Case of the Day – Wednesday, January 8, 2025

Posted on January 8, 2025 by TLRoot tagged.

DEEP POCKETS, ONE – MASSACHUSETTS RULE, NOTHING

Nothing can skew the impartial dispensation of justice like a rich defendant. After all, the Massachusetts Rule is pretty doggone clear: self-help trumps litigation. But even where that is true, sometimes rich defendants – like hard cases – make bad law.

Take the case of Mrs. Norwood. When the tree roots of a 25-year-old oak tree planted by the City of New York invaded her sewer line, Mrs. Norwood thought that the whole deal stank. After all, the City knew the sewer line was there 25 years before, and it knew the little oak sapling it planted at that time would become a mighty and sewer-invading oak.

Dorothy always had the power in her ruby slippers to return to Kansas. Likewise, Mrs. Norwood always had the power of her diamond-studded Massachusetts Rule rights: She could have dug those roots out of her yard, and the City could not raise so much as a little stink about it.

But Mrs. Norwood couldn’t see spending a dime to take care of her property when the City, with its weighty balance sheet and untold millions of dollars in the bank, could do it for her.

She sued. The Court agreed. Massachusetts Rule, solid though it usually is, be damned! Let the government pay.

Norwood v. New York, 95 Misc. 2d 55 (Civil Ct. Queens, June 21, 1978): Back in 1953, the City of New York planted an oak tree over a sewer line leading to Delema Norwood’s home. Over time, the oak tree roots entered the joints of a sewer line, causing the pipe to burst. Delema sued, claiming that the damage was the City’s responsibility.

At trial, Delema’s expert testified that the sewer was properly designed and constructed when it was installed in ‘53.

Held: Because the sewer line was properly constructed, and the City planted a tree that had the propensity to dig into sewer lines, The City of New York, rather than Delema, was responsible for the cost of repairing the sewer line.

The question, as framed by the Court, was whether a municipality that plants an oak tree over a residential sewer line, is liable to the landowner when the roots of the tree damage the sewer line? The Court found that 25 years before, City, without the request or permission of landowner Delema Norwood, planted an oak tree at the curb line of her property over the sewer line leading from her house to the sewer in the street. An oak tree has roots that go down deep and have a propensity for entering the joints of sewer pipelines. The roots of this oak did exactly that and caused the sewer pipe to burst.

The Court found a case where the landowner was liable because the sewer line was constructed incorrectly. But that was not the case here, where the sewer was properly constructed. Delena’s expert testified that the sewer was made of vitreous clay pipe and joined with cement. He testified that this was a proper method of construction at the time the sewer was built, over 25 years ago.

In another case, the plaintiff’s complaint was dismissed because sufficient facts to establish that defendant was responsible for this damage were not alleged. That court noted that “whether the defendant can ever be held liable for the natural growth of a tree, in possession of or belonging to the city, is uncertain.”

Finally, a plaintiff alleged that roots from a defendant’s poplar tree had grown onto the plaintiff’s property, disturbing and eroding her swimming pool and the patio around it. The court there held the complaint stated a cause of action.

In this case, the Court weighed the idea that urban trees are beneficial to city dwellers and enhance the surrounding area. On the other hand, owners of property are entitled to have their sewer lines protected; the destruction of sewer lines will cause obvious discomfort not only to the landowner but to others in the area.

In balancing these interests, the Court held, at least where the sewer line is properly constructed, the municipality, rather than the landowner, should bear the cost of repairing a damaged sewer line when it plants a tree. After all, the oak was well known for having the propensity to dig into sewer lines. In this situation, it was foreseeable that sometime in the future, damage might very well occur.

The Court admitted that “while a rule imposing liability upon the municipality may tend to deter the planting of certain kinds of trees, the municipality may still safely plant other trees. Moreover, with respect to newly constructed sewer lines, the municipality should be in a position to avoid liability since a properly constructed sewer line now should be impervious to the roots of trees.”

The Court acknowledged the Massachusetts Rule, observing that “a landowner may, on his own land, resort to self-help to remove roots adversely affecting his own property.” While some argue that this is sufficient protection for a landowner and he need not be given a cause of action for damages where tree roots damage his sewer line, other jurisdictions reject this argument. But this Court ruled that it would be unrealistic to limit a landowner to a right to dig for and cut roots. “While such a limitation upon the rights of a landowner may be proper with respect to overhanging branches of a tree, the Court wrote, “such a limitation would be manifestly unfair to a landowner whose property may be directly injured by the effect of spreading roots. Unlike branches that are readily visible and which may often be cut without great difficulty, roots are not generally visible and may require considerable digging in order to remove them. Indeed, the landowner will usually not know that he has reason to cut roots until damage has occurred.”

The Court found that the City owed for the cost to repair the sewer line.

– Tom Root

Case of the Day – Tuesday, January 7, 2025

Posted on January 7, 2025 by TLRoot tagged.

MASSACHUSETTS RULE – THE OLD IS NEW AGAIN

Yeah, we talk about the Massachusetts Rule all the time, but really, how relevant is it to our modern, digitized, frenetic world?

Ask Pete Kirk and Bryan Johnson. These unhappy landowners did not think much of an affordable housing development going in next to their parcels. Their stated complaint was that drainage would be altered and eight Norway maples on or near the boundary lines might be harmed.

I have no reason to suspect that Pete and Bryan objected to the nature of the development, or what all of those people needing “affordable housing” might do to their property value. But they were mightily unhappy that regrading or excavation could to their trees, and they sought to get the zoning board’s approval withdrawn.

Sorry, the court said to Pete and Bryan. This being Massachusetts, the Massachusetts Rule reigns supreme. The developer had the right to do with his property as he wished, even if it cut or affected tree roots that had encroached on his land. Strangely, the Court seems to have engrafted a specific intent requirement on the developer. He could cut roots or change the grade (which would bury the roots too deep in the soil), even if he knew it would kill the trees. The only limitation is that he could not do so with the intent to kill the trees.

Come again? I have read Michalson v. Nutting repeatedly without being able to find scienter anywhere in the ruling. Is the Court saying that what you do as a landowner to exercise your self-help rights under the Massachusetts Rule is somehow regulated by the purity of your motives? Outside of the obvious difficulty in proving what the landowner intended to accomplish in any given act on his or her property, what does motive have to do with the reasonableness of an act?

Forgive me for thinking of the Tin Man in a yoga class.

Kirk v. Li, 2019 Mass. LCR LEXIS 2 (Mass. Land Ct., Jan. 7, 2019). Developer 269 North Ave, LLC got a comprehensive permit from the Weston Zoning Board of Appeals (Board) for a 16-unit housing project on a one-and-a-half-acre parcel. The property, severely sloped in the rear, presented tough challenges to satisfying the requirement that the project not result in an increase in stormwater runoff, because all of the stormwater from 16 acres surrounding the site accumulates on the property. Because of the particularly porous soils on the property, all of this stormwater recharged into the ground, with none of it running off. Construction of the project would increase the impermeable surfaces on the property, such as buildings and parking lots, which meant a decrease in open land available to recharge stormwater.

To satisfy stormwater regulations, the developer designed a system to collect and discharge all stormwater into the ground. The Board was satisfied and issued the comprehensive permit.

Peter Kirk and Bryan Johnson owned land that abutted the developer’s property on the south and north respectively. They complained to the Board that the developer’s stormwater system would not handle the stormwater flow onto its property, resulting in flooding on their land. Additionally, Pete and Bryan argued that the housing development would harm or even kill trees that straddle the boundary or are on their properties. When the Board disagreed, they sued.

Held: The Court held that Board did not act unreasonably or arbitrarily or capriciously in accepting the developer’s stormwater management plan or its measures for protecting the trees.

This review focused only on Pete and Bryan’s complaints about their trees. Pete identified three trees on his property or on the common boundary line with the developer’s property, and Bryan cited five trees on his land or on the common boundary line they asserted would be adversely affected by the project. Their experts testified that the root systems of the eight trees, all Norway maples, would be harmed by the roots being cut or by adding more than one to three inches of soil above the existing surface grade. The cutting and grading would all take place on the developer’s property, but would – according to Pete and Bryan – harm or even kill the trees.

The Court admitted there was “no bright line delineating what unilateral actions regarding a shared tree are or are not permitted.” To be sure, a property owner cannot act to intentionally destroy a shared tree without the consent of the others who share an ownership interest therein. Yet, the growth of roots and branches into a neighbor’s land, the Court said, “no matter how essential to a tree’s survival, cannot vest in the tree’s owner some indomitable nonpossessory interest in the space the tree occupies.”

Here, the developer did not want to remove the trees. As a matter of law, the Court ruled, the developer would be entirely within his rights to pursue the project even if it has the effect of harming some of the trees’ roots. With respect to trees situated entirely on Pete’s or Bryan’s property, the Massachusetts Rule provides that the developer has an unfettered right to cut the roots and branches of such trees back to the property line. With respect to the trees situated on shared property lines, the Court held, the developer similarly has the right to cut roots and branches situated on the developer’s property. The only limitation is that the developer may not do so with the intent of killing those trees.

The Court found that the expert testimony made it clear that some level of activity within the area immediately surrounding the trunks of the trees could have the effect of killing them. “However,” the Court noted, “the testimony does not speak to where the roots of the… trees are actually located or what harms to the trees are certain or even reasonably certain… Here, where the applicable law makes it doubtful that [Pete and Bryan] have a claim to demand any protections for [their] trees, the level of speculation in the resulting harms renders these risks too remote to bear on whether the Board’s Decision was improper.

– Tom Root

Case of the Day – Monday, January 6, 2025

Posted on January 6, 2025 by TLRoot tagged.

COUNT YOUR SILVERWARE

You know people like this. They leave restaurants with their pockets bulging from stolen packets of sugar, jelly or ketchup. They return from a vacation with a valise full of shampoo, conditioner, soap and teabags, boosted from every hotel on their itinerary. When they move from a house, they are sure to pick it clean of light bulbs, curtains, and even the unused toilet paper rolls left on the dispensers. In rare cases, they even uproot garden plants as they leave.

When you have folks like this over for dinner, you should audit your silverware before they leave.

The late Mr. Thomas was that kind of guy, probably a man with a closet full of mini-shampoo bottles, Bob Evans jelly tubs, and McDonald’s sugar packets. He was quite a thrifty guy. Maybe there’s a better word to use than “thrifty.” A word like “light-fingered.”

However you might describe him, after he signed the deal to sell his Iowa farm to Mr. Laube, but before he surrendered possession, Mr. Thomas thought he just might thin the timber a bit by cutting down and selling about a hundred walnut trees. True, the walnuts weren’t really ready for harvest – the 20-year-old trees were only about halfway to an age where they should be harvested – but Mr. Thomas could hardly see the sense of leaving all of that nice hardwood for Mr. Laube to cash in on a couple decades after closing.

Mr. Laube sued. Sadly, while he won the case, he was butchered on damages. There was no question that Mr. Thomas was liable. After all, the contract of sale didn’t reserve any timber rights to the seller. But the issue was the value of the trees that had been removed.

Generally, there are several ways to figure damages for the loss of trees. Where the trees are for a special purpose, such as for windbreaks, shade or ornamental use, the measure is usually the difference in the value of the real estate before and after the destruction of the trees. Where the trees have no special use beyond being marketable timber, the measure of damages is the commercial market value of the trees at the time of taking. Where the trees can feasibly be replaced, the measure of damages is the reasonable cost of replacement.

The Court ruled that the value of the 100 immature walnut trees was their present-day value at the mill, despite Mr. Laube’s lament that they would have been worth so much more had they been 20 years older. The Iowa Supreme Court admitted that Mr. Laube had a point – he had been deprived of trees that had great potential value, something that just giving him present commercial value didn’t recognize. But the Court said that the law had never allowed such damages, and it didn’t intend to do so here. The Court speculated – and that’s exactly what it was – that it “was perhaps to address this criticism that the legislature provided for treble damages in Iowa Code section 658.4.”

When taking all of the lightbulbs from your just-sold house, be sure to wear gloves so as to avoid being burned. The only one who should be burned by this process is the unwitting buyer.

Poppycock. Punitive damages are intended to punish, not make up for deficiencies in the law of compensatory damages. Farmer Thomas did not profit from his selling of the walnut trees on his way out the door, but Mr. Laube was hardly made whole.

Laube v. Estate of Thomas, 376 N.W.2d 108 (Sup.Ct. Iowa, 1985). In 1983, the Thomases contracted to sell a farm to Mr. Laube. Possession was to pass on March 1, 1984. Although no timber rights were reserved to the Thomases, they removed about 100 walnut trees from the tract between the contract and closing. There was no question of liability; in fact, at trial, Thomases offered to confess judgment for $1,000. The offer was refused.

The trial court awarded Laube the commercial value of the trees at the time they were cut. Laube appealed.

Held: The measure of damages used by the trial court was correct.

The walnut trees were timber or forest, not used for a windbreak or ornamental purposes. The trees had stood at two sites on the farm, one a low-level area near a stream and the other in a permanent pasture. The 100 in question were smaller, presumably inferior for marketing purposes. The evidence showed that it was not a practical marketing time for the trees in question. At an age of 20 years, they would not mature so as to reach their reasonable marketing potential for another 20 years. Mr. Laube argued he should be awarded damages that took the current market price, considering the size and quality of trees 20 years hence, then discounting the figure appropriately to reach the present value.

It's he present-day value of the commercial timber that matters.

It’s the present-day value of the commercial timber that matters.

The Supreme Court admitted that “especially [in] the showing of the inappropriateness of cutting the trees at their stage of semi-maturity, there is at first blush an attractiveness in plaintiffs’ contention that a routine allowance of only log value is inadequate. On the other hand, their suggested recovery does not conform with any recognized measure of damages for loss of trees.” Where the trees were put to a special purpose, such as for windbreaks, shade or ornamental use, the measure is usually the difference in value of the realty before and after the destruction of the trees. Where the trees had no such special use, the measure is the commercial market value of the trees at the time of taking. Where the trees can be replaced, damages are the reasonable cost of replacement.

Here, the Court said, the commercial value of the trees was the appropriate measure of damages. It suggested that the law provided for treble damages in Iowa Code § 658.4 to help adjust for the unfairness of situations such as the one in this case. However, it would not take into account future value in setting compensatory damages.

– Tom Root

Case of the Day – Friday, January 3, 2025

Posted on January 3, 2025 by TLRoot tagged.

SELF-HELP WEEK

Quite unintentionally, 2024 (slogan “At Least It’s Not 2020”) – as it slunk out the door in well-deserved shame – is ending with an orgy of self-reliance versus resorting to the courts. On New Year’s Eve, we reviewed a Florida case, Balzer v. Maxwell, in which the court held that the fact that an aggrieved landowner has no remedy but self-help means that when he or she exercises that right, the tree owner has no claim for what might become of the tree. Yesterday, we read a Massachusetts court holding that, on the other hand, when a city takes over an abandoned property for taxes, it assumes liability for hazard trees on the property.

In today’s case, Pennsylvania applies the Massachusetts Rule principles of self-reliance to encroaching tree roots.

Keiper v. Yenser, 1967 Pa. Dist. & Cnty. Dec. LEXIS 171 (Common Pleas Ct, Carbon County, Pa., January 23, 1967). Bill and Becky Keiper complained that for more than five years, the roots of Yensers’ willow tree have been extending into their land and penetrating their sewer line, which has cost the Keipers $166.07. They seek reimbursement for the money they have spent and a court order for the permanent abatement of the root encroachment (that is, an order that the Yensers remove the roots at their expense).

The Yensers filed a demurrer; in the alternative, they argued that laches prevented the Keipers from winning, and contended that abatement should not be ordered because the Keipers had an adequate remedy at law.

Held: The Keipers claim had to be dismissed.

Pennsylvania has no statute that would permit the Keipers to claim that the Yensers’ tree was a nuisance. Nor was there any case precedent.

However, looking at other states, the Court noted that in Gostina v. Ryland, a Washington state case, the court held that “were it not for our statute of nuisances, the respondents herein would not be accorded any judicial relief”. And Michalson v. Nutting, the Court said, held in very similar circumstances that “the neighbor, though without right of appeal to the courts if harm results to him, is nevertheless, not without remedy. His right to cut off the intruding boughs and roots is well recognized. His remedy is in his own hands. The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

Thus, the Court held that while the Keipers could cut the offending roots themselves, they had no cause of action to compel the Yensers to do so. “It is a principle well settled by many adjudicated cases, that an action does not lie for a reasonable use of one’s right, though it be to the injury of another. For the lawful use of his own property, a party is not answerable in damages, unless on proof of negligence…”

– Tom Root

Case of the Day – Thursday, January 2, 2025

Posted on January 2, 2025 by TLRoot tagged.

SURE IT’S A NUISANCE, BUT WHOSE NUISANCE?

I live near enough to Cleveland to be aware of the blight of homes abandoned there during the Great Recession. The owners leave, the banks foreclose, the homes decay, the taxes are no longer paid, and the city tries to sell them for tax debts. Many times, the city ends up owning them.

Yet, Cleveland is an enclave of plenty compared to Detroit, where the blight covered mile after mile. A third of all homes in that bankrupt city had been foreclosed on by 2015.

Out of fairness, Detroit has made a real comeback. The Motor City has stabilized its financial condition, improved city services, reversed population losses that saw more than a million people leave since the 1950s and made progress cleaning up blight across its 139 square miles.

In October 2024, Donald Trump told the Detroit Economic Forum that “[t]he whole country will be like — you want to know the truth? It’ll be like Detroit. Our whole country will end up being like Detroit if [Kamala Harris is] your president.” He caught a lot of grief from Detroiters for that. Detroit Mayor Mike Duggan said, “Lots of cities should be like Detroit. And we did it all without Trump’s help.”

So who is responsible for the nuisances that these decaying homes (and untrimmed foliage) create? Generally, it’s the owner or the entity with the right to control the property. In today’s case, decided when I was not yet a teen, a city argued that it owned and controlled an abandoned property for some purposes, but not where abating a nuisance was concerned.

Neighbor Harry Homeowner, who was beaned on the noggin by a branch from a dead tree on the neighboring lot, disagreed. “Hey,” Harry huffed, “if you own it, you own it.”

Kurtigian v. Worcester, 203 N.E.2d 692 (Supreme Jud. Ct., Mass. 1965). Harry Kurtigian was working in his yard one windy October day in 1959 when he was struck by a limb blown from a decayed tree on adjoining property.

A large elm tree was situated in the southeast corner of the lot next to Harry’s, one which had been owned by Beatrice R. Norling. By 1954, Beatrice was dead, and the tree was soon to follow, having been afflicted with Dutch elm disease. By 1956, there were no leaves on the 35-foot tall tree at all, and the bark was peeling from the trunk by year’s end.

Two years later, a large branch fell during a summer thunderstorm, crushing Harry’s fence. He called the City, who sent an inspector to look at the tree. About 15 months later, the tree still standing undisturbed, Harry was walking in his yard when he heard a cracking sound, looked up, and saw a heavy limb falling toward him. He was knocked unconscious, suffering a skull, arm and wrist fracture.

The lot next door was undeveloped and wooded, having been acquired by the City of Worcester in 1950 for nonpayment of taxes. Harry sued the City for negligence and for maintaining a nuisance tree,

The lower court found the City was negligent, but that the tree was not a nuisance. The City appealed.

Held: The tree was a nuisance, and the City was liable to Harry.

Liability for damage caused by the defective condition of premises turns upon whether a defendant was in control, either through ownership or otherwise. The City argued that it did not have title to and control of the real estate. But the records showed that the City recorded in the registry of deeds an instrument of taking in August 1950, pursuant to law for nonpayment of taxes. Three years later, the City recorded a notice of foreclosure, and seven years after that, a “Notice of Disposal in Tax Lien Case” executed by the Land Court was recorded in the registry of deeds, noting that there had been entered in the Land Court a decree foreclosing and barring rights of redemption by the prior owners to the lot. That was enough for the Court to rule that “at all material times the city… to the extent permitted by that chapter, engaged in the operation, maintenance, control, and sale of tax title property

The City said its taking of the property pursuant to vested title, subject only to the right of the owners to redeem the property by paying the taxes, is really more in the nature of security until the right of redemption was foreclosed. In other words, the City complained it did not have absolute title, but rather would have been able to keep only the amount of its lien in the event of a taking by eminent domain. Before the right of redemption was foreclosed, the City said, it could not have collected any rents.

Harry, on the other hand, argued that G. L. c. 60, § 54 grants the City the right to possession as soon as a tax title is issued, as opposed to another statute not letting a private buyer from getting possession for two years after buying at a sale.

The Court said that dispute was irrelevant because the City acquired a tax title nine years before the branch fell so even if the two-year period applied, it had long since passed. “In any event,” the Court said, “the city’s right to possession long preceded the date of injury.”

The City, however, contended that held the property in its “governmental capacity” rather than in its “proprietary capacity.” The collection of taxes is a governmental function, the City argued, and it is not liable for the tortious acts of its officers in fulfilling a governmental function. The Court made short work of that argument. The City was maintaining a nuisance on the vacant lot, the Court ruled and “there is no such immunity, however, where there is a nuisance maintained on real estate owned or controlled by a municipality, and this principle obtains ‘even where the nuisance arises out of the performance by the municipality of a governmental duty in the interests of the general public’.”

The liability of a municipality as the owner of land for a private nuisance on the land is no different than the liability of a natural person, the Court said. Trees can be a nuisance as much as a dilapidated building. “As the limb did not overhang the plaintiff’s land,” the Court said, “we have no occasion to examine the question whether the plaintiff is limited to self-help as in Michalson v. Nutting.” What’s more, the Court said, no one has argued that there should be a distinction between trees naturally on land and those that have been planted, “even assuming it is possible to ascertain the origin of this particular tree.”

The Court held that the evidence showed that there was, as early as 1956, when the tree died, a private nuisance to Harry and his property. While not a public shade tree, the elm was on land owned by and subject to the control of the city. It was obviously decayed. A nuisance came into existence while the City was in control of the land. “Public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity.”

– Tom Root

Case of the Day – Tuesday, December 31, 2024

Posted on December 31, 2024 by TLRoot tagged.

SAUCE FOR THE GANDER

I confess that I have always been a little uneasy at the cases that balance the Massachusetts Rule against harm – even inevitable harm – to a neighbor’s tree. If the Massachusetts Rule says that a landowner suffering harm from a neighbor’s tree has no recourse but to trim branches and roots back to the property line, it seemed like holding that the tree owner had no recourse if the trimming harmed the tree was just a practical application of the commonsense notion that what is sauce for the goose is as well sauce for the gander.

The property line limitation of the Massachusetts Rule is quite necessary. You cannot have the neighbor wandering into your yard, hacking the tree branch back to the trunk. But at the same time, standards of careful tree maintenance (think ANSI Standard A300) would suggest that cutting a limb halfway back to the trunk is negligence. Inasmuch as the afflicted neighbor cannot trim the tree beyond the property line to acceptable standards without the tree owner’s permission, the neighbor would be sandbagged if she were liable for not trimming it in a way that did not damage it.

Likewise, if a neighbor can save her foundation only by severing so many roots on her property that the tree’s health and safety is jeopardized, why should she be liable for what happens to the tree? It’s not as though she could have sued to have the tree removed: that’s the whole point of the Massachusetts Rule.

And yet, cases like Brewer v. Dick Lavy Farms, LLC, Fliegman v. Rubin, and Booska v. Patel lead the march toward limiting the Massachusetts Rule with the rule that a landowner had a duty to act reasonably when exercising self-help rights. Such a limitation on the Massachusetts Rule almost guarantees that the Rule will be further watered down by permitting suits against tree owners for encroachment. And when that happens, the Massachusetts Rule will be indistinguishable from the Hawaii Rule.

My worry that what some may be progress is just needless change is why was so cheered by a 2018 year-end decision from Florida that so succinctly expressed my own feeling that the Massachusetts Rule requires that the prohibition on bringing suit apply as much to the goose as it does to the gander.

Balzer v. Maxwell, 263 So. 3d 189 (Ct.App. 1st Dist., 2018). A large pine tree stood on Barbara Balzer’s property near her boundary with a parcel owned by Cindy Ryan. The tree’s roots encroached onto Cindy’s property, damaging the sewer line that ran under their driveway. To fix the sewer line, Cindy hired Hoyt Maxwell to remove her driveway and replace the line. While removing the driveway, Hoyt cut some of the encroaching tree roots. Although he did not kill the tree, Hoyt undermined the tree’s structural integrity and increased the risk that it might someday fall on Barbara’s house. To be prudent, Barbara paid to have the tree removed.

Afterward, she sued Cindy to recover the costs of removing the tree. After a nonjury trial, the court awarded Barbara only a portion of her costs to remove the tree. Barbara appealed, arguing that the county court erred by not awarding all of her costs. Cindy and Hoyt cross-appealed, arguing that the county court erred in finding them liable for damaging the tree because Cindy had the right to cut the encroaching tree roots. The circuit court reversed, reasoning that because Barbara could not be compelled to pay for Cindy’s damaged sewer line, she likewise had no cause of action against Cindy and Hoyt if the tree was damaged when Cindy exercised her privilege to cut the roots encroaching onto her property.

Barbara sought review of the circuit court appellate decision.

Held: Because the circuit court’s decision did not violate any clearly established principle of law, its decision holding that Cindy and Hoyt were not liable was upheld.

The holding in this decision, known as a second-tier certiorari proceeding, was limited to deciding whether the lower court’s decision departed from a “clearly established principle of law” resulting in a miscarriage of justice. If there is no controlling precedent, certiorari relief cannot be granted because without such precedent, the reviewing court “cannot conclude that a circuit court violated a clearly established principle of law.”

Under Florida law, the Court observed, it is well-established that an owner of a healthy tree is not liable to an adjoining property owner for damage caused by encroaching tree branches or roots, but the adjoining property owner “is privileged to trim back, at his own expense, any encroaching tree roots or branches… which has grown onto his property.”

The issue in this case, however, was slightly different, whether an adjoining property owner is liable to the tree owner when the self-help remedy damages the tree. The Court held that while there are conflicting decisions on the issue in other states, no Florida court has weighed in on the issue. For that reason, the Court said, “it follows that the circuit court did not violate clearly established law in ruling the way that it did.”

Barbara argued that McCain v. Florida Power Corp. established that negligence principles extended to suits against landowners in circumstances like this case. The Court disagreed because Barbara did not allege and the evidence did not show that Cindy damaged anything other than the tree whose encroaching roots Cindy “undisputedly had a right to cut.” The Court concluded that a “rule imposing liability for causing any damage to the tree in these circumstances would effectively eviscerate that right.”

– Tom Root

Case of the Day – Monday, December 30, 2024

Posted on December 30, 2024 by TLRoot tagged.

PINKY SWEAR

Hey, kids! Remember “cross my heart and hope to die?” How “swear on a stack of Bibles?” Even if you’re too young for those old chestnuts, you all know what a “pinky swear” is.

Sadly, Robert Grey Johnson, Jr., does not. Mr. Grey Johnson lived in tony Monarch Bay Terrace, on the Pacific Ocean between Long Beach and San Diego. The community is governed by the Monarch Bay Terrace Property Owners Association, a type of local quasi-governmental regulatory body that gives despotism a bad name.

A few years ago, Monarch Bay POA and Grey Johnson became embroiled in a dispute concerning his alleged installation of various “unapproved” trees on his property, and his failure to properly trim and maintain all of his trees so they didn’t impede either use of the sidewalks adjacent to his property or – more important when the “starter houses” in your neighborhood sell for over a million bucks – the ocean views of his neighbors.

To settle that earlier case, Grey Johnson promised to abide by a settlement that spanned more than 20 pages. He said he would abide by Monarch Bay’s “Covenants, Conditions and Restrictions” and seek prior approval of any trees planted on his property. He conceded that Monarch Bay POA’s board of directors would have “sole discretion” to determine the proper height of any tree, or whether any new or existing planting constitutes a view impediment or a nuisance – and that its decisions would be “final.” Finally, Grey Johnson promised to remove certain trees, trim or top other trees, as necessary, to maintain them at rooftop level; and pay a fine of $250.00 plus $500.00 in attorney fees to Monarch Bay.

No one looked behind Grey Johnson’s back while he signed off on the deal, or they might have seen his crossed fingers. A few years later, after Grey Johnson had failed to trim his trees as he promised, the parties were back in court. The POA wanted the trial judge to enforce the deal. Grey Johnson, who channeled Joyce Kilmer, argued that he should not be required to “top” the tree that some of his neighbors characterize as an impediment to their ocean views, even though he earlier agreed to do that very thing.

The court was unimpressed. Kilmer, the judge pointed out, didn’t say that trees were lovelier than ocean views – just poems. Grey Johnson offered fifty shades of justification for not honoring the deal, but the court saw through them. After the trial court upheld the deal, he took his plea to the Court of Appeals, which wisely observed that “this case is not about whether Johnson should be required to top his tree – or whether Kilmer would have approved of his doing so. It’s about whether Johnson’s voluntary agreement to do it is legally enforceable, even though he doesn’t want to do it anymore. It is.”

My hat is off in homage to the salesmanship of the lawyer who convinced Grey Johnson that he ought to bankroll this turkey. Had Grey Johnson come to me, I probably would have uncreatively told him to “keep your word… you signed the deal, now live with it.” Which, come to think of it, is exactly what the Court of Appeals told him.

The moral? Lawyers often say that a “bad settlement is better than a good lawsuit.” True, but that settlement is more than a technicality on the road to ending some pesky litigation. Courts presume the parties understand what they’re signing and won’t later entertain deviceful arguments for ignoring the plain terms of the deal.

It's a pretty fine view - what you'd expect for ocean vistas that start round $2.5 million.

It’s a pretty fine view – what you’d expect for ocean vistas that start around $2.5 million.

Monarch Bay Property Owners Ass’n v. Johnson, Case No. G043518 (Ct.App. 4th Div. Cal., Oct. 19, 2011), 2011 Cal. LEXIS 13258. Bob Johnson, a homeowner in Monarch Bay, became embroiled in a dispute with the Monarch Bay Property Owners Association over his installation of various “unapproved” trees on his property, and his failure to properly trim and maintain other trees to ensure they were not impeding the use of the sidewalks adjacent to his property or the ocean views of his neighbors.

In 2008, the parties settled the dispute with a lengthy settlement agreement, in which Johnson promised to abide by the community’s Covenants, Conditions and Restrictions, and would seek prior approval of any plantings on his property. He also agreed that the POA’s board of directors would have sole discretion to determine the proper height of any trees, or whether new or existing trees constitute a view impediment or a nuisance. Johnson promised to remove some trees and trim others as necessary to maintain them at roof level and to pay a modest fine. The parties agreed that a particular Canary pine “will be inspected” nine months after the date of settlement to determine whether it creates any view impediments. If it does, it would be further trimmed – but only if a “neutral arborist” (paid by Monarch Bay) determines that doing so would not permanently injure the tree. The settlement specified that the POA could enter a judgment against Johnson if he didn’t comply.

Right after signing the settlement agreement, Johnson removed and trimmed trees as he had promised to do. However, when Monarch Bay inspected his property nine months after the settlement, it determined that he had failed to properly maintain the trimming of his existing trees, and also that the Canary pine appeared to be impeding the views of his neighbors. The POA concluded that Johnson was in breach of the settlement agreement, and sought entry of judgment against him.

Monarch Bay’s motion for entry of judgment was filed just over one year after the settlement date. Johnson opposed the motion, arguing that he was in compliance with the terms of the settlement agreement but that Monarch Bay had breached it by “fail[ing] to inspect the Canary pine within the nine-month period of the agreement.” Johnson also argued that Monarch Bay had provided no evidence that further trimming of the Canary pine would not endanger it and that the stipulated judgment was too “vague” and lacking in objective standards to be enforceable.

The court denied the POA’s motion without prejudice because it lacked sufficient supporting evidence to establish Johnson’s breach of the agreement. The POA refiled its motion for entry of judgment five months later, supported by additional evidence, including the declaration of a neutral arborist, and declarations of neighbors attesting to view impairment. Also included with the moving papers was a copy of the stipulated judgment that the court was being asked to enter. Johnson again filed an opposition. The trial court entered judgment for the POA on December 29, 2009.

Johnson appealed.

Held: The POA was entitled to its judgment. Johnson asserted two primary bases for challenging the stipulated judgment which arose out of the prior settlement. First, he claims the court was without jurisdiction to enter an order enforcing the parties’ settlement pursuant to Code of Civil Procedure section 664, because Monarch Bay’s motion was brought more than one year after the date of the settlement in violation of a provision requiring that the case be dismissed no later than one year after the settlement date. Second, Johnson claimed that the terms of the judgment as entered were materially different from those to which he stipulated.

Neither argument persuaded the Court.

Instead, the Court ruled that the settlement agreement did not actually require that the case be dismissed within a year after the settlement date – or at all. Instead, what the provision Johnson relied upon did was prohibit dismissal of the case for a period of time. But even if the settlement had imposed a deadline or dismissal of the case, Johnson would have waived any right to rely upon it by failing to enforce it prior to entry of judgment. Until the case was actually dismissed – which this one never was – the Court retained jurisdiction to enter judgment.

The Court also held that Johnson’s argument concerning the specific terms of the judgment ignored the plain fact that, as part of the settlement agreement, he had expressly stipulated to the exact terms of the judgment to be entered against him if he failed to comply with his obligations under the settlement agreement. While Johnson might be unhappy with its terms, the Court held, it was much too late for him to raise that issue now.

Finally, Johnson challenged the trial court’s award of about $60,000 in attorney fees incurred by the POA in enforcing the settlement agreement. The Court of Appeals upheld the award, holding that “the parties specifically provided in their stipulated judgment for an additional award of attorney fees incurred by Monarch Bay ‘in enforcement of the stipulation,’ which would equate to the fees expended to obtain entry of the stipulated judgment. Nor did the court err by including in its award the fees Monarch Bay incurred in its first motion to obtain entry of judgment. The court explicitly denied the first motion “without prejudice, ” thus signaling that the issue of whether Monarch Bay was entitled to such a judgment was yet to be determined – in other words, that neither party had yet won nor lost the fight. The court’s fee award, entered after Monarch Bay ultimately prevailed, was consistent with that approach: One fight, one victor – and to the victor went the spoils.

– Tom Root