Case of the Day – Tuesday, September 10, 2019

A TALE OF TWO TALES

It is often tempting to consider only one side of a story. It makes for humor, it fuels rage, often it titillates.

I remember the story about Dan Quayle lamenting that “I regret I didn’t study Latin harder in school so I could converse with people in Latin America.” Great yarn, illustrating just how vapid and shallow the Vice President really was. The story became much less interesting when you heard the other side.

There was another side? Well, yes. During a speech in April 1989, Representative Claudine Schneider of Rhode Island told a gathering of Republicans that she had recently attended an event at the Belgian embassy, also attended by Vice-President Quayle. They spoke to each other, and the Veep complimented the Congresswoman on her command of French.

Then, Schneider told the group, the Vice-President said, “I was recently on a tour of Latin America, and the only regret I have was that I didn’t study Latin harder in school so I could converse with those people.” Ms. Schneider intended to make a joke, something she explained at the conclusion of her speech. Somehow, the media missed the disclaimer, and presented her joke as fact.

Reading today’s case reminded me of the dangers of uncritical acceptance of one version of reality. The majority describes a mean old woman who was willing to go to great lengths to mete out woe to her nice neighbors. The dissent, on the other hand, tells about a nice widow woman who had lived in harmony with her neighbors for 40 years, until a pair of boorish neighbors upset the neighborhood, stole her property, denuded the landscape and let their dogs take dumps all over Patty’s yard. To protect herself, the widow tries to restore nature, only to be sued by the Philistines next door.

What is at once puzzling and disheartening is that the judges are reaching their conclusions from the same pool of evidence.

Tranfield v. Arcuni-English, 2019 ME 135 (Supreme Ct. of Maine, Aug. 15, 2019): A nasty neighbor, an old battleaxe octogenarian named Patricia Arcuni-English, took an immediate disliking to her new neighbors, the Tranfields. The day the Tranfields move in, Richard knocked on Patty’s door, seeking to borrow a bit of firewood. She refused to open it. Richard took a few logs, intending to replace them later. Patty, watching from behind curtains, saw him take the wood.

[We can stop the recitation of facts right there, as far as I’m concerned. We have a term for people who take the property of others without permission, even when they later claim they intended to replace it later. We call them “thieves.” Apparently, things are different in Maine. At any rate, imagine the gall of that old woman, disliking her new neighbors because she saw them stealing her wood!]

Of course, the real factual recitation does not end there. Instead, it continues…

Later, Richard was removing a tree near a shed on his property and limbing dead branches on his property along the property boundary line. Patty approached him, furious that he would dare to cut his trees without discussing it with his neighbors first. She threatened to install a 10-foot fence to block the Tranfields’ view of the ocean. At the same time, she chewed Richard out for the Tranfields having removed a koi pond on their property and for letting their dogs do their business in her yard.

Later, while Patty was traveling, a local landscaper who works for both parties sent Patty a photo of the parties’ boundary line. The Tranfields had cleared much of the deadwood and debris on their property, opening up a view of their house to Patty. She was devastated by the Tranfields’ having cleaned up their property, and called the landscaper. She told him she needed trees and privacy, and they discussed how to do it.

A few months later, the landscaper planted 24 arborvitaes along the boundary line. The trees were 10-12 feet tall, with some shorter trees installed to create an additional row to fill in any gaps. The landscaper also installed seven 4-6’ tall pine trees near a structure on Patty’s property.

The Tranfields sued Patty, alleging that the plantings were nothing but a spite fence. They asked for damages and injunctive relief. The trial court found that Patty’s “dominant motive was to install a continuous green barrier between the two properties along the boundary line. The trees were installed without any advance notice to the Tranfields, along the portion of the boundary that would block their view and without considering other types of vegetation that could provide her privacy without blocking entirely the slot view that the Tranfields had or without totally closing in their back yard.”

The trial court thus concluded that the mean old lady had constructed a spite fence, albeit one made of trees. It ordered Patty to remove every other pine tree along the boundary line, remove the trees that were planted as an additional row to fill in gaps, and trim all of the arborvitae to a height no greater than 10 feet. Additionally, the court prohibited her from replacing any arborvitae that die off.

Patty appealed, and the case ended up before eight judges of the Maine Supreme Court.

Held: A seven-judge majority of the Court said Patty’s arborvitae had to go.

The Court cited 17 M.R.S. § 2801, which stated, “Any fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.” The Tranfields, as the plaintiffs, bore the burden of demonstrating each of these elements by a preponderance of the evidence. However, they did not have to prove that “malice, the purpose to annoy, was the sole motive for building the fence. The plaintiff need only prove that such was the dominant motive, meaning that without that malicious motive, the fence would not have been erected or maintained.”

The Maine Supreme Court held that the Tranfields met their burden. The finding of malice, the Court said, “is supported by the history of animosity between the parties,” the fact that Patty’s “claimed reason for building a fence was not credible,” the fact that Patty installed the fence without advance notice to the Tranfields, and “the size, extent, and anticipated growth of the trees.”

The Maine Supreme Court conceded that it did “not doubt that her privacy was part of her concern,” it determined that Arcuni-English’s motive was malicious and without that motive, she would not have installed the trees as she did, even to vindicate her privacy interest.”

Patty argued the court should not have assigned a malicious motive to her because she deferred to the landscaper on decisions about what to plant and where. The trial court disagreed, noting that its analysis of whether this was a spite fence was informed by the acrimonious encounters between the parties that had occurred before any decisions concerning what to plant were made. Finally, she argued that the court erred by finding that the height of the trees unnecessarily exceeded six feet because she presented the landscaper’s uncontradicted testimony that trees of this height were necessary to protect her privacy. Simply enough, the court refused to believe the landscaper, as it had the right to do.

At the start of the trial, the court had gone to the property to see the arborvitae in question. Thus, as the Maine Supreme Court put it, the trial court “was able to weigh the testimony it heard during the trial in light of the information it acquired during that view. As its judgment indicates, the court specifically considered the number and size of the plantings, as well as Patty’s malicious motive, in finding that the trees were “unnecessarily” taller than six feet.

Thus, the Supremes held, the trial court “did not err by determining that Patty’s installation of trees on the parties’ boundary line constituted a spite fence pursuant to § 2801 because her installation of more than thirty trees, which created a dense and continuous wall, was done with malice.”

But what if Patty wasn’t a nasty old woman? A dissenting judge took a decidedly different view of the evidence, finding that “from the time they moved onto their property, Richard Tranfield and Karla Doremus-Tranfield provoked, promoted, and continued an adverse relationship with their elderly neighbor, Patricia Arcuni-English… The trial court failed to sufficiently consider the role the Tranfields’ provocations played in Ms. Arcuni-English’s efforts to restore her privacy after the Tranfields had eliminated the privacy barrier between the two properties.” Further, “the trial court’s finding that Ms. Arcuni-English requested her landscaper to plant trees “to ensure her privacy” and did not tell him “to block their view,” is inconsistent with its finding that malice – a purpose to annoy-was the dominant motive in planting the trees at issue.”

The dissenting judge seemed to me to be right on point when he said Patty, “a woman in her eighties, lives alone in the Camden residence she has occupied for more than forty years.” The very day in January 2016 the Tranfields moved in, Patty returned home to find “Mr. Tranfield apparently stealing firewood from her home. The trial court found that the Tranfields “left a note on her door” indicating that they had taken the firewood. That finding has no support in the record evidence. In any event, a note, if there ever was one, would have done little to ameliorate the bad first impression already created. The Tranfields followed up the negative start to the neighborly relationship by releasing their dogs to urinate and defecate on Ms. Arcuni-English’s property. Then, without notifying Ms. Arcuni-English, they cut a couple of trees near her property.”

After Patty threatened to build a fence to block the Tranfields’ view of the ocean, while she was away from her residence, the Tranfields chopped down the barrier of greenery on their property that had provided privacy to Patty’s home for several decades. When Patty found out, she was “devastated.” So, as the dissent put it, “she called the landscaper and said, ‘I need trees’.”

The dissent complained that the trial court specifically found that Patty “never told [the landscaper] to block their view…” The landscaper “was her agent when he sent the photo to her of the trees cut down. She only said she needed trees and privacy and directed [the landscaper] to install trees but left to him decisions concerning what trees and where to place them to ensure her privacy.” Even the trial court found that it “does not doubt that her privacy was part of her concern.”

The dissent complained that the spite fence statute “does not appear to contemplate the situation, as occurred in this case, where the adversity in the relationship that the court found led to the planting of the trees was provoked, at least in part, by the hostile actions of the plaintiffs, and where the ‘fence or other structure’ only replaced a barrier that previously existed.

Additionally, the dissent wondered how the majority “could find malice the ‘dominant motive’ in planting the trees when it also found that ‘she never told [the landscaper] to block their view’ and ‘left to him decisions concerning what trees and where to plant them to ensure her privacy’.”

The question will remain rhetorical, because the wood-taking Tranfields convinced a majority of the judges that Patty was a mean old woman and they were well-meaning, innocent neighbors.

– Tom Root

TNLBGray140407

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