Case of the Day – Friday, October 8, 2021


A British army officer and poet, Thomas Osbert Mordaunt, wrote in his poem, “The Call,” a line now misattributed to Sir Walter Scott: “One crowded hour of glorious life is worth an age without a name.”

It’s so much fun to be nasty. Even for just one glorious, crowded hour. It’s just not so much fun when the age without a name knocks on the door, seeking payment. Just ask John and Anne Estes.

Everything started when John and Anne tried to extend the Massachusetts Rule to cut some branches from their neighbors’ trees. Problem was, the trees and branches were both on the neighbors’ properties.

Then they built a fence. So far, so good, at least until the fence they built was on their neighbors’ property, too. The neighbors, Matt and Rachel Milcic, objected. After mediation, the Estes fence was removed.

Obviously, John and Anne were sore at having been upbraided for their brazen trespasses. So they rebuilt the fence, and on the Milcics’ side, painted in large block letters, “PULL YOUR WEEDS.”

“Hah!” You can imagine John and Anne giving each other high-fives at their in-your-face cattiness. They sure showed those jerk neighbors, who thought they were so cool that they could stop John and Anne from trespassing. Their snickers and winks lasted for one crowded hour of glorious fun.

Maybe the neighbors really did need to weed. It’s hard to say. For certain, Matt Milcic did do some landscaping in response to the fence. After he had done so, and after he asked John to remove the sign, John said he might. But petulantly, he did not.

Cute, John… at least until the Milcics sued. Then, John offered to paint out the words if the Milcics would drop the suit. But that horse had left the barn month before.

The Esteses’ conduct was brazen enough that the trial court granted the Milcics summary judgment. But then, the battle continued over damages. By the time the court was done, the Esteses’ cruel prank had cost them north of $10,000.00. Not near what the Milcics wanted, the award nevertheless undoubtedly deterred the juvenile conduct.

You’d better find your checkbook, John. You and Anne enjoyed your crowded, glorious hour. The age without a name has now arrived.

Milcic v. Estes, 2018 Wash. App. LEXIS 1798 (Ct.App. Wash., Aug. 6, 2018). The Milcics and Estes are next door neighbors. In 2013, the Estes cut branches off trees located on the Milcics’ property, and began to build a fence along the parties’ common boundary.

When a dispute regarding fence encroachments arose, the parties submitted it to mediation. In April 2014, the parties executed a settlement agreement in which the Estes agreed, among other things, to remove both the excess dirt from the Milcics’ property and portions of fence footings that were visible above ground.

In July 2014, the Estes painted the words “PULL YOUR WEEDS!” in white, 10-inch block letters on the Milcics’ side of the Estes’ fence. The Milcics threatened a lawsuit unless the Esteses removed the sign. The words remained, and the Milcics sued.

The Milcics’ complaint alleged iprivate nuisance, trespass, timber trespass, spite fence, quiet title and damages to land and property. Shortly after the Milcics filed, the Estes offered to remove the painted message if the Milcics dismissed their complaint. The Milcics rejected the offer, telling the Estes, “If you were willing to do so voluntarily… you could have removed the sign at any time for the past nine months.”

The Milcics moved for partial summary judgment, alleging there were no issues about the Estes’ branch cutting, fence encroachments, and dumping of fill dirt on the Milcics’ property. The trial court granted relief, including ordering the Estes to the fence encroachments. The court awarded the Milcics some but not all, of their requested damages, but denied attorneys’ fees.

The Milcics appealed the adverse ruling on damages and fees.

Held: The appeals court upheld the damage award, and sent the case back to the trial court for a legal fee award.

In January 2017, the matter proceeded to trial solely on the issues of damages and attorney fees and costs. Rachel Milcic testified that the Estes cut branches off their trees and put fill dirt on their property without their permission. She said the branch removal ruined the beauty and privacy of the Milcics’ property. The loss of the branches upset her and she did not sleep well. She also testified that the Milcics were not sure where the property line was when the branches were cut.

She also testified that she was “shocked,” “horrified,” and “scared” when the Estes painted the “PULL YOUR WEEDS!” message on the fence facing the Milcics’ property. She had trouble sleeping and and no longer felt that she and her children were safe. She testified that before the painted message appeared, her family spent around 12 hours per week in her yard. After the message appeared, they spent less than an hour a week in the yard. She valued her use of the yard at $40 per day. She testified that the message was visible for 922 days.

Matt Milcic testified that after the painted sign on the fence, the Milcics installed a surveillance system to “protect our property” and to “capture any trespasses by the Esteses on our land.” Matt also testified that the fence message could be seen from roughly a quarter of their property and prevented the Milcics from enjoying their yard. Their dreams and aspirations for landscaping the yard “got instantly crushed into a reminder of, you don’t get to enjoy this part of your property that you had hopes and dreams for.” He estimated that the affected portion of his property had a market value of $152,500.

Matthew conceded that he had not seen a doctor or any medical professional for his emotional distress and had no medical bills related to that distress. Matthew also conceded that he did not accept the Estes’ April 2015 offer to remove the fence message.

John Estes testified that he painted the “PULL YOUR WEEDS!” message to protest the “weeds and invasive vegetation coming onto my property.” He conceded that Matt told him in August 2014 that he had pulled the weeds and that he wanted the message removed, but he did nothing for nine months, at which time John offered to remove the message if the Milcics dismissed the lawsuit.

The court ruled that the Milcics were entitled to some, but not all, of their alleged damages. It awarded them $3,557, trebled to $10,673. However, it denied damages for installation of the surveillance system, for lost enjoyment of property, for emotional distress, and for legal fees.

On appeal, the Milcics argued the court erred in awarding no damages for their alleged lost enjoyment of their property on their trespass and private nuisance claims. They claim they were entitled to such damages due to the significant length of time — 922 days — that the fence message remained in place. But the Court of Appeals held that the trial court was free to discount or reject the Milcics’ testimony regarding their alleged lost enjoyment. “On this record, and in light of our deference to the trial court’s view of the weight and credibility of the evidence,” the Court held, “we cannot say the court abused its discretion in declining to award damages for the Milcics’ claimed lost enjoyment of their property.”

The Milcics also contended that the trial court abused its discretion in failing to award them damages for emotional distress caused by the Estes’ fence message and branch cutting. A plaintiff who proves liability for intentional wrongful conduct is entitled to damages for emotional distress upon a showing of actual anguish or emotional distress. The distress need not be severe and a plaintiff “need not demonstrate objective symptomology, medical bills, or a medical diagnosis.”

Here, the trial court found the Estes engaged in intentional wrongful conduct, including nuisance, timber trespass, and a spite fence. The trial court also found, however, that the Milcics “have not provided sufficient evidence to establish that they have suffered emotional distress.” The Milcics pointed to their testimony that they suffered initial shock and distress, trouble sleeping for a week, and ongoing feelings of insecurity and fear of further invasions. “But,” the Court of Appeals held, “the trial judge’s evaluation of the sufficiency of the evidence includes determinations as to the weight and credibility of the evidence – matters that require our deference.”

The Milcics also contended the trial court erred in concluding that the Estes’ conduct was not the legal cause of their purchase and installation of a surveillance system. To determine if legal causation exists, a court considers whether “‘as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.” The Court said that the judge’s determination rests on ”mixed considerations of logic, common sense, justice, policy, and precedent.”

Here, the Court of Appeals ruled, “the Milcics offer no relevant precedent supporting their argument regarding legal causation. Nor do they advance any persuasive arguments supporting their claim that logic, common sense, justice, and policy favor the imposition of liability for the surveillance system. There was never any doubt as to who had trespassed onto the Milcics’ property. The Estes readily admitted cutting the branches, painting the message, and installing the fence. There was therefore no need for a surveillance system to catch the perpetrators, and no reason to believe that a surveillance system would act as a deterrent to future incursions. In addition, except for the branch cutting, the trespasses were de minimis incursions. Thus, the trial court did not err in concluding that the Estes’ conduct was not a legal cause of the Milcics’ surveillance system expenses.”

– Tom Root


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