Case of the Day – Tuesday, December 16, 2025

Posted on December 16, 2025 by TLRoot tagged.

LET’S NOT PREJUDGE ANYTHING

My favorite daughter, who holds a Ph.D. in demographics from Cal Berkeley (forgive the proud papa boast), earned her undergraduate degree in linguistics a decade or more ago at an ivy-covered campus some 2,611 miles east of San Francisco Bay.

Her B.A. in linguistics (magna cum laude) came after 20 years of listening to her mother and me complain that the English language is going to hell.

You know, to be perfectly honest, at the end of the day, I could literally die at the debasement of the King’s English. A prime example, IMHO, is the ubiquitous airline expression “preboarding.” Since when does one “preboard” by boarding? And the credit card come-on I got the other day, telling me I was “pre-qualified?” Just what is that? Am I qualified? Or not qualified? To me, “qualified” seems rather binary – you are or you aren’t.

But my Ivy League-educated daughter just rolls her eyes and tells me that “language is dynamic.” In other words, 2023 English is not 1923 English, which was not 1823 English, and so on. “Get used to it, Dad,” she counsels me.

This brings me to today’s case. Ann sued her neighbor, Mike, because after she gave him permission to perform “limited trimming” of her Norway maple tree, the branches of which were overhanging his property, she says he over-trimmed, hacked away at the tree roots, and smeared a foreign substance on the root he did not hack. Her expert said the Norway maple was worth $96,000.

C’mon, man. Ninety-six large for a tree considered to be an invasive species? Surely you jest.

Surely she did not. The whole case sounds sketchy. Apparently, Mike performed all of his depredations of the branches and roots from the comfort of his own property. Regular readers of this blog should, at this point, express shock. That sounds like the Massachusetts Rule, especially because Mike argued that her tree had encroached and damaged his property. Why did Mike even require permission to trim overhanging branches and encroaching roots?

But that’s a question for another day. What the Connecticut trial court was deciding in this opinion was whether Ann was entitled to a prejudgment remedy. “Prejudgment” here is judgment in the same sense that “preboarding” is judgment. If Ann gets her remedy, she gets to attach Mike’s property (bank account, gold bullion, beach house, dogecoins, whatever) up to the amount of the judgment to which she is likely entitled. To do so, she has to show “probable cause” to believe that Mike is liable (that he trespassed, was negligent, whatever) and that she was damaged to a likely amount.

“Prejudgment” sounds a lot like judgment to me, especially because she pleads her claim, he opposes it, and the court decides. Far be it from me to ask how a criminal law concept like “probable cause” found its way into the civil sphere, but the fact that Ann can force a paper trial before the trial, and thereby lock up Mike’s assets (thus restricting his ability to freely use his own property), makes little sense. A canny plaintiff can use the prejudgment remedy route to oppress the defendant and run up litigation costs, thus forcing a settlement that looks a lot like the defendant folding. The fact that the court was able to find probable cause to believe that Mike had trespassed by trimming on his side of the property line suggests that the legal theories are less than perfectly thought out.

It’s one thing to permit a prejudgment remedy where probable cause is present, and there is reason to believe the defendant will run off with his assets in order to make himself judgment-proof. But in Connecticut, you don’t have to show a defendant will cut and run, just that prejudgment, there is probable cause to believe you are likely to get a judgment.

Ann ultimately failed to lock up Mike’s assets because her expert testimony was pretty sloppy. Nevertheless, the whole notion of a prejudgment judgment seems like an erosion of the King’s English, let alone civil procedure.

Greco v. Gallo, 2019 Conn. Super. LEXIS 2963 (Superior Ct. Conn., Nov. 21, 2019). Ann Greco owned a beach house next to a beach house belonging to Michael Gallo. A 40-year-old Norway Maple tree stood on her property near the boundary between the two parcels. Ann claimed that on April 1, 2017, Mike requested permission to prune one of her trees that was overhanging his property. She said she granted limited permission, but Mike pruned well beyond what she had authorized. Ann alleged that Mike damaged the roots of the tree with an ax and that he applied some substance to the tree’s roots, thereby harming and perhaps destroying the tree.

Ann sued for compensatory damages, double or treble damages under C.G.S. § 52-560, and punitive damages. Her complaint alleged that Mike was individually liable for her losses under the following legal theories: (1) liability for violation of Connecticut’s tree statute, C.G.S. § 52-560, and (2) liability for common-law negligence.

Ann claimed that Mike performed arboriculture on the tree without a valid license and applied a foreign substance to the tree’s root structure. She further alleges that he or his agents caused the tree to die, and she was harmed through the loss of the tree, its valuable shade, and the cost of the tree’s removal and replacement. She also claimed Mike was negligent, in that he failed to follow her limited pruning instructions and thus breached a duty of responsible conduct and care to her tree when he performed arboriculture without a license. Ann further claimed his negligence caused the death of the tree.

Mike denied everything and argued in addition that § 52-560 does not apply to this case because Mike never entered Ann’s property, and the remaining defendant had no role in the pruning of the tree.

Not to be outdone, Mike counterclaimed against Ann, alleging damages to his real and personal property caused by her negligence for failing to keep her tree from overgrowing and encroaching on his property. He alleges that for a long time before April 2017, Ann’s tree was growing excessively on his property, causing damage to his septic system and roof and requiring demolition and rebuilding of his garage.

Not content with litigating the case to the end, Ann sought to attach some of Mike’s property even before judgment, preventing either from selling it until the case was resolved. Outside of Connecticut, prejudgment attachment normally is intended to ensure that a defendant does not render himself judgment-proof before a case is tried. But in the Nutmeg State, prejudgment attachment does not require a showing that the defendant is likely to hide assets. Instead, it appears to be a civil bludgeon with which a well-heeled plaintiff can beat a defendant into submission by making it impossible for him to do business (or even survive) for as long as a trial goes on.

Held: Ann was not entitled to truss up Mike to the tune of $30,000 pending litigation over one dead tree.

A prejudgment remedy is available upon a finding by the court that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff.” C.G.S. § 52-278d(a)(1). In order to grant prejudgment attachment, a court must determine whether or not there is probable cause to sustain the validity of the applicant’s claim. The plaintiff does not have to establish that she will prevail, only that there is probable cause to sustain the validity of the claim. “The court’s role in such a hearing is to determine probable success by weighing probabilities.

The Court said Ann proposed suing Mike in two counts alleging liability under C.G.S. § 52-560 and liability in common-law negligence.

C.G.S. 52-560 provides that

Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, except on land subject to the provisions of section 52-560a, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on this land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.

Section 52-560 embodies the long-standing common law that predated its passage and includes the legal concepts of trespass and damages. The elements of an action for trespass are (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion, or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.” A trespass can exist without personal entry onto the land of another. Anything a person does that appropriates adjoining land or substantially deprives an adjoining owner of the reasonable enjoyment of his or her property is an unlawful use of one’s property.

Section 52-560 does not give a new and independent cause of action, the Court said, but instead prescribes the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable.” An action under § 52-560, therefore, is an action in trespass with a specifically prescribed measure of recovery of damages. As with trespass, the plaintiff cannot recover if the defendant had the “license,” or permission of, among others, the owner. Failure to prove the elements of the underlying trespass, the Court held, dooms an action under § 52-560.

Here, the Court held, Ann claims the evidence supports liability against Mike for violating C.G.S. 52-560, in that he admittedly pruned the tree, used an ax or hatchet on the roots of the tree, and placed some substance around the root region of the tree so as to harm it permanently. Although Mike’s actions all occurred from his neighboring property, Ann claims the trespass is established through his unauthorized actions on the tree from his property. Mike’s testimony supports that he did do such pruning from his property on her tree, but Ann alleges he went too far and was much too aggressive in that pruning process. And even further, the evidence showed he never asked permission to take an ax to the tree roots on his property, nor to put any foreign substances at or near the tree roots. This conduct beyond the permission given by Ann, the Court said, supported the probable cause finding on the trespass issue.

Ann also claimed, in addition to the § 52-560 count, that Mike was negligent. Such a common-law cause of action is permitted in tree damage cases, in addition to the statutory count. The essential elements of a cause of action in negligence are duty, breach of that duty, causation, and actual injury. Here, the Court said, the evidence permitted the court to find that Mike owed a duty to Ann once he asked her for permission to prune the tree, to exercise that permission reasonably and within the scope of permission she gave him.

The testimony and the photographs offered at the hearing supported the claim that Mike may not have been reasonable in how he conducted himself after Ann gave him limited permission to prune. Taking an ax or hatchet to the roots and placing foreign substances at the root areas, the Court held, may be a sufficient basis to find that he breached that duty and sustain the validity of Ann’s negligence claim. Thus, there is probable cause to sustain the validity of the negligence claim against Mike.

However, before the court could grant Ann’s application for prejudgment attachment, the court had to also find that the damages she claimed were supported by the requisite probable cause.

Section 52-560 is very clear as to what is or is not the measure of damages in tree damage cases, the Court ruled. Ann could seek damages for the trespass itself, for the value of the trees removed, considered separately from the land, or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land, nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel.

For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.

The proper measure of damages is either “the market value of the tree, once it is severed from the soil, or the diminution in the market value of the… real property caused by the cutting.”

Ann overreached. She sought an attachment of $30,000 each over the real and personal property of all three defendants and was “rather unclear as to the exact basis for the alleged damages related to the Norway Maple in question. And, there is contradictory evidence provided by each alleged expert arboriculturist on this topic.”

Expert testimony from Ann’s and Mike’s experts set the “reasonable value” of the tree at $98,000. The Court noted drily that

it is unclear if these sums are replacement cost figures for said tree or if they are values of the tree as timber once cut. Neither expert offered opinions with any reasonable degree of arboricultural probability in their written reports nor in their testimony at trial, and neither expert provided sufficient scientific methodology or reasoning for how they each arrived at the dollar amounts testified to. In fact, both witnesses had never testified in court before, and both had limited prior experience in placing a valuation on trees in question, such as the case at bar. Their testimony did not provide clear evidence on the replacement cost of the tree versus the cost of the tree once cut for potential lumber, as required by the statute and case law for the measure of damages under §52-560.

The Court noted that “trial judges are afforded wide discretion to serve as gatekeepers for scientific evidence because a relevance standard of admissibility inherently involves an assessment of the validity of the proffered evidence. More specifically, if scientific evidence has no grounding in scientific fact but instead is based on conjecture and speculation, it cannot in any meaningful way be relevant to resolving a disputed issue.”

Therefore, while the Court found probable cause for believing Mike would be liable, it could not find sufficient probable cause as to the amount of damages Ann claimed to justify the placement of a monetary attachment on Mike’s property.

– Tom Root

Case of the Day – Monday, December 15, 2025

Posted on December 15, 2025 by TLRoot tagged.

GOOD FENCES MAKE GOOD NEIGHBORS…

Don’t you believe it …

… or so one of my favorite poets, Bobby Frost, said. The flinty old New Englander wrote a lot of good, straightforward stuff (my favorite being The Pasture), but you need to know that this particular line about fences was written as a wry observation. Frost didn’t believe it, and he intended for his readers to question it, too.

Today’s neighbors are living proof of that. Lyle and Kate Batton had lived next to Dan and Kathy Bylander for 13 years, and the factual recitation in the case makes it pretty clear that they were good neighbors. There was a property line between their homes. Of course. There always is. But it wasn’t very important to them.

Instead, the friendly neighbors freely used each other’s properties, even giving each further permission to plant trees on the other’s properties. In fact, they did not really know for sure where one property ended and the other began. It seems that the Bylanders and the Battons had differing ideas about who owned what, but they were good neighbors. The technicalities of ownership were not that important.

But at last, the Bylanders moved out, and the Hawks moved in. The Hawks felt the need for a fence to separate themselves from the Battons, and that’s when the neighbors ceased to be good.

As Frost observed, “Something there is that doesn’t love a wall.” That something apparently was Lyle Batton. And who can blame him? For 13 years, Lyle and Kathy lived in unfenced harmony with Dan and Kate. At any rate, at some point after the fence was installed, tempers frayed, and Lyle exchanged sharp words with new neighbor Terry Hawk. And that’s when everything changed.

The Hawks demanded every inch of the land their surveyor said was theirs. The Battons demanded damages and asked the court to declare that their occupation of some of the disputed land over the years made it theirs.

The lawyers profited, and the neighbors – both sets – lost.

Batton v. Hawk, 2019 Minn. App. Unpub. LEXIS 1133 (Ct. App. Minn. Dec. 9, 2019). Lyle and Katherine Batton bought land in Thief River Falls 19 years ago. At the time, they shared their southern boundary line with Daniel and Kathy Bylander.

During the time that the Battons and Bylanders were neighbors, neither knew where the exact boundary line fell between their properties, but they did not much care – they were friends as well as neighbors. The Bylanders planted evergreen trees on what they believed was their property on the western side of their northern boundary line, which they thought was about eight to ten feet north of the line of evergreen trees. They mowed the area like it was theirs… because they figured it was.

At the same time, the Battons planted various trees along what they believed was their southern boundary line in the eastern part of the land, up to the edge of the Thief River. A second tree line, made up of about 12 spruce trees, sat north of the Bylanders’ home on the west side of the adjoining properties and acted as a windbreaker for their house. The Battons gave the Bylanders permission to plant more trees along the line.

Then disaster struck. After 13 years, the Bylanders sold their property to Terry and Dawn Hawk. The next year, the Hawks wanted to build a fence along the northern line of their property. The Hawks talked to the Battons about the property line, and the Battons explained that they believed it was along the tree line.

Trust but verify. The Hawks hired Houston Engineering to survey the boundary line. Houston found the Battons’ understanding of the boundary line was wrong, as the boundary line went through, or was very close to, the southeast corner of the Battons’ house.

Lyle Batton and Terry Hawk then met with a Houston Engineering surveyor to discuss establishing a new boundary line. The new boundary line ran 13½ feet north of the original boundary line, increasing the size of the Hawks’ property. The surveyor labeled this “Tract A.” Tract A included the wind-breaking tree line that sat north of the Hawks’ home. On the east end of the properties, the new boundary line was 25 feet south of the original boundary line and would become the Battons’ property. The surveyor labeled this “Tract B,” which included an area south of the Battons’ home. Tract A is .021 acres, and Tract B is .326 acres. The parties agreed that Tract A would become the Hawks’ land and Tract B would become the Battons’ land. After the meeting, surveyors from Houston Engineering placed markers along the new boundary line.

So the Hawks began to build a fence near the markers placed bysurveyors’ markes’ request, the Hawks built the fence directly on the new boundary line and gave the Hawks permission to enter their land to maintain the fence. According to the Battons, when Terry was finishing the eastern part of the fence, they realized that the markers placed by the surveyors were not in the correct spots and that the Hawks’ fence was “maybe a few inches up to many feet” north of what the Battons believed was the new boundary line.

The Battons also complained that the Hawks cut down four of their spruce trees on the western side of their property in order to build the fence. The Hawks countered that when they were bu, while building the fence, several trees fell duringlowing a hostile confrontation between Lyle and Terry in July 2016, the Battons sued the Hawks, asking the district court to order the parties to exchange deeds to Tract A and Tract B, to determine the practical boundary line of the property, and to rule that the Battons had adversely possessed some of the Hawks’ property, and therefore owned it. But the Battons’ complaint had a typographical error and, instead of requesting that the district court determine they had adversely possessed Tract B, they requested Tract A, which was already part of their property by deed.

The Hawks answered that the parties had discussed exchanging deeds to the tracts of land, but that they had never come to an agreement to exchange the deeds. The Hawks counterclaimed that the Battons had trespassed on their land and had damaged their property by removing the survey markers, and also that had relied on the B attons’ promise to grant them an easement.

The district court held a bench trial. At the end of the trial, the Battons amended their complaint to indicate that they adversely possessed Tract B, not Tract A, and they also moved to amend further to state that they adversely possessed the land that extended from Tract B to the middle of the tree line.

The district court held that the Battons failed to establish their claim for adverse possession because they did not show that they openly and continuously possessed the rest of the land that they claimed north of the tree line, failed to establish a claim for boundary by practical location, and did not show that the four removed trees belonged to the Battons.

The Battons appealed.

Held: The Battons did not acquire any land by adverse possession, nor did they obtain a declaration that the old supposed boundaries governed.

A party can become the titleholder of land by adverse possession. To show adverse possession, plaintiffs must show, by clear and convincing evidence, that their possession was actual, open, continuous, exclusive, and hostile for 15 years. Evidence presented in support of adverse possession must be strictly construed, with every presumption or inference to be taken against the party claiming adverse possession.

The district court found that the Battons had not established open, hostile, and continuous use of all of the land. Such use must give “unequivocal notice to the true owner that someone is in possession in hostility to his title.” There is sufficient evidence when “visible and notorious acts of ownership have been continuously exercised over the land for the time limited by the statute.”

The Battons and the Hawks had different understandings of where the boundary line fell. The Battons treated the tree line as the boundary, while the Hawks (and the Bylanders before them) treated the boundary line as 8-10 feet north of the tree line. Before the Hawks moved in, the Bylanders mowed up to that line, and, when the Hawks moved in, the Bylanders instructed them to continue to mow up to that line. While the Battons and the Hawks testified that they used the land for other purposes, there is no dispute that the Bylanders and the Hawks mowed part of the disputed land. “For that reason alone,” the Court ruled, “we cannot conclude that the Battons gave the Hawks unequivocal notice of their hostile possession of all of the disputed land.”

The Battons also testified that they used the disputed land for fishing, playing Frisbee and soccer with their kids, planting a garden and trees, and placing birdhouses and bird feeders. They said that they treated the disputed land as their own because they planted a garden, but neither of them could remember how long it had been there. Lyle testified that he placed birdhouses and bird feeders on the disputed land, but all had been removed several years before the trial. Because the evidence supporting adverse possession must be strictly construed, the Court said, “The district court’s finding that the Battons’ use of the land was simply occasional is not clearly erroneous.”

The Battons also argued that they had proven a boundary line by practical location. A boundary by practical location may be established in one of three ways: (1) by acquiescing in the boundary for a sufficient period of time to bar a right of entry under the statute of limitations; (2) by expressly agreeing with the other party on the boundary and then by acquiescing to that agreement; or (3) by estoppel.

The Battons argued that they established a boundary by practical location by acquiescence. If a party acquiesces to a boundary for a sufficient length of time to bar a right of entry under the statute of limitations (15 years in Minnesota), a court may establish the boundary by practical location.

The district court did not expressly address whether they had established a boundary by acquiescence. But the judge did note that there must be acquiescence to a boundary line for the statutorily required 15 years to be established by practical location. Because the Hawks had not lived in the home long enough to meet the 15-year requirement, the Court looked to their predecessors, the Bylanders.

But the Battons and Bylanders treated the boundary line differently. While the Bylanders believed the boundary was eight to ten feet north of the tree line, the Battons believed the boundary was along the tree line. The disputed 8-10 feet showed that the parties did not acquiesce to a boundary line. Instead, they apparently agreed to disagree, maintaining the peace despite their disagreement.

Thus, the Court said, the Battons failed to establish a boundary by acquiescence.

Finally, the Court observed that the district court had concluded that it could not determine if the four trees were on the Battons’ land. Based on this inability, the district court did not award them treble damages for trespassing and felling under Minn. Stat. § 561.04. Lyle testified that the Hawks cut down four trees that were on the Battons’ land in order to erect their fence. The Hawks, on the other hand, said that during the summer of 2015, a storm downed some trees, and the Hawks removed them from the property. Terry denied cutting down any trees north of the fence line.

Because the district court sits in the best position to weigh the credibility of witnesses, the Court of Appeals ruled, “we are not left with the firm conviction that, based on the conflicting testimony, the district court made a clear error.”

– Tom Root

Case of the Day – Friday, December 12, 2025

Posted on December 12, 2025 by TLRoot tagged.

GARBAGE IN, GARBAGE OUT

Originally a phrase used in the computer programming world, “garbage in, garbage out” was just too useful an aphorism to stay in Silicon Valley.

Today’s case illustrates the aphorism. One sanitation worker was backing up a garbage truck while the other, the son of a spelling-challenged mother named Kert Seymour, was holding onto a platform on the back. The truck veered too close to a tree growing along the boulevard, and strap-hanger Kert bashed his hand between the truck and the tree trunk.

If you have not studied the law (having instead favored more useful pursuits), you might think that garbageman Kert had only himself to blame for not moving his hand as the tree trunk approached. Or maybe blame the driver, who should have kept the truck farther from the tree. That’s much too logical.

There are two problems with your thinking. First, Kert couldn’t very well sue himself. There was no money there. Likewise, he could not collect much from his co-worker driver, who, if he had a lot of money, probably would not be driving a garbage truck. The employer, who owned the truck, was immune from liability to sanitation worker Kert except for whatever amount workers’ compensation would pay. Which clearly wasn’t enough to satisfy Kert.

So what to do? The answer is obvious. You sue the homeowner’s association that owned the private road on which the accident happened, arguing that if it had not planted the tree where it did, the accident could have been avoided.

If you’re a plaintiff’s lawyer, this is how you follow the money. There’s just one problem: how do you convince a jury to overlook the fool who didn’t pay attention, or the driver who couldn’t back straight, in favor of the association that owned the tree?

The three essential elements of negligence are (1) the negligent party must owe a duty to the injured party; (2) the negligent party must have breached its duty; and (3) as a direct result of that breach, the injured party must have been actually damaged.

Before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. That was the issue in this case.

Alleging that the defendant breached a duty to sanitation worker Kert by letting a tree grow was “garbage in.” Unsurprisingly, Kert got “garbage out.” You’d think he would have known that’s how garbage works.

Seymour v. Lakewood Hills Association, 927 S.W.2d 405 (Court of Appeals of Missouri, Eastern District, Third Division, 1996). Kert Seymour (whose spelling skills obviously landed him in his chosen occupation) was a sanitation worker. Kert was riding on the back of a garbage truck when his co-worker, who was backing the truck down a private residential street, hit a tree standing in the boulevard. Kert’s hand was crushed between the truck and the tree.

The road was owned and maintained by the Lakewood Hills Association, so, naturally, Kert sued the Association for planting the tree where his co-worker could dash his hand against it. After all, while its connection to the accident seemed tenuous, the Association did have something no other likely defendant had: money.

The trial court said Kert’s position was garbage, and granted summary judgment for the Association. Kert appealed.

Held: The Court of Appeals held the Association owed Kert nothing.

Under Missouri law, if a condition on the property is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, the landowner does not breach its standard of care unless it should anticipate the potential harm despite such knowledge or obviousness. The failure to protect an invitee like Kert against conditions that are open and obvious as a matter of law does not fall below the applicable standard of care.

Lakewood Hills argued the tree in the center of the road was so open and obvious that a person should reasonably be expected to see it and recognize the danger posed. Both Kert and his co-worker admitted that they knew the tree was there. Kert stated that he had seen it many times when collecting trash. The tree being clearly visible from the end of the street, common sense dictates that a reasonable person would have appreciated the harm likely to occur should a vehicle strike the tree.

The Court held that “as a matter of law, that the dangerous condition presented by the tree was open and obvious.” In other words, Kert, if you remain vigilant while the truck is moving, you might Seymour.

The Court consigned Kert’s lawsuit to the dustbin of litigation. Which Kert probably emptied. One-handed.

– Tom Root

Case of the Day – Thursday, December 11, 2025

Posted on December 11, 2025 by TLRoot tagged.

BAD BLOOD

Go, Roughriders!

There seems to be so much to do in the Christmas season that I can never catch up, and rarely can I get one task completed for all of the other tasks awaiting my attention. My bride of 46 years and I bought our Christmas tree two weeks ago. It took us five days to even get it inside and up. It took another five days to get the lights on. The poor tree still awaits decorations.

I note this as an excuse. A week ago, I addressed the first half of the question asked by alert sixth-graders at Western Reserve Elementary School (home of the Roughriders). It’s taken me until today to continue that thread: Today, we look at another decision from the days of yore to gain a better understanding of the issue they raised: if your apple tree drops its apples in the neighbors’ yard, do you have the right to go on to their land to pick them up?

Remember these guys? They apparently had 19th-century doppelgangers.

Neil Sedaka warned us about bad blood, although about 120 years too late for Newkirk and Sabler, the two actors in this little drama. It’s pretty clear from reading between the lines of this antebellum case that these neighbors loathed each other. Sabler told Newkirk to stay off his land, so Newkirk, of course, couldn’t resist having his guy cut across Sabler’s back 40 with a team of horses. Not to be outdone — sort of like a 19th-century version of “Spy vs. Spy” — Sabler rebuilt the fence Newkirk’s man had taken down, but he nailed it in place. The hired hand couldn’t get the horses and wagon out of the field, so he left them on Sabler’s land and retrieved his boss. The boss returned and started tearing down the fence when Sadler arrived. Words flew, tempers flared, and fisticuffs ensued.

After Newkirk apparently won the fight and got his horses back, he sued Sadler for assault, intending to add insult to injury. But the court threw the last punch, holding that Newkirk had no right to enter onto Sadler’s land to get property he wrongfully put there to begin with, and Sadler had every right to bean Newkirk with a club (which he had done) to keep him off.

Relevant to the question we considered last week, the court distinguished this case from other situations — including an apple tree owner whose apples fell onto a neighbor’s land. When a fruit tree drops its bounty on the neighbor’s land, the tree’s owner cannot prevent it. The owner continues to own the fruit, the court observed, and he or she may enter the neighbor’s land without being deemed a trespasser to collect the fallen fruit.

Unfortunately, much of the opinion is obiter dictum, unnecessary to the decision, and thus is of limited value as precedent. Nevertheless, kids, it’s the best we have. Sometimes the answers just aren’t all that clear.

Newkirk v. Sabler, 9 Barb. 652 (Sup.Ct. N.Y. 1850). Newkirk had sent his servant with a team and wagon across the defendant’s farm — upon which he entered by taking down the bars — to a neighbor’s house, even though Sabler had forbidden Newkirk from crossing his lands. On his return of the team to the place where it had entered, the servant found the fence bars had been refastened by boards nailed over them. The servant couldn’t break through, so he left the team and wagon on Sabler’s property and returned to Newkirk’s to tell him what had happened.

Newkirk went with his servant to the fencerow and tore down the fence to get his team and wagon out. Sabler arrived on the scene and forbade Newkirk from taking down the fence, and when Newkirk continued, a fight ensued between the parties. At one point, Sabler beat on Newkirk with a pole. Nevertheless, Newkirk finally got the fence down, removed his team, and then — to add insult to injury — sued landowner Sabler for assault.

At trial, the judge instructed the jury that although Newkirk’s team and wagon were wrongfully on Sabler’s land, it was Newkirk’s duty and right to get them off with the least possible injury to the premises and that Sabler was not justified in using violence to prevent him from removing his team from the premises. The jury found for Newkirk.

Sabler appealed.

Held: Newkirk had no right to enter Sabler’s land to reclaim his horses. Sabler had a right to defend his possession against Newkirk’s tearing down the fence and use as much force as necessary to prevent Newkirk from entering the property. The court held that an owner of personal property detained on the land of another — if he cannot obtain peaceable possession of it — may only bring suit in court to regain his property. Of interest, however, is the recognition in this early decision of a number of circumstances where the owner of a chattel — that is, personal property — may enter the land of another without being found to be a trespasser.

One example is a landlord’s right to inspect the premises to ensure the tenant is not engaged in waste. Others include a sale of land with a reservation of the timber rights, or if one enters the land of another to prevent the landowner’s livestock from dying, or because the public highway is blocked and he must get around the blockage. And the court held, “If my tree be blown down and fall on the land of my neighbor, I may go on and take it away. And the same rule prevails where fruit falls on the land of another. But if the owner of a tree cut the loppings so that they fall on another’s land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have prevented it.”

In this case, the court held, Newkirk’s horses and wagon were on Sabler’s land where they had been left by Newkirk’s servant. They were not there with Sabler’s permission. Instead, Newkirk had been guilty of trespass in sending his team across Sabler’s lands after he had been forbidden to do so. And Sabler had the right to detain them before they left the premises, and it was not necessary to decide whether the defendant detained the property rightfully or wrongfully. If Newkirk could not regain the possession of his property peaceably, his only choice was to sue.

– Tom Root

Case of the Day – Wednesday, December 10, 2025

Posted on December 10, 2025 by TLRoot tagged.

SUMMARY JUDGMENT

If the extent of your formal law schooling was gleaned from prime-time television (not that there’s anything wrong with that), then you already know that all lawsuits end up in trial, every trial is a cliffhanger, someone usually falls apart on the witness stand under withering cross-examination, and the winners typically go to a nice place for dinner afterward. With the client picking up the tab.

Congratulations. You are a lawyer.

Real life, unsurprisingly, seldom imitates art. And there is hardly ever a good meal at a white-tablecloth beanery after the win.

In reality, about 97% of civil cases never make it to trial. One party or the other files motions to dismiss for various reasons or seeks summary judgment, or simply gets out a wallet and settles. In fact, motions and summary judgment practice and settlement go hand in hand. It is usually a court’s action on a dismissal motion or summary judgment motion that throws cold water on one or both parties, causing them to remember that old-but-true legal maxim that “a bad settlement is better than a good lawsuit.”

A motion to dismiss is filed in a case where the defendant argues essentially that even if everything the plaintiff says in the complaint is true, he or she cannot win because of lack of jurisdiction, because he or she filed beyond the statute of limitations, because the statute does not confer on a plaintiff the right of a private cause of action… there are a bunch of great arguments for dismissal.

Summary judgment is a little more complex. It is usually filed after most of the pretrial discovery is complete. Summary judgment depends on one side or the other proving that the evidence shows there is no genuine issue of fact to be decided, only application of the law to the unrebutted facts. For example, I t-bone you in an intersection. You have affidavits from five witnesses that I ran a red light. Your lawyer takes my deposition, and I complain that I don’t know whether the light was red because I was watching a TikTok video on my phone, and you should have been alert for distracted drivers like me.

In that case, who needs a trial? I can’t prove I didn’t run a red light because while you have witnesses who say I did, I have no witnesses (including me) who can say I did not.

When a party moves for summary judgment, losing does not mean he or she cannot prove the case. It just means that there is a question of fact – whether the jury believes your busload of nuns who say I ran a stoplight or whether it believes the guy who had just staggered out of a bar and says I did not.

Summary judgment is an excellent shortcut for cases in which a party cannot prove its case or defend itself (depending on whether the party moving for summary judgment is the plaintiff or the defendant). It saves a lot of court resources and legal fees. But as today’s case demonstrates, summary judgment is not for everyone. Where there is disputed evidence, even if the dispute is lopsided, a trial must result.

Johnson St. Properties, LLC v. Clure, 302 Ga. 51, 805 S.E.2d 60 (Supreme Ct. Ga., 2017). Cynthia Clure was a tenant of an apartment complex owned by Johnson Street Properties. JSP was owned and managed by Dan and Elaine Cartwright and their two sons, Chris and James.

In early 2013, a limb fell onto JSP’s property from a tree located on a neighboring lot. Other tree limbs had fallen onto the property during prior storms, including some from the adjacent property. The Cartwrights took action to remove those branches when such instances occurred. This time, a limb fell during a storm and became suspended between the gutter of one of JSP’s apartment buildings and some brush. Everyone agreed the suspended limb was an open and obvious condition, yet the length of time the limb remained suspended is unclear, ranging anywhere from a few days to a few months, according to who is telling the story. Cindy and her neighbors knew the limb was dangling from the gutter, and Cindy had even warned other tenants to stay away from the limb because it was dangerous and could fall. Cindy said she left voicemails with the Cartwrights, notifying them of the suspended limb, but they denied ever receiving any such voicemails.

On the day of the accident, Cindy discussed the limb with Steve Wilburn, a fellow tenant who sometimes worked as a JSP maintenance man. Steve and Cindy walked over to the hazard area, at which time he threw a rope over the limb. Cindy testified that she heard the gutter tear and told Wilburn to stop so she could warn the tenant inside the apartment about the loud noise. As she walked out of the apartment, Cindy told Steve, “Hold on. If you’re going to do anything, just wait.” But he did not, pulling on the rope. The limb swung down from its perch and struck Cindy.

Cindy sued JSP, arguing the company failed to maintain safe premises for its invitees. JSP moved for summary judgment, alleging that no genuine issue of material fact existed regarding its negligence.

The trial court denied JSP’s summary judgment motion, finding that genuine issues of material fact existed regarding its negligence.

Both parties appealed.

Held: Issues of fact existed requiring JSP to face a trial on negligence.

JSP argued that it had no knowledge of the dangling tree branch, that Steve – the guy who removed the limb – was not its agent or employee acting within the course and scope of his employment at the time of the incident; and because Cindy had superior knowledge of the hazard, she failed to exercise ordinary care for her own safety and assumed the risk by getting too close to a known hazard.

First, JSP contends that it had no knowledge of the hazard before the incident at issue. But, the Court said, Georgia law places an owner/occupier on constructive notice of what a reasonable inspection conducted in the exercise of ordinary care would have revealed, provided that “one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it.”

Construing the evidence in favor of Cindy, as it was obliged to when judging a motion for summary judgment, the Court found there was a genuine issue of material fact as to whether Steve acted as JSP’s agent when removing the limb. If he did, any knowledge about the hazard posed by the limb and its removal that Steve possessed could be imputed to JSP. What’s more, the Court said, there was a question of fact as to whether JSP knew about the limb even aside from Steve’s knowledge, because Cindy testified she left a message with JSP about it. While there was evidence that the owners conducted inspections of the property after major storms, there was a dispute as to whether a reasonable inspection was conducted between the time the limb in question became suspended (which may have occurred after a major storm) and Cindy’s injuries; and whether a sufficient amount of time had passed for JSP to discover the hazard prior to Cindy’s injuries. “Indeed,” the Court said, “the record is filled with contradictory sworn testimony from the parties and lay witnesses concerning these matters, raising credibility issues which cannot be resolved on summary judgment.”

JSP also argued the trial court erred in denying summary judgment because Steve was not its employee acting within the course and scope of his employment at the time he decided to remove the tree limb from the gutter. For that reason, JSP contended, Steve’s actions could not be imputed to JSP under the doctrine of respondeat superior.

But, the Court said, questions of the existence and extent of an agent’s authority are generally for the triers of fact. Here, a question of fact remained as to whether Steve was an employee working within the course and scope of his employment at the time of the incident. It is undisputed that he had an on-again-off-again working relationship with JSP as the maintenance man for the property. In fact, Jim Cartwright admitted that during 2013, JSP would have Steve perform tasks around the property “as needed.” Plus, there was some evidence that Steve held himself out as the apartment complex’s maintenance man to other tenants as late as March 2013. During that same period, Elaine Cartwright instructed at least one tenant that she could “go to Cynthia or Steve” if she had any issues with her apartment.

As to whether Steve was working within the course and scope of his employment, he testified that he would perform odd jobs around the property and would not always ask permission from the owners before beginning a maintenance task if he determined that task was within his job description. Additionally, Cindy testified that she witnessed Wilburn removing tree limbs from the parking lot before this incident. While there was some evidence to the contrary, “such contradictions simply underline the existence of genuine issues of material fact that are for a jury to decide, “ the Court said.

Finally, JSP argued that Cindy’s knowledge of the hazard created by the suspended tree limb was equal to or greater than that of JSP’s, and that such knowledge precluded her from recovering on her negligence claims. Cindy was clearly aware of the tree limb and testified that she understood the dangers it posed, given that it was suspended in the air. “But it is a plaintiff’s knowledge of the specific hazard which precipitates the injury which is determinative,” the Court said, “not merely her knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which she observes and avoids.” In other words, Cindy was not injured by the random falling of the suspended tree limb — a possibility of which she was aware; instead, she was injured when the limb swung off the gutter while Wilburn was attempting to remove it. Steve had superior knowledge of his own plans and actions concerning removing the limb and the danger posed by such removal, knowledge that would be imputed to JSP if Steve were its agent. Thus, the Court held, although the record shows Cindy had some knowledge of the general hazard, “we cannot conclude as a matter of law that her knowledge of the “specific hazard” was equal to or greater than JSP’s; consequently, a jury question remains as to this issue.”

JSP said Cindy was contributorily negligent. The Court thought that it could be so, but “taking into account all the circumstances existing at the time and place of Clure’s injuries, and construing the evidence in favor of Clure, we cannot say that the evidence of Clure’s alleged contributory negligence is plain, palpable and undisputed.” Cindy’s proximity to Steve and the tree limb when he was attempting to remove the hazard was unclear from competing evidence. Cindy said she was walking away from the hazard when it fell. Steve wasn’t sure that Cindy had enough time to see it fall, raising a question as to whether she could have avoided the falling limb in the first place.

Finally, JSP argued that Cindy assumed the risks associated with the limb removal by entering “the danger zone” as Steve was removing the limb. Assumption of the risk bars a plaintiff’s recovery when a defendant establishes that a plaintiff, “without coercion of circumstances,” chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.’ To successfully assert this affirmative defense, the defendant “must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed herself to those risks.” Put simply, the Court said, “assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”

Because there are disputes in the evidence as to what occurred immediately preceding the limb’s fall — namely, Steve’s actions, Cindy’s location at the time in question, and whether she could have seen the limb fall from the gutter — the Court ruled that summary judgment was not appropriate as to whether Cindy assumed the risk.

– Tom Root

Case of the Day – Tuesday, December 9, 2025

Posted on December 9, 2025 by TLRoot tagged.

IT’S EASIER TO ASK FORGIVENESS THAN PERMISSION

Tom and Jody apparently did not think much of the cottonwoods standing in the front yard of the house across the street from them. They talked to a tree service representative (at least, I surmise as much from the facts of the case), who told them that the cottonwoods stood in the city right-of-way, so they could have them removed regardless of what neighbors Chris and Jeanne may have thought.

That seems rather extreme: a homeowner on one side of the street can cut trees on the other side of the street. And, it turned out, there was a paperwork catch. The City of Anchorage ordinance required that one get a permit to “use” the right-of-way. “Using” the right-of-way includes cutting down a tree.

Tom and Jody did not bother getting a permit. Neither did the tree service they hired. A few months after the fact (probably because neighbors Chris and Jeanne were howling about the missing cottonwoods), the tree service applied for and got an after-the-fact permit. After all, as Admiral Hopper famously said, it’s easier to ask for forgiveness than for permission.

Chris and Jeanne cried foul, arguing that because the tree service did not have a permit in hand when it took down the trees, the tree removal constituted timber trespass, and entitled them to treble damages. Their case wasn’t helped when the Anchorage bureaucracy pointed out that the trees were on its right-of-way, not on property controlled by Chris and Jeanne. To add insult to injury, the municipality asserted its right to grant retroactive tree removal permits, and, by the way, told Chris and Jeanne that the tree removal was a good thing, and replacement trees would never be permitted.

An interesting issue was whether Chris and Jeanne even had the right to sue for trees removed from the city right-of-way. Alas, that question was not answered, because the Alaska Supreme Court said the back-dated permit the City issued Tom and Jody was perfectly acceptable.

Rosauer v. Manos, 440 P.3d 145 (Supreme Ct. Alaska, 2019). Chris and Jeanne Rosauer owned a home across the municipal roadway from a home owned by Thomas Manos and Jody Liddicoat. The Municipality of Anchorage owns a right-of-way between the Rosauers’ property and the municipal roadway.

In August 2015 Tom and Jody hired Greatland Tree Service to cut down several cottonwood trees within the municipal right-of-way in front of the Rosauers’ property. The Anchorage Municipal Code requires private citizens to get a permit for the “use” of municipal rights-of-way, including for tree removal. Neither Tom and Jody nor Greatland obtained a permit before the tree removal, but Greatland later obtained a permit after the fact, a few months later.

In April 2016 the Rosauers sued Tom, Jody and Greatland, seeking damages under Alaska’s timber-trespass statute, AS 09.45.730, which provides that a “person who without lawful authority cuts down, girdles, or otherwise injures or removes a tree, timber, or a shrub on the land of another person or on the street or highway in front of a person’s house… is liable to the owner of that land.”

The next month, Chris asked the Municipality to invalidate the permit issued to Greatland. The Municipality denied Rosauer’s request, explaining in a permit-inspection report that the trees had been located on a “right of way and not on private property” and that their removal benefited the Municipality by “improv[ing] maintenance, snow removal, and access to the drainage ditch.” The report stated that the Municipality “will not permit the replacement of the trees in the same location.”

The two issues arising under the statute were whether the retroactive permit negated the requirement that removal be “without lawful authority” and whether the Rosauers could bring a claim under the statute even though they did not own the land from which the trees were removed.

The defendants argued that, because the statute does not specify when authority must be obtained, the retroactive permit constituted “lawful authority.” The Rosauers countered that while the statute is silent on timing, the Anchorage Municipal Code requires that a permit be obtained before removing trees from a right-of-way. The defendant replied that the code allows the Municipality to waive any breach of the terms or conditions of a permit, and that such terms and conditions include the requirement for obtaining a permit before tree removal.

Cottonwoods – fast-growing… and as messy as a 3-year old...

Tom and Jody also argued that the Rosauers lacked standing to bring a claim under AS 09.45.730 because they did not own the land from which the trees were removed. Tom and Jody interpreted the condition “liable to the owner of that land” to grant a cause of action only to the owners of land from which trees are removed. The Rosauers responded that Tom and Jody seemed to ignore the second condition — “or on the street or highway in front of a person’s house” — and that the term “owner of that land” also applies to homeowners whose property abuts a street or highway from which trees are removed, thus granting them a cause of action.

The trial court granted summary judgment to the defendants, holding that to “prevail under AS 09.45.730, Plaintiffs are required to show Defendants cut down a tree on the street in front of their house without lawful authority.” The court concluded that the retroactive permit conferred lawful authority after the fact but before the lawsuit, and that was all that was required.

The Rosauers appealed to the Alaska Supreme Court.

Held: Forgiveness is as good as permission.

Under AS 09.45.730, Alaska’s timber-trespass statute, a landowner may recover treble damages from a person who, without lawful authority, cuts down a tree on the land of another person or on the street or highway in front of a person’s house.

At the same time, municipalities may broadly delegate powers to their agencies or officers. Delegation of power promotes efficient government. Here, the Court said, Anchorage Municipal Code 24.30.120(A) broadly entrusts decisions regarding the safe and efficient use of public spaces to the Department of Development Services. Authority to grant retroactive permits, with terms and conditions necessary to protect the public interest, is consistent with such a policy.

The Court said Tom and Jody were correct that AS 09.45.730 does not specify when lawful authority must be obtained, a point which the Rosauers conceded. The statutory provision granting the Department permitting authority makes clear that permitting decisions involve agency expertise on public safety issues. This is clearly illustrated by the permit at issue in this case.

The subsequent permit-inspection report — created in response to the Rosauers’ request that the permit be invalidated — refuted any suggestion that it is unreasonable to interpret the municipal code provision authorizing waiver of permit terms and conditions to include waiver of the prior authorization requirement.

Thus, the Court ruled, the retroactive permit conferred lawful authority for the tree removal. Because the Municipality’s retroactive permit deprived the Rosauers of the requirement under AS 09.45.730 that removal be “without lawful authority,” the Court said the issue of whether the Rosauers had standing to sue need not be decided.

– Tom Root

Case of the Day – Monday, December 8, 2025

Posted on December 8, 2025 by TLRoot tagged.

THE LAW, SIR, IS AN ASS

In the 1970s (and undoubtedly even more so now), parking around The Ohio State University College of Law was awful. Everything was either reserved for faculty and staff (the parking lots) or metered with devices that would have made Einstein proud: while time crawled as we sat in property law, it was accelerated by the meter so that the hours (and the quarters) flew by.

The result, predictably, was that as a law student, I collected more than my fair share of parking tickets. When I didn’t pay them (chiefly because my student budget did not include a big chunk for the City of Columbus), dunning notices would be sent to my legal residence, which, of course, was my ancestral home. My mother would see them, shake her head in deep disappointment at her eldest son, and say, “I would think that law school would teach you to respect the law.”

Well, it did not, Ma, I am sorry to say. Or maybe not so sorry. After all, today’s case is Exhibit A in my argument that while Aretha may be entitled to a little respect, the law is not.

Ken and Sally Eyer were senior citizens who were forced to sell off timber to pay Sally’s chemotherapy bills. They owned the land: a big timber company contracted to cut the trees. Ken Eyer showed the company the boundary line, but the timber company – which, being in the business, should have known better – crossed onto neighboring land and committed a trespass to timber. The neighbors sued the Eyers, the Eyers brought in the timber company, and then what appears to have been a straightforward case went to hell.

Chief Justice Jim Jones, since retired, concurred in the judgment very reluctantly:

“I concur in the judgment because it correctly applies the law, even though the outcome is most unfortunate for the Eyers. It appears to me that the legal system catastrophically failed Kenneth and Sally Eyer.

This case started out as a $1,600 timber trespass. Under Idaho Code section 6-202, the Eyers were obligated to their neighbors, Russell and Laura Stevens, for treble damages. The Stevens filed suit, seeking a whopping $268,770 in damages. Eventually the case was settled upon the Eyers’ agreement to pay $50,000, plus interest, out of the estate of the last of them to die (they were octogenarians). Trial testimony indicated that $15,000 of the settlement was for damages and $35,000 for the Stevens’ attorney fees incurred in the suit. The Eyers had incurred their own attorney fees and costs in the sum of $37,934 by the time of the settlement. The Eyers’ third-party claim against Idaho Forest Group then went to trial and the Eyers lost. The district court granted Idaho Forest Group attorney fees and costs in the amount of $97,821.30. Thus, excluding attorney fees incurred by the Eyers in pursuing their third-party complaint and this Court’s award to Idaho Forest Group of its fees on appeal, the Eyers are out a minimum of $185,755.30 on a $1,600 timber trespass…

It is not clear from the record how the Eyers ended up in this position but it is a tragedy and does not speak well for the legal system. It is imperative that court procedures be reformed to expedite the process and reduce the cost of litigation to avert a repeat of this unfortunate story.”

So no, Ma, in the ensuing 49-odd years since law school, I have not learned to respect the law. If anything, I’m headed the other way.

I do, however, respect Ken and Sally Eyer. Sadly, Sally died of cancer shortly after the Idaho Supreme Court stripped her of her life savings. Ken passed away in April 2020. After all of that miserable litigation, his obituary nonetheless said, “his life was adventurous, full of humor and endless learning.”

He and Sally are worthy of all of the respect I have failed to give the law. (Chief Justice Jim Jones, too… he retired from the Idaho Supreme Court in 2017, and is now “actively educating and recruiting community to help refugees to establish in Idaho“).

Stevens v. Eyer, 161 Idaho 407, 387 P.3d 75 (Supreme Ct. Idaho, 2016). Ken and Sally Eyer entered into a log purchase agreement with Idaho Forest Group, Inc., because the couple – both in their 80s – needed money to pay medical bills. IFG sent an agent to the Eyers’ property before logging to assist them in locating property lines. “I told them not to cut anything I could see from my deck,” Ken told the Spokane, Washington, Spokesman-Review.

But when the logging occurred, IFG mistakenly cut timber located on neighboring land belonging to Russ and Laura Stevens. The Stevenses promptly sued the Eyers for timber trespass. The Eyers brought a third-party action against IFG, which essentially said that if the Eyers were liable to the Stevenses, then IFG was liable to the Eyers for the same amount. The Eyers claimed IFG breached its duty to properly mark the property lines.

The Stevenses, who sued for over $250,000 for $1,600 worth of mistakenly-cut trees, settled with the Eyers for $50,000, to be paid from the estate of the latter Eyer spouse to die.

At trial, the Eyers alleged that IFG assumed a duty to locate the property boundary between the Eyers and Stevenses’ properties. The jury found that IFG had not assumed this duty.

Afterward, IFG moved for an award of $95,600 in attorney fees under Idaho Code section 12-120(3), which permits the award of such fees in a commercial transaction. The Eyers argued that there was no commercial transaction because they were going to pay medical bills with the proceeds of the timber sale. The district court nevertheless awarded IFG the full amount of the company’s requested attorney fees.

On appeal, the Eyers contended Idaho Code section 12-120(3 ) does not apply.

Held: The Eyers owed the legal fees.

The commercial transaction ground in Idaho Code Ann. § 12-120(3) neither prohibits a fee award for a commercial transaction involving tortious conduct nor requires a contract. Instead, the rule is based upon the second paragraph of § 12-120(3), which mandates an award of reasonable attorney fees to the prevailing party in any commercial transaction.

The Court said that whether a party can recover attorney fees under the statute depends on whether the “gravamen of a claim” is a commercial transaction. A “gravamen” is the material or significant part of a grievance or complaint. Courts analyze the gravamen claim by claim. To determine whether the significant part of a claim is a commercial transaction, the court must examine whether a commercial transaction (1) is integral to the claim and (2) constitutes the basis of the party’s theory of recovery on that claim. For a transaction to be commercial, each party to the transaction must enter the transaction for a commercial purpose.

The Court noted it had previously characterized transactions as commercial when the purpose for entering into the transaction was to generate income. Earning income, the Court said, is the quintessential act of engaging in commerce.

To be sure, the Eyers had purely personal purposes in mind for the revenue they would realize from the sale of timber to IFP. Most employed people use their income for “personal or household purposes,” such as paying for lodging, food, utilities, and entertainment. Nevertheless, the Court said, by virtue of their employment, they are engaged in commerce. For that reason, actions brought for breach of an employment contract are considered commercial transactions under Idaho Code Ann. § 12-120(3).

– Tom Root