Case of the Day – Tuesday, November 30, 2021

IN THE VAST WORLD OF LAW…

… there’s plenty of half-vast lawyering going on.

I found myself thinking that in connection with a case I was reviewing yesterday, one that had nothing to do with trees (but a lot to do with plants, those being Cannabis sativa, and involving trucks and conspiracies and the pesky Controlled Substances Act).

Potheads or not, I thought, the defendants deserved better lawyering than they got. There’s a lot of that substandard, just-barely-enough-to-prevent-a-malpractice-suit representation, not only in the criminal courts but in civil practice a well.

Today’s case is an excellent example of phone-it-in representation on both sides of the courtroom. The plaintiff’s lawyer seems to simply have loaded a civil action blunderbuss and fired away. It was evident that the defendant’s tree roots were destroying the boundary wall by pushing against it from the defendant’s side of the edifice. Therefore, the roots were located on the defendant’s property. So why would the lawyer include a trespass count? Any first-year law student could tell you that the roots were not on his client’s land, and being on someone else’s land without permission is the sine qua non of trespass.

And before the defendant starts to feel smug about the plaintiff’s pleading miscue, she should look at her counsel’s performance. That lawyer spent the defendant’s money on a couple of experts, who may or may not have rendered solid, helpful opinions. We’ll never know – because the defendant’s lawyer did not bother to put the expert’s opinions in affidavit form – a pure rookie mistake.

The defendant might have walked away from this lawsuit relatively inexpensively by getting the plaintiff’s entire complaint dismissed. But she never had a chance to make her substantive argument because her lawyer overlooked something everyone knows – that statements by experts and witnesses have to be in affidavit form.

Half-vast lawyering all around…

1212 Ocean Ave. Housing Development Corp. v. Brunatti, 50 A.D.3d 1110, 857 N.Y.S.2d 649 (Sup.Ct.N.Y. 2008). 1212 Ocean Avenue Housing Development Corp., a soulless, faceless corporation, if ever there was one, owned property next to Debbie Brunatti’s place. The two properties are separated by a 10-foot high retaining wall built in 1924 when an apartment building was constructed on 1212’s premises. The heartless corporate suits alleged that an elm tree planted on Debbie’s property more than 40 years ago grew over time so that its trunk came to rest atop the retaining wall. The roots of this tree also damaged the retaining wall, causing it to crack and curve. In December 2004, the New York City Department of Buildings issued a summons to 1212, requiring it to fix the defective retaining wall. Shortly later, 1212 sued Debbie to recover damages for nuisance, trespass, and negligence.

Debbie had the tree removed about four months after being sued. She argued, among other things, that the defective condition of the retaining wall had not been caused by tree roots, and that 1212 could not maintain an action for damages because it had not engaged in self-help to remedy the situation. The trial court denied Debbie’s motion.

Debbie appealed.

Held: The trial court properly denied Debbie’s motion to dismiss for nuisance and negligence.

The unsworn reports from two engineers she submitted in support of her application were insufficient to establish, as a matter of law, that the tree roots did not damage 1212’s retaining wall. “Furthermore,” the court said, “while it has been recognized that a property owner may resort to self-help to remove tree roots encroaching upon his or her property, and that this may constitute a sufficient remedy in some circumstances, the defendant failed to demonstrate that self-help would have been practicable here, where it is undisputed that the tree roots rested entirely on her property.”

However, the Court said, the trial judge should have granted that part of Debbie’s application for summary judgment on the trespass count. Since the tree roots rested entirely upon Debbie’s property, there was no intentional intrusion or entry onto the 1212’s property, which could constitute trespass.

– Tom Root

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Case of the Day – Monday, November 29, 2021

LET’S LEAVE GOD OUT OF THIS

AOGcartoon150828There’s plenty of talk about old-time religion around these days.  The Supreme Court just heard the Texas abortion case, and will soon entertain argument on use of public money for parochial schools. Last June, it held that Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.   If there’s a lesson for us here, it’s that we shouldn’t try to enlist the Almighty too easily as justification for falling trees.

But the folks at the Ohio Department of Natural Resources are all too willing to overlook the separation of church and state when it’s especially convenient to do so. When one of ODNR’s decrepit cottonwoods fell on Mr. Vondrell’s seawall (or perhaps “lakewall,” because there’re only freshwater lakes in Ohio), the State said, “oops, an act of God.” The winds were blowing pretty fiercely that day, but the DNR figured that was enough to claim that the tree fell in a storm. Just a capricious Almighty, don’t you know? Which of course meant that the DNR wasn’t liable.

It may have been breezy, Mr. Vondrell countered, but the cottonwood that crushed his concrete wall fell because it was good and dead, and had been for a long time. Perhaps so, DNR responded, but we didn’t know it was dead.

The Court of Claims sided with Mr. Vondrell. An act of God has to be all God, the Court said. If the cause of the falling tree is aided at all by the agency of man, even the fact that the deadfall resulted primarily from an act of God won’t relieve a defendant from liability.

Still, for a defendant to be negligent, he, she or it had to be on actual or constructive notice of the hazard posed by the tree. Here, the fact that tree had been dead for over five years and DNR employees had been seen in the area of the tree was enough for the Court to conclude that DNR reasonably should have known about the defective tree.

So when there’s an act of God, it better be all God… and no man (or woman). 

cottonwood150828Vondrell v. Ohio Dept. Natural Resources, 2007 Ohio 7232, (Ohio Ct. Claims, Dec. 4, 2007), 2007 Ohio Misc. LEXIS 503. Mr. Vondrell had a seawall on his lakefront property. A cottonwood tree next door in a state park fell during a windstorm and damaged the concrete. The agency managing the park, the Ohio Department of Natural Resources, argued that the damage was due solely to an “act of God,” the high winds that caused the tree to fall. Mr. Vondrell argued the damage-causing tree was dead, that DNR personnel had years of prior knowledge the tree was dead, and that DNR knew or should have known the dead tree presented a falling hazard. Photographic evidence showed the tree was clearly dead.

Mr. Vondrell argued the tree that fell was very tall and was dead when he had bought his adjacent property in 1999, five years before the collapse. Additionally, he said, DNR personnel were seen in the area around the dead cottonwood trees many times between 1999 and 2005. He contended his property damage was proximately caused by negligence on the part of DNR in maintaining a known hazard on park premises and not merely by high winds falling a healthy tree.

Mr. Vondrell sued in the Ohio Court of Claims, which has jurisdiction over claims against the State.

Held: DNR was negligent, and had to pay. The agency adduced all sorts of evidence as to high wind speeds on the day in question, but high winds alone do not an act of God make.

AOG150828It’s true, the Court said, that no liability can attach to an act of God. However, an act of God must proceed from the violence of nature or the force of the elements alone: the agency of man must have nothing to do with it.

The Court held that Mr. Vondrell proved that DNR had constructive notice of the condition of the tree. The tree stood dead for over five years, and DNR employees were seen around it often. Under Ohio law, the Court said, it wasn’t enough that DNR argued it didn’t know about the condition of the tree. It was on constructive notice of the condition of the tree.

In a situation such as this one, where two causes contributed to an injury, one cause which is a defendant’s negligence and the other cause an act of God, defendant may be held liable if a plaintiff’s damage would not have happened but for defendant’s negligence. If proper care and diligence on the part of DNR had avoided the act, it is not excusable as an act of God. Essentially, if DNR’s negligent act concurs with an act of God to cause damage, defendant cannot escape liability.

– Tom Root

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And Now The News …

Raleigh, North Carolina, News & Observer, November 29, 2021: Fallen 100,000-pound oak tree crushes man in California home, firefighters say

An enormous oak tree toppled onto an Encino, California, home in the dead of night, crushing a 64-year-old man in a second-story bedroom, firefighters said. Los Angeles Fire Department crews tried to extricate the man from the wreckage, but he was pronounced dead, a news release said. “I’ve never experienced anything like this,” Capt. Cody Weireter told KTLA. “You’re looking at well over 100,000 pounds of a tree falling onto a home in the middle of the night.” Firefighters rescued two women and a dog on the first floor of the 3,200-square-foot home after the tree fell about 11 p.m. Sunday, Nov. 28, the Los Angeles Times reported. None were hurt. There were no high winds or gusts, but neighbor Tony Montero told KTLA that he’d expressed concern about the tree to his wife. “It was leaning directly over the house … it was probably 30 degrees,” Montero told the station. Another neighbor, Mark Ruszecki, told the Los Angeles Times that he initially thought the noise of the tree falling was an earthquake. He estimated it was 700 years old…

Missoula, Montana, Missoulian, November 28, 2021: Tough time for trees: Old logging lands need lots of work

Trees talk in rings and needles, and the trees along Gold Creek are cranky. The life story of a 35-year-old Douglas fir appears in a core of wood the size of a long kitchen match. The growth rings near its bole, or center, expand a quarter-inch a year during its youth. The outer rings, chronicling the past decade, squish together in sixteenths of an inch or less. “It was growing really well and then it just closed in,” Bureau of Land Management forester Kyle Johnson said, examining the core he’d just drilled out of the trunk. Grabbing a branch, Johnson displayed the frazzled, needleless tips. In addition to fighting for water with five other trees inside a hula hoop’s circle of space, the fir was having its photosynthesis capacity nibbled away by tussock moth caterpillars. The rolling hillsides flanking Gold and Belmont creeks once rumbled with industrial logging that supplied the mills southwest in Bonner, Missoula and Frenchtown. Today, most of that 117,000-acre basin belongs to the U.S. Forest Service, Bureau of Land Management, Montana Department of Natural Resources and Conservation or The Nature Conservancy (which plans to transfer its holdings there to public ownership). What those hillsides should look like has brought a crowd of stakeholders to the table for an exercise in restoration forestry. The tussock moths and other destructive insects thrive in overstocked, single-age tree stands. Those stands are so homogeneous and crowded because they’ve all grown back at once since the hillside was clear-cut in the 1980s…

CBS News, November 28, 2021: The oldest trees on Earth

High atop the remote, rocky slopes of California’s White Mountains, the harsh conditions make it difficult for life to take root. But for a certain type of tree – and for those who have traveled here to study it – this place is paradise. These gnarled bristlecone pines are the oldest individual trees in the world. Researchers like Andy Bunn have come to learn from the ancients. Correspondent Conor Knighton asked Bunn, “Looking at this tree, would you have any idea how old this is?” “I’ve been doing this long enough to not try and play the guessing game too much,” he replied. “It’d be easy for this tree to be a thousand years old; it would be easier for it to be two thousand years old. Older than that would be unusual, but not impossible.” There are bristlecones in this grove that are more than twice as old. “It’s remarkable to sit there and have your hand on one of those trees and know that it was growing when the Pyramids were built,” said Bunn…

Tallahassee, Florida, Democrat, November 26, 2021: Top native trees to plant to add brilliant fall color, breakfast for songbirds

As daytime temperatures cool and open windows at night let in refreshing breezes, you may need a light blanket on the bed. Day lengths are getting shorter as the planet travels around the sun at 67,000 miles per hour toward the winter solstice. Trees begin preparing for winter by transferring chlorophyll from leaves into stems, showing us other colors present in the leaves. We enjoy this time of year with comfortable temperatures and the colorful change of seasons. Compared to New England, North Florida fall color is more variable from year to year, but we do have several trees with dependable fall color. The trees mentioned here are all American natives which, in addition to great fall color, have value to wildlife throughout the year. Take oaks as an example. White oak and swamp chestnut oak leaves typically turn a pleasant shade of red. In spring and summer, caterpillars dine on their new succulent leaves. In the United States, 90 species of oaks are food for 534 species of caterpillars! Most of these caterpillars become high quality protein for baby birds and their parents. In autumn, acorns are food for insects, birds, and mammals…

Houston, Texas, Chronicle, November 28, 2021: Michael Potter: Tips for picking and caring for a real
Christmas tree

Christmas just isn’t Christmas without a real Christmas tree! Right? For some, that is the only way to do Christmas. So, I was doing a little thinking over Thanksgiving and decided to shed some light on a few tips to help you select the right tree for your family or situation. Of course, I know there are a lot of early-birds that have already purchased their trees. Hopefully some of this information will be valuable either now or in the future. Whether you purchase your tree from a neighborhood lot, a Christmas tree farm or any other establishment; here are a few things to consider. Choose a spot where the tree will be placed. Will it be seen from all sides or will some of it be up against a wall? Choose a spot away from heat sources, such as TVs, fireplaces and air ducts. Place the tree clear of doors. For most of us married guys, placement is where the wife tells us. Measure the height and width of the location in the room where the tree will be placed. Also make a quick measurement of the maximum size that the tree stand can handle. If the tree you buy is too big, you may have to buy a larger tree stand. There is nothing worse than buying a tree only to find that it’s too tall or too wide for the area or too big for the tree stand. Take a tape measure with you to measure the tree you select and bring rope or tie-down straps to secure the tree. Remember, most trees come from out of state and may have been experienced dry conditions during transit. You can ask the retailer when they receive shipments or when the next batch will come in. The fresher the tree, the longer it will last…

Orlando, Florida, Sentinel, November 24, 2021: ‘Their goal is to bleed owners dry’

When Martin Kessler moved to the Solivita development in Poinciana, Florida in 2008, he says he quickly realized it was a big mistake. This was the first place the 97-year-old had ever lived with a homeowners association. “Living in an HOA is not really a pleasant thing for a resident,” Kessler said. A retired economist, he said the fee he was required to pay was “a capitalist’s perfect dream of a business. People must join whether they like it or not, and they pay all the expenses of the business.” Kessler is among more than 5,000 members of the 55-plus community locked in a class action lawsuit since 2017 against Solivita developer Avatar Properties, which they allege improperly collected HOA fees. On Nov. 2, Polk County, Florida, Circuit Judge Wayne Durden awarded the residents $34.8 million. “That’s the biggest award I’ve ever heard of,” said Harvella Jones, president of the National Homeowners Advocate Group. Based in Texas, Jones’ organization specializes in helping people fight HOAs and lobbies for homeowner protections. “We get calls from all over the country, but no one has ever reported to us a win as large as (Solivita).” Experts agree that fighting HOAs is hard for residents and big wins are even rarer. In Florida, HOAs govern more than 44% of the population, according to research by analysts at iProperty Management. With fees that can reach into the thousands of dollars from an estimated 3.5 million homes in the state, HOAs can make lawsuits long and costly for residents. “Their goal is to bleed owners dry,” said Jan Bergemann, president of Cyber Citizens for Justice, a homeowner’s advocacy group based in DeLand. “They will hit you with motion after motion, tie it up for years…”

Ventura, California, Ventura County Star, November 28, 2021: ‘A funeral for their demise’: Ventura tree removals lead to outrage

Decades-old pine trees cut down to stumps earlier this month along the perimeter of the Imperial Ventura Mobile Home Estates raised alarms among mobile home residents and neighbors. But the fate of the remaining dozen or so trees along Thille Street in East Ventura is unclear. Mobile park resident Nancy Culton, 74, said the trees had been around for more than 30 years but had not been cared for. “Nobody told us they were going to cut these trees down. They just showed up and started cutting,” she said. Phone messages left for the property management company of the mobile home park on Wednesday and Friday were not returned before deadline. Neighbor Paul Cordeiro said he discovered on Nov. 12 that about 10 of the evergreens were removed between the wall of the property and sidewalk. “I was horrified to see what was going on,” he said. He said crews were cutting down pine trees outside the motor home park property, leaving them denuded…

Tweaktown, November 29, 2021:Trees are greening sooner than they should be, and new data show why

Lin Meng won the grand prize for 2021’s Science & SciLifeLab Prize for Young Scientists for her research into how city environments impact tree phenology. “Phenology is the study of periodic events in biological life cycles and how these are influenced by seasonal and interannual variations in climate, as well as habitat factor,” according to Wikipedia. Meng set out to determine how global warming and bright artificial lighting conditions in cities changed when trees started growing leaves in spring. Previous research has shown that higher temperatures impact vegetation growth in cities, so the following question is how global warming affects that. Meng analyzed satellite data spanning 2001 to 2014 and 85 cities in the United States to find when trees began growing leaves. Trees “greened up” an average of six days earlier and were responding more rapidly to climate change in urban areas than in rural areas. Using data from NASA’s Black Marble satellite, which measures artificial light in cities, along with phenology data from the USA National Phenology Network, Ming could also determine how lighting conditions were impacting green-up times for trees in American cities. In the most extreme cases, green-up occurred nine days sooner than expected. Ming suggests artificially extended day length due to urban lights leads to earlier spring greening of vegetation in cities, exacerbating the already early greening due to warming cities…

Washington, D.C., Post, November 26, 2021: Oh Christmas tree, not you, too: Supply-chain problems come to the fir trade

Not even Christmas trees could escape the economic pandemonium of 2021. Rerouted Fraser firs, fried Oregon pines, artificial trees caught in broken supply chains, and sky-high transportation costs have contorted the seasonal arbor trade like an oversized tree scrunched under a low ceiling. The situation has importers, growers, sellers and — now, finally — buyers even more frazzled heading into Black Friday, when Christmas tree shopping begins in earnest. Now many families are unsure whether they will spend the holiday gathered around a majestic tower of greenery — or something more reminiscent of Charlie Brown’s sad spectacle. “Christmas is not canceled, everyone will be able to find a Christmas tree,” said Jami Warner, executive director of the American Christmas Tree Association, a trade group representing the artificial tree industry. Exactly what kind of tree will await people, though, is less clear. The supply chain Grinch may still gum up the works. A plywood sign at Hayfield Secondary School in Alexandria, Va., reads, “Due to a shortage of good Fraser fir trees, the boosters will not be having the annual tree sale this year.” And for National Tree Co., a leading importer of artificial trees, manufacturing time has roughly doubled since before the pandemic, and delivery from Southern China through the Panama Canal and to New York has increased from three weeks to eight…

Medford, Oregon, Mail Tribune, November 25, 2021: Drought-stressed Oregon trees scorched in heat wave

This summer’s heat scorched Oregon trees — maybe worse than ever before — and scientists are beginning to piece together what that means for the trees’ long-term health. Reports of fading foliage and crispy conifers started coming within days of a June heat wave, during which many parts of the state endured consecutive days with temperatures higher than 110 degrees Fahrenheit. Aerial surveys from the U.S. Forest Service, Oregon Department of Forestry and Washington Department of Natural Resources documented tree scorching on about 229,000 acres in Oregon, Oregon Public Broadcasting reported. That’s likely an undercount, given the method’s limitations. “By some estimates, it’s probably the largest scorch event in history,” Oregon State University researcher Christopher Still told OPB’s “Think Out Loud” this week. “I mean this is a new thing for us to be seeing on Earth, so it’s sort of a dubious milestone.” Researchers like Still, with help from citizen scientists, have spent months documenting the heat wave’s effects on Oregon’s trees…

New York City, The New York Times, November 26, 2021: A Tree That Was Once the Suburban Ideal Has Morphed Into an Unstoppable Villain

In the distance, beside a brick house in a tidy subdivision, the trees rose above a wooden fence, showing off all that had made the Bradford pear so alluring: They were towering and robust and, in the early spring, had white flowers that turned their limbs into perfect clouds of cotton. But when David Coyle, a professor of forest health at Clemson University, pulled over in his pickup, he could see the monster those trees had spawned: a forbidding jungle that had consumed an open lot nearby, where the same white flowers were blooming uncontrollably in a thicket of tangled branches studded with thorns. “When this tree gets growing somewhere, it does not take long to take over the whole thing,” Professor Coyle, an invasive species expert, said. “It just wipes everything out underneath it.” Beginning in the 1960s, as suburbs sprouted across the South, clearing land for labyrinths of cul-de-sacs and two-car garages, Bradford pears were the trees of choice. They were easily available, could thrive in almost any soil and had an appealing shape with mahogany-red leaves that lingered deep into the fall and flowers that appeared early in the spring…

Chicago, Illinois, WBBM-TV, November 26, 2021: West Lakeview Neighbors Want Every Option Explored To Keep Trees From Being Cut Down For City Water Pipe Replacement

Dozens of trees are potentially slated to get the axe in West Lakeview, and residents have been mobilizing to stop it. As CBS 2 Political Investigator Dana Kozlov reported Wednesday evening, these residents do not want a repeat of the virtual clearcutting seen in other neighborhoods. They want every preservation option explored. The trees are decades old and towering – one of them is about 10 times taller than Kozlov herself, who is a little over 5 feet. They may all be cut down by the city in the next couple of months for water pipe replacement. So some who live in the area are being proactive – taking action and demanding the city be more transparent about its plans. The trees mean a lot to many living on a two-block stretch of Paulina Street in West Lakeview – from Belmont Avenue to the six-way intersection with Lincoln Avenue and Roscoe Street. “People in the neighborhood really care about the trees,” said Caroline Teichner…

Raleigh, North Carolina, News & Observer, November 23, 2021: This invasive pest could travel to NC on Christmas trees. What to do if you see one

If you’re getting ready to start your Christmas decorating with a live tree, beware the spotted lanternfly. The invasive pest is encroaching on North Carolina, and while the insects are “indiscriminate egg layers” with a wide variety of host vegetation, experts say they could travel to the state on Christmas trees from nearby Virginia, where a small infestation was recently detected. The spotted lanternfly generally doesn’t kill the trees they prey on, but they can cause significant damage to agricultural crops and reduce yields.  The News & Observer talked with Larry Long, forest health monitoring coordinator with the N.C. Forest Service, and with Kelly Oten, an assistant professor and forest health specialist at N.C. State University, to learn more about the spotted lanternfly, the risks they pose and the proper steps you should take if you see the pest this holiday season. Here’s what we learned.  The spotted lanternfly is an invasive pest that is… native to China, India and Vietnam, and was introduced to Korea in 2004. It was first found in the U.S. in eastern Pennsylvania in 2014 and has since been spotted in New Jersey, Virginia, Delaware, West Virginia, Maryland, Connecticut, New York, Ohio, Indiana and Massachusetts

Phys.org, November 23, 2021: Urban trees are a singular weapon in stormwater management

It’s hard to overstate the environmental importance of trees, which among other functions pull climate change-inducing carbon from the atmosphere, clean the air of toxins and help control runoff. While it can likewise be hard to quantify some of these effects, a new study by University of Maryland researchers helps clarify the role of urban trees in mitigating stormwater flows, and finds that even isolated trees lining a street or planted in a park may have a significant effect. A study published yesterday in the journal Scientific Reports by Assistant Professor Mitch Pavao-Zuckerman and doctoral candidate Sara Ponte, both of the Department of Environmental Science and Technology, found that individually planted trees capture, store and release stormwater back into the atmosphere—a process called “transpiration”—at a rate three times that of trees in a forest. The study was conducted in partnership with the U.S. Forest Service and the nonprofit Center for Watershed Protection, with funding from the Chesapeake Bay Trust…

Tulsa, Oklahoma, KOKI-TV, November 23, 2021: Turkey Mountain officials ask public not to steal trees, other plants from the park

Tuesday afternoon, Turkey Mountain Urban Wilderness Area published a message to visitors on their Facebook page: Don’t steal. “We’re a little sad that we have to say this, but don’t take plants and trees from the park,” the post warned. Officials explained that they came across a couple in the park that were digging up seedlings, removing bushes and cutting branches at Turkey Mountain. The couple was doing this in order to move the plants to their own yard, according to the post…

Minneapolis, Minnesota, KARE-TV, November 23, 2021: ‘Assisted migration’ helps trees move so forests survive climate change

Red oak trees are not particularly common in northeastern Minnesota. But on the University of Minnesota Duluth’s research plot, 850 1-year-old trees have taken root. “They’re really small,” said Dr. Julie Etterson, a professor in the department of biology at UMD, while pointing to what looked like a stick in the ground. Etterson and other researchers, at UMD and several other groups will be studying those “sticks” in the years to come, watching them grow to see how they do in northeastern Minnesota’s climate. Given how much that climate has changed in recent history, it might not be too hard a task. “The idea is that the climate has shifted further north and so maybe the plants are mismatched with the climate they are adapted to,” Etterson said. “Some species are unaffected, some species are benefitting…and some species are really suffering, like paper birch…what’s happening is we’re ending up with areas, patches of empty habitat…”

Case of the Day – Friday, November 26, 2021

WRITE ME UP A VERBAL CONTRACT

putt150827OK, what’s a little New York case about a miniature golf course construction contract doing on a tree law blog? It’s here as a cautionary tale …

A miniature golf operation called Oasis Park hired Bill Oberholtzer – who was both a miniature golf course owner and a mini-golf course builder – to jazz up Oasis Park before the mini-golf season started up in the Troy, New York, area. Disregarding the universally-accepted good practice in construction of starting with a nice, neat signed agreement setting out the scope of the work, payment terms, time to completion, and other such details, the Oasis Park people and Bill pretty much sketched out their agreement on the back of a cocktail napkin. And that was a mistake.

Later, Oasis Park needed a more formal document in order to get its bank to release financing. Bill, of course, accommodated Oasis Park by signing one. You can guess what happened. When the parties’ working relationship soured, Oasis claimed that the accommodation document – and not the “cocktail napkin” – was the real deal between the parties covering the scope of the work. Bill countered that he had already been working for weeks, and the plans had changed.

You probably need a little more contract detail than you can fit on a napkin.

You probably need a little more contract detail than you can fit on a napkin.

Nevertheless, within six weeks after some fateful April 29 “thing” occurred — and even the Court couldn’t tell what the “thing” was — Oasis fired Bill amid claims that he hadn’t adhered to some nonexistent schedule, hadn’t provided workers, and hadn’t provided materials. For good measure, Oasis claimed that Bill’s work was substandard.

Bill naturally argued just the opposite, asserting that he couldn’t buy supplies because Oasis Park wouldn’t pay him. The whole mess ended up in federal court, where the judge threw up his hands and said no one was getting summary judgment. The entire kerfluffle was going to have to be sorted out at trial.

So now, let’s all grab our calculators and figure out how Bill saved by not wasting money on a lawyer preparing a contract with Oasis Park up front. Not much, we guess. And you arborists, tree trimmers, loggers, and owners – let’s remember this: No contract, no winners.

sign150827Paone, Inc. v. Oberholtzer, 2007 U.S. Dist. LEXIS 75092, 2007 WL 2455074 (N.D.N.Y., Aug. 23, 2007). Oberholtzer agreed to provide all labor and materials necessary to remodel Paone’s miniature golf course. Beyond that fact, the parties could agree on nothing.

Paone said that under a contract dated April 29, 2004, Oberholtzer was to build a bumper boat pond, including walls, docks, light fixtures, a cave, a filter system, a perimeter walkway, and a staging-area deck. As well, Paone said, the contract required Oberholtzer to renovate the course’s clubhouse entrance, the third hole, and the practice green. Paone said that under the contract, Oberholtzer began working in May 2004, but its laborers did not show up for work, causing the project to fall behind schedule. To rectify the situation, Paone claims that it hired temporary workers.

Even with these outside laborers, the project did not move forward because Oberholtzer failed to provide supervision and direction. Paone said it had to supply all materials to the site and hire various construction professionals to inspect the work. Paone contended that these professionals found that Oberholtzer’s work violated building-code requirements and was below the industry standard. After the project had gone on about a month, Paone notified Oberholtzer that it was in default of the contract.

Oberholtzer, on the other hand, claimed that he reached an agreement to perform work for Paone well prior to April 29, 2004. Oberholtzer said he began preparatory work in March. The April 29th document, Oberholtzer contended, was merely an estimate prepared at Paone’s request, intended by both parties to help Paone get a bank loan released. The April 29th agreement was conformed to an earlier budget from the winter of 2003-2004, which Paone had submitted to the bank to support its initial loan application.

golf150827Consequently, Oberholtzer argued, the estimate did not reflect intervening changes of which both parties were aware, including a different location for the bumper boat pond, changes in site elevations for the clubhouse and parking lot which required alteration of a ramp and deck, and additional concrete walkways on the course.

Oberholtzer said he had already made significant progress before April 29, 2004, including filling in traps, reconfiguring the practice green, removing an existing sidewalk near the old practice green, building a deck between the seventh and eighth holes, and removing fixtures and equipment from the old clubhouse. What’s more, Oberholtzer asserted, he had also cleared and trimmed trees for a new picnic area, built retaining walls for a walkout basement, constructed a deck attached to the clubhouse, erected bumper boat pond walls and skimmer baskets, and backfilled the pond.

As far as the schedule went, Oberholtzer argued that the April 29th document did not contain a schedule or other time-related requirements. Oberholtzer said that Paone knew Oberholtzer would be opening and operating his own miniature golf course in Georgia at the end of May. Therefore, Oberholtzer claimed, Paone knew that Oberholtzer would not be available to work on the project on a regular basis. Furthermore, Oberholtzer argued that several weeks of delay resulted from the actions of an unrelated contractor, who placed heavy equipment in the area of the future bumper boat pond. Also, he said, Paone failed to make timely payments to enable Oberholtzer to buy materials and to progress with the project. Finally, Oberholtzer complained that Paone approved all building plans, and that town building inspectors routinely inspected the progress and noted no building code violations.

Paone sued for breach of the contract and for negligence, and then moved for summary judgment.

obfus150827Held: Summary judgment was denied in this fact-laden morass. The Court observed that Paone’s causes of action for breach of contract and breach of the implied covenants of good faith and fair dealing both required first that there be an enforceable contract with sufficiently definite terms. Here, the parties could not even agree on whether the document was a contract, let alone what its terms might be. Paone contended the document represents the parties’ complete agreement, but Oberholtzer asserted that the document was an estimate used solely for the purpose of obtaining funding. While Paone said that the time for performance commenced in May 2004, Oberholtzer alleged that it had already completed substantial portions of the project prior to that time.

What’s more, the Court found, reference to the April 29th document wasn’t helpful because it contained no details about the parties’ responsibilities or the construction schedule. The document was labeled “Spring 2004 Construction” and merely set forth the various projects and the price for each. In light of these disputes, the Court held, it could not determine whether an enforceable contract existed between the parties without evaluating the parties’ conflicting factual accounts. Moreover, on the basis of the April 29, 2004 document alone, the Court could not determine the construction schedule or the parties’ respective contractual responsibilities.

A trial would be necessary to straighten the whole mess out.

– Tom Root

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Case of the Day – Wednesday, November 24, 2021

ME AND MY SHADOW

Removing covenants can be like herding cats ... which explains why Robby Ricciardello looked for a shortcut.

Removing covenants can be like herding cats … which explains why Robby Ricciardello looked for a shortcut.

I had occasion about five years ago to round up a majority of 55 subdivision owners in order to revoke some 25-year old restrictive covenants. The rules were pretty harsh – no work vehicles with signage in front of the house, no sheds, no yard signs …

It helped that almost everyone in the subdivision was already violating one or more of the covenants. I explained – over a several-month education program – that all it would take is one jerk moving into the neighborhood who wanted to stick it to his neighbor, and we’d all face trial court Armageddon.

I got a majority to sign on, but it was like herding cats, an exhausting effort. I made our filing deadline by a nose. The whole experience gave me a heightened appreciation for the long suffering neighbor in today’s case.

The case concerns poor Robby Ricciardello. Well, maybe not poor in the fixed asset sense. Robby owned five lots in a subdivision, and he had big plans — plans like building a barn, storing bulldozers, hunting, growing mangoes — you know, the kinds of things we all like to do with our lots in the middle of subdivisions.

A man oughta be able to do what he wants with his own property ... right?

A man oughta be able to do what he wants with his own property … right?

But he had a problem. His deed contained one of those pesky restrictive covenants that restricted the use of the lots to the construction of one-family homes only. Fortunately for Rob, the restrictive covenants provided that they could be amended or terminated by a vote of the owners of six of the subdivision lots.

Robbie decided to build a barn anyway, and he hatched a plan to pull it off. He told his neighbor Jim Carroll what he was going to do. Jim panicked, because he knew Rob had five lots and only needed the concurrence of one more owner. So Jim hatched a plan of his own, starting a drive to amend the covenants in order to make them harder to circumvent. Finally, Rob announced he wouldn’t build a barn after all, so Jim abandoned his efforts.

Any sense of relief Jim felt was short-lived, because Rob did an end run on the subdivision owners. He formed his own limited liability company, which he then used to buy an additional lot. Rob essentially had a meeting with himself as an owner of five lots and Connecticut Outfielder LLC – of which he himself was the president – being the sixth lot owner. Rob took a nose count, and — mirable dictu — the owners of the minimum six lots were present! The vote was unanimous, unsurprisingly, as Rob agreed with himself to terminate the covenants.

My shadow is duly incorporated ...

My shadow is duly incorporated …

Pretty slick, Rob. But Jim didn’t think so, and he sued. Connecticut Outfielder protested that it had done nothing wrong. It just agreed to terminate the covenants, something it as an owner had a right to do. Rob and his alter ego LLC moved for summary judgment, pointing out that the restrictive covenants had been terminated. The court disagreed, finding that issues of fact existed, not the least of which being whether Rob had misled James to induce him to abandon trying to amend the covenants, and whether one guy – by controlling six lots himself or through corporate devices – could validly terminate the covenants.

James B. Carroll 2003 Revocable Trustee v. Ricciardello, 2007 Conn. Super. LEXIS 1681, 2007 WL 2080583 (Conn.Super.Ct., Apr. 4, 2007). It seems that Robert Ricciardello and James Carroll were adjacent landowners in the Ferrando Subdivision of Glastonbury Connecticut. The Subdivision lots were subject to a “Declaration of Covenant and Restrictions” that provided, in part, that “[e]ach lot shall be used and maintained solely and exclusively for one-family residential purposes … No trailer, tent, shack, garage, barn or other outbuilding erected on any Lot shall at any time be used as a residence temporarily or permanently … [The] covenants and restrictions are to run with the land and shall be binding on the Declarant, purchasers or owners of any Lot … for a period of twenty (20) years from the date of recording … During the twenty-year period that this Declaration is in effect, any or all of the covenants, conditions and restrictions contained herein may be amended or terminated by an instrument signed by the then owners of at least six (6) of the Lots described on Schedule A hereto, which instrument shall be recorded on the Glastonbury land records.”

In June 2004, Ricciardello told Carroll he intended to build a barn on one of the six lots he owned. Carroll started talking to the other owners about amending the covenants to, among other things, raise the number of lot owners needed to amend or terminate the covenants. Then Ricciardello told Carroll he had decided not to build the barn, and Carroll abandoned his efforts to get the covenants stiffened.

But Ricciardello, ever the crafty one, formed a Connecticut limited liability company named “Connecticut Outfielder LLC.” The same day it was formed, it bought lot two of the subdivision. Three weeks later, Ricciardello and Connecticut Outfielder — who together owned six lots in the subdivision — executed a “Release of Declaration of Covenants and Restrictions,” that was recorded in the Glastonbury town clerk’s office, which wiped out all of the covenants and restrictions on the books.

covenant150826Ricciardello proceeded to do as he liked with his lots, planting an orchard, hunting for small game and storing construction equipment. Carroll sued, claiming that the release of the covenants was improper, and asked for an injunction. Ricciardello and Connecticut Outfielder answered, counter-claimed and filed for summary judgment. Connecticut Outfielder contended there are no genuine issues of material fact and that Connecticut Outfielder is entitled to judgment as a matter of law for the breach of restrictive covenants count and the counterclaim seeking a declaratory judgment that the release of covenants is valid. Connecticut Outfielder’s grounds for the motion were that Carroll testified that Connecticut Outfielder did not breach the covenants, and, the plaintiff did not allege any wrongdoing by Connecticut Outfielder in the operative complaint. Carroll objected that there were genuine material issues of fact.

Held: Summary judgment was denied. Summary judgment, of course, is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Here, the Court said, genuine issues of material fact exist concerning whether Ricciardello and Connecticut Outfielder breached the covenants and whether the covenants were properly released. Also, an issue existed whether Carroll relied on Ricciardello’s false assurances that he wouldn’t build a barn in deciding to abandon his quest to amend the covenants to block Ricciardello’s plans.

As long as those issues remain, the case must go to trial.

– Tom Root

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Case of the Day – Tuesday, November 23, 2021

LOOKING FOR SOMEONE TO BLAME

No matter how rational and discerning television juries might be, in real life, the decisions that the finders-of-fact make can be a crap shoot, especially with a roomful of parties.

I recall an old, wise lawyer telling me years ago that cases with multiple defendants were a headache for defense counsel, because jurors naturally assumed with so many people accused of damaging the poor plaintiff, someone must be at fault. “So they listen to the poor plaintiff’s sob story,” the wizened old barrister said, “and they start looking around the courtroom for someone to blame.”

A cautionary note to plaintiffs: Sometimes that backfires, because when so many parties with differing, interlocking relationships cram the defendant’s dock, convincing the jury that one or more of the defendants owes a duty to your poor injured plaintiff can be like trying to catch a greased pig. Such as in today’s case.

The tree was rotten. It had been rotten for a long time. It collapsed onto a passing cyclist, out enjoying a country ride on a dedicated bike path. An electric utility owned by a mega-power holding company (imagine a corporation with buckets full of cash) held an easement over the bike path and adjacent land to trim the trees away from its lines, and that utility had a thundering herd of contractors signed up to do the hazard tree analysis and trimming for it.

Shouldn’t be too hard to get the money flowing to the plaintiff, right? Well, let’s see…

Rossetti v. American Electric Power Co., 2004-Ohio-118, 2004 Ohio App. LEXIS 109 (Ct.App. Licking County, Ohio, Jan. 12, 2004). Rosemarie Rossetti and her husband, Michael Leder, were riding bicycles on the T.J. Evans Bike Trail in Licking County when a linden tree collapsed and fell into an Ohio Power line and across the bike path. The tree then hit Rosemarie, seriously injuring her.

The linden tree that fell was located about 51 feet off of the bike trail on land adjacent to the bike trail owned by Karen Matz and John Skowronski. The tree, which was about 80 years old and 101 feet tall, leaned over the power lines. According to the Rossetti’s expert, Dr. Sydnor, there was a huge cavity in the base of the tree and the “tree was hollow for… three, four feet up.” The tree had been hollowed out at the base for over 20 years, and there was decay around the base that had existed for almost the entire life of the tree. Both the decay and the hollowed out part of the base faced away from the bike path. According to Dr. Sydnor, the tree was rooted in the stump and the “root had actually grown through the stump and was growing up the hill. The root is – the failure of that root was what caused the failure of the tree. That was the only thing that was actually holding the tree up.”

Ohio Power had an easement over Karen & John’s property and the bike trail for trimming or removing trees along the trail that interfered with its power lines. The linden tree was not located within Ohio Power’s easement, but instead was about 51 feet from the trail and 25 feet from a wire fence marking the edge of the trail property.

Ohio Power trims and removes the trees in and around its easement on a three to five year trimming cycle. Under this cycle, the trees next the bike trail were inspected and maintained in 1988-1989, between 1990 and 1992 and in 1995. As part of its tree trimming program, Ohio Power contracted with both ACRT and Nelson Tree. ACRT, under its contract with Ohio Power, hired work planners who, as part of the trimming/removing cycle patrolled the electric lines and identified easement trees needing trimming or removal. Nelson Tree Service would then perform the actual trimming or removal for the 1995 cycle.

Sticking a defendant with a duty to the plaintiff was a greased pig of a task…

Rosemarie and Michael sued everybody, Ohio Power, ACRT, Nelson Tree and Karen & John. Everyone responded with motions for summary judgment.

The trial court granted the defendants’ motions for Summary Judgment, holding that “it was not foreseeable that the Linden tree would fall onto the bicycle path and cause a person physical harm” and that “given the lack of evidence beyond mere inference indicating the Linden tree was trimmed by the utility Defendants under the tree-trimming program, Plaintiffs cannot establish proximate cause.”

Rosemarie and John appealed.

Held:  The defendants’ motions for summary judgment were properly granted.

In a negligence case, the Court said, a plaintiff must prove that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered harm; and (4) the harm was proximately caused by defendant’s breach of duty. The existence of a duty depends on the foreseeability of the injury. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.

Here, the Court said, it was not reasonably foreseeable that the tree would fall onto the bicycle path and cause a person physical harm. John, who owned the private property on which the tree was located, testified there was no reason to notice the tree before it fell because “it looked healthy. I mean, there was no reason to notice it. It wasn’t as if the crown was brown or the bark was peeling.” Dr. Sydnor, Rosemarie’s and Michael’s ‘ own expert, agreed that “earlier on in the growth of this tree it would have been more readily identified as a hazard tree than later on.” While he testified that the tree would have been identified as a hazard in the 1980’s, Dr. Sydnor admitted that it was not reasonably foreseeable in 1980 that the linden tree was going to fall within the next 18 years.

“Looks fine to me…”

What’s more, Dr. Sydnor testified that the linden tree was leaning for its entire life and that the tree had been hollowed out at its base for over 20 years, and that the decay around the tree’s base had been there “well in excess of 20 years, probably 40… maybe 80” years. Using the formula generally accepted in his field, Dr. Sydnor said the linden tree had a live crown-ratio of 66%, which was “good.” According to Dr. Sydnor, the tree was either the dominant or co-dominant tree in the canopy, which indicates that the tree has to, at some point, be fairly healthy. Thus, Dr. Sydnor said, even if Ohio Power ACRT, and Nelson Tree Service actually examined and trimmed this specific linden tree in 1995, and observed the decay, hollowed cavity, and poor root structure, it was still not reasonably foreseeable the tree would fall in the next four years, which would brought Ohio Power and its contractors to the next trimming cycle. Dr. Sydnor did testify that the tree would fall some day, but, the Court of Appeals said, “such testimony does not create a genuine issue of material fact since most trees will eventually fall.”

Others, including a Right-of-Way Program Developer with Davey Resource Group formerly employed by ACRT as a supervisor to the Utility Forestry Pre-Planner, and a Licking County Park District Ranger who saw the tree shortly after it fell, both agreed that the “crown, the top of the tree, was full of leaves…it looked like a healthy tree.”

Furthermore, the Court said, Nelson Tree, as part of its contract with Ohio Power, had no duty to inspect the trees on and adjacent to Ohio Power’s easement. Instead, its job was merely to trim or remove trees that were marked by ACRT. Nelson had no discretion with respect to which trees were to be trimmed or removed.

Based on all of that, the Court held, it was not reasonably foreseeable that the tree would fall, according to Rosemarie’s and Michael’s own expert evidence, and thus, “no duty arose on behalf of Defendants to take any action with regard to the Linden tree.”

– Tom Root

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