Case of the Day – Tuesday, January 30, 2018

ELECTRIC BOOGALOO

There are all sorts of ways that tree trimmers can die. They can cut an artery, or fall from a bucket truck, or even get walloped by a branch. On occasion, they even get fried by electric lines.

None of it is pretty, either before or after the funeral. After the dust settles, the decedent’s estate (that is, the people the dead guy left behind) look for someone to sue. Usually the pickings are sparse. Maybe the bucket truck was defective, and the employer, the manufacturer and the mechanic who serviced it can be sued. Maybe it was a defective saw, and everyone who ever touched it can be a defendant. But negligence actions are expensive, and contrary to legend, they pay out a jackpot less often than a rigged lottery. Those lawyers on the back of phonebooks (there are still phonebooks, aren’t there?) and in the late-night ads? They won’t charge plaintiffs up front, but they’re pretty picky about which cases they’ll take.

Of all the potential defendants out there, you would think that an electric utility would be the toughest nut to crack. What, you’re going to sue because the overhead wires had electricity in them? C’mon, man.

But every once in a great while, the utility is found to be liable for essentially having done nothing. Such is the case in today’s decision, which – while it does not involve a tree – gives us an excellent principle to apply to arboriculture activities.

Cyril Cronk lost his life by electrocution while digging a ditch for a water main on the south side of Park Avenue in Des Moines, Iowa. Iowa Power and Light had electric transmission lines running overhead, and a backhoe boom got close to one of the lines. It turned out that the boom did not have to touch the line for high voltage to jump the air gap. When it did, and Cyril (down on the ground) touched the backhoe, he became the ground wire. Not good.

The three lower wires on IPL’s poles were not insulated, which was permitted by the electrical code that applied to the line, although insulating material was available for such lines.

As it turned out, IPL was on notice of the water main work, or as the court put it, “It was reasonably to be anticipated and the defendant either knew or should have known that men would likely be working in the streets with modern machinery, such as was used in this instance, for the purpose of excavating or digging ditches or trenches for the laying of water mains.”

But the power lines were clearly visible to the guys on the ground. And the lines were necessary for the public good, and the danger that would result coming in contact with such lines was hardly unknown. So the conclusion of the court that IPL was responsible for Cyril’s death is surprising. Maybe it was because the electric company had a deep pocket.

Tree trimmers find themselves working in proximity to power line frequently. Would putting the power company on notice ahead of time make Reddy Kilowatt a codefendant if the unthinkable happens? Regardless of whether it did or not, it would probably be a good idea, just for the extra level of safety power company participation in the project might bring.

Cronk v. Iowa Power and Light Company, 138 N.W.2d 843 (Supreme Court, Iowa, 1966). The deceased plaintiff on whose behalf the suit was brought, Cyril Cronk, had been a water works employee. He was working on the ground helping free a crane bucket when the boom came in contact with a high voltage transmission line and he was electrocuted.

The trial court found liability strictly on the utility company’s failure to warn of the danger or insulate the wire after the utility company was fully aware the work was going to be done near the line and the company had time to give a warning or insulate a wire. Defendant Iowa Power and Light (“IPL”) appealed.

Held: The Iowa Supreme Court held that the electric utility was liable. Compliance with the safety code is relevant to the question of due care, but not determinative. Proof of compliance with the standards furnished by the National Electrical Safety Code is not conclusive proof on the question of IPL’s due care. Actionable negligence may exist even though the utility company complied with the requirements of the safety code.

It was IPL’s duty to use reasonable care to prevent the escape of electricity in such way as to cause injury to persons who might lawfully be in the area of danger incident to escape of electricity from such lines. One furnishing electricity, while not an insurer, is nevertheless held to the highest degree of care consistent with the conduct and operation of the business. A person or corporation maintaining and controlling wires for the furnishing of electricity to others must insulate their wires at all places where there is a likelihood or reasonable probability of human contact by people whose business or duty or rightful pursuit of pleasure brings them without contributory fault on their part into the zone of danger. However, in the absence of statute, this duty does not compel the company to insulate or adopt safeguards for their wires everywhere but only at places where people may reasonably be expected to come in proximity to them.

The Supreme Court held that the evidence supported finding the utility company had been negligent in failing to insulate wires at such a point, that the negligence had been the proximate cause of Cronk’s death.

– Tom Root

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Case of the Day – Monday, January 29, 2018

“YO-YO” MA

Don’t ever let your local attorney pull an abscessed tooth. And do not let your dentist practice law.

Dr. Ma needed a new office after he lost his lease to redevelopment. He found a vacant dentist’s office next to a vacant church. The empty dental abatoir was run down and needed work, but otherwise it was perfect. Dr. Ma signed a purchase agreement, which expressly advised him not to rely on anything the seller or his broker said, but instead to hire his own consultants to check the place out stem to stern.

But Dr. Ma was a dentist. According to a current ad campaign, dentists can fix stalled cars, stop bank robbers in their tracks, free people trapped on an elevator… all sorts of stuff. Sort of like Macgyver with a mouth mirror. Dr. Ma didn’t need any other licensed professionals to check the property out. He could handle it. He was, after all, a dental professional.

Dr. Ma would never miss a cavity. But he did miss the fact that the property’s fenced side yard, which was the only access to  shed in which he had installed the air compressor that ran all of his dentist stuff, was really not his at all. Instead, almost all of it was part of the church. In fact, the 6-foot fence that enclosed the side yard was 3½ feet onto the church land.

A few months and countless fillings later, Dr. Ma got a letter from the church property owner, saying Grace Chinese Alliance Church wanted to buy the church property, but a survey showed Dr. Ma’s shed and fence was on first land. Dr. Ma should have referred the matter to legal counsel right then, but he was a dentist. A trained professional. He had this covered, too. The good doctor wrote back, saying “no problem”: the church property owner could remove the fence whenever it needed to. Based on this answer, Grace bought the vacant church.

However, 8 months later, when the Grace Church elders were ready to have the fence moved back to the real property line, Dr. Ma told them to go floss. Hd told them they could not move the fence, and if they tried, he would give them a root canal without novocaine. Or call the police. Or both.

First Dr. Ma said “yes.” Then he said “no.” Up and down, kind of like a yo-yo. “Yo-yo” Ma, it seemed.

The Church was not about to turn the other cheek. It sued, and Dr. Ma – who by now had a lawyer – claimed he had a prescriptive easement.

Everyone is familiar with adverse possession. If you squat on someone else’s land long enough without their permission, the property may become yours. A prescriptive easement is the easement version of that, a right to use a portion of someone else’s property gained by brazenly using it without permission for a sufficient period of time. If a claimant uses a property owner’s driveway without permission to reach the claimant’s back lot, and does it openly, regularly and continuously for long enough, the claimant gets a prescriptive easement. It does not prevent the property owner from using his own driveway: rather, it just lets the claimant use it, too.

To establish a right to a prescriptive easement in California, a claimant must prove use of the property in question for the five years.* The use has to be (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. Even where all of these elements are met, “when a claimant cannot satisfy the requirements for adverse possession, the claimant may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property.”

A true prescriptive easement does not deprive the property owner of the right to use the affected property, but rather just limits that use in favor of whatever rights the claimant has established. Dr. Ma argued he had a prescriptive easement, but his failure to determine the boundaries of his own property when he should have and his promise to let the Church move the fence when it needed to didn’t help him make his case. The real problem, however, was that Dr. Ma wanted exclusive use of the disputed property, and if he got that, it would deny Grace Church the ability to use the disputed property at all and would frustrate Grace’s intended use of the vacant chapel as its place of worship.

That dentist-as-MacGyver ad campaign we mentioned promise a “different kind of dentist.” Dr. Ma should have been a different kind of dentist: the kind who uses surveyors and lawyers early enough that these sorts of problems don’t happen.

Grace Chinese Alliance Church of the Christian and Missionary Alliance of West Covina v. Lin Ma DDS, Inc., Case No. B272415 (Ct. App. California, Second Appellate District, Jan. 25, 2018), 2018 Cal. App. Unpub. LEXIS 511

In 2010, Dr. Ma was looking for a commercial property to which to relocate his dental practice. The property at issue in this case, the Hayden property, had been used as a dental office at one time, but it was vacant and in disrepair.

Dr. Ma met with Hayden’s real estate agent to look at the property. One of Dr. Ma’s concerns was having a place to locate the air compressor used to power his tools. He discovered that the property had a compressor room, accessible only from the outside from a yard along the side of the building adjacent property owned by Grace Chinese Alliance Church. The side yard was completely fenced in; it was about six feet wide from the building to the fence.

Dr. Ma entered into an agreement to purchase the Hayden property. The standard form agreement included provisions allowing Ma 30 days to obtain a survey of the property; acknowledging that Ma was buying the property in its existing condition, and that no representations, inducements, promises, agreements, or assurances concerning the property had been made by the seller or his broker, and advising Ma to retain his own consultants to investigate the property. In addition to these standard provisions, the parties added several other provisions, including that “Seller and Buyer have agreed that there will be no credits given to Buyer with regards to the condition and the size of the property”; and “Seller and Buyer acknowledge that Broker has made no representations or warranties regarding the physical condition of the property. Seller and Buyer are relying on their own independent investigation in making or accepting this Agreement.”

After closing, Dr. Ma moved his dental practice into the Hayden property. A few months later, he received a letter from a lawyer for Grace Church, who said the Church property was subject to a sale escrow, and that a boundary survey conducted in connection with the sale showed that a fence and shed along Hayden’s east property line was encroaching into the Church property by about 3½ feet along nearly the entire length of the boundary between the two properties. The letter asked Dr. Ma to agree the encroachment could be removed, and Ma replied, “We have no problem with whatever you want to do with the fence as long as it is on your property. Please let us know your future plans if the fence is removed, so that we can prepare for any security issues to our office related to this.” In reliance upon Dr. Ma’s friendly response, the Church completed purchase of the Church property and began renovations.

Eight months later, Grace Church’s pastor wrote to Dr. Ma, telling him that for the Church to meet City codes for parking lots, it had to move the fence to the correct property line, and a piece of the encroaching shed had to be torn out. which required the Church to repave the entire parking area. The Church offered Ma $500 to help him defray the costs of compliance.

This time, getting Dr. Ma’s cooperation was like pulling teeth. He wrote back, telling the Church its survey was both unrecorded and bogus. The Church recorded the survey, but Dr. Ma continued to argue. He said the fence had been in its current location when he purchased the Hayden property, and he had spent more than $50,000 improving the side yard where the encroachment existed. He said his possession and improvement of the property had been open and continuous, and that the disputed property therefore was his, or, if not, he at least had an easement by prescription. He threatened to call the cops if the Church tried to remove the fence.

The Church sued Ma to quiet title and get his fence and shed off of its land. Dr. Ma counterclaimed, saying he had a prescriptive easement to use the disputed 3½ feet, or at least an equitable easement. The trial record showed the fence was 6 feet tall, with locked gates on both ends, and that the Church did not have access to its property on the other side of the fence. The Church needed to move the fence in order to use the property behind it to comply with certain parking lot requirements for the Church’s conditional use permit. The trial court ruled against the dentist, and Dr. Ma appealed.

To establish a right to a prescriptive easement in California, a claimant must prove use of the property in question for the five years.* The use has to be (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right. Even where all of these elements are met, “when a claimant cannot satisfy the requirements for adverse possession, the claimant may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property.”

The problem here is that a true prescriptive easement does not deprive the property owner of the right to use the affected property, but rather just limits that use in favor of whatever rights the claimant has established. If a claimant uses a property owner’s driveway without permission to reach the claimant’s back lot, and does it openly, regularly and continuously for long enough, the claimant gets a prescriptive easement. It does not prevent the property owner from using his own driveway: rather, it just lets the claimant use it, too.

Here, if Dr. Ma got a prescriptive easement to use the disputed property, the Church could not use it at all. The fence prevented the Church from getting a permit to build a parking lot. Without a parking lot, Grace could not conduct services for its parishoners. Not only could Grace Church not use the disputed area behind the fence along with Dr. Ma, but its whole intended use of the church property would be frustrated.

The trial court found that Dr. Ma could not be granted a prescriptive easement because to do so would deny the Church of all of its rights to use the property. Thus, even if the court erred in finding that DDS failed to establish that its use of the disputed property was hostile, the court’s denial of the prescriptive easement was proper. The Court of Appeals agreed that in some circumstances, a court could find an exclusive prescriptive easement to be justified. “But those circumstances are very limited, and involve instances where the easement was necessary to allow a utility to provide an essential service, such as water or electricity, or to protect the health and safety of the public.”

The Court of Appeals was probably influenced by the fact that Grace Church only bought the property because of Dr. Ma’s letter saying that the fence could be moved to the correct position. It did not help that after Dr. Ma told Grace Church that he disbelieved its survey, all of Ma’s own surveys showed Grace was right. It also did not help that testimony showed the dentist had tried to make a secret deal with the seller in order to cut out the broker’s fee, or that Dr. Ma tried to get the judge thrown off the case on a spurious claim of bias. Whatever, Dr. Ma did not come out of trial looking like someone who was entitled to equity, and things did not improve on appeal.

Unsurprisingly, with regard to Dr. Ma’s request for an equitable easement, the court found the equities did not weigh much in his favor. It noted that, on the one hand, the Church was unable to function as it wanted to function because it could not complete its parking lot as required for its conditional use permit without access to the disputed property; on the other hand, Dr. Ma could not show he would suffer any comparable hardship, even if he had to move the compressor or any other equipment from the shed as a result of the fence being shifted to the correct property line.

The Court of Appeals agreed. In order to be awarded an equitable easement, a claimant must be innocent. “That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should grant the injunction if the plaintiff ‘will suffer irreparable injury… regardless of the injury to defendant.’ Third the hardship to the defendant from granting the injunction ‘must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.”

The trial court found that the Church would be irreparably injured if an easement were granted because it would be unable to function as it wanted to function. It also found that Dr. Ma failed to show he would suffer any hardship if the easement were denied that would come close to the hardship suffered by the Church if the easement were granted. Because Dr. Ma did not even try to show those findings were unsupported by the record, the Court of Appeals denied his request for an equitable easement.

* The length of time needed for an adverse possession or prescriptive easement varies from state to state. California’s 5-year period is actually much shorter than virtually all other states.

– Tom Root

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Case of the Day – Friday, January 26, 2018

FOR THE LORD’S SAKE, PEOPLE… STOP!

You would think that a church could get along with its neighbors. Maybe it was the Methodist elders. Maybe the neighbor was a minion of hell. Who can tell from the abbreviated decision in today’s case, handed down by the New York Supreme Court, Appellate Division.

A word of caution here: New York is not like the rest of the world. In New York State, the Supreme Court is a trial court, the Supreme Court Appellate Division is the court of appeals, and the Court of Appeals is the supreme court. There – isn’t that easy? So the next time someone claims to be on the New York Supreme Court, just say, “yeah, you and a thousand other judges.”

Today’s decision involved a party wall, hardly a matter of importance to most folks. But the principle is an important one. Trespass is one of those common law torts (consider a tort to be a “wrong”) that can be committed all to easily. You don’t have to intend to commit a trespass. All you have to do is intend to step where you step. So if you trip on the sidewalk and fall onto someone’s front lawn, it’s not a trespass, but if you step off the sidewalk to avoid a puddle, it is.

What’s more, in every trespass, damages are presumed. There have been cases where people trespassed, thinking they were on their own property, and actually left the place better off than before they arrived. No matter. The law presumes they damaged it.

Obviously, this can cause all sorts of nonsensical results. For that reason, while the law will always assume damages, it won’t always order the trespass to end. Sometimes, the trespass causes so little inconvenience to the property owner and – if it were ordered to cease – would cause such injury to the trespasser, that an injunction would not make sense. The law will generally avoid ordering a result that is wasteful.

In today’s case, Mr. Kimball installed drip edge and cladding on the party wall, with a small portion of it (we’re talking inches) protruding over the Church’s vacant property. Drip edge prevents rainwater and ice melt from running under the shingles and into the wall. Cladding is a finish such as vinyl siding, covering the rather ugly concrete block wall. It protruded onto church property probably 2” beyond where the wall stood.

What would have been the point, other than sheer orneriness, of making Mr. Kimball rip the siding and drip edge off the wall? After all, those additions were needed only because the Church tore down its building, leaving a bare wall exposed to the elements. The court of appeals was not going to demand such a wasteful and damaging result.

The law is not always an ass.

Kimball v. Bay Ridge United Methodist Church, Case No. 2017-03575 (Sup.Ct. New York, Appellate Div., Jan. 24, 2028), 2018 N.Y. App. Div. LEXIS 443. Mr. Kimball and the Bay Ridge UMC owned buildings with a party wall, that is, a common wall along the property boundary that supported and was integral to both buildings.

Lord only knows what went on between the Church and the Kimballs, but things seemed to start when the Methodists tore down their building a decade ago (leaving the party wall, of course, because it was part of Mr. Kimball’s building, too. About seven years after the church building was razed, Mr. Kimball installed cladding and a drip edge along the church side of the wall.

For reasons not clear in the opinion, Mr. Kimball sued the Church for a declaratory judgment and injunction. The Church rendered unto Caesar itself, and its lawyers counterclaimed for trespass, because Mr. Kimball’s cladding and drip edge extended however so slightly into Church airspace, on the holy side of the party wall. In addition to damages, the Church wanted an injunction requiring Mr. Kimball to tear out the cladding and drip edge.

The trial court granted the Church’s trespass complaint, awarding it damages and ordering Mr. Kimball to remove the offending installation. Mr. Kimball appealed.

Held: The appellate court agreed that there was undoubtedly a trespass, but drew the line at an injunction. New York law provided that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land [but n]othing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.”

In order to obtain injunctive relief under the statute, the appellate court said, the Church was “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief.” Here, the Methodists did not show that the “balance of equities weighed in its favor.” In other words, what it gained by having Mr. Kimball rip out the cladding and drip edge was bupkis, maybe an inch of space eight feet or so off the ground. But by tearing out the cladding and drip edge, Mr. Kimball would lose the ability to keep water from rotting his roof and joists.

So Mr. Kimball had to pay some damages (and they probably amounted to $1.98 or so), but the law would not make him rip out the cladding and drip edge to satisfy the Church elders.

– Thomas L. Root

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Case of the Day – Thursday, January 25, 2018

CLIPPING

Clipping - not the "block in the back kind"

Clipping – not the “block in the back kind”

The Super Bowl will be upon us before we know it, and everyone we know is already excited beyond all reason that the New England Patriots, who haven’t played in the Super Bowl since 12 months ago, are going to face America’s favorite team, the Philadelphia Eagles. In our occasional shameless attempts to capitalize on the media event of the year, we review the old 15-yard standby, clipping. The clipping in today’s case was done not by a offensive player, but rather by an electric utility.

Tree trimming along and under an easement to protect power lines is typically done according to standards set by the North American Electric Reliability Corporation, known as NERC. Standards for tree trimming sound dry to you? Maybe a little looting, people trapped in elevators, and a power outage affecting 50 million people will get your attention. The great blackout of August 2003 had many contributing causes, but it all started when power lines – sagging in the heat of the day and under the load put on the system – became entangled in poorly-trimmed trees.

blackout140131OK, tree trimming is important work. And so it was in Louisiana. It seems that a road was widened, and power lines were relocated as a result. The electric utility came along to clip vegetation along the route, but ran into Mr. James, who objected to the vigorous removal of trees and brush. He kept running the crews off, until the utility sued for a ruling that it had an agreement with the city that superseded Mr. James’ complaints.

That’s where things got interesting. Mr. James and the utility signed an agreement that permitted the utility to trim back to the historical trim limits or to an established limit according to the kind of tree. No sooner was the ink dry but Mr. James argued that the utility had violated the deal. He sought all sorts of damages — even emotional distress — for the alleged violations.

The utility of course loaded up at trial with three of four experts, who carefully showed that the trees were cut back to their historical trim point and no more. The trial court found for the utility. On appeal, the Court agreed that despite all of the tort theories and general complaints alleged by Mr. James, because he had signed the deal with the utility, the only question was whether the deal had been kept. And as for that, the utility’s thundering herd of experts trumped Mr. James’ speculation.

With the new NERC reliability standards requiring more aggressive vegetation management, it is likely that clashes as to the extent to which utilities may trim will be more frequent and substantial. Thus, there are likely to be more Mr. James v. Entergy battles throughout the country.

Entergy Louisiana, Inc. v. James, 974 So.2d 838 (La.App. 2 Cir. 2008). In 1991, Highway 143 — located next to Tupaw Manor Apartments — was widened. Entergy’s distribution lines ran along Highway 143 and, with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. The distribution lines at issue were contained within what Mr. James, the owner of the apartments, characterized as a “green zone” that buffers the apartment complex from the highway traffic, adding to the aesthetic value of the complex.

Tree trimming - boring. Mass panic - not so boring.

Tree trimming – boring. Mass panic – not so boring.

Entergy hired West Tree Service to trim vegetation encroaching on electrical distribution lines, the work to be done in compliance with Entergy’s “Distribution Vegetation Management Line Clearance Specifications” (“Clearance Specifications”) on file with the Louisiana Public Service Commission. During August 2004, another subcontractor sprayed the area with herbicide. Then, West cleared vegetation that had been sprayed and performed additional trimming on Mr. James’ property as per Entergy’s contract. Mr. James objected, but the West crews made several additional attempts to trim vegetation on the property. Unable to obtain consent from Mr. James, Entergy filed a petition asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James’ property for maintenance purposes. Mr. James answered and demanded damages in excess of $410,000. He claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees, far in excess of the allowed or agreed upon width of trimming.

Prior to trial, the parties entered into a stipulated declaratory judgment in which they agreed that Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within 10 feet of Entergy’s lines in accordance with modern arboretum standards and as specifically outlined in Entergy’s Clearance Specifications, and as long as Entergy complied in good faith with the vegetation maintenance standards, Mr. James would have no right to prohibit with Entergy’s reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines.

The Clearance Specifications provided that all trees at a minimum would be trimmed back to the previous trim point or according to a table, whichever was greater. The table provided that slow growth trees in rural settings would be trimmed to 10 feet and fast growth trees in rural settings would be trimmed to 15 feet. An exception would be made where there was a customer refusal where procedures outlined in the Clearance Specifications have been followed, provided that the exception would not result in unsafe conditions or jeopardize reliability.

Mr. James argued Entergy could only trim to an indefinite width depending on the extent to which it had actually claimed and used a right-of-way in the past or 10 feet under the Clearance Specifications. Mr. James alleged that Entergy exceeded the allowable width, causing damage to the aesthetic value of the “green zone” around the apartment complex. Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contended requires Entergy to then seek a court order to continue trimming. Entergy’s letter to Mr. James noted that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.

Entergy sued to get the court order. At trial, Entergy provided detailed testimony regarding the existence of a prior trim point, and that all trimming was within that point. Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property, which was contradicted by West employees. The trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming, and found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. He appealed.

Held: Entergy had the right to trim the vegetation. The Court concluded that the stipulated declaratory judgment signed by the parties prior to trial controlled the allowable trimming width of the vegetation on the James property. Thus, the issue was whether Entergy complied with its Clearance Specifications. Entergy produced several qualified witnesses, whose testimony was thoroughly outlined by the trial judge, who found strong evidence of re-sprouts and prior trim points. The Court found no abuse of discretion. Although the Court noted that the Clearance Specifications might, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property, it concluded that under the specific facts of the case, Mr. James was bound by the stipulated declaratory judgment.

– Tom Root

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Case of the Day – Wednesday, January 24, 2018

LIFE IS A BOWL OF BERRIES

Who knows how neighbor feuds that simmer for years and years suddenly explode? Maybe Tom Schwendeman knows.

Tom lives next to the Roaches (who are people, not insects). About 14 years ago, the Roaches surrounded their property with a chain link fence, which was clearly on their land. They even had a surveyor lay down pins before the fence went up. Since that time, the Roaches have engaged in such loathsome activities as building campfires in their back yard on as many as five, yes, FIVE occasions, and for spraying herbicide on poison ivy growing along the fence.

Oh, the humanity!

We get a sense of how things were going with the Roaches, given that grumpy neighbor Tom called the EPA to complain about the campfires (which occurred at a frequency of about one every two years, if our math skills remain sharp). The EPA, being busy creating environmental disasters of its own, apparently declined to intervene. Also, Tom liked to pick berries that grew along the fence. The herbicide on there poison ivy was the last straw for Tom. Convinced that his next blueberry smoothie would be his last, Tom tried to kick the fence down.

You of course have heard on countless police shows the Miranda warning, you know, “you have the right to remain silent…” Heed it well. Tom should have. As we like to tell clients, remaining silent is not just your right: usually, it’s a damn good idea, too.

Tom did not remain silent, but rather vented his spleen at the deputies who responded to the call. He admitted the fence belonged to the Roaches and was on their land, but… well… the campfires! And the berries! How much is a man supposed to endure?

When it came time for Tom’s misdemeanor trial, his lawyer did not have a lot to work with, other than Tom’s fanciful argument that the fence was already in bad shape, and his tirade did not make it materially worse. For good measure, Tom threw in the woof story that he was only trying to get the fence off his land. The last defense might have worked… if Tom had kept his mouth shut when the cops had first shown up.

State v. Schwendeman, Case No. 17CA7 (Ct.App. Athens Co., Jan. 17, 2018) 2018 Ohio App. LEXIS 242. The state charged Tom Schwendeman with criminal damaging, a misdemeanor, because he damaged a chain-link fence between his property and that of his neighbors, Dawn and Gordon Roach.

The Roaches installed the fence about 13 years ago. One day last summer, Tom – apparently furious because the Roaches had sprayed herbicide along the fence to kill poison ivy – began yelling and kicking and showing “a lot of anger towards the fence,” as a witness put it. Someone called the sheriff, and Tom admitted to a deputy that he knew it was not his fence, but that the Roaches liked to have campfires in their back yard that bothered him, and that they had sprayed herbicides for poison ivy along the fence line. Tom said he picked berries along the fence.

By the time he got to trial, Tom had an explanation that was a little more congruent. He complained about his problems with the five or six fires the Roaches had built in their backyard, and argued that because the fence was 12 years old, the only damage he saw to it was “wear and tear that’s happened over the period of twelve years. More than twelve years it’s been there.” He claimed that he witnessed tree branches falling on the fence and the Roaches’ children climbing the fence, causing the fence to come apart, and that one more than one occasion, the kids made “the fence pull loose and collapse on the children when they were climbing it.” He said he disconnected the cyclone fence from the posts carefully, because it was on his property and he wanted to move it. Tom claimed the Roaches knew it was on Tom’s land, but refused to move unless Tom had the property surveyed and took him to court.

But on cross-examination Tom admitted he was angry when he began dismantling the fence, “I had been poisoned. My berries had been poisoned… my food had been poisoned and my next smoothie would make me very ill.” Tom admitted he did not “own” the fence, but continued his claim that “it was on my property.”

Tom’s lawyer argued that children, dogs, and trees caused the damage to the Roaches’ fence. However, defense counsel did not seek a jury instruction that Tom was exercising a privilege to remove an obstruction on his own land and did not object to the court’s jury instructions.

The jury found Tom guilty. He was ordered to pay restitution and a fine. Tom appealed.

Held: The conviction was upheld. Tom claimed on appeal he had the right to remove obstructions from his land, but he never asked the court to instruct the jury on that defense.

When a party fails to object in the trial court, generally he or she cannot make the claim on appeal that was not raised below unless he can show “plain error” that affects substantial rights. It’s a tough standard to meet.

Ohio law does indeed hold that a landowner has the right to use self-help to remove encroachments on his property, provided the landowner acts with reasonable care. That is what is called an “affirmative defense” to the criminal damaging charges that were brought against Tom. But a defendant is not entitled to have the court instruct the jury that unless he has come forward with at least some evidence that, if believed, raises the affirmative defense. Otherwise, the court is not permitted to give a jury instruction on the affirmative defense.

Tom testified the fence was on his land, but he didn’t offer any evidence that that was so. He could have shown a deed, or a survey, or even a plat map. But he had to show something. What’s more, not only did he offer nothing at trial, his testimony that the fence was on his land directly contradicted his statements to two sheriff’s deputies. Without providing a rationale for the inconsistency with his prior admissions to the deputies, the Court said, Tom’s trial testimony was not credible. Because there was no credible evidence supporting his contention that he owned the land, the trial court as a matter of law could not properly give a jury instruction on the affirmative defense.

Tom also argued to the court of appeals that his defense attorney was a putz. The 6th Amendment to the constitution guarantees all criminal defendants effective assistance of counsel. Here, Tom fumed, his attorney was ineffective because he failed to request the jury instruction on Tom’s privilege to remove an encroachment from his land. The appellate court said no dice: based there was no evidence supporting the claim, a request for an instruction would have been meritless. Tom’s trial counsel cannot be deficient for failing to request an unwarranted jury instruction. Anyway, the Court of Appeals observed, Tom’s lawyer was pursuing a “wear and tear” defense at trial, making a decision not to argue that Tom also had the right to move it off his property fairly sound trial strategy.

Trial counsel cannot be found deficient, the Court of Appeals said, for failing to request an unwarranted jury instruction or for exercising sound trial strategy.

– Tom Root

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Case of the Day – Tuesday, January 23, 2018

AGREEING TO DISAGREE

It happens more often that you’d think. Over a period of years and successive owners, everyone starts thinking that the old hawthorne tree, or a big old rock, or even a crack in the curb marks the boundaries between the old homestead and the Smith house next door.

But it isn’t.

These kinds of problems could be avoided if people only hired surveyors regularly, or reread their deeds and paced off all of those metes and bounds regularly. Of course, people are by and large normal, so they don’t usually do such things.

Most states have statutes that address what happens when owners jointly misunderstand their boundaries. The thinking is that if enough time elapses, there’s little to be gained by trying to unwind what everything thought was a fact. Or, given enough time, perception become reality.

Of course, claiming that a new boundary has been agreed to by acquiescence if fraught with peril, because the other party – whose acquiescence must be shown – probably disagrees with the claimant (or they would not be in court to begin with). That’s what happened to the Guthries in today’s case.

Guthrie v. Jones, 780 N.W.2d 248 (Court of Appeals, Iowa, 2010). The Guthries’ property abutted land owned by Jones. A line of shrubs and trees ran along one side of the adjacent properties, and the Guthries had always believed that the tree line marked the property boundary.

It didn’t. Instead, a 2007 survey by neighbor Jones showed the property line to be 10 feet to the west of the line of shrubs and trees. The Guthries had gotten used to thinking they had 10 feet more room in the side yard that they really did, so they brought suit, arguing that under Chapter 650 of the Iowa Code, the shrub and tree line – not the surveyed line – should establish the actual boundary. The Guthries argued that the Joneses had agreed to the property line being marked by the trees, an argument known as “acquiescence.”

The trial court found that the boundary line between the two properties was established by the survey, because the Guthries did not prove the Joneses’ acquiescence.

Held: The appellate court affirmed the trial court. Iowa law governing boundaries by acquiescence holds that “a boundary line may be established by a showing that the two adjoining landowners or their predecessors in title have recognized and acquiesced in a boundary line for a period of ten years.” The owners’ recognition may be evidenced by conduct or by claims asserted by the parties, but it must be by both parties. The acquiescence by both parties is a condition precedent for proving the existence of a boundary by acquiescence.

The party seeking to establish a boundary line that deviates from the surveyed boundary line must prove acquiescence by clear evidence. This is a higher standard that the usual civil standard of proof, which is “preponderance of the evidence” (which means, essentially, by a majority of the evidence).

In this case, the appellate court agreed with the trial court that Jones did not consent to the shrub and tree boundary line for the required 10-year period. The Guthries purchased their lot in 1979. At that time, the seller placed metal pins in the ground to mark the boundary line. Subsequently, the Guthries used the pins as a guide for mowing. Jones did not object to use of the land “close to, if not over the surveyed boundary line.” However, the court reasoned that this failure to object constituted nothing more than a neighborly gesture, and fell far short of showing Mr. Jones’ consent to a new boundary line.

At trial, Mr. Jones asserted that he maintained the area in question since 1989, and did not recognize the shrub and tree line as the true boundary. The Guthries didn’t have sufficient evidence to disprove this. Thus, the Guthries failed to prove their claim for acquiescence.

– Tom Root

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Case of the Day – Monday, January 22, 2018

ILLEGAL SUBSTITUTION

We’re bleary-eyed from watching the NFC and AFC Championships, and almost relieved to take next Sunday off. After all, no one – including us – watches the Pro Bowl, which, we believe, is a football term meaning “boredom.”

It's a trick play! Interesting in football, less so in the courtroom.

It’s a trick play! Interesting in football, less so in the courtroom.

But we have to be on our game for the Super Bowl, so we’ll start brushing up now on the finer points. Such as illegal substitution. Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial.

In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, and he named the owner of the tree and the power company that had an easement where the tree stood, among others. He claimed that the tree hadn’t been trimmed properly, and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so, but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself, but instead was only vouching for someone else’s survey. Defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

steelers150128Was it a blown call? The plaintiff decried it as uglier than a Pittsburgh Steelers retro uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard pressed to argue he was hurt by the trial court’s decision.

Go New England! Go Philadelphia! Keep us interested between the commercials.

Slater v. Charter Communications, Inc., Not Reported in N.W.2d, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. After clearing the roadway and while returning to their vehicle, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day as a result of her injuries.

Her husband sued everyone, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications. Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.

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The identity of the expert witness became a shell game …

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr did not conduct the measurements or prepare the survey, but rather had verified the survey. The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and prepared the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: The judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion, and the rule generally is that justice is best served where an unlisted witness can be permitted to testify while the interests of the opposing party are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition, but noted that whether the tree was located on plaintiff’s property or in the road right-of-way were critical factual disputes, and existence of the survey had been known to Slater for about a year before trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals said, and, consequently, no abuse of discretion occurred.

– Tom Root

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