Case of the Day – Wednesday, April 19, 2023

Posted on April 19, 2023 by TLRoot tagged.

TESTING THE BOUNDARIES

Before I forget to do this, I’d like to report on a case of a conveniently forgetful property owner from the Land of 10,000 Lakes.

Mr. Meixner made an agreement with his neighbor, a sawmill, to replace some boundary fences. The first several fencelines were replaced according to the parties’ agreement, with Meixner and the sawmill sharing the costs. Everything seemed hunky-dory, as they like to say in Minnesota..

Out of nowhere, Mr. Meixner sued, claiming that the sawmill had cut down 73 trees on his land before replacing the second of the three fences.

The sawmill said, “Yup. Sure did.” These Minnesotans are people of few words, when they’re not saying things like “hunky-dory.” But the sawmill employee did say, “Had to cut down the trees to build the new fence. Meixner agreed.” Those words were plenty, and the jury found for the sawmill.

On appeal, the Court agreed with the level-headed jurors. It first adopted the general principle that trees on a boundary line are owned in common by the property owners, and neither may cut down a boundary tree without the consent of the other. But here, the Court said, it’s pretty clear that the sawmill employees had Mr. Meixner’s OK to axe the trees. After all, the Court observed, Mr. Meixner had given the sawmill permission to build the new fence, and he even shared the cost. If permission is given to enter onto the property to build a new fence, that permission implies authority to do all acts necessary to the completion of the task.

Don’t you believe it …

The sawmill employee said the trees had to go if the new fence was to be built. That evidence was good enough for the Court. Mr. Meixner wanted a fence, so he necessarily wanted the trees cut in order to build it.

Meixner v. Buecksler, 216 Minn. 586, 13 N.W.2d 754 (Sup.Ct. Minn. 1944). Meixner owned property next to a lumber company. He had an agreement with the company to replace old fences standing on the common boundary line.

Meixner and Buecksler, a tenant and employee of the company, built a new east-west fence in September 1938. Pursuant to the lumber company’s direction, Buecksler then cleared out the brush and cut down some trees in preparation for building a new fence to replace the old one which marked the boundary between Meixner’s south forty and the company’s north forty. A survey was made of this line, and thereafter Meixner and Buecksler constructed the replacement fence. A third fence was later completed, marking the east-west boundary.

Meixner contended that Buecksler and the company unlawfully cut 73 trees on his property prior to building the north-south fence, and that such acts were done without his knowledge or consent, and constituted trespass. The lumber company claimed Meixner had consented to clearing away the brush and cutting the trees, and that such acts were necessary in order to carry out the mutual plans to build the fence. The jury found for the defendants.

Meixner appealed.

Held: The appeals court upheld the verdict. It found that trees on the boundary line are the common property of the adjoining landowners which neither may destroy without consent of the other. However, trespass is not committed if there is permission or consent to do acts complained of, which consent may be implied from circumstances, and the jury was entitled to find that the Defendants had Meixner’s consent.

Generally, the Court said, permission to do a particular act carries with it authority and right, by implication, to do all that is necessary to effect principal objects and to avail licensee of his rights under license. Meixner’s agreement with Buecksler and the company for building a line fence between the adjoining properties carried with it by implication the right to do such things as were reasonably necessary in order properly to build the fence, including the cutting of trees on the boundary line.

Meixner had asked the court to award him treble damages under the Minnesota statute on wrongful cutting. The court declined, pointing out that there had to be damages in order to treble them, and Meixner simply had none.

– Tom Root

Case of the Day – Tuesday, April 18, 2023

Posted on April 18, 2023 by TLRoot tagged.

THE POWER TO DESTROY

A news story a few ago piqued my interest, and I am only now getting around to writing about it. Everyone knows that the Tree of Heaven, sometimes more accurately called the “tree of hell,” is an aggressive and invasive species. Likewise, everyone knows that the spotted lanternfly is a noxious pest.

It seems Pennsylvania has declared the TOH to be a noxious plant because – in addition to all of the other excellent reasons to try to tear it out by the roots and burn it – the Tree of Heaven is a favorite host of the spotted lanternfly. Being introduced to the noxious plant list won’t be enough to require Pennsylvania landowners to eradicate the Tree of Heaven wherever it is found, but what if it Pennsylvania ordered it?

The Commonwealth’s noxious plant list is a textbook example of the police power, not necessarily the guys with fast cars, flashing lights, and doughnuts, but rather the basic right of governments to enact laws and adopt regulations for the benefit of their communities. Under the system of government in the United States, only states have the right to make laws based on their police power. The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution.

Need an example? Did you happen to read about a recent pandemic, and states shutting down and ordering people to wear masks and the such? That’s the police power in action.

Could Pennsylvania use its police power to force the homeowner who planted a row of trees of heaven in his front yard – if such an idiot exists – to tear them out without compensation?

Eighty years ago, in Miller v. Schoene, the U.S. Supreme Court upheld the constitutionality of a Virginia law requiring landowners to destroy cedar trees to stop the spread of cedar rust. The rust didn’t hurt the cedar trees at all, but it was devastating to apple orchards. The Commonwealth would not pay the owners for the loss of their trees.

The Supremes held that Virginia was within its rights to issue the order. The Commonwealth was “under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity… When forced to such a choice a state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

The high court said there was a public interest in the preservation of the apple crop over the cedars. And where the public interest is involved, “preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.”

A more current application of the police power of the government to order the emergency abatement of a threat, relying on the Miller ruling, happened 20 years ago, when five beetles went on a walkabout.

In re Property Located At 14255 53rd Ave S., Tukwila, King County, Washington, 120 Wash.App. 737, 86 P.3d 222 (Court of Appeals, Washington, March 22, 2004). Three citrus long-horned beetles were found in a Tukwila nursery in August 2001, in maple tree bonsai stock imported from Korea. One beetle was a pregnant female. Because there were eight beetle exit holes on the stock, five beetles had presumably escaped from the quarantine area. In fact, one was seen flying away from the nursery. The discovery of the accidental escape was alarming because the beetle, a major pest of citrus, also feeds on many other trees, including apple and other fruit trees as well as alder, willow, oak, and some conifers. Eventually, the beetle kills all host trees.

The Governor proclaimed an emergency in June 2002 and authorized the Department of Agriculture to implement the eradication plan. The Department immediately began to remove trees. The landowners within the one-eighth-mile radius found themselves in the predicament that through no fault of their own, their lovely trees had become a threat to the community because of their susceptibility to being commandeered by a noxious pest. The Department established a $100,000 fund for the purchase of replacement trees and other vegetation for yards and gardens, and arranged to supply landowners with vouchers that could be used to obtain various non-host species of vegetation from participating nurseries.

These efforts to mitigate the effect of the eradication plan fell short of what several landowners regarded as fair. The landowners took the position that they were constitutionally entitled to just compensation before their trees could be destroyed. Targeted for destruction on land belonging to Sheila Malbrain and Lee Terrell were fruit trees, flowering plums, poplar trees, rose and lilac bushes, azaleas, and fir trees their arborist valued at a total of $116,262. Seven fruit trees on Carl Gorgey’s land were valued at $4,430. Six broadleaf trees on land belonging to Ralph and Thelma Kissinger were valued at $17,215.

The Department sought administrative warrants to gain entry to the respondents’ properties. The superior court found that the warrants were supported by probable cause. The court made an unchallenged finding that the beetle constituted an “extreme threat to the interests of the state” and that the Department acted reasonably in its response to this threat. The court nevertheless ruled that destruction of the trees was a compensable taking, and conditioned the issuance of the warrants upon the landowners first being compensated.

Held: The Court followed Miller v. Schoene and applied the law of necessity, holding that in meeting an emergency — such as fire, flood, or pestilence — public officials and private citizens may employ almost any available means in an endeavor to control the danger.

The Court ruled that not eradicating the trees constituted a noxious use of property — a nuisance, if you will — because of the risk the healthy tree might become a host to the beetle. Although the landowners complainned they had to bear a disproportionate cost of the State’s response to the threat, the Court of Appeals held, as in Miller v. Schoene, that the State of Washington had to make a choice to address the threat, and “when the private sacrifices that must be made to defeat a public enemy are not evenly distributed, the Constitution will not necessarily compel an equalizing adjustment.”

Interestingly, both the Supreme Court in Miller and, seventy years later, the Washington court in Tukwila, suggested that the law of necessity was related to the law of nuisance. Both recognize the obligations of property owners to each other and to the community. The power that the State possesses to prohibit uses of property that injure health, morals, or safety of the public is not burdened with the requirement that the State must compensate individual owners for the losses they sustain because they cannot use their property to inflict injury upon the community.

– Tom Root

Case of the Day – Monday, April 17, 2023

Posted on April 17, 2023 by TLRoot tagged.

YOUR MOTHER WEARS COMBAT BOOTS

We’re offering up a little slug of neighbor law today, actually ‘neighbor-denouncing-neighbor’ law. Who knew that such dry topics as beachfront preservation and development could be flash points for acrimony?

In today’s case from New York State, the debate – and we can’t tell for sure what it was about, although it included beaches, landscapers, and trespass – devolved into name-calling. And that was when someone’s skin got a little thin.

Contrary to popular belief, slander isn’t an easy thing to prove, and it’s even harder to prove that the slander was collect damages from. So what if Arnie Saltzman called Phil Galasso “no good” and a “criminal” and “connected?” The Court ruled it was protected opinion, and even if it weren’t, Phil couldn’t show that Arnie actually knew what he said was false.

The decision is kind of curious, because the Court seemed to apply a First Amendment standard to slander that is usually reserved for the news media, not private spats. But it was clear that the appellate court found the complainant, Mr. Galasso, not to be guilt-free. The Court noted that he could have been prosecuted for criminal trespass, and implied that the fact that he was not should be victory enough.

Galasso v. Saltzman, 839 N.Y.S.2d 731 (N.Y.A.D. 2007). In the context of a heated dispute among residential property owners in Sands Point, a beach community in Nassau County, Phil Galasso allegedly committed criminal trespass on Arnold Saltzman’s yard by removing trees and a fence. When he threatened to do more, Arnie obtained a cease-and-desist order.

Subsequently, Arnie allegedly said that he was intent on “getting” Phil Galasso, who was “no good” and “a criminal.” He alleged that Phil was “engaged in criminal conduct” and had “committed crimes” against Arnie’s property in an effort to “destroy both our properties and our beach.” Arnie also claimed that he had had Phil “checked out, and I don’t care if he’s connected, I’m going to get him.”

The statements were made to a former neighbor, a current neighbor, and a local businessman. Phil conceded that he held meetings with the subdivision neighbors to explain his protest actions.

When the trial court denied Arnie Saltzman’s efforts to get Phil’s slander action dismissed, Arnie appealed.

Held: The Court dismissed Phil’s complaint in its entirety. The Court said that given the subjective context and the facts underlying Arnold Saltzman’s statements, the statements constituted opinion and were not actionable as a matter of law.

When Saltzman said “connected,” he wasn’t talking about the electric company.

Arnie’s listeners were familiar with the issues in dispute and with the positions of each side. His references to criminality referred to the arguable criminal trespasses on his property and on common areas of the subdivision.

The Court did find that the record did not offer a reasonable basis for interpreting the statements to imply that Arnie knew of additional, undisclosed facts regarding Phil’s purported criminality. But even if the statements were not protected opinion, the Court ruled, Phil’s general allegations that Arnie’s alleged lies had hurt his reputation and subjected him to scorn and hatred were insufficient to support his slander claims.

A viable slander claim requires allegations of special damages, such as economic or pecuniary loss. And Arnie’s use of the term “connected,” generally referring to an affiliation with organized crime, did not constitute slander per se (something exempt from the requirement that special damages be pled).

Finally, the evidence did not show that Arnie’s statements were made with “actual malice,” that is, with a reckless disregard for the truth or with knowledge that it was false. Rather, the Court said, the statements were made in the context of Phil’s purported demolition and reconstruction activities, for which legitimate issues of fact existed: the question of whether they were authorized by the Village in each instance and whether they encroached upon Arnold Saltzman’s property rights.

For that matter, the Court said, Phil could arguably be subject to prosecution for felonious criminal mischief.

Quit while you’re ahead (or, at least, not yet behind), Phil.

– Tom Root

Case of the Day – Friday, April 14, 2023

Posted on April 14, 2023 by TLRoot tagged.

LOOKING FOR THE DEEP POCKET

In the legal world, a “deep pocket” – or alta sinum for you Latin scholars out there – is a defendant who possesses the wherewithal to pay a big damage award and who has the misfortune to be sufficiently enough related to the plaintiff’s claim to find himself or herself on the wrong end of a court order that the purse be opened. Generally, the deeper the pocket (and the greater the dearth of alternative deep pockets), the more willing a plaintiff is to stretch the claim to encompass the deep pocket’s participation. Today’s case illustrates the point.

The Nelsons needed to have their trees trimmed. They called Julian Rodriguez Landscape and Tree Service, the tree service they and their neighbors had used many times before. The outfit seemed competent and efficient, and the Nelsons found over the years that they could simply tell the tree service owner what they wanted, and he’d make the decisions on how to do it.

During the course of the Nelsons’ dealings with Rodriguez Landscape, no one had ever asked whether the company was licensed. That, after all, was more a state requirement than a practical one. Julian Rodriguez Landscape and Tree Service did good work, and the price was right. What more does a homeowner need to know?

On the day in question, however, things didn’t go so well. Luis Flores, one of Julian’s workers, was using a pole saw when it came into contact with a high-voltage line, killing him. Unsurprisingly, investigation bore out that Rodriguez Landscape had cut a few corners, eschewing such technicalities as obtaining a state license and paying workers’ compensation for its employees. Sadly, the late Mr. Flores’s family was left without a breadwinner, and no money would flow from the nonexistent workers’ comp to compensate the survivors for their loss.

Luckily for the Flores next-of-kin, they hired a creative personal injury lawyer whose ad probably ran on daytime TV and appeared on the back of the phonebook (remember phonebooks?). Their lawyer correctly identified the Nelsons and their homeowners’ insurance policy as the only money tree available for trimming by the Flores family. Thus, he put together a wrongful death action for the family that argued that (1) under California workers’ comp law, homeowners who hire unlicensed contractors are deemed employers of the contractors’ workers for workers’ comp purposes; and (2) an obscure California criminal statute made workers and employers criminally liable if any tools came within six feet of a high voltage line. Therefore, the Flores’ legal theory went, the Nelsons – as de facto employers of Mr. Flores – were liable to his family because he died when he touched the high voltage line.

The Flores family couldn’t sell this very creative theory to the trial court, but the California Court of Appeals loved it. Unhappy with the gossamer-thin argument connecting them to Mr. Flores’ accident, the Nelsons took the issue to the California Supreme Court.

The California Supreme Court let reason prevail. The purpose of the statute, the Court said, was to protect third parties from injury because a tree trimmer’s equipment comes into contact with a high-voltage line. The statute was never intended to protect a worker who foolishly contacts a power line by letting him or her collect from the employer for the worker’s own negligence. That being the case, the Court said, it wasn’t necessary to figure out whether the homeowners would be considered Mr. Flores’ employer as a matter of law.

Proper use of a polesaw ... which did't happen in today's case.

Proper use of a pole saw … which didn’t happen in today’s case.

A lesson here: In California – in fact, anywhere – a prudent homeowner will make sure the arborist or tree service contractor is licensed, regardless of whether a license has anything to do with competence or skill. And service providers should volunteer to customers proof of their credentials, not just because it looks professional, but because it’s the kind of attention to detail now that helps avoid lawsuits then.

Julian Rodriguez didn’t pay attention to detail, and the Nelsons never asked. Years of expensive litigation resulted, and at the end of the day, the Flores widow and kids were left destitute. In fact, the only people who were better off for it all were the lawyers.

Ramirez v. Nelson, 44 Cal.4th 908, 80 Cal.Rptr. 3d 728, 188 P.3d 659 (Sup.Ct. Cal. 2008). Homeowners Thomas and Vivian Nelson had a number of trees, including a large eucalyptus tree, in their back yard. Every few years, Southern California Edison trims the eucalyptus tree so that its branches do not reach the very visible high-voltage electrical lines that run above the tree. When Southern California Edison’s tree trimmers gave the Nelsons notice they would trim the eucalyptus tree in 2004 but failed to show up when they were expected, the Nelsons hired Julian Rodriguez Landscape and Tree Service — an unlicensed contractor (although the Nelsons didn’t know this) — to “top” and trim several trees in their backyard, including the eucalyptus tree. The Nelsons and their neighbors had used Rodriguez Landscape four or five times in the past to top and trim trees, and everyone thought the company did competent work.

The Nelsons left it to Rodriguez’s good judgment as to how, or to what height, to top and trim the trees, and they neither supervised the trimming nor did they furnish the tools for the job. A few hours after the job began, Mrs. Nelson heard men shouting and saw them running to the eucalyptus tree. She went out onto her deck and saw tree trimmer Luis Flores hanging in the eucalyptus tree from his safety harness. He had been killed by electrocution when his pole saw – made of aluminum and wood – contacted the power lines.

Luis’s family sued the Nelsons, alleging negligence and wrongful death. The Flores argued that the Nelsons knew the high voltage lines constituted a dangerous condition on their property, knew the utility company responsible for the power lines had in the past trimmed the tree on which the decedent was working when electrocuted, and knew or should have known Rodriguez and his workers were unlicensed contractors. Nonetheless, the Flores asserted, the Nelsons negligently failed to warn or act as reasonable homeowners would have acted under similar circumstances in contracting with Rodriguez to trim the tree in question.

The Flores family argued that California Penal Code §385(b) made it a misdemeanor for any person, either personally “or through an employee,” to move any tool or equipment within six feet of a high voltage overhead line. They contended that the late Mr. Flores had been the Nelsons’ employee by operation of law under Labor Code §2750.5, making the Nelsons vicariously liable for any breach of the duty of care embodied in the law.

The Nelsons argued they had hired Rodriguez Landscaping to perform domestic tree trimming services, that Mr. Flores was contractor Rodriguez Landscaping’s employee, not theirs; that they didn’t owe him a duty of care under §385(b), and that the duty of care owed to him was simply that of reasonable homeowners acting under circumstances similar to those giving rise to the fatal accident.

Mr. Flores’ status as the homeowners’ “employee at law” under Labor Code §2750.5 was pivotal to the contested claim that the homeowners should be found liable. The trial court refused to allow the plaintiffs to refer to Mr. Flores as the Nelsons’ employee and refused to instruct the jury on Penal Code §385(b) or plaintiffs’ proposed negligence per se theory of the case.

The jury found for the Nelsons.

The Court of Appeal reversed the judgment, concluding Mr. Flores was the Nelsons’ employee at law under Labor Code §2750.5, and that Nelsons were liable for violating the statutory duty of care embodied in Penal Code §385(b). The Nelsons appealed to the Supreme Court of California.

Held: The Nelsons were not liable. The Supreme Court held that even if they were deemed to be the employers of Mr. Flores because they had hired an unlicensed contractor to trim trees — for purposes of liability for workers’ injuries — the Nelsons owed no statutory duty of care under Penal Code §385(b).

Under the test for a statutory presumption of a failure to exercise due care based on violation of a statute, the Court said, a trial court must determine as a matter of law whether the death or injury resulted from an occurrence of the kind which the statute was designed to prevent and whether the person suffering the death or the injury was a member of a class of persons for whose protection the statute was adopted. If a plaintiff is not within the protected class of persons that a statute was designed to protect, or if the injury did not result from the kind of occurrence the transgressed statute was designed to prevent, then the statutory “negligence per se” doctrine has no application to the negligence claim.

The “reasonable man” – he wears both a belt and suspenders.

Here, the statute prohibiting moving tools and equipment within six feet of power lines augments the common law “reasonable person” standard of care owed to the general public with regard to the activity of moving or operating equipment in close proximity to power lines, by setting forth a standard of care making it a misdemeanor to move or operate tools and equipment within six feet of a power line, and by assigning strict liability for its violation.

The standard of care imposed by the statute amplifies the duty owed by people using tools or operating equipment near power lines to anyone in the world at large who might be injured by such conduct. However, it did not protect Mr. Flores from himself, and it certainly did not create a separate duty or standard of care owed by an employer to an employee engaged in the operation of tools or equipment in close proximity to high-voltage lines. The statutory standard did not prescribe any particular course of conduct employers must take, or refrain from taking, in order to ensure their employees’ safety, or establish any standard of conduct with regard to supervision of employees engaged in such activity.

– Tom Root

Case of the Day – Thursday, April 13, 2023

Posted on April 13, 2023 by TLRoot tagged.

THEY’RE BA-A-A-ACK!

Yesterday, we reported on the 2008 Gertz v. Estes decision, in which the Gertzes were told to remove their 8-foot tall “spite fence.” Why anyone thought that people who (a) built nail-studded fences; (b) peered at their neighbors with an array of surveillance cameras that the NSA would covet, or (c) heckled the Estes family with a PA system, would be impressed with a court order is a good question. You can just hear them through the loudspeaker: “Court order? I don’t need no stinkin’ court order.”

A “spite fence,” after all, isn’t something that one constructs accidentally, or even negligently. Why the Gertzes should be expected to pay attention to some old fool in a black robe …

Hadrian’s Wall – Did the Picts think it was a “spite fence?”

Ever since the first recorded “spite fence” – not including Hadrian’s Wall – was first used by San Francisco millionaire Charles Crocker to try to force a neighbor to sell his property for the construction of the Crocker Mansion – “spite fences” have required intent.

You have to intend to harass a neighbor with the fence. And if you set out to harass and oppress, it’s not terribly likely that you’re going to be brought up short by some man or woman in a fancy black robe.

Charlie Crocker’s fence (highlighted in orange) – definitely a “spite fence.”

The Gertzes ignored the 2008 court order until the Estes family dragged them back into court. That was when the Gertzes suddenly announced that they had lopped off the top two feet of the fence. Now it was only six feet tall, studded with nails and festooned with more surveillance devices than the Trump Tower. “Gee,” the Gertzes told the trial court, “now it’s under seven feet – guess it’s not a ‘spite fence’ anymore.”

The Court did what courts do – used procedural rulings to achieve substantive ends. The Court ruled that the Gertzes were trying an “end run” on the prior decision, when they should have raised the reduced height on appeal. Thus, the Gertz motion was thrown out. The Court made clear that the Gertzes’ real problem was that they hadn’t read the 2008 order carefully: it wasn’t the height of the fence alone, it was the intent and the ugliness that made it a “spite fence.” It was still a “spite fence,” albeit it a shorter one. The fence still had to go.

Gertz v. Estes, 922 N.E.2d 135 (Ind.App. 2010). The unsavory neighbor Gertzes had been told to take down the “spite fence” which separated their home from the Estes property. The fence was a doozy, too – while the Gertzes had gotten permission from the town to build a 7-foot tall fence, they had put up an 8-foot fence just a few inches from the property line, studded it with thousands of nails protruding on the Estes side, painted “no trespassing” and “do not climb” notices all over the fence, and equipped the structure with surveillance cameras. There was a PA system, too, which the Gertzes used to make disparaging comments to and about the Estes family on various occasion.

The Berlin Wall – President Reagan could have said, “Mr. Gorbachev – tear down this ‘spite fence’!”

After a bench trial, the trial court found that the “fence was maliciously erected and now maintained for the purpose of annoying the Estes family” based upon the “course of conduct exhibited by Gertze [sic] toward Estes.” Holding that the fence was thus a nuisance, the court ordered the Gertzes to remove it. For good measure, the judge found that the “surveillance of the Estes property and the use of a loudspeaker to harass and annoy Estes constitute[d] an invasion of privacy” and said that all had to go, too.

The Gertzes appealed the trial court’s order, arguing that: (1) the trial court erred by applying the “spite fence” statute to them because they had obtained a local permit for the fence; and (2) the trial court erred by finding that the fence was unnecessary and that the public address system was used to make disparaging comments about the Estes family. The trial court was upheld in Gertz v. Estes, 879 N.E.2d 617 (Ind.Ct.App.2008), and the Indiana Supreme Court denied further review.

On September 12, 2008, the Esteses filed a petition for rule to show cause. The Esteses alleged that the Gertzes had failed to remove the fence, cameras, or public address system and had continued to harass and threaten them. The Gertzes answered by asking the trial court to let them remove the top one foot of the fence rather than the entire fence. The Gertzes said they had already removed the top two feet of the fence, so it was no longer a “spite fence.”

The trial court found that cutting a foot off of the top of the fence didn’t comply with the prior order, because the fence’s height was only one of the factors making it a spite fence. The trial court concluded that the “fence is, and remains, a nuisance.” The Gertses appealed.

Held: The Gertzes’ reduction of the fence’s height didn’t matter: the fence had to go. The Court noted that Indiana Code Section 32-26-10-1, which governs ”spite fences,” provides: “A structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.”

The Court held that the Gertzes were just asking for a mulligan. Their petition was really just a motion for relief from the 2008 judgment under Indiana Trial Rule 60(B), and that rule won’t serve as a substitute for a direct appeal. The Gertzes filed a direct appeal of the trial court’s order requiring them to remove the fence. Although the trial court’s remedy of removal of the fence was an issue available to them, they did not raise any argument on appeal about keeping the fence if they only reduced the height.

What’s more, the trial judge’s order that they remove the fence was not based solely upon the height, but instead on a variety of factors. The appellate court held that the Gertzes showed nothing justifying the extraordinary remedy of modification of the trial court’s judgment.

Meanwhile, the Estes – who had had enough of the expensive litigation – argued that they were entitled to appellate attorney fees because the Gertzes’ appeal was meritless. The court was hesitant to award such fees where the appeal was not “utterly devoid of all plausibility.” The Court said that although “the Gertzes’ brief fails to fully comply with the Appellate Rules and that their argument on appeal fails, we cannot say that their arguments were ‘utterly devoid of all plausibility’.” It refused to order the Gertzes to pay the Esteses’ fees, but cautioned “the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees.” The Court “encourage[d] the Gertzes to fully comply with the trial court’s order and protective orders.”

Good luck with that.

– Tom Root

Case of the Day – Wednesday, April 12, 2023

Posted on April 12, 2023 by TLRoot tagged.

LIKE A GOOD NEIGHBOR

Would you rather have your insurance agent appear? Really?

The Estes, like the rest of us, probably saw those insipid commercials a few years ago where the insurance-challenged protagonist would sing a major insurance company’s jingle offkey, and his or her local agent magically appears. It never made much sense to us. Meaning no disrespect to insurance – which after all is just a transaction in which you bet something bad’s gonna happen to you, and the insurance company bets it won’t – but if we could warble a stanza and make someone appear, it sure wouldn’t be an insurance agent.

Back to our topic. An article we read about an Indianapolis man having his ear bitten off by his neighbor made us think about truly rotten neighbors, you know, the ones without community relations teams and emergency satisfaction 800 numbers. The Estes probably have less of an idea of what a good neighbor is than most people, except to suspect it sure isn’t the people next door to them, the Gertzes. The Gertzes are a little bit weird, and we don’t mean that in a good way.

A dispute about a suburban boundary line ended up with the Gertzes training a battery of surveillance cameras on their former friends, the Estes. If that wasn’t enough, Mrs. Gertz began using a loudspeaker to hurl insults — rather graphic ones which left the court blushing — at the Estes daughters. And then there was the fence.

Robert Frost said that good fences make good neighbors, but he hardly had this fence in mind: an 8-foot tall monstrosity painted orange and black, studded with thousands of protruding nails and large warnings against climbing and trespassing painted on the Estes’ side like so much gang graffiti. In fact, the whole thing looked rather more like the Berlin Wall come to Hebron, Indiana.

The Estes sued under the “spite fence” statute. The Gertzes protested that they hadn’t built a spite fence, but rather just a modest enclosure to protect some delicate saplings they had planted, as well as to permit the raising of alpacas and llamas. After all, they didn’t want any errantly roaming cattle to gnaw on the young trees or, for that matter, to let the llamas and alpacas flee to return to South America. The Court wasn’t convinced. After all, the Gertzes’ permit application called the fence “residential,” not “agricultural.” Second, the fence didn’t enclose the young trees, making it useless as a cattle barrier. Finally, the cameras, the loudspeaker, and the studded fence — not to mention the testimony of deteriorating relations between the plaintiff and defendant — made it clear to the Court that the fence was erected maliciously.

The Gertzes could hardly let their alpaca herd hotfoot it back to Bolivia, now, could they?

The Gertzes also tried a creative technical argument that because a permit had been issued for the fence, the Indiana “spite fence” statute had been trumped by local approval. The Court noted that the permit was for a 7-foot fence, not the 8-foot plus fence the Gertzes had put up, and anyway, a local permit did not excuse compliance with the statute.

So the court settled matters, and everyone kissed and made up. There were lemonade toasts all around, right? Lest you think that, stay tuned tomorrow for … [drum roll] … Gertz v. Estes, the sequel.

Gertz v. Estes, 879 N.E.2d 617 (Ct.App. Ind., 2008). Oh, the neighbors from hell! David and Nichelle Gertz started out liking their neighbors, Douglas and Susan Estes, but that fell apart. David and Nichelle had multiple surveillance cameras trained on their neighbors — even when they purported to get along — but after the boundary line was disputed, things got so bad that the Estes notified the Gertzses that they intended to install a fence, but before they could do so, the Gertzses built one of their own. The Gertzses applied for and obtained a local permit to build a 7-foot high fence, but the final fence was 8 feet high, 720 feet long, and with thousands of nails protruding on the Estes’ side up to a half inch. The words “NO CLIMBING” and “NO TRESPASSING” were painted in orange and black on the middle horizontal slat, and two more cameras — for a total of seven surveillance cameras — were installed on top of the fence.

The Gertzes also used a public address system to aggravate the Estes, including making “lewd comments” to the Estes’ daughters, which the Court blushingly refused to repeat in the opinion. The Gertzes called the sheriff at least eighteen times to report various activities of Douglas and Susan Estes.

The Estes sued under Indiana’s “spite fence” statute for removal of the fence. The Gertzes testified that the fence was necessary to protect eighteen-inch tree seedlings they had planted. The fence did not enclose any area, but the Gertzes said they intended to enclose the fence at some point so that they could raise llamas, alpacas, or sheep. The trial court found that there was “no justifiable or necessary reason for the fence installed by [David and Nichelle] to exceed six (6) feet . . .” Furthermore, it found that “the fence was maliciously erected and now maintained for the purpose of annoying [Douglas and Susan].” The trial court ordered the fence removed, and the Gertzes appealed.

Held: The fence had to go. The Court found that the evidence and the reasonable inferences drawn from it fully supported the trial court’s findings. As to the Gertzes’ defense that it was for agricultural purposes, the Court observed that their permit application indicated that the “use” of the fence was “residential” and the fence did not form an enclosure, making it useless for livestock. The Court said that the Gertzes’ conduct and the extraordinary nature of the fence overcame David’s assertion that the 8-foot fence was intended to protect eighteen-inch tree seedlings.

Likewise, the fact that a local permit was granted to build a 7-foot wooden fence parallel to the property line did not trump the “spite fence” statute. That statute defines as a nuisance any fence unnecessarily exceeding a height of six feet and maliciously erected for purpose of annoying neighbors. This fence exceeded six feet unnecessarily and clearly resulted from a deteriorating, antagonistic relationship between the Gertzes and their neighbors. The nails on the fence protruding between quarter- and one-half inch from the fence and the surveillance cameras clearly supported the finding that the fence was built out of malice, and was, therefore, a nuisance.

The Gertzes wisely didn’t challenge the trial court’s order that the PA system had to go, too.

– Tom Root

Case of the Day – Tuesday, April 11, 2023

Posted on April 11, 2023 by TLRoot tagged.

STICK IT TO THE MAN …

Tal Mims owned a rental house. He also owned a landscaping company. So when Rosemary Stills, his tenant, called to say a tree had fallen on the house, who better to come over to clean up the mess that Tal’s landscaping crew? It seemed like perfect synergy. It also was a bit redolent of the 60s mantra, “stick it to the man.” That is, if the “man” in question is a State Farm agent.

Some would say “disaster.” Tal Mims said “opportunity.”

But things got worse. While the tree was being cut up, a large branch fell on the tenant’s son, breaking his leg. The tenant sued Tal, and then she added his homeowner’s insurance carrier as a defendant. Then both the plaintiff and the defendant Tal ganged up on the insurance company.

The policy pretty plainly excluded bodily injury and property damage “arising out of the rental or holding for rental of any part of any premises by any insured” and “arising out of premises owned or rented to any insured, which is not an insured location.” But Tal and Rosemary argued that while the falling tree related to the rental property, the accident — which occurred while it was being cut up — did not. Tal Mims argued rather disingenuously that he was acting on his own behalf at the time of the accident and that he was not engaged in any business pursuit or employment.

Here’s the problem, the Court said. While throttling insurance companies is something courts do fairly often, the companies still are free to limit coverage so long as the limitations do not conflict with statutory provisions or public policy. The business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. Here, the Court said, the property on which the accident occurred was never listed in his homeowner’s policy, but instead happened on another piece of property that should have been covered by its own policy. Besides, the accident happened because Tal was removing a tree from the roof of the rental house. The Court guessed that if Tal had left the tree on the roof, it would have badly affected the value of the house.

That being true, the Court said, this was pretty clearly a project related to a rental property, and pretty clearly excluded from the Tal’s insurance policy, a happy ending for common sense but not so happy for Tal and Rosemary, both of whom hoped State Farm’s deep pocket would solve their problems.

Stills v. Mims, 973 So.2d 118 (La.App., 2007). Stills rented her home from Tal and Tommie Lee Mims. Tal operated a business named Tal’s Custom Landscaping, Inc. When a storm caused a tree to fall on the roof of the home. Stills informed Tal of the damage, and he came to remove the tree. In doing so, a limb fell from the roof onto the ground and injured Stills’ son, LeWilliam. Stills sued Tal and Tommie Lee Mims, and he added State Farm as a defendant. She alleged State Farm had in effect at the time of the accident a policy covering the Mims’ actions.

State Farm filed a motion for summary judgment asserting that the homeowner’s policy issued to Tal Mims was for his personal residence at 2508 Lindholm Street and that State Farm never issued a policy for 604 Central Avenue, where the accident occurred. State Farm asserted that the liability and medical payments coverages provided in the policy excluded bodily injury and property damage “arising out of the rental or holding for rental of any part of any premises by any insured” and “arising out of premises owned or rented to any insured, which is not an insured location.” The trial court granted summary judgment in favor of State Farm, finding no coverage under the Mims’ homeowner’s policy. Both Stills and the Mims appealed.

Held: The trial court’s dismissal of State Farm Insurance was upheld. Stills argued that her claim was based on the Mims’ negligence in cutting the tree down, and not on any property defect, making the insured location issue irrelevant. Both Stills and the Mims asserted that the business pursuit exclusion did not apply, because the Mims’ actions fell under the exception for activities ordinarily incident to non-business pursuits.

Mims denied being in the business of renting homes. He claimed that he was acting on his own behalf at the time of the accident and that he was not engaged in any business pursuit or employment. The Court noted that insurance companies are free to limit coverage so long as the limitations do not conflict with statutory provisions or public policy. Exclusions must be strictly construed against the insurer with any ambiguities construed in favor of the insured. The insurer bears the burden of proving the applicability of an exclusion to a claimed loss.

The Court said that the business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. For example, the commercial risks of a business would typically be covered by a commercial liability policy, whereas the risks associated with a rental dwelling would typically be insured by rental property insurance. The removal of the risks associated with business enterprises or rental properties helps to lower the rates of homeowner’s insurance by eliminating non-essential coverages.

Stills and the Mims argued that her claim did not arise from any business pursuit by the Mims, but rather, the claim was based on the Mims’ personal liability and involved activities that were ordinarily incident to non-business pursuits. They cited Blue Ridge Insurance Co. v. Newman — where the Court found that such a tree mishap was covered by a homeowners’ policy – in support of their position. But the Court said Blue Ridge was different. First, plaintiff Newman’s property on which the tree was located was insured under his homeowner’s policy. Here, the house leased by Stills was not insured under the Mims’ State Farm policy. The Mims were not seeking coverage for an accident that occurred on Tal’s insured residence, but instead, the Court held, he sought to have his homeowner’s insurance cover an incident that occurred on an unrelated rental location that should have been insured by some other policy. The very purpose behind the business pursuits exclusion, the Court said, supported a finding of no coverage.

Second, in Newman, the defendant’s property had been his family’s home since 1965 and had only been rented to a friend for less than a year prior to when the accident occurred. In Tal Mims’ case, there was no indication that the Stills residence was anything other than a rental property.

Third, Newman’s house was vacant when the tree fell, whereas Stills and her son were residing in the Central Avenue home when the tree fell on it. Fourth, the damage in Blue Ridge arose when the tree from Newman’s property fell on a neighboring property. Here, the existence of the tree on the property and its falling during the storm did not cause the damage. Instead, young LeWilliam’s injury arose from Mims’ removal of the tree from the roof of the rental dwelling.

Finally, the Blue Ridge court’s major consideration was that the mere existence of the tree on the property had no bearing on the use of the property- as a rental. The fact that a tree fell on the roof of the rental home in this case, particularly if left there, would likely affect the suitability of Stills’ rental dwelling. While the existence, or maintenance, of a tree on Newman’s family property was an activity usually incident to non-business pursuits, Mal Mims’ removal of a fallen tree from the roof of a rental dwelling by Stills was clearly not.

Pretty clever argument, the Court conceded – but State Farm was not liable.

– Tom Root