Case of the Day – Wednesday, March 19, 2017


bad160311Every so often, a case comes along that so warms the cockles of our hearts that we just have to share it, despite the fact that it may not be terribly relevant to tree or neighbor law. Today’s case from Delaware is such a wonderful tale.

The case began as a rather prosaic trespass. The homeowners, part of what is essentially a condo association, put their kids’ swingset and play gear on common land. Even after demand was made, the family refused to remove it, so the homeowners association —nonprofit corporation — sued the family for trespass.

Luckily for the homeowners (and we say that with a bit of irony), one of the couple was a lawyer, in a law partnership with his father. The two attorneys proceeded to turn a simple trespass case — in fact, a case which shouldn’t have happened at all, because the trespass was as plain as the nose on your face — into a legal circus, with multiple affirmative defenses and counterclaims. Perhaps the most creative defense: the homeowners claimed that the association was engaged in age discrimination, because the case dealt with a child’s playset, and children are … well, you get, they’re young.

"But, Your Honor," the defendant's lawyer argued, "it was just a tiny little swingset!"

“But, Your Honor,” the defendant’s lawyer argued, “it was just a tiny little swingset!”

We were a bit in awe at lawyer Ramunno’s creativity and legal legerdemain, but the trial court wasn’t. Believe it or not, there are rules against too much creativity and virtuperativeness — embodied in Delaware and many other states, as well as the federal system (see Fed.R.Civ.P. 11) — and here, the Chancery Court held that the Ramunnos and their attorney paterfamilias had crossed the line. What started out as a simple request to “move the playset” ended up a judicial order to “move the playset” … and to pay over $11,000 in the plaintiff’s legal fees.

We love a happy ending.

Fairthorne Maintenance Corp. v. Ramunno, Not Reported in A.2d, 2007 WL 2214318 (Del.Ch., Jul. 20, 2007).  This started out to be a simple case. Louis and Melanie Ramunno own a residence in the Fairthorne development of Wilmington, Delaware. To the rear of their residence is a portion of the 34 acres of private “open space” that is collectively owned and maintained by all of the homeowners in the Fairthorne development through a non-profit corporation known as Fairthorne Maintenance Corporation. By placing a playset, a park bench and other items on about 150 feet of the open space, the Ramunnos trespassed on common association property controlled by FMC. They resisted all demands that they remove it.

fix160311FMC sued for trespass. So far, so good. But Mr. Ramunno was a lawyer, and his partner was his father, who according to the account by the court was a zealous — perhaps over-zealous — advocate. The Ramunnos raised nine affirmative defenses and five counterclaims in their answer, which, they claimed, excused their conduct or required judgment in their favor. The trial court was so taken by the “apparent frivolity” of the answers and counterclaims (for example, the Ramunnos demanded that FMC pay for their playset because it didn’t provide any itself) that it threatened lawyer Ramunno with sanctions).

The Ramunnos backed off of seven of the nine defenses and all but one counterclaim. They then agreed to remove the personal property from the open space, but the parties couldn’t settle because the Ramunnos refused to pay FMC’s legal fees.

Held:   The trial court found that the “simple reality of this case is that the Ramunnos have been trespassing on FMC’s land since December 2005 and have been using this litigation to stall FMC’s landscaping and other projects in order to continue to enjoy the fruits of their trespass.”

You want a lawyer who won't clown around ...

You want a lawyer who won’t clown around …

The Ramunnos argued that as homeowners in Fairthorne they were privileged to use the open space for recreational purposes and therefore were permitted to place their play set there because it occupied little space and could be removed. But the Court held that the playset was large, designed to be permanent, not easily moved, and, in fact, it was never removed from the open space once placed there. Even if the Ramunnos had had some license to use the open space along with Fairthorne’s other residents, the Court said, they impermissibly exceeded that authority.

Trespass can occur despite “authority under [a] license to enter the property” because the actions taken exceed the permission given. It was no defense that the play set only occupied 150 square feet of the 34 acres of open space because there is no de minimis exception to trespass liability.

The court found that the Ramunnos had argued tangential issues designed solely to help them delay the legal consequences of the trespass. The arguments had unduly burdened the court, intentionally delayed resolution of the underlying dispute, and purposefully wasted FMC’s resources. Thus, under Chancery Rule 11, the Court found that the Ramunnos and their counsel, Attorney Ramunno, had acted in bad faith, and the Court ordered a shift of responsibility for fees under the “bad faith” exception to the traditional American Rule. The Court specifically “address[ed] a troubling pattern of conduct engaged in by Attorney Ramunno that does not befit an officer of this court. That conduct began with an adolescent letter writing campaign during discovery, continued with a procedurally improper and substantively baseless letter seeking the court’s recusal from this action, and culminated in the filing of a host of frivolous arguments that were made without sufficient grounding in law and fact.

The Court explained that “the attorney’s duty is one of reasonableness under the circumstances; a subjective good faith belief in the legitimacy of a claim does not alone satisfy the requirements of Rule 11. Where that obligation is not upheld, sanctions, including the imposition of the opponent’s costs, may be imposed. This is so even when frivolous claims are withdrawn.”

Based on a persistent abuse of the litigation process, the Court found that sanctions under Rule 11 were appropriate, and ordered the Ramunnos and their lawyer to pay FMC legal fees of $11,355.93.

– Tom Root


Case of the Day – Tuesday, April 18, 2017


cops150225Many people find it hard to believe that until 35 years ago or so, a citizen was largely without remedy when federal employees violated his or her Constitutional rights. Oh, sure, if the feds beat a confession out of you or took your stash of B.C. Bud without a warrant, you might get the confession suppressed or the fruits of the illegal search excluded from your trial. But this pretty much meant that only the guilty could get their Constitutional rights vindicated.

What if you were like Webster Bivens, whose door was kicked in by drug agents who had the wrong house? In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics403 U.S. 388 (1971), the Supreme Court said that when the government, its agents, its employees, or even its minions, breach a person’s Constitutional rights, a remedy must exist.

Badboys150226Since that time, Bivens actions have been employed (mostly without marked success) by citizens whose rights have been allegedly trampled by federal agents and employees. A lot of those citizens are not in very good positions to begin with (as you can see here at our sister blog). But some are just average Joes, like rancher Charlie Robbins. He bought a ranch whose predecessor had given the federal Bureau of Land Management an easement. But the BLM knuckleheads never recorded it, so when Robbins bought the place, he took the ranch free of the easement. BLM demanded he sign another one. He refused.

What followed was a disgraceful reign of harassment which caused one BLM official to resign, saying “[i]t has been my experience that people given authority and not being held in check and not having solid convictions will run amuck [sic] and that [is] what I saw happening.” But the BLM’s war of attrition was one of a thousand petty slights — trespasses, spurious administrative sanctions, even videotaping of his guests — and Mr. Robbins didn’t have the money or energy to litigate every one of them.

Too bad for him. The Supreme Court held that there was no Constitutional remedy for the non-stop harassment by government employees. Instead, the victim must bankrupt himself or herself by litigating the slights as they occur. It’s like suggesting that the best remedy for a death by a thousand cuts is a thousand Band-aids. And to add insult to injury, the Court held that what would be extortion if inflicted on an East Side shopkeeper by the Mob is perfectly lawful is practiced by a government employee to gain an advantage for the government.

"Nice place," BLM told Rancher Wilkie. "Can we harass you out of it, maybe?"

“Nice place,” BLM told Rancher Wilkie. “Can we harass you out of it, maybe?”

Wilkie v. Robbins, 551 U.S. 537 (2007). Robbins’s Wyoming guest ranch was a patchwork of land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the federal government. The previous owner granted the United States an easement to use and maintain a road running through the ranch to federal land in return for a right-of-way to maintain a section of road running across federal land to otherwise isolated parts of the ranch. When Robbins bought the ranch, he took title free of the easement, which the Bureau had not recorded.

Robbins continued to graze cattle and run guest cattle drives under grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau of Land Management. Upon learning that the easement was never recorded, a BLM official demanded that Robbins re-grant it, but Robbins declined. Robbins claims that after negotiations broke down, BLM employees began years of low-level harassment of him in order to force him to re-grant the BLM easement. This harassment included an unauthorized survey of the desired easement’s terrain and an illegal entry into Robbins’s lodge. In each instance, Robbins had a civil damages remedy for trespass, but he did not pursue it because the isolated trespass had caused inconsequential damages. BLM at the same time began vigorous — perhaps unduly vigorous — enforcement actions against Robbins, including administrative claims for trespass and other land-use violations, a fine for an unauthorized road repair, and two criminal charges.

Robbins had the opportunity to contest all of the administrative charges. He fought some of the land-use and trespass citations, and challenged the road repair fine as far as the Interior Board of Land Appeals, but did not seek judicial review after losing there. He exercised his right to jury trial on the criminal complaints, and the jury acquitted him after only 30 minutes deliberation. Although the quick verdict tended to support Robbins’ baseless-prosecution charge, the federal trial judge did not find the Government’s case thin enough to justify attorney’s fees, and Robbins appealed that ruling too late.

Extortion is ugly, no matter whether the Mob or Uncle Sam is behind it.

Extortion is ugly, no matter whether the Mob or Uncle Sam is behind it.

BLM also cancelled a right-of-way given to Robbins’s predecessor in return for the Government’s unrecorded easement, a 1995 decision to reduce the Robbins’ special recreational use permit duration from five years to one, and termination of the SRUP and a grazing permit in 1999. Robbins also alleged BLM employees videotaped his ranch guests during a cattle drive, and they attempted unsuccessfully to pressure a Bureau of Indian Affairs employee to impound Robbins’s cattle. Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of these complaints. Instead, he filed a claim against the BLM employees he alleged had orchestrated and carried out the low-intensity warfare against him to pressure him into granting BLM an easement, claiming that they had violated his due process rights under color of their office, relying on Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, a Supreme Court case from the 1970s that permitted citizens to sue federal employees who had violated their constitutional rights. Robbins also claimed the employees had engaged in RICO (Racketeer-Influenced and Corrupt Organizations Act) conduct by blackmail and extortion (a so-called Hobbs Act violation) in order to obtain a new easement. The trial court threw out the suit, but the 9th Circuit Court of Appeals reinstated it. The BLM sought review from the U.S. Supreme Court.

Held: The Supreme Court dismissed the case against the BLM employees. The Court held that a landowner did not have a private action against BLM’s employees for damages of the sort recognized under Bivens, and the alleged violations of the Hobbs Act and state blackmail statutes by BLM employees in their efforts to obtain an easement over landowner’s property for the exclusive benefit of the Government did not qualify as a predicate RICO offense.

The Court said that trying to induce someone to grant an easement for public use was a perfectly legitimate purpose, and, as a landowner, the Government had a valid interest in getting access to neighboring lands. To permit a lawsuit to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing OSHA regulations. The Court observed that Congress is in a far better position than a court to evaluate the impact of a new species of litigation against those who act on the public’s behalf. At any rate, the Court said, the Hobbs Act does not apply when the federal government is the intended beneficiary of extortionate acts by government employees. given that the alleged conduct did not fit the traditional definition of extortion

The Court found it noteworthy that Robbins had had judicial and administrative remedies for all of the minor annoyances, harassments and inconveniences which he, in the aggregate, claimed merited a Constitutional rights lawsuit. He did not pursue many of these remedies, and those he did pursue he often did not pursue to the end. Given that the wrongs he complained of were not without remedy, the Court was uncomfortable with trying to create a new one, especially one which it feared would spawn so much litigation.

Two justices dissented in part to the decision.

– Tom Root


Case of the Day – Monday, April 17, 2017


Dick, Jane and Mom have fun at the Zoo ... as long as they can dodge the falling trees.

Dick, Jane and Mom have fun at the Zoo … as long as they can dodge the falling trees.

Simon and Garfunkel told us that the monkeys stood for honesty, the giraffes were insincere, and the elephants were kindly but dumb. We don’t know about that, but they were right when they sang that “it’s all happening at the zoo.”

Just ask Ms. Cherney. She’d tell you that one thing Simon and Garfunkel didn’t mention were the ficus trees. One ficus at the Zoo — the North Carolina Zoological Park — fell on poor Ms. Cherney, injuring her. That began an eight-year legal odyssey through the North Carolina legal system, through the Industrial Commission (which hears tort claims made against the state), the Court of Appeal, the Supreme Court, back to the Commission, and again to the courts.

In the penultimate chapter, the North Carolina Court of Appeals ruled that Cherney had no evidence that the Zoo personnel had any basis to believe the ficus was about to fall. Of course, the evidence also suggested that the whole idea of having a ficus growing too large in an indoor setting and not being properly maintained was rather daft. And whose fault was that? The beavers, perhaps?

A dissenting judge vigorously disputed this, pointing out that the tree had been cabled to a wall to help support it. The very fact that the Zoo believed that cables were needed was evidence that they knew the tree was a hazard, the dissenter argued.

Usually, dissenting opinions are curiosities, but little more. On three-judge appellate panels, 2-1 majorities carry the day. Despite the fact the dissenter probably thought he was talking to himself, he nonetheless explained in detail how the record supported finding the Zoo liable. This time, however, the dissenting judge found that he had some fans – the justices on the North Carolina Supreme Court.

The Supremes reversed the Court of Appeals in a terse per curiam opinion (that means “by the court”) agreeing with Judge Wynn’s analysis.

bracing150225This kind of thinking does raise a conundrum. Bracing or cabling a tree is a well-established practice in arboriculture. There’s even an ANSI standard for it. Could it be that cabling a tree may be prudent from an arboriculture standpoint but legally dangerous? A careful tree professional would probably take from this decision the notion that he or she would be well advised to tell any client for whom a tree is cabled or braced that the very fact the tree was braced means it should be considered to be a hazard tree. That of course would bring with it responsibilities for regular inspection and – just ask Ms. Cherney – notice to people who could be affected if the tree falls.

Cherney v. North Carolina Zoological Park, 648 S.E.2d 242 (N.C.App., Aug. 7, 2007), reversed, 362 N.C. 223, 657 S.E.2d 352 (N.C. Supreme Court, 2008). Tinya Cherney was in the enclosed African Pavilion at the North Carolina Zoological Park near the center when a large ficus tree fell hitting a palm tree. Both trees then fell on her, pinning her to the floor of the walkway in the African Pavilion. The impact caused vertigo, broke her right femur, cracked three ribs, broke her back and wrenched her knee.

The injury occurred because the ficus tree — which was indoors – had been permitted to grow too large for its roots, or alternatively, had not been properly maintained to prevent it from becoming unsafe. The ficus tree was under the exclusive control of the Zoo’s personnel and not subject to wind or any other natural force. A hearing examiner at the North Carolina Industrial Commission awarded Cherney $500,000 in damages. Unhappy at the result, the Zoo appealed.

If your tree needs to be cabled like this, it's time to let it go - preferably not onto a passerby.

If your tree needs to be cabled like this, it’s time to let it go – preferably not onto a passerby.

The full Commission reversed the award and found for the Zoo. Cherney appealed to the North Carolina Court of Appeals, which affirmed the Commission’s claim. She took it the North Carolina Supreme Court, which reversed and remanded. The Commission then entered a second decision denying Cherney’s claim. She again appealed.

The Court of Appeals held that the Commission’s second decision denying Cherney’s claim was proper, even though the Supreme Court had ruled in her favor on her appeal from first decision of the Commission denying her claim. The Court of Appeals agreed with the Commission’s finding that the evidence showed that neither the zoo’s curator of horticulture nor her staff knew or should have known that the ficus tree that fell in the zoo exhibit was likely to fall, and that there was no showing that any member of the curator’s staff violated any applicable standard of care.

In a carefully-crafted dissent, Judge Wynn observed that the evidence showed that when the ficus tree was replanted, “six, seven-strand 3/8 ” cables going in four directions were looped around the tree and attached to the planter walls” in order “to aid the tree in keeping it upright and to assist in monitoring the tree.” The cables were inspected monthly by the Zoo staff. Two of the four cables had snapped when the tree fell on Ms. Cherney. The judge argued that the “very fact that the tree was cabled to the planter walls illustrates that the Zoo and its employees had “express or implied knowledge” that the tree might fall; if there had been no danger, then the tree would not have needed to be cabled in such a fashion, nor would the Zoo employees have needed to monitor it so closely.”

bracingb150225The dissent argued that the question was not whether the tree was likely to fall, as the Commission thought it was. Rather, the issue was whether a Zoo visitor such as Ms. Cherney or one of the tens of thousands of kids who passed through each year – was unnecessarily exposed to danger and was not warned of a hidden hazard. The dissent believed that they were, and the Zoo had a duty to warn visitors of the possibility that the tree might fall.

The North Carolina Supreme Court reversed the appellate panel, and specifically adopted Judge Wynn’s reasoning as its basis for doing so.

– Tom Root