to trial, Garvey attempted to designate an expert witness for the purpose of establishing the monetary value of the timber on the stump at issue in the complaint. However, she did so too late, and trial court refused to let her expert testify during the three-day jury trial.

While she was testifying at trial, Garvey was asked by her attorney whether she had incurred legal costs in connection with the trespass. The Chaceys objected, but the trial court ruled that legal costs included attorney’s fees. Garvey told the jury that she had incurred more than $135,000 in legal costs, including attorney’s fees, which she claimed were all directly associated with the trespass. She also testified that she had negotiated with Bartlett Tree Services for the restoration of the trees, and she had paid a deposit of $440 towards that work, against a total price of $78,000.

The trial court ruled that Garvey could not recover treble damages since her expert evidence regarding the value of the timber on the stump had been excluded. However, the case could still go to the jury for consideration of damages for reforestation and legal costs.

The Chaceys argued that attorneys’ fees are not recoverable by a prevailing party in an action for timber theft pursuant to the Virginia Code § 55-331. They also contended that Garvey’s timber trespass claim should not have been submitted to the jury, because she had failed to provide any evidence related to the value of the alleged damaged timber. However, the jury found for Garvey on her claims of timber theft, trespass, and property damage. On the timber theft claim, the jury awarded Garvey $135.00 in reforestation costs. The jury also awarded her legal costs. On the trespass count, the jury awarded Garvey $15,000 in damages. The trial court held that Garvey was entitled to $165,135 in “directly associated legal costs incurred by Plaintiff as a result of the trespass, including attorney’s fees, in the amount of $150,000 …”

The Chaceys appealed.

needlawyer160104Held: The Virginia Supreme Court split the ticket. It observed that although Virginia Code § 55-331 permits any victim of timber trespass to collect “directly associated legal costs incurred by the owner of the timber as a result of the trespass,” whether Garvey was entitled to attorney’s fees depends upon the meaning of “costs.” Garvey argued that her attorney’s fees are legal costs directly associated with the trespass. The Chaceys argued that Garvey is merely entitled to the costs necessary for the prosecution of her suit.

Tracing the definition of “costs” in other proceedings, the Court held that “the term ‘costs’ is limited to the costs necessary for the prosecution of a suit, and does not include attorney’s fees. The Code of Virginia contains more than 200 instances where the General Assembly has determined a successful litigant is entitled to ‘attorney’s fees and costs’ or ‘costs and attorney’s fees’ … However, the General Assembly did not include the right to recover attorney’s fees in this statute, something it has done in more than 200 other separate instances.”

The Court disagreed with the Chaceys, however, about the timber trespass claim. The Chaceys, no doubt wanting to capitalize on their pretrial success in keeping Garvey’s expert off the stand, argued that the trial court erred in permitting Garvey’s timber trespass claim to proceed to the jury because Garvey failed to provide any evidence related to the value of the alleged damaged timber. Essentially, the Chaceys were contending that evidence related to the value of the damaged timber is a prerequisite to awarding any of the additional damages provided for under Code § 55-332(B).

Virginia Code § 55-332(B) holds that any person who removes timber from the land of another without permission is liable to the rightful owner for “three times the value of the timber on the stump and shall pay to the rightful owner of the property the reforestation costs incurred not to exceed $450 per acre, the costs of ascertaining the value of the timber, and any directly associated legal costs incurred by the owner of the timber as a result of the trespass.” The Court held that there was nothing in the statute that stated that an owner is only entitled to reforestation costs, legal costs, or the costs of ascertaining the value of the timber after he or she had first established the value of the timber that was improperly taken. Instead, the Court said, the statute made clear that the person who removed the timber “shall be liable to pay” all of these damages to the owner. The fact that Garvey was unable to prove the value of the timber on the stump in this case did not preclude her from being able to recover the other damages she was entitled to under Code § 55-332(B).

– Tom Root

TNLBGray

Case of the Day – Tuesday, January 15, 2019

MISSION CREEP

It pretty much stands to reason that landowners whose trees and shrubs overgrow signs along the road, thus endangering motorists, might have a duty to trim their trees.

That’s the law in Florida. But what happens when the vegetation mere creeps up over an extended period of time? That happened on a country road in Dade County, where pine tree roots over 50-70 years submarined a roadway and turned the pavement into corduroy. Of course, it did not help that at some point, the County widened the road, so that trees that were once well away from the road ended up uncomfortably close to the shoulder.

I once had a dapper contracts law prof – a partner in a downtown law firm – who explained to us well-scrubbed first-year students that the law was a seamless web. We would never, he explained, have a case that was exactly like a case that had already been decided. Instead, our fact patterns and legal issues would fall somewhere in between cases and legal principles that had been settled by courts and lawyers who had gone before. Our job as attorneys, he said, was to convince the judge that our clients’ cases fell closest to the legal principle that best served our client’s interest.

That’s what the lawyer for injured passenger Mary Sharon Sullivan tried to do, when he sought to convince a Florida appellate court that if a landowner can be dinged because its trees overgrow a stop sign, it certainly ought to be liable when roots from the landowner’s trees grow beneath a public street, breaking up the pavement.

Silver Palm Properties, Inc. v. Sullivan, 541 So.2d 624 (Ct.App. Florida, 1988). Bob Stevens was driving with a passenger, Mary Sharon Sullivan, on a two-lane county paved road in an agricultural section of Dade County. Bob’s car hit a series of bumps submerged in rainwater, and he lost control, swerved to the left and crashed into a tree several hundred feet away. Both Bob and Mary were injured.

Mary sued Silver Palm, the owner of property next to the accident site, complaining that the company had a duty to maintain the trees on its property so that “subterranean growth” would not cause dangerous bumps, cracks, and protrusions in the road. She argued Silver Palm was negligent in allowing the trees to grow in such a manner as to damage the road, and in failing to inspect, discover, or repair the area. She said Silver Palm knew or should have known of the condition of the road “and therefore had a duty to take action reasonably calculated to correct the dangerous conditions created by its actions or inactions.”

Since 1974, Silver Palm has owned the avocado grove adjacent to the road where the accident occurred. About fifty to seventy years earlier, a prior owner planted Australian pine trees alongside the grove as windbreaks to reduce wind damage to the avocados. Silver Palm had never trimmed or pruned the trees. The trees were not originally located right next to the road, but when the county widened the highway in 1974, they end up much closer than they had been before.

Mary’s expert witness, a mechanical engineer, said that about three and one-half to four feet of pavement had been uprooted and broken up to a height of five or six inches because of the pine tree roots. Another expert witness corroborated the engineer’s testimony. The expert explained that four methods were generally employed to prevent the growth and spread of tree roots. Two of the methods would kill the tree outright. In a third method – topping – limbs are cut away to reduce the height of the pine tree from about 30 feet to six feet. In a fourth method, root trenching, a trench is dug parallel to the roadway, severing the roots.

The horticulturist admitted that locally, he never seen had any owner other than Dade County perform root trenching, and he had never known of any company, individual, or landowner who had done root work on pine trees within 15 feet of a roadway. No one testified as to when in the past the topping method would have had to have been performed in order to retard the root growth enough to prevent the pavement from buckling and cracking.

The horticulturist also testified that when the County widened the road in 1974, its workers merely scraped over the tops of the existing roots instead of root trenching, which would have been the proper means of controlling the root problem. Had the county root-trenched in 1974, he testified, the trenching would have retarded root growth for about ten years, well beyond the date of the accident.

Dade County admitted it had prior knowledge of the condition of the road, and it admitted it had had the responsibility to maintain and repair it. It settled for $50,000 just after the jury had retired for deliberation.

Sliver Palm did not, and the jury found it 22.5% negligent; Dade County, 15% negligent; and Bob (the driver) 62.5% negligent. The trial court entered a final judgment against Silver Palm and its insurer for $200,000.

Silver Palm appealed.

Held: Silver Palm was not liable to Mary.

Florida law holds that users of a public right-of-way have a right to expect that the roadway will not be unreasonably obstructed. Thus, a landowner may incur liability for damages caused by something which grows on private property but which obstructs the public right-of-way.

The Court distinguished the situation from other cases where obvious conditions created hazards, such as vegetation obscuring traffic signs. In those cases, “common sense required that a duty be imposed upon the landowner to remove landscaping which obstructed critical traffic signage. Vegetation that overhangs and blocks out a traffic control device constitutes an obvious condition and presents an imminent danger of uncontrolled traffic. The offending branch, moreover, need only be clipped away, a straightforward remedy.”

In this case however, “the offending vegetation was anything but obvious. The root growth was slow and subterranean; the defect in the right-of-way became noticeable only after a considerable passage of time; and the remedy was known only to horticulturists and practiced only by a governmental entity.” Everyone agreed that Dade County, not Silver Palm, owned and maintained the roadway shoulder and surface in the area of the accident. Silver Palm had no right, the Court observed, to repair or alter the surface of the roadway.

To hold a landowner liable for failing to clip back vegetation that has overgrown a traffic control device is reasonable. To impose upon a landowner a duty to undertake root trenching or tree topping purely in anticipation that subterranean growth may alter the surface of a public right-of-way at some indeterminate time in the future is both burdensome and unreasonable.

– Tom Root

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