Case of the Day – Thursday, August 15, 2024

Posted on August 15, 2024 by TLRoot tagged.

DO WE DETECT SOME HOSTILITY HERE?

This looks like hostility… but is it?

We all know the mantra of adverse possession — in order to establish that a party has obtained title to land pursuant to adverse possession, a party has to show that its possession of the land has been open, notorious, exclusive and hostile continuously for a period set by statute (from five to 21 years, depending on state law).

Likewise, we all have notions of what “hostile” means, and often real life isn’t like that. In today’s case, a small cemetery association had been using a gravel road it had gotten the right to by a poorly-drafted easement in an 1880 deed (the year James Garfield became president). The people who remembered the particulars of the easement were still nearby, although about six feet deeper in the ground than they had been back when it was first written.

The cemetery association had been dumping dirt on the land next to the easement, but stopped doing so when next-door landowner Calvin Coyer asked it to desist, because the cemetery wanted to be a “good neighbor” (and no doubt wanted Calvin to become a tenant as some point in the future. No hostility there. However, the Association still parked cars next to the gravel road, even while giving Cal permission to graze his herds there. But when the cemetery was finally compelled to sue to quiet title under the doctrine of adverse possession, Cal argued that nice guys finish last.

Because the Association always thought it owned the property, Mr. Coyer argued, it couldn’t have possibly possessed the land with any hostility. Not so, the Court of Appeals said. The “hostility” element of the doctrine of adverse possession is satisfied where the possessor thinks he or she owns it, or where he or she knows someone else owns it but intends to possess it anyway.

Thus, Malcolm Forbes was right! “Contrary to the cliché, genuinely nice guys most often finish first or very near it.”

Union Cemetery Ass’n of Crawfordsville v. Coyer, 162 P.3d 1072 (Court of Appeals of Oregon, 2007). The Union Cemetery Association operated a 3.69-acre cemetery surrounded by Calvin Coyer’s 81 acres of grazing land. Coyer’s land connects the cemetery to a 28-foot wide roadway that, in turn, connects to a public road by means of a 14-foot wide gravel road.

The 100-year-old gravel road provides the only access from the public road to the cemetery. The Association received a deed in 1880 for a “right of way for a wagon road” as to a portion of the gravel road in 1880 and to another parcel of property. In the final sentence of the deed, the grantors stated that they “hereby relinquish and quitclaim all our right, title and interest in said premises.” However, the sentence did not specify whether the described “premises” included the “right of way” which became the gravel road or whether the “premises” consisted solely of the other property conveyed under the deed.

Before Coyer acquired the land in 1991, the Association piled dirt on the lot. Coyer asked the Association to stop doing so, and the Association complied, even posting a sign that prohibited dumping. Association members believed the Association owned the subject property and, as a good neighbor, the Association gave Coyer permission to corral cattle and park farm equipment on the property in a way that did not conflict with the use of the road by cemetery traffic.

Inevitably, a dispute arose, and the Association filed an action for quiet title, seeking a declaration that it owned the entire subject property in fee simple based on either a conveyance or adverse possession. After trial, the court found that, by virtue of the 1880 deed, the Association held title to an 18-foot roadway and owned the remaining 22-foot width of the subject property by adverse possession or, in the alternative, that the cemetery had established an easement by prescription over the entire subject property. Coyer appealed, challenging the conclusion that the Association’s possession of the land was hostile.

Held: The Association owned the land by adverse possession. The Court noted that in an adverse possession action, a party seeking to establish ownership by adverse possession must prove by clear and convincing evidence that, for a 10-year period, it or its predecessors maintained actual, open, notorious, exclusive, hostile, and continuous possession of the property.

The requirement for actual use is satisfied if the plaintiff establishes a use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suited. A use is “open and notorious” if it is of such character as to afford the owner the means of knowing of the use and the adverse claim. A use is “hostile” if the plaintiff demonstrates a subjective intent to possess the property, intending to be its owner and not in subordination to the true owner.

To establish hostility, an adverse possession claimant must show either that its possession of the disputed property was under an honest but mistaken belief of ownership, or that the possessor subjectively intended to possess the property intending to be its owner. Here, the Court ruled, the testimony of the Association’s board members that they believed the Association owned the 40-foot strip of land, but as a good neighbor, gave Coyer permission to corral his cattle and park farm equipment on the strip in a way that didn’t conflict with the Association’s use of the road for cemetery traffic, was sufficient to show that the Association believed — even if mistakenly — that it owned the property. That established hostility for purposes of the adverse possession claim.

– Tom Root

Case of the Day – Wednesday, August 14, 2024

Posted on August 14, 2024 by TLRoot tagged.

LIS BLUDGEONS

If you’re suing a neighbor because you claim title to a piece of her property, the last thing you want to see happen is for her to sell it to the Little Sisters of the Poor before your lawsuit is completed. The neighbor makes off with the money from selling your property, and when you finally win, you have the sticky PR problem of the bailiff dragging a gaggle of nuns off your land while TV crews report your heartlessness live on CNN.

It was for precisely this reason — well, maybe not precisely for this reason — that the law has developed a mechanism known as lis pendens. A lis pendens — literally, “lawsuit pending” – is a filing with the office of the county responsible for deeds (often the county recorder) that places the world on notice that litigation is going on that relates to ownership of the piece of land at issue. Practically speaking, the filing will send prospective buyers and lenders fleeing for the next county.

The purpose of lis pendens is laudable: it keeps wily defendants from transferring interests in land that is subject to a lawsuit, so a plaintiff doesn’t have to endlessly sue new buyers and lessees in order to collect on a judgment. But like with any reasonable and necessary mechanism, there are those who — as the legendary trickster Dick Tuck would have said — want to run it into the ground.

In today’s case, the plaintiff sued the defendant over a large tree on the boundary between their properties, alleging that it had been negligently trimmed to lean onto their property, that it constituted a “spite fence,” and that its size and location constituted a nuisance. Of interest to us was the last allegation, that in a prior lawsuit between the parties, the defendant’s lawyer had filed a lis pendens on the plaintiff’s lot that caused a sale to fall through. The plaintiffs said that the lis pendens — which a court had later thrown out — constituted a tort known as “slander of title.” This was so because the underlying litigation had nothing to do with whether the defendant claimed title or the right to possess the plaintiff’s property. Defendant’s lawyer filed it simply as a club with which to bludgeon the plaintiffs, as part of a take-no-prisoners litigation strategy.

The defendant’s lawyer argued the slander of title had to be dismissed because as counsel for the other side, he owed no duty to the plaintiffs. The California court conceded that he didn’t, but said that was irrelevant: slander of title is an intentional tort (like a judge hauling off and slugging a public defender). Unfortunately, the Court said, the plaintiffs’ pleading wasn’t very well written, and the Court couldn’t be sure that they had alleged malice. The more prudent course, the Court thought, was to offer them a chance to amend their complaint to make clear that they were alleging the defendant’s attorney had acted maliciously.

Castelanellis v. Becker, 2008 Cal. App. Unpub. LEXIS 165 *, 2008 WL 101729 (Cal. App, Jan. 10, 2008). The Castelanellis owned real estate in Humboldt County. They sued the owner of the neighboring home, Kristine Mooney, and her lawyer Thomas Becker, alleging that on the border between their unimproved lot and Mooney’s property, “a large tree” curves from the bottom portion of its trunk toward the Castelanellis’ property and takes up so much space that “the subject property cannot reasonably be developed as a residential property.” They also claimed that Mooney’s house tree blocked light to the tree and caused the tree to grow almost exclusively over their property and that Mooney had trimmed or negligently maintained the tree to contribute to its “odd and unusual angle.”

The complaint maintained that the tree constituted a spite fence within the meaning of California law, and was “maliciously maintained for the purpose of annoying the plaintiffs and in an attempt to gain ownership of plaintiffs’ land at less than fair value.” The complaint alleged nuisance, trespass, tortious interference with contractual relations, and tortious interference with economic relations. The Castelanellis alleged that Mooney sought to “purchase plaintiffs’ property at below fair market value” and had “threatened legal action if plaintiffs trimmed the subject tree in order to make their property capable of being developed and sold.” Finally, they alleged that Mooney and Becker published “false statements” in a lis pendens filed as to the Castelanellis’ property, and this lis pendens — later thrown out by another court — had prevented the Castelanellis from selling the property. The trial court agreed that because Mooney and Becker owed the Castelanellis no duty, there could be no slander.

The Castelanellis appealed.

Held: The Castelanellis had made out an adequate cause of action against Attorney Becker. A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged, called a lis pendens. Such a notice places a cloud on the title and effectively keeps any willing buyer from wanting to close on a transaction until the lis pendens is cleared. In order to be privileged, so that no party may later sue a party or its attorney for filing such a notice, a notice of lis pendens must both (1) identify a specific action “previously filed” with a superior court and (2) show that the previously-filed action affects “the title or right of possession of real property.

In this case, the notice of lis pendens clearly identified that it was signed and filed in conjunction with litigation involving a tree growing upon a shared property line. But nothing in the record enabled the Court to determine that litigation involved the “right of possession” of either of the two properties involved in that litigation. If it did, a litigation privilege clearly applied, and the action against Attorney Becker could not stand.

Becker argued that he had no duty to the Castelanellis, and he could, therefore, not be sued by them. The Court pointed out that this would be true if the action were based on negligence. However, the action was an intentional tort, like the tort of malicious prosecution, and there need not be a duty of care owed to the victim by the perpetrator before an intentional tort can be inflicted. The Court said that while an attorney cannot be liable for negligence to a formerly adverse party, that rule does not exempt the attorney from liability for malicious prosecution.

The tort of slander of title does not rise to the level of either malicious prosecution or abuse of process. The elements of the tort have traditionally been held to be publication, falsity, absence of privilege, and disparagement of another’s land which is relied upon by a third party and results in a pecuniary loss. Slander of title does not include express malice as an intrinsic factor. Here, while the Castelanellis did not specifically plead malicious prosecution in their amended complaint, that complaint does include allegations that the actions “were done knowingly, willfully, and with malicious intent.” The allegations seemed to the Court sufficient to inject into the slander of title cause of action an allegation of malice, even as to attorney Becker.

punch In any event, the Court said, the law is clear that in evaluating a complaint against a general demurrer, it is not necessary that the cause of action be the one intended by the plaintiff. The test is whether the complaint states any valid claim entitling the plaintiff to relief. Thus, the plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.

The Court held that the absence of any suggestion in the Castelanellis’ opposition to Becker’s demurrer that they either wished to amend or intended to plead some sort of intentional tort via their fifth cause of action left the Court reluctant to rule that the trial court abused its discretion by sustaining the demurrer without leave to amend. Under all the circumstances, the Court thought the better course of action was to remand this matter to the trial court with instructions to consider whether any intentional tort — as distinguished from a claim of negligence — was in fact pled by the Castelanellis and (2) if not, whether the Castelanellis wish to and can plead a valid intentional tort cause of action against Becker regarding the allegedly improper lis pendens.

– Tom Root

Case of the Day – Tuesday, August 13, 2024

Posted on August 13, 2024 by TLRoot tagged.

POUNDING ON THE TABLE

The old trial strategy aphorism recommends that “if your case is weak on the law, pound on the facts; if it’s weak on the facts, pound on the law; and if it’s weak on the law AND facts, pound on the table.”

It doesn’t always work all that well, as our hapless landowners in today’s case, the Wimmers, found out.

“Wimmers” rhymes with “winners,” which is ironic given the outcome in this case. It seems the Wimmers owned land for which they had given the electric utility an easement for its power lines. That’s pretty common – anywhere power or communications lines cross over land, or pipes run under the ground, there’s probably an easement involved. The easement in the Wimmers’ case let Ohio Edison trim and remove trees as needed to keep vegetation clear of the lines.

The Wimmers didn’t want to see much of their foliage cut away, and because trimming and removing trees costs money, the utility didn’t want to do more than was absolutely necessary. Thus, there was a happy confluence of interest that continued for years.

Then came August 14, 2003. Some high-voltage transmission lines owned by the same Ohio Edison – hot from weather and the high electrical demand of the day – sagged into untrimmed trees just south of Cleveland. Three lines shorted out simultaneously. Normally, such a condition would have tripped an alarm at a monitoring center, letting technicians redistribute the load. But a bug in the software permitted what engineers call a “race condition,” and the alarms didn’t sound. The result was a cascading power failure that became the great North American Blackout of 2003, affecting 55 million people on the eastern seaboard and midwestern United States, as well as the province of Ontario.

After that day, everything changed. The public fumed, the media chastised, politicians fulminated. Changes had to be made. Ohio Edison was understandably humiliated by being the utility whose poor vegetation management started it all. Suddenly, occasional and desultory tree trimming became much more scorched earth. For the Wimmers, that meant that the power company’s crews showed up at their place one day to clear-cut the entire easement.

The family took exception to the plan and sued to stop it. While their case was wending its way through the courts – not very satisfactorily to them, because Ohio Edison was winning every step of the way – the Ohio Supreme Court handed down its decision in Corrigan v. Illuminating Co. (which we, being the thorough types that we are) have discussed previously. Corrigan held that vegetation management issues fell within the exclusive jurisdiction of the Public Utilities Commission of Ohio. Common pleas courts had no authority to decide whether tree trimming and removal within easements was prudent or unduly robust.

The Wimmers recognized a break when they saw one, and promptly took a mulligan. Sadly, they fared no better before PUCO than they had in the state court system. That might be because Ohio Edison rolled out the IEEE standards for vegetation management to an expert witness who had inspected the easement, could identify the individual trees involved, and had facts and figures at her fingertips on the risk each tree posed to the power lines.

There wasn’t any question that the easement permitted Ohio Ed to cut down trees. The only issue was whether it was reasonably necessary. The Wimmers didn’t have any facts to counter the power company’s showing. They didn’t have any compelling legal arguments. All their lawyer could do was pound on the table, and argue that it was speculative that the trees would grow to be a hazard to the power lines.

Well, sure… the expert was only speculating that the trees would grow and that they would reach the average height for that kind of tree, and for that matter, that there would ever be a high wind or ice storm that would cause them to ensnare the electric lines. Likewise, it’s speculation that the sun will rise in the morning, based on nothing more than a sheer guess loosely based on the fact that it’s done so for the past 1.6 trillion days since the earth was formed. You see where this is going?

Neither PUCO nor the Ohio Supreme Court – which reviewed the agency’s denial of the family’s complaint – was impressed with the Wimmers’ defense. “Who are you going to believe – me, or your own eyes?” their lawyer seemed to argue. The Commission and the Court both answered that question. Actual evidence carried the day.

Pound on the table, indeed.

Wimmer v. PUCO, 131 Ohio St.3d 283, 964 N.E.2d 411 (Sup.Ct. Ohio, 2012). Ohio Edison owned a transmission-line easement running over the Wimmers’ property. For years, Ohio Edison – in accordance with the company’s general policy – trimmed and, once in a great while, removed trees growing in the easement. However, its policy changed after the 2003 Northeastern United States blackout. When the company tried to remove all of the trees in the easement, the Wimmers sued to stop it. They went to court, where Ohio Edison won. But before the decision was final, the Ohio Supreme Court ruled in Corrigan v. Illuminating Co. that PUCO, not a court, was required to decide whether removal was reasonable.

The area of North America affected by the 2003 Blackout is marked in red.

The Wimmers then took their complaint to PUCO. After an evidentiary hearing, the commission ruled that Ohio Edison could remove the trees.

The Wimmers appealed.

Held: Ohio Edison was permitted to remove the trees. The Supreme Court held that there was “no question that the company has a valid easement,” that “the tree is within the easement,” and that the easement “grants the company the right to remove any tree within the easement that could pose a threat to the transmission lines.”

The Wimmers nevertheless argued that PUCO’s decision that the circumstances permitted Ohio Edison to remove the trees was not reasonable. They argued that Ohio Edison failed to present evidence that their trees “may interfere with or endanger the utility’s transmission lines.” The Wimmers maintained that the utility’s evidence was “long on Ohio Edison’s fear and speculation and short on hard facts.”

The Court disagreed. It found that evidence presented to the commission showed that “the vegetation in question has the genetic disposition to grow to heights tall enough to potentially interfere with” the power lines, and that Ohio Edison “reasonably determined that this vegetation may interfere or threaten to interfere with the transmission line and should be removed.” The utility had presented an expert witness who had described the trees growing in the right-of-way – which she had personally examined – and explained that their average mature heights were well above the height of the power lines. She had testified that “even with continuous trimming and pruning, at least one tree had already grown to within four feet of the line, in violation of the National Electrical Safety Code, which is published by the Institute of Electrical and Electronics Engineers and sets the industry-accepted safety standards.“

The Wimmers didn’t present any contrary evidence or challenge the Ohio Edison witness’s credentials, but rather just complained that her testimony was speculative. In order to overturn PUCO’s determination, the Wimmers had to show that the decision was “so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty.” They did not come close to doing that.

The Ohio Supreme Court did, however, “note with approval the commission’s admonition that Ohio Edison ‘attempt to minimize the impact to property owners, to the extent possible and without sacrificing safety and reliability, when performing [utility-vegetation-management] activities’.” The Court dryly observed that “Ohio Edison must comply with the commission’s order.”

– Tom Root

Case of the Day – Monday, August 12, 2024

Posted on August 12, 2024 by TLRoot tagged.

OOPSIE!

Anyone can make a mistake. Or two.

Consider today’s case on mutual mistake. Mutual mistake is a doctrine that started with a barren cow with a fancy name, Rose 2nd of Aberlour (popularly mislabeled as “Aberlone”), in the case of Sherwood v. Walker, the classic case on mutual mistake in contract law. Well, maybe it didn’t start there, but a generation or two of law students think it did. Wherever it started, the doctrine remains alive and well.

In today’s decision, Mr. Thomas entered into an easement with Ohio Power to let the company string lines across his place to service his neighbor’s new house. But it turned out the house was in another power company’s service area, something no one figured out until after Ohio Power had sliced up Mr. Thomas’s trees. Thomas sued Ohio Power to rescind the easement and for damages, claiming mutual mistake. The trial court disagreed, but the Court of Appeals threw out the easement.

The Court’s most important point was this: maybe Thomas and his neighbor Baker didn’t know where the electric service boundary lay. But after all, they weren’t in the power binness. Why should they know? Ohio Power, on the other hand, was just plain sloppy in not recognizing the problem. In Court-speak, “the equities of this situation show that Ohio Power, as the company in the business of providing electric power, was in a much better position than the Thomases to discover the mistake.”

In order to provide grounds to rescind (undo) a contract, the mistake must be mutual. The Battle of New Orleans was a mutual mistake – Andy Jackson thought we were at war with the British, and British Admiral Thomas Cochrane thought they were still at war with the U.S. Meanwhile, on the mythical planet of Tatooine, it appears that the mistake was not mutual – Obi-wan Kenobi was fully aware that the droids he was with were indeed the droids the stormtroopers were looking for, but he led the storm troopers to believe otherwise. Not a mutual mistake at all.

Thomas v. Ohio Power Co., 2007-Ohio-5350, Ohio App. LEXIS 4715, 2007 WL 2892029 (Ct. App. Carroll Co., Sept. 27, 2007). The Thomases owned 159 acres of property in Augusta Township. Right next door was land owned by Brent Baker. The Thomas property is within the area served by Ohio Power Company, but the Baker property is served by Carroll Rural Electric Power. Neither of the power companies may provide power to the area assigned to the other without the consent of both companies and the affected customer.

Baker asked Thomas for permission for Ohio Power to take an easement across the Thomas property to bring power to a house Baker planned to build. Thomas agreed. As a result, an easement was executed, and Ohio Power — in reliance on the easement — cut and cleared many trees on the Thomas property and along the neighboring road. But then Baker found out the house wasn’t in the Ohio Power service area, and the other power company wouldn’t permit Ohio Power to provide service to him, frustrating the purpose for the easement. The Thomases sued Ohio Power, seeking rescission of the easement contract and damages. The trial court concluded that the easement was valid and, therefore, not subject to rescission.

The Thomases appealed.

Rose, not barren at all, was worth about 12 times what farmer Sherwood sold her for.

Held: The parties had made a mutual mistake, and the contract should be rescinded. Mutual mistake is grounds for rescission of a contract if there is a mistake made by both parties as to a material part of the contract, and where the party complaining is not negligent in failing to discover the mistake. A mistake is material to a contract when it is “a mistake … as to a basic assumption on which the contract was made [that] has a material effect on the agreed exchange of performances.” Thus, the intention of the parties must have been frustrated by the mutual mistake.”

In order to claim mutual mistake as a basis for rescinding a contract, a complaint must allege (1) the existence of a contract; (2) a material mutual mistake by the parties when entering into the contract; and (3) no negligence in discovering the mistake on the complainant’s behalf. Here, the Court said, the purpose of the easement was to provide electric power to the Thomases’ neighbor. Both the Thomases and Ohio Power believed Ohio Power could provide electric power to that neighbor, but they were both mistaken about that fact. Ohio Power was in a better position to know that this belief was mistaken than the Thomases, and thus, the Court held the contract should have been rescinded at the Thomases’ request.

– Tom Root

Case of the Day – Friday, August 9, 2024

Posted on August 9, 2024 by TLRoot tagged.

UNSNARLING DUTIES

When negligence rears its ugly head, compensation usually depends on the extent of the duty owed the victim by the party whose pocket the injured plaintiff seeks to pick. Take Tim Jones, an experienced cable television installer. One cold day in the bleak midwinter, he climbed an Indiana Bell pole to work on a cable installation. On the way down, he grabbed a phone line instead of a ladder rung. Not being intended as a support structure, the line gave way, and down Mr. Jones went.

Having no evidence that Indiana Bell knew the line was defective and likely to fall away from the pole, Mr. Jones did the only thing he could do – he sued anyway. Finding a defendant with money – always the aim of a negligence action – was a little daunting, because the only target with money was Indiana Bell, the owner of the pole, hadn’t ever hired Mr. Jones. Instead, I-Bell just rented pole space to the cable company, which in turn hired the company that employed Jones. So what duty did the telephone company owe Jones in this totem-pole relationship?

Not that much of one, as it turned out. Mr. Jones lost his case, but the Court of Appeals took the opportunity to clarify the duty an easement holder has to invitees on the easement. The lesson is one that a utility holding an easement for, say, power lines, might owe to the employee of a tree-trimming service brought in to keep the easement clear of vegetation.

Jones v. Indiana Bell Telephone Co., 854 N.E.2d 1125 (Ind.App., 2007). Timothy Jones was performing a cable equipment upgrade for Sentry Cable, a cable TV provider. Jones – who had been doing this type of work for about 20 years and knew the associated dangers of the occupation – was working as a subcontractor on this project. He was wearing the appropriate safety equipment.

The plucky old Field Marshal might have been Jones' lawyer here ... but the attack failed nonetheless.

The plucky old Field Marshal might have been Jones’ lawyer in this case … but the legal attack on the easement holder failed nonetheless.

Jones climbed a telephone pole owned by Indiana Bell, in order to access the cable TV line, which was located about a foot above the telephone line. On his way down, he grabbed the telephone line like it was a ladder rung. It wasn’t. It broke free, and Jones fell 20 feet to the ground, breaking his ankle. Jones sued the phone company for negligence.

At trial, Jones admitted he hadn’t observed any problems with either the telephone line or the clamp assembly. He also admitted he had no evidence that Indiana Bell knew that there was anything wrong with the pole, telephone line, or clamp assembly. Indiana Bell moved for judgment “based upon the … absence of any evidence of a breach of duty as the duty is established in Indiana law.” The trial court found Indiana Bell had no duty to Jones and granted judgment to the phone company.

Jones appealed.

Held: Indiana Bell owed Jones nothing.

The Court observed that to prevail on a theory of negligence, Jones had to show Indiana Bell owed him a duty, it breached the duty, and his injuries were caused by the breach. Whether a defendant owes a duty of care to a plaintiff is a question of law for the court to decide. Whether an act or omission is a breach of one’s duty is generally a question of fact for the jury, but it can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts.

The parties and the Court focused on the Indiana Supreme Court’s opinion in Sowers v. Tri-County Telephone Co., which involved a telephone utility, the employee of an independent contractor, and a discussion of both duty and breach. In Sowers, the telephone company hired Covered Bridge Tree Service to trim trees located near its telephone lines and clear a right of way in order to ease the work of crews mounting cable television lines on the same poles. While trimming trees, a Covered Bridge employee fell into an abandoned manhole.

The phone company did not own the land on which the manhole was located, but it had a prescriptive easement on the land. Sowers sued Tri-County for negligence, and the trial court granted summary judgment in favor of Tri-County. The Sowers court held that a landowner or occupier is under a duty to exercise reasonable care for the protection of business invitees and that the employees of independent contractors are business invitees. The court held that Tri-County did not have a duty to inspect and warn and that the boundaries of Tri-County’s duty of reasonable care to its business invitees “must be defined from the utility’s own use of the easement.”

But here, the Court said, the facts of Sowers were distinguishable (which means that they make the case different, not that there was anything especially celebratory about them). There, the telephone utility itself hired the tree service company, whose employee was then injured while on the telephone utility’s easement. In this case, however, Indiana Bell just rented space on its telephone poles to the cable company, whose subcontractor was then injured on Indiana Bell’s telephone pole. Still, the Court said, the policy reasons articulated in Sowers apply to this case, making the duties owed the same. Sowers first acknowledged that a telephone utility is a special breed in that it is not a traditional landowner or occupier. In addition, it acknowledged that a telephone utility does not often access its property except for the occasional necessity to effect repairs. Because of these facts, Sowers concluded that a great burden would be placed on a telephone utility if it were required to conduct regular inspections of its property for the sole purpose of discovering possible hazards.

Applying Sowers here, the Court concluded that Indiana Bell owed a duty of reasonable care to its invitees – including Jones – but the duty did not include the duty to inspect and warn. However, to the extent that Indiana Bell learned of dangerous conditions on its poles, it had a duty to warn its invitees. The evidence did not show Indiana Bell had any actual knowledge of the dangerous condition, meaning that the trial court properly entered judgment on the evidence in favor of Indiana Bell.

– Tom Root

Case of the Day – Thursday, August 8, 2024

Posted on August 8, 2024 by TLRoot tagged.

I DON’T REALLY LIKE YOU

How many of us, while standing in line at the DMV or quaking with fear in front of an IRS auditor, worry about what might happen to us if we somehow offend one of these officious little paper pushers?

Need a building permit? Kiss my ring, peasant! Don’t like your property valuation? Let’s see you do something about it! Want the city to do something about a dangerous tree overhanging the street? What’s it worth to you?

Is there anyone who hasn’t wanted to unload on some governmental employee whose only purpose in life seems to be stealing the oxygen needed by people who actually create value? We read about it all the time – IRS workers sitting on applications filed by people they don’t like. Building inspectors who demand some grease for their palms in order to get anything done. Small-town cops riding someone they don’t like. Presidents demanding vigorish for ordering the sale of a foreign-owned business to a U.S. company. But what can you do about it?

John Mangino thought he knew. He bought some rental units in Patchogue, New York, and rounded up tenants to live there. He bought his local permit to be a landlord, too. But when it was time to renew two years later, John decided he shouldn’t have to buy a piece of paper from the local government in order to manage his own property.

The City issued misdemeanor summonses to Mangino to force him to give them his money. He responded with a blunderbuss lawsuit challenging everything he could think of related to the rental permit program. The Village raised the stakes, telling him in so many words that it would make his life as a landlord a regulatory hell if he didn’t cave on the permit.

Need the assistance of a government functionary? Kiss the ring …

Finally, the Village made good on the threat. When one of Mangino’s tenants complained to the Village that her electrical outlets were sparking, the inspectors headed to the apartment building to inspect (which is what inspectors do). Mangino wouldn’t let them in without a warrant. The inspectors called the fire department, which stormed the place – sirens blaring – to look for the electrical short. They didn’t find any sparks, but the smoke-eaters found a passel of housing violations that – along with a cascade of criminal charges for not buying the rental permit – landed on Mangino’s head.

Mangino sued the Village under a Federal law – 42 U.S.C. § 1983 – that lets a person sue state and local officials for violating one’s constitutional rights under color of state law (that is, when a local official misuses the law to give someone the shaft). Mangino claimed that Village inspectors tried to shut him up in violation of the First Amendment, and engaged in abuse of process, by misusing the housing code to retaliate against him because they just didn’t like him.

The District Court threw out the case, holding that because the summonses for not buying a rental permit were based on probable cause – that is, the charges were righteous because he really did break the law – the fact that they may have been intended to shut him up didn’t matter.

As far as the abuse of process claim, the law was not clear whether probable cause would likewise defeat such a claim. In other words, it could be that if there was reason to believe he had broken the law, there could not be an abuse of process. Or maybe there could be. But because the law was unsettled, the officials were entitled to immunity from prosecution. Only if the law is clearly established and an official breaks it anyway will the government employees be liable to us common folk. It’s called qualified immunity, and it has a pretty bad reputation these days… one that is richly deserved.

Sadly, the rule is to smile at all those miserable little twits, grit your teeth, and show fealty. The alternative is too expensive and uncertain to contemplate.

Mangino v. Village of Patchogue, 808 F.3d 951 (U.S. Court of Appeals for the 2nd Circuit, 2015). About 20 years ago, John Mangino and his wife bought an apartment building in Patchogue, New York. When they got the place, they applied for a two-year rental permit and began renting apartments to tenants. When his permit expired in, the Manginos did not bother to renew it.

There was some suggestion in the case that Mangino might have had some substandard rental property.

In January 2005, James Nudo, the Patchogue Housing Inspector, issued criminal summonses to the Manginos for continuing to rent out apartments without a rental permit. Mangino challenged in court these summonses and their manner of service, as well as the validity of the Village’s rental-permit law.

Mangino said that, in response to his lawsuit, the Village prosecutor threatened him that if he did not settle his litigation against the Village or accept a plea bargain on the criminal charges, he would be “hit with a barrage of summonses.”

A few months later, one of Mangino’s tenants asked the Village Housing Department to check the power in her apartment. Nudo answered Gucciardo’s call, and later reported Gucciardo had told him she feared that the conditions in her apartment, which included electrical problems, would result in a fire. Gucciardo called again a few days later to complain that the outlets in her apartment were sparking. A Village inspector went over to the apartments immediately, but Mangino refused to let him in without a warrant. The inspector told Mangino that he’d call the fire department if he wasn’t allowed in. Mangino still refused, so the inspector called in an “all encompassing general alarm.”

When the Village firemen arrived, they inspected the building, including Gucciardo’s apartment and the basement. They did not find any sparking or arcing outlets in Gucciardo’s apartment, but they did notice two fire protection code violations. The firefighters called in the inspector, who was waiting outside. He cited Gucciardo for the conditions and required him to get them fixed within 90 days.

A few days later, inspectors returned to inspect Gucciardo’s apartment with her consent. On the same day, they issued 18 separate summonses to Mangino for a variety of alleged violations of the Village Code. A few weeks later, Mangino was served with additional summonses dated August 5, 8, 9, 11, 12, 13, 14, 15, and 16, for failure to renew his rental permit on those dates. Although Mangino admits that he did not have a rental permit in August 2005 and that he continued to rent apartments in his building during this time, all of the summonses issued to him for violation of the Village’s rental-permit law were ultimately dismissed.

Mangino sued Village officials under 42 U.S.C. § 1983 for violating his First and Fourth Amendment rights. Mangino’s sole First Amendment claim was for retaliation and his Fourth Amendment claims included abuse of process and warrantless entry. The District Court dismissed Mangino’s retaliation claim because he hadn’t shown that the Village’s allegedly retaliatory conduct chilled the exercise of his First Amendment rights. The District Court dismissed Mangino’s Fourth Amendment abuse-of-process claim on the ground that Village officials enjoyed qualified immunity against such claims. Mangino’s warrantless entry claim went to trial, where the jury found against him.

Mangino appealed.

Held: Mangino loses.

The Court of Appeals held that the District Court was wrong to dismiss the First Amendment retaliation claim because Mangino hadn’t proved that his speech was “chilled,” that is, that the retaliation caused him to curtail his speech. Rather, the Court of Appeals said Mangino had standing to sue if he could show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.

However, the Court said, “the existence of probable cause will defeat … a First Amendment claim that is premised on the viol151228 allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence him. Here, there was probable cause for each of the criminal summonses issued to Mangino, and Mangino admitted as much. Because there was probable cause, the District Court was right to dismiss Mangino’s First Amendment retaliation claim insofar as it is premised on the summonses.

But Mangino’s First Amendment retaliation claim was also premised on the investigator’s issuance of the non-criminal fire protection code violation tickets. Because those were civil matters, probable cause cannot defeat Mangino’s First Amendment claim. But the fact that the tickets were justified – and that the regulatory action, even if unjustified, was not significantly more serious than other actions the Village had the discretion to take.

The Court of Appeals held that Inspector Nudo was entitled to qualified immunity on the abuse of process claim. A governmental official is entitled to qualified immunity when there is no clearly established right that he or she violated by the conduct at issue. The Court of Appeals held that here, it was not clearly established that probable cause was not a complete defense to a claim of abuse of process. Since the Village’s citation of Mangino had occurred, case law had suggested that abuse of process is “misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish.” In other words, an improper motive for doing something that is otherwise proper may be enough to establish abuse of process.

The Court of Appeals did not decide which standard was right. Instead, it held that the precise definition was not established at the time the Village cited Mangino, and where the state of the law is not clearly established, Mr. Nudo and the other Patchogue officials were entitled to immunity. The Court said, “If the district judges in the Southern District of New York, who are charged with ascertaining and applying the law, could not determine the state of the law with reasonable certainty, it seems unwarranted to hold … officials to a standard that was not even clear to the judges …”

– Tom Root

Case of the Day – Wednesday, August 7, 2024

Posted on August 7, 2024 by TLRoot tagged.

SO WHAT’S THE DAMN PROBLEM?

Poor Capital One. First, the bank wore us out with Alec Baldwin — fresh from beating the rap for shooting and killing a cinematographer on the Rust movie set — and his band of pillaging Vikings, all hawking Capital One credit cards with the annoying tagline, “What’s in your wallet?”

Then it was Samuel L. Jackson, who lectures us in a mildly imperious way about how he is not amused by some credit card offers, like we care whether he’s amused or not. Initially, he promised credit card rewards “every damn day,” and you’d think the republic was collapsing. Wasn’t this the guy who spoke so colorfully about snakes on a plane? No matter – angry customers threatened to close their accounts over his use of the word “damn.” Capital One promptly folded like a cheap suit and edited the offensive word out of the ad.

It sort of makes you long for the Viking horde. Or for Jennifer Garner. We definitely prefer perky Jennifer Garner, especially when she’s paired with her father. Certainly, we can play on the Capital One question and ask ‘what’s in your file cabinet?’ That may be a lot more important than whether you have an American Express Centurion card, a Capital One VISA, or even just a SNAP card in your wallet. There are probably people who have all three in their wallets, anyway.

All of that brings us to today’s case, where a conspiracy buff ran headlong into a City of Omaha tree-trimming crew. It seems that Ms. Richter didn’t think much of the City trimming her trees. She approached the crew to lodge her protest, only to find no love. In fact, one of the workers told her (in colorful language, perhaps) to step away from the truck. She did so, tripping on a hole in her tree lawn.

A “grassy knoll” fan, Ms. Richter claimed that the hole obviously had been created by the City’s removal of a street sign, which was mysteriously replaced sometime soon after the accident. It didn’t help the case that the City had a habit of destroying work orders on sign replacement several years after the work was done, and so couldn’t completely rebut her claims.

Lucky for Omaha (home to famous steaks and once known for its mention in quarterback cadences), the Nebraska Supreme Court was little impressed by Ms. Richter’s “I-believe-it-so-that-proves-it” approach to the case. It held that the City’s normal-course-of-business document destruction wasn’t an effort to hide the “truth” Ms. Richter so badly wanted to be. Omaha prevailed.

Still, there’s a lesson here for businesses — sometimes, when it comes to document preservation, what’s in your file cabinet had better be more rather than less.

And a note to Alec Baldwin – consider limiting your roles to rom-coms.

Richter v. City of Omaha, 729 N.W.2d 67, 273 Neb. 281 (Sup. Ct. Neb., 2007). A city work crew was trimming overhanging branches from a tree located in front of Ms. Richter’s home. Ms. Richter walked outside and asked the workers to stop trimming the trees. The workers refused and told her to back away from them and their truck. As Richter backed away, she stepped into a hole with her right foot and fell to the ground, injuring her ankle and twisting her knee.

The Nebraska Supreme Court did not tell Ms. Richter to “chive on.”

The hole in which Ms. Richter fell was located in a grassy area between the street and the sidewalk in front of her residence. Although this section of land is a public right-of-way, Richter was responsible for maintaining the area. She claimed the City had removed a sign sometime prior to the accident, thus creating the hole, but replaced it sometime thereafter. City records — while nonexistent for periods of time prior to the accident — showed no change in signage at the location during the relevant period.

Not to be detained by the facts, Ms. Richter sued under the Political Subdivisions Tort Claims Act. She alleged that the City was negligent in failing to warn the public of a dangerous condition, failing to provide safe passage of a right-of-way, and failing to exercise due care in the operation of its business. The trial court found in favor of the City, holding that the evidence was insufficient as to how the hole came to be, when it came to be a hole, and whether the City knew of this hole prior to Ms. Richter’s injury. There was insufficient evidence that the City caused the hole or that it knew it was there so it could be repaired in a timely manner.

Richter appealed.

Held: The City was not liable.

Ms. Richter said the evidence was “spoliated,” not “spoiled.” Either way, the Court said her argument stank.

Ms. Richter argued that Omaha had destroyed old work orders from years prior to the accident, and this conduct indicated fraud and a desire to suppress the truth. The Court disagreed, holding that she was not entitled to the adverse inference allowed under the rule of spoliation because the record indicated that the work orders were destroyed in the ordinary course of the city’s business. The Court said that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator; however, such a presumption or inference arises only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.

In order to be successful in her negligence claim, Ms. Richter had to establish, among other things, that the city created the condition, knew of the condition, or by the exercise of reasonable care, should have discovered or known of the condition. Other than her belief that this was so, she had no evidence to support her contention.

Sorry, Ms. Richter … you’re entitled to your own opinion, but not your own facts.

– Tom Root