Case of the Day – Monday, April 19, 2021

YOUR MOTHER WEARS COMBAT BOOTS

boots150429We’re offering up a little slug of neighbor law today, actually ‘neighbor-denouncing-neighbor’ law. Who knew that such dry topics as beachfront preservation and development could be flash points for acrimony?

In today’s case from New York State, the debate – and we can’t tell for sure what it was about, although it included beaches, landscapers, and trespass – devolved into name-calling. And that was when someone’s skin got a little thin.

Contrary to popular belief, slander isn’t an easy thing to prove, and it’s even harder to prove that the slander was collect damages from. So what if Arnie Saltzman called Phil Galasso “no good” and a “criminal” and “connected?” The Court ruled it was protected opinion, and even if it weren’t, Phil couldn’t show that Arnie actually knew what he said was false.

The decision is kind of curious, because the Court seemed to apply a First Amendment standard to slander that is usually reserved for the news media, not private spats. But it was clear that the appellate court found the complainant, Mr. Galasso, not to be guilt-free. The Court noted that he could have been prosecuted for criminal trespass, and implied that the fact that he was not should be victory enough.

slander150429Galasso v. Saltzman, 839 N.Y.S.2d 731 (N.Y.A.D. 2007). In the context of a heated dispute among residential property owners in Sands Point, a beach community in Nassau County, Phil Galasso allegedly committed criminal trespass on Arnold Saltzman’s yard by removing trees and a fence. When he threatened to do more, Arnie obtained a cease-and-desist order.

Subsequently, Arnie allegedly said that he was intent on “getting” Phil Galasso, who was “no good” and “a criminal.” He alleged that Phil was “engaged in criminal conduct” and had “committed crimes” against Arnie’s property in an effort to “destroy both our properties and our beach.” Arnie also claimed that he had had Phil “checked out, and I don’t care if he’s connected, I’m going to get him.”

true150429The statements were made to a former neighbor, a current neighbor, and a local businessman. Phil conceded that he held meetings with the subdivision neighbors to explain his protest actions.

When the trial court denied Arnie Saltzman’s efforts to get Phil’s slander action dismissed, Arnie appealed.

Held: The Court dismissed Phil’s complaint in its entirety. The Court said that given the subjective context and the facts underlying Arnold Saltzman’s statements, the statements constituted opinion and were not actionable as a matter of law.

When Saltzman said

When Saltzman said “connected,” he wasn’t talking about the electric company.

Arnie’s listeners were familiar with the issues in dispute and with the positions of each side. His references to criminality referred to the arguable criminal trespasses on his property and on common areas of the subdivision.

The Court did find that the record did not offer a reasonable basis for interpreting the statements to imply that Arnie knew of additional, undisclosed facts regarding Phil’s purported criminality. But even if the statements were not protected opinion, the Court ruled, Phil’s general allegations that Arnie’s alleged lies had hurt his reputation and subjected him to scorn and hatred were insufficient to support his slander claims.

A viable slander claim requires allegations of special damages, such as economic or pecuniary loss. And Arnie’s use of the term “connected,” generally referring to an affiliation with organized crime, did not constitute slander per se (something exempt from the requirement that special damages be pled).

Finally, the evidence did not show that Arnie’s statements were made with “actual malice,” that is, with a reckless disregard for the truth or with knowledge that it was false. Rather, the Court said, the statements were made in the context of Phil’s purported demolition and reconstruction activities, for which legitimate issues of fact existed: the question of whether they were authorized by the Village in each instance and whether they encroached upon Arnold Saltzman’s property rights.

For that matter, the Court said, Phil could arguably be subject to prosecution for felonious criminal mischief.

Quit while you’re ahead (or, at least, not yet behind), Phil.

– Tom Root

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And Now The News …

CNet, April 18, 2021: Cicadas 2021: How to keep Brood X from tunneling your dirt and damaging your trees

Before you know it, the dirt mounds will rise and the unmistakable buzzing will begin. Cicadas — specifically Brood X — are arriving by the billions for the first time in 17 years. These insects emerge from underground for six-week lifespans, sometimes landing inside your home, and have the potential to wreak havoc on your smaller, young trees. You may also decide you don’t like the look of the rising dirt mounts in your yard and beneath your plants that signal the brood’s arrival. While cicadas do present some benefits, if insects give you the creeps, or if you’ve got new, expensive trees you’ve just planted, you may be wondering how to keep the critters away. While you’ve got limited time left before Brood X arrives, there are several preventative measures you can take to keep them off your young trees. And if they’re already there, we’ve got ways to get rid of them. Keep reading to find out what you need to do to keep the periodical cicadas out of your trees this spring. We’ll also tell you which chemicals or oils not to use — and why you might even relent and let Brood X stick around. (Plus, here’s what happens if your pet eats a cicada…

Fairfield, Connecticut, Patch, April 16, 2021: ‘I Was In Shock’: Fairfield Cherry Trees Removed; Lawsuit Filed

A week ago, Fairfield resident James Hughes was going about his day in the town center when he witnessed a startling sight. Four Kwanzan cherry trees outside the Sacred Heart University Community Theatre were being removed. “I was shaking, I was in shock, I was incredulous,” he said. The removal of the trees was particularly surprising because Hughes, an attorney whose office is a block from the theater at Post and Unquowa roads, had filed a legal complaint only days earlier challenging the town’s decision to allow the trees’ removal and seeking an injunction to save them. “The town was aware of the lawsuit, and yet they moved forward,” he said. The trees, which were owned by the town, were removed with permission by Kleban Properties as part of the ongoing redevelopment of the theater and surrounding area. They will be replaced with three different Kwanzan cherry trees and a northern red oak…

Washington, D.C., Post, April 18, 2021: Nothing is more beautiful than a redbud in bloom. Why won’t our tree comply?

If my house was ever on a garden tour, I’d take visitors to the corner of my backyard and say, “And this is the reddud tree.” Someone might respond, “You mean, ‘redbud?’ ” “No,” I would answer. “Reddud. Do you see any buds on it? I don’t.” “But —.” “I suppose I could call it a ‘deadbud,’ but that would imply that the tree was dead. Or the buds. Oh, it’s alive, all right. Sentient, even. But evil. Or cursed. No, don’t leave! Come back! Don’t you want to see my daffydils? They’re daffodils that grow backward.” That’s how I imagine it would go. That’s probably why my house won’t ever be on a garden tour. The yards — front and back — have come to disappoint My Lovely Wife and me. Certain once-hardy bushes have started dying — ancient azaleas; long-lived laurels — and so we’re forced to ponder a landscape upgrade. There’s only so long you can go with your front door flanked by brown and crispy shrubs, like something out of a Charles Addams cartoon. We tried to brighten things up with daffodils, planted last fall on the slope in front of our house, but I don’t consider them a complete success. For some reason, the daffodils don’t all face the same direction. Some offer their yellow faces to the north, some to the south. I don’t know how that’s even possible for a heliocentric plant, unless these narcissus are as stupid as they are vain: literally dim bulbs…

Northampton, Massachusetts, Daily Hampshire Gazette, April 18, 2021: Metal fence proposed to protect 400-year-old Buttonball Tree in Sunderland

Since local citizens voiced concerns about an upcoming road reconstruction project and its potential impact on the historic Buttonball Tree, the town has negotiated putting up a metal fence around the tree and designating a “tree protection zone” during the work. Select Board member Tom Fydenkevez said at a board meeting last week that he and Town Administrator Geoff Kravitz met at the Buttonball Tree on April 9 with a representative from the state Department of Transportation, the contractor for the project, arborists and others to consider ways to protect the tree, an American sycamore on North Main Street (Route 47) believed to be roughly 400 years old. A plaque, embedded in a rock in front of the tree, states the National Arborist Association and the International Society of Arboriculture in 1987 jointly recognized the tree as having been in Sunderland when the U.S. Constitution was signed 200 years earlier. “Not to say things may not change, but the first thing is the town has negotiated with the contractor and we’re going to be putting a metal fence to designate the tree protection zone around the Buttonball Tree to better define it,” Fydenkevez said. “We also are strongly considering eliminating the turnoff that’s presently there…”

San Francisco, California, Chronicle, April 15, 2021: PG&E’s 2020 tree trimming failures lead to extra regulatory oversight

Pacific Gas and Electric Co. has been forced to submit to increased regulatory scrutiny because of its failure to trim trees adequately around its power lines most at risk of starting wildfires. The California Public Utilities Commission on Thursday ordered PG&E to create a plan detailing how the utility will ensure that its most dangerous electric circuits are prioritized for vegetation management work this year. It’s a response to an earlier commission audit showing that less than 5% of PG&E’s enhanced tree trimming occurred on the company’s 20 highest-risk power lines in 2020, based on the company’s own rankings. The commission vote places PG&E in the first of a six-step escalating regulatory enforcement process created last year when the company concluded a year-and-a-half-long bankruptcy prompted by its responsibility for years of disastrous wildfires. PG&E could lose its operating license if commissioners placed the company at the most extreme end of the new enforcement process. But regulators opted Thursday to impose the least-strict step, which requires the company to submit a plan by May 5 explaining how the company will avoid a repeat of its 2020 tree trimming failures. PG&E must report back every 90 days until the commission decides otherwise…

Phys.org., April 15, 2021: Deciduous trees offset carbon loss from Alaskan boreal fires, new study finds

More severe and frequent fires in the Alaskan boreal forest are releasing vast stores of carbon and nitrogen from burned trees and soil into the atmosphere, a trend that could accelerate climate warming. But new research published this week in the journal Science shows that the deciduous trees replacing burned spruce forests more than make up for that loss, storing more carbon and accumulating it four times faster over a 100-year fire interval. The study, led by a team of researchers at the Center for Ecosystem Science and Society at Northern Arizona University, suggests that these faster-growing, less flammable deciduous forests may act as a stabilizing ‘firebreak’ against escalating fire patterns and nutrient loss in the region. The study began in the wake of the dramatic 2004 fire season in Alaska when an area seven times the long-term average burned. Historically, more than half of this forested terrain has been dominated by black spruce, but after fire, faster-growing aspen and birch are replacing some of these stands. The team, made up of researchers from Northern Arizona University, the University of Alaska Fairbanks, Auburn University, and University of Saskatchewan surveyed 75 black spruce stands that burned in 2004 and followed their recovery over the next 13 years. They also collected a range of data from trees and soils of different ages and burn severities to construct a chronosequence, a kind of scientific time-lapse that lets researchers fast-forward through a 100-year fire cycle to see how forests recover and change. “In 2005, I thought that there was no way these forests could recover the carbon they lost in this fire,” said Michelle Mack, a professor of biology at Northern Arizona University and the lead author of the study. “The literature is full of papers suggesting deeper, more severe fires burn more carbon than can be replaced before the next fire. But not only did we see these deciduous trees make up for those losses, they did so rapidly…”

Hilton Head, South Carolina, Island Packet, April 16, 2021: Despite pressure from officials, Dominion won’t alter plan to cut Bluffton palmetto trees

Dominion Energy said Thursday it has begun cutting down 29 palmetto trees in Bluffton’s historic district, despite pressure from state legislators and outcry from town residents. Dominion Energy began removing the 90-year-old trees on Monday because they touched electrical wires and were a risk to the public, officials said. Earlier this week, there was hope that the utility might postpone the project, giving town officials and legislators time to fast-track a plan to bury the power lines and save the trees, a dilemma officials are also grappling with in Charleston. But on Thursday, Dominion Energy confirmed that nine trees had already been cut and said the project would continue. “Safety is our top priority, and due to increased foot traffic in the community during this weekly event — and as a courtesy to the town, the residents and participating vendors — work in the area will primarily be scheduled Monday through Wednesday as the project moves forward,” wrote Dominion spokesperson Paul Fischer. The energy company plans to work with Bluffton officials to plant future trees “in the right place to avoid trimming or removal as vegetation matures,” Fischer said…

Detroit, Michigan, News, April 15, 2021: Bradford pear trees on the way to becoming pests

Each spring for the last few years, I’ve taken the opportunity to voice my opinion on this blog about an invasive plant species issue that is relatively small right now but has the potential to explode into a major problem. I’m talking about Bradford Pear trees, those white-flowered, lovable, lollipop-shaped trees that everyone seems to adore. There are so many around and more are being planted every year. When first brought to market, they were thought to be sterile and unable to reproduce in the wild, therefore they were not considered a threat to the native landscape. And that seemed to be true for decades. Lately however, they are beginning to make their escape into the wild and are taking over plots of land. It’s been several years since I was made aware of the potential problem by a natural history biologist when she pointed out small clusters of wild Bradford pear trees popping up in spots across the area…

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

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

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

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

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

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

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

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

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Case of the Day – Friday, April 16, 2021

LOOKING FOR THE DEEP POCKET

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

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

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

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

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

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

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

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

Proper use of a pole saw … which didn’t happen in today’s case.

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

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

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

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

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

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

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

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

The jury found for the Nelsons.

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

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

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

The

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

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

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

– Tom Root

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Case of the Day – Thursday, April 15, 2021

THEY’RE BA-A-A-ACK!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good luck with that.

– Tom Root

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Case of the Day – Wednesday, April 14, 2021

LIKE A GOOD NEIGHBOR

Would you rather have your insurance agent appear? Really?

Would you rather have your insurance agent appear? Really?

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

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

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

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

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

Alpacas

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

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

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

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

cameras

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

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

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

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

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

– Tom Root

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Case of the Day – Tuesday, April 13, 2021

STICK IT TO THE MAN …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

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Case of the Day – Monday, April 12, 2021

MURRELL II – WINNING THE BATTLE BUT LOSING THE WAR …

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

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

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

Meanwhile, those fun-loving Murrells of Rolling Hills, California, are back for an encore performance! The couple’s quixotic effort to hold their condo association liable for all sorts of alleged backroom dealing and breach of trust in cutting down their trees to improve the view of their neighbors, the Fullers, was covered in the Case of the Day for Friday, April 9, 2021 (funny, it seems like only last week). Lest you think that decision was the end of the saga, I now bring you Murrell II, the Very Expensive Sequel.

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

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

And Chinese viewers thought that it was confusing missing the White Walkers’ message in Game of Thrones!

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

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

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

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

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

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

Murrell v. Rolling Hills Community Association, Case No. B202019, 2011 Cal. App. Unpub. LEXIS 772 (Ct.App. Cal., Jan. 31, 2011). A contentious and costly feud over trees and a neighbor’s view has spawned multiple legal actions, cross-actions, five appeals, and two cross-appeals. To obtain an unobstructed ocean view, the Fullers wanted certain trees on “the Murrell property” trimmed or removed. The Murrells, who sought to preserve privacy, resisted. So began a decade-plus dispute.

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

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

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

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

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

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

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

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

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

– Tom Root

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