Case of the Day – Tuesday, December 20, 2022


bad160311Every so often, a case comes along that so warms the cockles of our hearts that we just have to share it, despite the fact that it may not be terribly relevant to tree or neighbor law. But this is Christmas Week. Under normal circumstances, no work would be done this week because of the annual office party, shipping, planning for a massive winter storm…

We are no exception. Instead of working, we are kicking back with some eggnog, enjoying today’s wonderful tale from Delaware.

The case began as a rather prosaic trespass. The homeowners, part of what is essentially a condo association, put their kids’ swingset and play gear on common land. Even after a demand was made, the family refused to remove it, so the homeowners association —a nonprofit corporation — sued the family for trespass.

Luckily for the homeowners (and we say that with a bit of irony), one of the couple was a lawyer, in a law partnership with his father. The two attorneys proceeded to turn a simple trespass case — in fact, a case which shouldn’t have happened at all, because the trespass was as plain as the nose on your face — into a legal circus, with multiple affirmative defenses and counterclaims. Perhaps the most creative defense: the homeowners claimed that the association was engaged in age discrimination, because the case dealt with a child’s playset, and children are… well, you get, they’re young.

"But, Your Honor," the defendant's lawyer argued, "it was just a tiny little swingset!"

“But, Your Honor,” the defendant’s lawyer argued, “it was just a tiny little swingset!”

We were a bit in awe at lawyer Ramunno’s creativity and legal legerdemain, but the trial court wasn’t. Believe it or not, there are rules against too much creativity and vituperativeness — embodied in Delaware and many other states, as well as the federal system (see Fed.R.Civ.P. 11) — and here, the Chancery Court held that the Ramunnos and their attorney paterfamilias had crossed the line. What started out as a simple request to “move the playset” ended up being a judicial order to “move the playset” … and to pay over $11,000 in the plaintiff’s legal fees.

We love a happy ending.

Fairthorne Maintenance Corp. v. Ramunno,  2007 Del. Ch. LEXIS 107, 2007 WL 2214318 (Del.Ch., Jul. 20, 2007).  This started out to be a simple case. Louis and Melanie Ramunno own a residence in the Fairthorne development of Wilmington, Delaware. To the rear of their residence is a portion of the 34 acres of private “open space” that is collectively owned and maintained by all of the homeowners in the Fairthorne development through a non-profit corporation known as Fairthorne Maintenance Corporation. By placing a playset, a park bench and other items on about 150 feet of the open space, the Ramunnos trespassed on common association property controlled by FMC. They resisted all demands that they remove it.

fix160311FMC sued for trespass. So far, so good. But Mr. Ramunno was a lawyer, and his partner was his father, who according to the account by the court was a zealous — perhaps over-zealous — advocate. The Ramunnos raised nine affirmative defenses and five counterclaims in their answer, which, they claimed, excused their conduct or required judgment in their favor. The trial court was so taken by the “apparent frivolity” of the answers and counterclaims (for example, the Ramunnos demanded that FMC pay for their playset because it didn’t provide any itself) that it threatened lawyer Ramunno with sanctions).

The Ramunnos backed off of seven of the nine defenses and all but one counterclaim. They then agreed to remove the personal property from the open space, but the parties couldn’t settle because the Ramunnos refused to pay FMC’s legal fees.

Held:   The trial court found that the “simple reality of this case is that the Ramunnos have been trespassing on FMC’s land since December 2005 and have been using this litigation to stall FMC’s landscaping and other projects in order to continue to enjoy the fruits of their trespass.”

You want a lawyer who won't clown around ...

You want a lawyer who won’t clown around …

The Ramunnos argued that as homeowners in Fairthorne they were privileged to use the open space for recreational purposes and therefore were permitted to place their play set there because it occupied little space and could be removed. But the Court held that the playset was large, designed to be permanent, not easily moved, and, in fact, it was never removed from the open space once placed there. Even if the Ramunnos had had some license to use the open space along with Fairthorne’s other residents, the Court said, they impermissibly exceeded that authority.

Trespass can occur despite “authority under [a] license to enter the property” because the actions taken exceed the permission given. It was no defense that the play set only occupied 150 square feet of the 34 acres of open space because there is no de minimis exception to trespass liability.

The court found that the Ramunnos had argued tangential issues designed solely to help them delay the legal consequences of the trespass. The arguments had unduly burdened the court, intentionally delayed the resolution of the underlying dispute, and purposefully wasted FMC’s resources. Thus, under Chancery Rule 11, the Court found that the Ramunnos and their counsel, Attorney Ramunno, had acted in bad faith, and the Court ordered a shift of responsibility for fees under the “bad faith” exception to the traditional American Rule. The Court specifically “address[ed] a troubling pattern of conduct engaged in by Attorney Ramunno that does not befit an officer of this court. That conduct began with an adolescent letter-writing campaign during discovery, continued with a procedurally improper and substantively baseless letter seeking the court’s recusal from this action, and culminated in the filing of a host of frivolous arguments that were made without sufficient grounding in law and fact.

The Court explained that “the attorney’s duty is one of reasonableness under the circumstances; a subjective good faith belief in the legitimacy of a claim does not alone satisfy the requirements of Rule 11. Where that obligation is not upheld, sanctions, including the imposition of the opponent’s costs, may be imposed. This is so even when frivolous claims are withdrawn.”

Based on a persistent abuse of the litigation process, the Court found that sanctions under Rule 11 were appropriate, and ordered the Ramunnos and their lawyer to pay FMC legal fees of $11,355.93.

– Tom Root


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