WE ONLY GET WHAT WE GIVE
It seems like only last week, but it was almost 20 years ago that my daughter, then an Ivy League freshman but now a mom and Ph.D., introduced me to the very short-lived, corporation-hating New Radicals. I guess I was supposed to be scandalized by the band’s criticism of society and the frequent references to drugs and sex that permeate the band’s one and only album. Sorry, Sweetie, I told her, but I came of age in the 60s (I dimly recall). Nothing scandalizes me.
I think she was disappointed that I added the New Radicals’ only hit to my snazzy white iPod (remember those?). I liked the rather anti-Marxist sentiment of “you only get what you give.”
The defendants in today’s case found out a bit late that a corollary to that aphorism is “you only get what we give.”
McCammon’s excuse – an arboriculture version of “the dog ate my homework” – didn’t really resonate with the jury.
In many ways, a civil action is little more than a gladiatorial contest, with the court sitting to referee according to procedural rules, to apply the law when needed, and to correct inequities only in egregious circumstances. That’s sort of what happened when the McCammons – garden center owners who were buying tree boughs wholesale from “Trees 4U” – cut the boughs they needed not only from the trees Reicosky had designated but also from some landscape trees they had been told not to damage (sounds kind of like Adam and Eve and the tree of knowledge, doesn’t it?).
The owners of “Trees 4U” — the Reicoskys — told McCammon that those trees were definitely not for him, and sued. They claimed McCammon had destroyed $35,000 in trees, and they wanted treble damages under Ohio law. McCammon claimed that Mr. Reicosky had given him permission to cut boughs from the landscape trees. Mr. Reicosky denied it. It was up to the jury to decide whose story to believe, and it believed Mr. Reicosky.
There may not have been any compelling basis for believing the one story over the other, but when the jury makes its decision, it has pretty much settled things. It’s sort of how pro football was before instant replay: what the official said happened was what had happened. (Cursed instant replay … but that’s a rant for another day, )
The other problem the McCammons faced came with jury instructions. A trial court gives a jury detailed instructions on what the law is, so that jurors can decide how the facts they find (such as determining that McCammon cut boughs from Reicosky’s landscape trees after Reicosky said not to) leads to the legal outcome (McCammon thereby committed a trespass and was reckless). Both sides may suggest jury instructions to the Court. Here, McCammon didn’t think things through, and agreed with an instruction that the jury figure up damages by adding the market value of the tree times the number of trees. Later on, McCammon realized that the real measure of damages should be lost profits, that is, the market value of the trees minus the cost of producing and selling them. After all, even kids running a lemonade stand know that you only get to keep the money you’re paid minus what it cost you to buy the lemonade and handmade sign. McCammon complained that he should get a new trial, because the jury hadn’t considered the costs of production when it calculated damages.
The Court of Appeals said McCammon was out of luck. The jury had made its decision on his liability, and whether it’s what the Court agreed with or not, there was evidence enough for a rational jury to reach its finding. And as for the damages, well, Mr. McCammon, “we get what we give.” The instruction might have been flawed, even unfair to the McCammons, but the McCammons were happy enough with it when it was given. A party can’t make a mistake, and then cry foul that the mistake happened.
Bough? Wow.
Reicosky v. McCammon, Case No. 2006 CA 00342, 2008-Ohio-2775, (Ct.App. Ohio, Feb. 19, 2008), 2008 WL 442567, 2008 Ohio App. LEXIS 2344 . The McCammons ran a garden center, from which they sold, among other things, tree boughs to cover gravesites. They had trouble getting enough boughs, and began buying them from the Reicoskys, who operated “Trees 4U.” The Reicoskys delivered them one year, but in subsequent years, let the McCammons come to the “Trees 4U” tree farm and cut the boughs they needed. The first year the McCammons did so, the Reicoskys instructed them not to take any boughs from trees east of a particular drainage ditch, because those were landscape trees to be resold.
The McCammons limited their cutting to the west side of the ditch one year, but the next year came back, and this time cut boughs from the landscape trees on the east side of the ditch as well. The McCammons said Mr. Reicosky had given them permission to do so on trees taller than 16 feet east of the ditch. Mr. Reicosky denied doing so, and claimed he lost 211 trees, worth over $35,000. The Reicoskys sued.
There’s an old legal aphorism – never trust the judgment of twelve people who aren’t smart enough to know how to get out of jury duty.
At trial, the jury heard both sides, and then found for Reicosky, holding that he had suffered $35,000 in damage. The trial court trebled this under Ohio’s treble damages statute. The McCammons’ motion for a directed verdict – in which they argued that no evidence supported the finding of recklessness was needed for treble damages – was denied by the trial court. Likewise, the McCammons’ motion for a new trial – based on the fact that the jury considered the market value of the destroyed trees without deducting any of the costs associated with selling the trees — was turned down. The McCammons appealed.
Held: The treble damages were upheld. The Court of Appeals observed that it was limited to determining whether there was any evidence that could have convinced a rational juror the McCammons had been reckless. The evidence, because the Reicoskys were the winner, had to be construed in favor of the Reicoskys.
The Court concluded that the jury simply chose to believe Mr. Reicosky’s version of what happened — that he had never given permission to cut east of the ditch and had previously made clear that the trees there were off limits — and to reject Mr. McCammon’s version. The jury is the fact finder, and its determinations as to who to believe are entitled to great deference by reviewing courts. The jury having accepted that the McCammons trespassed on the east side of the ditch without permission, the Court of Appeals was not entitled to decide that it may like Mr. McCammon’s recitation of events better.
As for the faulty calculation of damages, the Court said McCammons’ complaint was too little, too late. The McCammons had an opportunity to make sure the jury instructions accurately described how to deduct costs from the market price to determine lost profits. Instead, they submitted a jury instruction that was the same as the one the Court used, which omitted any direction as to how to calculate damages by deducting costs from market price. The Court found that “any error in the jury’s determining of damages was invited by [the McCammons]. Under the invited error doctrine, ‘a party will not be permitted to take advantage of an error which he himself invited or induced’.”
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 
Another fan of silver maple?