Case of the Day – Monday, June 26, 2017

HEAD IN THE SAND

ostrich150416When Dom Cristino got sued for cutting down a silver maple and a couple elms on his neighbor’s land, he wasn’t worried. What did he need a high-priced lawyer for?

He soon found out, because as his own attorney, he had a fool for a client. He missed the deadline for pleading, and he couldn’t figure out that the judge was throwing him a life ring when he suggested Dom work something out with the plaintiff’s attorney. When Dom did not, the court entered a default against him. When the judge ruled that the tree damage was about $12,000, Dom thought that maybe having a mouthpiece wasn’t such a bad idea.

The new solicitor asked the court to set aside the judgment because Dom thought his brother’s lawyer was his lawyer, too. Horse-puckey, the Court said. Then Dom said he and his brother hadn’t cut the trees down willfully, meaning that treble damages could not be assessed under state law. The Court had to balance justice and judicial efficiency, fairness and the public interest in finality. Dom had had his chance to argue that he hadn’t deliberately chopped down the trees. He sat on his rights.

The judge may have been no Solomon, but he did all right: he decided that justice demanded that Dominick not be hammered with treble damages — which, after all, are punitive in nature — without a chance to be heard. So the court told the plaintiff he could take the $12,000 and run, or the Court would decide the treble damage issue on the merits.

The judge was not Solomon, and he kept the swords out of the courtroom - but he brokered a balanced, efficient and fair result.

     The judge was not Solomon, and he kept the swords out of the courtroom – but he brokered a balanced, efficient and fair result.

Still, Dominick would have done a lot better if he had hired counsel at the outset.

Bontempo v. Cristino, 2007 WL 3014707 (Mass.Super., Sept. 6, 2007).  Bontempo sued the Cristino brothers for the harm caused when Dominick Cristino cut down three trees located on the Bontempo property without permission. One brother settled, but Dominick Cristino did not defend the action. A default judgment was entered against him, despite the fact he was in court when it occurred. He declined the court’s invitation to talk to the plaintiffs to settle, and offered no reason why a judgment should not enter against him. At a damages hearing, Noel Bontempo and Dominick Cristino both testified. An expert estimated the replacement cost of the silver maple that had been cut down at $30,000 and two other elms at $7,000 each. The court determined that damages in the amount of $12,000 should be awarded against Dominick Cristino. But after the hearing, Dominick Cristino hired a lawyer and moved to set aside the default on the grounds that Dominick Cristino was misled into thinking that the law firm representing his brother also represented him. Also, Dominick and his brother Antonio filed affidavits maintaining they acted on the mistaken but good faith belief, that the trees in question were located on their land.

chop150416Held: The default judgment would stand, because Dominick Cristino had admitted that he cut down trees on Bontempo’s land without license in violation of Massachusetts G.L. Chapter 242, §7. What is in dispute, according to Dominick Cristino, was whether he acted willfully. If he did, the Court held, he would be liable to the owner for three times the amount of the damages assessed. The Court held that the interests of justice required that Bontempo should be given the opportunity to offer evidence in rebuttal to Dominick’s affidavit, and then the Court would decide the issue of willfullness on the merits, that is, whether the damages should be trebled or not. If Bontempo was satisfied with the $12,000 award, the Court would uphold that and everyone could go home.

– Tom Root

TNLBGray140407

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s