Case of the Day – Wednesday, August 4, 2021

BUYER’S REMORSE

What do you get when you cross a lousy businessman with a careless homeowner? In today’s case, you get a whopper of a lawsuit.

The job's not finished until the paperwork's done.

The job’s not finished until the paperwork’s done.

The lousy businessman was Jeff Davis, who may well be a very good arborist but clearly was lacking is paperwork and billing skills. The shocked homeowner was Ron Sexton, who — to put it charitably — was woefully (and conveniently) forgetful, not to mention rather unforgiving.

Ron had hired Jeff to trim trees in 2002, and he paid the invoice, which had been figured at $1,200 (although he couldn’t remember ever seeing the bill he paid). He hired Jeff again the following year, but Jeff not only didn’t prepare a written proposal or estimate, he couldn’t even be sure he had told Ron the price would be the same as the year before.

For his part, Ron kept expanding the scope of the work, appearing frequently as the crews worked to suggest additional trimming. By the time Ron was done changing the job to encompass all 60 trees on his land, Jeff’s crews had 14-1⁄2 days of work in, presenting Ron with a bill for $17,400.

You’d think that Jeff would have said something to Ron about how the bill was mounting up. For that matter, you’d think Ron might wonder at some time during the two weeks of tree work how much it was all costing him. But neither Dumb nor Dumber questioned anything until the bill arrived in the mailbox. And then, Ron refused to pay.

Like every state, Kansas has a consumer practices act, intended to protect consumers from unscrupulous businesses that prohibit unconscionable acts and deceptive practices. And even if Dorothy isn’t in Kansas anymore, that doesn’t mean that the state’s restrictions are over the rainbow: just about all states have unfair or deceptive acts and practices statutes, consumer protection statutes, consumer fraud statutes or the like. The laws are well intended, but as our homeowner hero proves today, the likelihood that they can be used for mischief is high.

Here, we suspect that Ron didn’t feel like a defrauded consumer until some lawyer suggested that some KCPA claims would be a dandy way to beat paying Jeff. So Ron claimed Jeff had violated the KCPA by deceptive practices (not telling him how much it would cost and trimming well beyond the scope of the work in order to jack up the price) and unconscionable acts (performing unnecessary work and not giving Ron his money’s worth). The jury didn’t buy it — especially the whopper that he didn’t know it was $1,200 a day because he hadn’t gotten last year’s bill, which he had managed to pay without seeing — but it did apparently find that the value fell somewhat short of $17,400, because it awarded Jeff Davis only $6,500.

Never trust your case to a panel of people who aren't smart enough to be able to get out of jury duty.

Does this look like a Mensa convention?

And here, we encounter a popular fiction: juries are wise and Solomonic. They’re not, often hurried, bored, a collection of weak-willed people bullied by one or two strong ones, even just plain stupid. But juries as fact-finders are the foundation of our legal system, and appellate courts protect that foundation with a most deferential standard of review. Typlcally, an appeals court won’t overturn a jury’s findings of fact unless no rational juror — even taking the evidence in a light most favorable to the winner — could have made the decision the jury handed down.

Here, just about everything in the record was contradicted. But assuming the jury believed evidence in favor of Davis Tree — and the appeals court made that assumption — it could have come to the conclusion it reached. Interestingly, the Court of Appeals seems to have been less than thrilled with the jury’s verdict even while showing it deference, asking cryptically, “Would the evidence also support contrary inferences? Yes, but that is simply not the question which we are called upon to decide.”

Everyone was a loser here, especially because all of this could have been avoided with a written estimate from the arborist and a careful written record of change orders maintained throughout the job. The homeowner was negligent to the point of recklessness as well, but … well, he’s the customer. Expect them to be foolish or to try to beat the contractor out of his or her price. The tree professional has to prepare for the naïve and the cunning customer alike.

Davis Tree Care v. Sexton, 197 P.3d 904 (Ct.App. Kan., 2008). In 2003, Ron Sexton hired Jeff Davis, doing business as Davis Tree Care, to trim the trees at his house. It was a big job, over 60 trees trimmed with a final bill of $17,400. When Sexton refused to pay, Davis sued him for breach of contract and unjust enrichment. Sexton counterclaimed under the Kansas Consumer Protection Act (KCPA), alleging deceptive practices and unconscionable acts. Sexton had used Davis Tree the year before, for which he was billed $1,200 per day. He denied having seen the 2002 invoice and denied the 2002 job was priced on a per day basis, but he admitted he had paid the same amount as was shown on the invoice. He maintained that Davis had never told him the 2003 job would cost the same as the 2002 work, and that was “willful misrepresentation of a material fact” under the KCPA.

Sexton and Davis Tree agreed the work was intended to include removing two trees and removing an oak tree branch, but Sexton said he didn’t ask for anything else. Davis testified Sexton also wanted some general trimming and that he came out from time to time and pointed out additional work he wanted done. Sexton argued there was no need for general trimming because that was what Davis Tree had done the year before. The trial court found against Davis Tree on the contract claim, but it awarded Davis Tree $6,500 on the unjust enrichment claim. As for Sexton’s creative KCPA claims, the court found that Davis Tree had committed neither deceptive practices nor unconscionable acts.

Sexton didn’t appeal the $6,500 he was found to owe Davis Tree on the unjust enrichment claim, but he did challenge the findings that Davis Tree had not violated the Kansas Consumer Practices Act.

ToocloseHeld: Davis Tree had not violated the law. Because the trial court jury had found for Davis Tree, the appellate court had to consider the evidence in a light most favorable to the tree trimmer. If the evidence so viewed supports the verdict, the appellate court will not intervene to disturb the verdict. The question on appeal, the Court said, was whether there was evidence to support the jury’s findings against Sexton’s claims.

The issue was whether Jeff Davis believed Ron Sexton knew the price and requested added tree trimming services. There was ample evidence that he knew what he had paid the year before, and that Davis believed he knew the price would be the same in 2003. Likewise, there was plenty of evidence that Sexton had asked for extra services. Based on that, a rational jury could have found from the record that Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Under the KCPA, a supplier shall not engage in deceptive acts or practices, including the willful use in a misrepresentation of “exaggeration, falsehood, innuendo or ambiguity as to a material fact,” the willful failure to state a material fact, or the willful concealment of a material fact. Such practices are violations regardless of whether the consumer has, in fact, been misled. Here, the evidence supported that Jeff Davis of Davis Tree believed he and Sexton had discussed price and that Davis believed Sexton knew the price for the 2003 job would be the same as the prior year — $1,200 per day. Likewise, the evidence supported the inference that Sexton requested additional trimming services. That, the Court said, was sufficient to find Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Sexton also claims the trial court erred in finding Davis Tree did not commit unconscionable acts in violation of the KCPA. He argued that because KCPA cases were so “fact sensitive,” the appellate court had to conduct an “unlimited review” of findings that certain conduct was not unconscionable. But the Court disagreed, holding that the standard is “abuse of discretion,” that is when no reasonable person would take the view adopted by the trial court. This is especially true where the credibility of witnesses is central to resolution of the case. Credibility determinations will not be reweighed on appeal.

The KCPA prohibits a supplier from engaging in an unconscionable act in connection with a consumer transaction. In determining whether an act is unconscionable, a court considers a nonexclusive list of circumstances “which the supplier knew or had reason to know,” including whether when the consumer transaction was entered into, the price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by similar consumers, and whether the consumer was able to receive a material benefit from the subject of the transaction.

Sexton argued that the Davis Tree invoice lacked documentation, and compared it to invoices for other Davis Tree customers which differed both in amounts charged and in how specifically the tasks were described. Davis Tree cited the extensive equipment and complex procedures required to trim the large number of trees on the Sexton property over the claimed 14-1/2 days of work. The trial court found that “just looking at $1200 a day for three people and the equipment, the Court … does find that it has not been established by a preponderance of the evidence that the price was grossly exceeding the value of what was being provided.”

Davis Tree Service learned a costly lesson

Davis Tree Service learned a costly lesson

The Court of Appeals found essentially that Sexton had not sustained his burden of proof. The trial court found there were three people working on the project, using a number of machines and at least two of the people climbing trees with their gear. Even Sexton admitted to seeing the equipment and work being done. However, the trial court noted, Davis Tree’s failure to prepare specific proposals was “a bad way to run a business,” and “more of a poor business that was run by Mr. Davis and not an unconscionable act or an intentional misleading business. Just bad business practices.”

At trial, in support of the claim that he did not receive a material benefit under the KCPA, Sexton argued the work Davis Tree claimed to have done was the same as done the previous year and, therefore, unnecessary, or that Davis Tree charged for work not done, and that Sexton did not receive the benefit of the full $17,400 charged. But as the Court noted, the jury did not order Sexton to pay the full $17,400 charged. The jury’s verdict against Sexton was for $6,500, and that was not challenged on appeal.

The trial court found there was little evidence to show what the value of the work actually should be, but it considered the evidence of the number of people and amount of equipment involved to conclude $1,200 a day was not excessive and, therefore, not unconscionable. The Court of Appeals couldn’t say that no reasonable person would agree with that ruling. Thus, the trial court’s ruling that Sexton received a material benefit would not be disturbed.

-Tom Root

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Case of the Day – Tuesday, August 3, 2021

IF A TREE FALLS IN THE FOREST …

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Island Realty’s coffers were as empty as a Venezuela grocery store’s shelves.

Taking a philosophical bend, a New York trial court asked “[i]f trees are cut in a forest that were going to be removed anyway does the owner have compensable damages?”

The Mottas couldn’t stand the overgrown and scrubby condition of unimproved land next door to their place, property owned by Island Realty. When another neighbor took matters into his own hands and cut back some of the offending saplings on the vacant land, the Mottas — bothered by falling leaves and insects, not to mention fears of West Nile virus — hired their own landscaper to cut back some other trees and vegetation on the Island Realty property.

The landscaper attacked the job with enthusiasm, and a neighbor — worried about the cutting because the Mottas weren’t home — called the cops. The police came and — this being New York City — everyone got a ticket because no permits to cut trees or park dumpsters had been obtained. One of the police reported the matter to Island Realty, too.

Island Realty had a case of the “shorts.” It wanted to develop the lot for housing, but its bank account was emptier than a beer cooler in CaracasSo it sued the Mottas for treble damages under New York law, and brought in an expert who tried to sell the Court the amazing woof story that the one-third acre of cut saplings would cost $190,000 to replace.

The Mottas’ expert pointed out that the Island Realty development plan called for removal of the trees that the Mottas had cut. In other words, far from damaging Island Realty, the Mottas had saved the developer a few bucks by doing what the developer would have had to have paid to have done.

The Court was a bit vexed. It didn’t much cotton to the Mottas’ form of self help in clear cutting the neighboring land, but it couldn’t really find any damage, either. It ruled that under New York law, the lesser of diminution of value of the land or restoration costs was used to set damages. The Mottas had pretty well shown that the land wasn’t worth a dime less with the scrub cut. In fact, an aerial picture taken during the litigation (three years after the cutting) showed that the scrub was nearly all back.

show150714The Court held that because Island Realty intended to cut the trees itself, damages were nominal, and it ordered the Mottas to pay $100, trebled to $300. In fact, the Court gave credence to the Mottas’ suggestion that the whole reason Island Realty sued to begin with was to raise a pot of money to start the development that it was too cash-starved to pull off by itself.

333, Island Realty Assoc., LLC v. Motta, 21 Misc.3d 554, 863 N.Y.S.2d 866 (Sup.Ct., Aug. 22, 2008). Island Realty was a land developer that owned a large tract of unimproved wooded land in the south shore on Staten Island. Joseph and Joan Motta owned a house next door. The Mottas had often complained that the unattended trees on the Island Realty land had created a nuisance, because some of the trees hung over their property and fallen leaves had clogged their pool drains.

Motta’s neighbor – whose property also abutted the Island Realty land – exercised a little self-help by cutting a swath of Island Realty trees to create a 100 foot buffer zone between his backyard and the tree line. He did so without any permission or objection from the real estate firm. Seeking to create a similar buffer zone to safeguard his own property, Joseph Motta had a landscaper cut the trees that overhung his land and create a buffer zone away from the unattended trees for fear of insects and West Nile Virus, which was prevalent in Staten Island around the time of the cutting of the trees.

While the Mottas were not home, the landscaper and his crew went to work but became overzealous, cutting down various trees without Island Realty’s consent and with any supervision from the Mottas. A nosy neighbor called the police to inform them that trees were being cut while the Mottas were not home. Because the complaint involved tree cutting, police officers from the New York City Department of Environmental Protection responded to the premises and observed a wood chipper feeding into an open container. Upon confronting the landscaper, the police officers learned that Joseph Motta authorized him to clear out some trees. The police officers originally estimated that 100 to 200 trees were cut in an area about half the size of a football field, but later admitted they were not certain how many trees were cut down. The police issued Motta five summonses for cutting down trees without permission and for placing a container on the street without a permit. All of those charges were dismissed by the criminal court, except for the container charge, wherein the defendants paid a $250 fine.

Officer Friendly responded to a call from a nosy neighbor ... and stopped by the Mottas for a chat.

Officer Friendly responded to a call from a nosy neighbor … and stopped by the Mottas for a chat.

Island Realty was not immediately aware of the cut trees, but learned of it from the police. The company had planned to develop the wooded tract into a large development of houses, and in order to do so, it would have had to clear large sections of trees to comply with an approved plan. Ironically the Mottas argued that they rendered a benefit to Island Realty in removing trees at no expense that ultimately would have to have been removed in order to complete the building project.

Nevertheless, Island Realty sued Motta under New York Real Property Actions and Proceeding Law § 861, which authorizes treble damages for wrongful cutting of trees.

Held: Motta was liable for damages, but the damages awarded were nominal, $100 trebled to $300. The Island Realty expert estimated that 483 saplings would have to be planted to replace what was cut, at a price of $190,000. The trial court rejected the estimate as “incredible” and “preposterous.” Motta’s expert, on the other hand, testified that Island Realty was under no legal requirement to replace the trees, which it was going to cut down itself anyway. The Court accepted this opinion.

The Court followed the New York law principle that the measure of damages for permanent injury to real property is the lesser of the decline in market value or the cost of restoration. A plaintiff may demonstrate the costs of restoration, but then it becomes the defendant’s burden to prove that a lesser amount than that claimed by the plaintiff will compensate for the loss.

Here, the Court said, Island Realty only presented speculative testimony of the value of the restoration and disregarded balancing that testimony with the other evidence in this case, namely, that there was no decrease in the value of the land, especially when it was to be cleared for development anyway.

The Court warned that it did not condone the Mottas’ actions in cutting down Island Realty’s trees without permission. However, applying the rule of taking the lesser of the values between restoration —which was most speculative — and no diminution of the value of the land, the Court held it was clear that there was no diminution in the value of the land.

It was noteworthy, the Court said, that Mottas tried to buy the land from Island Realty after the cutting, and Island Realty wouldn’t adjust the price downward because the trees were gone. This suggested, the Court said, that even Island Realty didn’t think the land was worth less with the trees gone. Instead, it suggested that Island Realty’s lawsuit was only about getting startup capital for a building project from the Mottas instead of being about the value of the lost trees that would never be replanted.

– Tom Root

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And Now The News …


The Hill, August 2, 2021: The Oldest Tree in US at risk after more than 2,600 years

It is the oldest known living tree on the East Coast, residing in North Carolina’s wetlands, and it is endangered due to climate change. The 2,624-year-old bald cypress is the fifth-oldest living non-clonal tree species in the world. But it is vulnerable to conditions such as drought, heat wave, storms, and flooding all while warming temperatures continue to create problems for plant growth, resilience and reproduction, The Guardian reports. “The principal threat to our forests is people and human activity. One consequence of human activity is climate change,” David Stahle, a dendrochronologist who was introduced to the Black River’s bald cypress stand in 1985, said. Rising sea levels are threatening the bald cypress, with little more than six feet of elevation standing between the tree and Atlantic Ocean. This means that rising sea levels could one day bury the tree underwater by around 2080 based on the estimates that at least 20 feet is possible in the between next 100 and 200 years or so…

The Weather Network, August 2, 2021: Why trees are shedding their leaves in the summer

Normally when you see leaves falling from trees, it’s a telltale sign that autumn has arrived. But when they’re dropping in the summer, it’s indicative of the trees experiencing stress, particularly during hot and dry weather. Such is the case in British Columbia, particularly earlier this summer during its record-shattering, extreme heat wave and dry conditions. The City of Vancouver recently instituted emergency watering measures to combat the drought effects on its street and urban park trees. Stephen Sheppard, a professor of forestry at the University of British Columbia (UBC), told The Weather Network that the occurrence was fairly widespread in the Lower Mainland, particularly in Metro Vancouver. For cities like Vancouver, seeing the leaves drop is quite atypical since it has a fairly mild climate, Sheppard explained…

Bangor, Maine, Daily News, August 2, 2021: Maine regulator rebuffs lawmakers’ complaints around corridor tree-cutting

The Maine Department of Environmental Protection on Monday rejected a claim by four lawmakers that tree-cutting in a controversial hydropower corridor under construction by a Central Maine Power Co. affiliate violated permit requirements. DEP Commissioner Melanie Loyzim wrote lawmakers that there is no evidence at this time that the cutting around the New England Clean Energy Connect project violates or warrants a suspension of the department’s license. She said the department will continue to monitor corridor construction activities. Tree-cutting resumed this month on the $1 billion electric transmission project in western Maine after a two-month hiatus over a federally protected bat. The DEP’s response came after the four legislators visited the first segment of the project in a remote part of Somerset County and wrote to the DEP that the utility in charge of it cannot meet permit requirements because of the nature of the forested area, a claim the company denied. The lawmakers cited various irregularities they said they observed…

Philadelphia, Pennsylvania, WPVI-TV, August 2, 2021: Seeing fewer spotted lanternflies? Experts say they’re on the move and spreading out

Carefully placed on several trees, the more than 900 acres of conserved land at Pennypack Ecological Restoration Trust in Huntingdon Valley, Pa. is an experiment aimed at stopping an invader. “They’ll crawl up this mesh – it’s really nice for them to grab – and then they’ll get stuck up in here,” explained Maria Paula Mugnani, the research and restoration coordinator at the trust. She was showing a simple jar and mesh contraption that has trapped thousands of spotted lanternflies. “Lanternflies are basically sucking the sap out of the tree leaves and that can affect the health and cause mortality in a lot of the trees,” she said. The bug has been a threat in Pennsylvania for seven years now, but the swarms of carcasses littering skyscrapers and yards have yet to appear this summer…

Mankato, Minnesota, Free Press, August 1, 2021: Drought and excessive heat could affect Christmas tree supply a decade later

In a typical year, Scott Wilson – co-owner of Brewery Hill Christmas Tree Farm near Le Sueur – will lose about 8% of his 3,000 newly planted conifer trees in their first year, caused by transplant shock and other factors. But this summer, thanks to drought conditions and excessive heat, only about 50%, or 1,500 plantings, have survived. If those conditions continue through August, the losses could be as high as 70%. Wilson said while dry conditions can be problematic, it’s the excessive heat that puts the most stress on his trees. “Christmas trees are adapted to drought conditions; they, and most coniferous trees, live in poor soils and are a little bit drought tolerant,” Wilson said. “The problem is when you’re raising them as commercial and plant them one year and depend on that crop to be harvested eight years from now, it’s different than in the woods where those trees have all different shapes and sizes from 200 years old to just grown.” Growing Christmas trees to sell, which can range from pines and spruces to fir trees, typically takes anywhere from seven to 12 years, depending on the species. While established tree farms usually have a rotation of trees at various ages to meet demand each year, Jan Donelson, executive director of the Minnesota Christmas Tree Association, said people who are new to the industry are faced with an especially difficult dilemma this summer…

Boston, Massachusetts, Herald, August 1, 2021: Tree cutting resumes on N.E. grid project after pause to protect bats

Tree-cutting is resuming on a $1 billion electric transmission project in western Maine after a two-month hiatus over a federally protected bat. The New England Clean Energy Connect, to be paid for by Massachusetts rate-payers, was able to resume construction beginning Sunday on a key part of a 145-mile power line that would serve as a conduit for up to 1,200 megawatts of Canadian hydropower to reach the New England power grid. Tree-cutting was put on hold in June and July to protect the newly born young of a federally protected bat. Northern long-eared bats are tiny — the size of a small mouse — and they live in trees instead of caves. Like most hibernating bats, their numbers have been decimated by so-called white nose syndrome, a deadly fungal disease that has killed millions of bats since it first appeared in New York in 2006…

Attleboro, Massachusetts, Sun Chronicle, August 1, 2021: Agricultural authorities advise Attleboro area residents and those elsewhere in state: Beware of box tree moths

They may not be as bad as gypsy moths, but state agricultural officials are warning residents about box tree moths. The Massachusetts Department of Agricultural Resources (MDAR) has received notification from the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) that a number of nurseries in Massachusetts received Canadian boxwood plants that were potentially infested with box tree moths. The moths are an invasive pest that feed on the leaves of boxwood shrubs and can cause complete defoliation, eventually killing the plant. While state and federal inspectors have not found any signs of box tree moths at the nurseries, state officials warn some of the plants may have been sold before inspections began, or were purchased out of state and planted in Massachusetts. Residents who purchased and planted boxwood shrubs this spring are being asked to inspect them for boxwood moths or caterpillars…

Woodburn, Oregon, Independent, July 31, 2021: City addresses tree-removal fines

The city of Woodburn took some steps toward establishing steeper penalties for violators of city laws governing tree removal. During the July 26 Woodburn City Council meeting, City Attorney Bob Shields and Community Development Director Chris Kerr discussed some of the options the city has in establishing higher fines and giving the city more leverage in enforcing tree ordinances. The issue arose last month when councilors Sharon Schaub and Mary Beth Cornwell both expressed concerns with the futility of the city codes. Schaub said she had heard from concerned residents in her ward after a couple of trees had been removed from different locations without approval. Her concern was that existing city fines for unlawful tree removal were no deterrent. Shields said he searched for a similar municipal situation or a template by which to guide strengthening the ordinance, but he couldn’t find one. “Most of the time people follow the ordinances. And sometimes they are constrained by the ordinances and complain to you about having to follow the ordinances, so most people do that, and that’s a good thing,” Shields said. “There is a very small group of people … who may occasionally intentionally violate the city permit requirement regarding trees…”

Muskegon, Michigan, MLive, July 30, 2021: Trees saved, pause button hit on changes at Pere Marquette beach in Muskegon

Muskegon’s Pere Marquette beach won’t be getting new trees after all – but it won’t be losing any either.Following months of back-and-forth on what to do about trees lining a main sidewalk at the Lake Michigan beach, city commissioners have hit the pause button. The issue was first raised last November as part of a plan to add parking along Beach Street and an adjacent southbound drive, and replace the 5-foot-wide sidewalk with a 20-foot-wide concrete path. To accommodate those plans, 11 mature – and, staff said, aging – trees needed to be removed. The tree removal prompted protests from citizens, and commissioners asked that a plan be prepared for preserving at least some of the trees. In March, the number of new parking spots was reduced from 200 to 88, and a proposal to add 39 trees to replace the 11 garnered city commissioners’ support. By then, it was too late to piggyback the concrete path and new parking onto an existing contract Muskegon County had with a contractor working to install a water main in that area…

Tacoma, Washington, News Tribune, July 30, 2021: Can you cut down a tree blocking the view from your home? Here are the laws in Tacoma

Tacoma residents: Before you cut the tree that’s blocking your views of the Sound, take note. The City of Tacoma has rules around what trees or shrubs can be cut and pruned and has worked in the past to educate residents about illegal tree cutting. First, it depends on if the tree or shrub is on public or private property. The city’s Title 9 code speaks to tree cutting on public rights of way. The code states that it is unlawful for anyone to remove or cut any tree or shrub on city-owned public property for the purpose of view preservation without having first obtained a permit from the city. Cutting trees without a permit from the city could result in a fine not exceeding the value of the vegetation pruned or removed plus $1,000. Title 9 also states property owners are responsible for the removal of trees, plants or shrubs that overhang a sidewalk or street if it “obstructs or impairs” the free and full use of the sidewalk or street by pedestrians or drivers. Cutting trees on private property is another story. According to the city’s Title 13 code on land use, there are not any fines for illegal removal of trees on private property…

Tallahassee, Florida, Democrat, July 29, 2021: When you see slime, it’s not a good time for your tree

Summer is a time of year that brings stress to those of us that spend time in the outdoors. The heat and humidity can be kind of rough and you need to make sure that you pay attention to your body so as not to get too hot and dehydrated. Summer is also a time of stress for trees, and it is when I see the most insect and disease activity in trees. One of these diseases has the unusual name of slime flux. Sometimes this disease is also referred to as wetwood. The name slime flux refers to a dark liquid oozing down bark from wounds on the tree. These wounds usually originate from branch stubs from poor pruning cuts or from poor tree structure that creates “V” shaped joints. These injuries are then invaded by bacteria and a bacterial infection occurs. Sometimes this liquid, which is actually fermented tree sap, is very abundant and foul smelling. The bacteria use the sap as a nutrient source…

Tulsa, Oklahoma, World, July 29, 2021: Galls abnormal growths on trees

Galls are abnormal growths on the leaves and twigs of many plants. The oak trees in the Skiatook area have two kinds of galls, a leaf gall and a twig gall. Both are caused by tiny wasps. Galls provide food and shelter for developing larvae. The oak leaf gall, also called an oak apple, is spherical, 1-2 inches in diameter. A female wasp will lay an egg on a leaf bud. Chemicals produced by the larva cause a gall to form. Larvae feed on gall tissue, undergo development, transform into adults and exit the gall through a tiny hole in the gall. Initially, the gall is hard and mottled but as larvae feed on the tissue it becomes filled with a spongy mass and dries to a brown paper-thin wall. The oak twig gall, also called horned oak gall, is an irregular-shaped, golf ball-size woody growth on a twig. Spikes or horns protrude from the surface of mature galls. A female wasp lays eggs under the surface of a young twig. Chemicals released by the larvae cause the gall to form. It will take nearly 3 years for development from egg through larva to adult wasp. Larvae feed on gall tissue and adult wasps will escape the gall through the horns, chewing an exit hole at the tip…

New Orleans, Louisiana, Times Picayune, July 28, 2021: Cargo ship infested with tree-killing beetles ordered to leave New Orleans

Federal agents inspecting a cargo ship near New Orleans ordered it out of the country after finding it infested with a type of Asian beetle that has been destroying trees in the U.S. for about 25 years. They discovered the invasive beetle in wood onboard the Pan Jasmine on July 17, just after the 590-foot-long vessel anchored in the Mississippi River about a mile downriver from New Orleans, according U.S. Customs and Border Protection officials. Flagged under Panama, the ship had previously offloaded a shipment of aluminum in Veracruz, Mexico, after departing a port in India. Wood used to pack the aluminum had not been offloaded in Mexico and was left scattered on the deck of the Pan Jasmine. That appeared unusual to customs agents. “No reason was provided as to why the [wood] was refused discharge in Mexico, and this raised a red flag,” the agency said Wednesday. The wood was found to have burrowing holes and fresh sawdust. U.S. Department of Agriculture insect specialists identified five pests in the wood, two of them – the beetle and a type of ant – considered serious risks to U.S. crops…

Somerville, Massachusetts, Patch, July 28, 2021: Complaint Pins Loss Of Somerville Trees On Utility Company

Nearly 250 residents, officials and community groups have filed a complaint with Attorney General Maura Healey’s office and the Department of Public Utilities regarding gas leaks on Somerville Avenue. The complaint claims Eversource’s inaction to curb the leaks resulted in the deaths of city-planted trees between Porter Square and Wilson Square. “The lack of tree canopy cover along Somerville Ave is an environmental justice and public health risk,” said Cate Mingoya, who submitted the complaint. “Somerville just hit its 15th day above 90 degrees, and it’s not even the end of July – if we’re going to weather the climate crisis, we need to support the City of Somerville in reaching its shade-equity goals. I’m a resident, a mom, I walk my kid to daycare along that stretch, and it’s just miserable.” The complaint asks the agencies to require Eversource to fix the leaks and reimburse the city for the lost trees… Complainants said readings taken June 4 showed methane levels at 15-90 percent across 10 discrete leaks under the sidewalk on Somerville Avenue. All trees along that half-mile stretch are “dead or showing signs of extreme distress,” due to the methane asphyxiating their roots, the complaint alleges…

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Case of the Day – Monday, August 2, 2021

LITIGATION IS A SINGLE-ELIMINATION PLAYOFF

We’re approaching that magical time where football and baseball seasons overlap. Two games, so different. Football is time management, while a baseball contest can continue while glaciers whiz by. And the playoffs – in baseball, a team can have an off night or two, but still take the Series. Football is “one and done.”

Maybe we’re simple people, but we like the football playoffs, where a single game determines who goes on and who goes home. Single elimination. Boom, and it’s over… just like that.

That’s how the judicial system works. If you’re sued and win, the loser does get not another bite of the apple. No do-overs. No mulligans. Of course, if you’re sued and lose, the same is true.

Mary Shiel and her neighbors, Keli Jo and John Rowell, enjoyed what the court called “an uncomplicated and pleasant relationship; throughout the years, there would be soirees, weddings, and the usual and customary events that form the bonds of comity in the community.” All was not placid, however. There was a tree, you see…

Mary and the Rowells shared a property line on which a tree grew. And grew and grew. The tree seemed to favor Mary, because it did most of its growing in her direction. The limbs bothered Mary, and as the tree grew, so did her aggravation. The friendship frayed, and the police were called more than once. Finally, the Rowells had to get protective orders from their now-manic neighbor.

Any reader of this column knows the Massachusetts Rule. Like Dorothy, Mary had her own ruby slippers, or maybe a ruby-encrusted chainsaw. She had the power to remove those offending branches any time she wanted to. Except Mary didn’t want to. She wanted the Rowells to trim it for her.

Finally, she sued in Small Claims Court. Uncharacteristically for Small Claims Court, the magistrate conducted a full hearing, where Mary was remonstrated repeatedly not only by the magistrate but by her own lawyer. After testimony that consumed 68 pages of transcript, the Small Claims Court unsurprisingly found for the Rowells, holding that Massachusetts follows the Massachusetts Rule. If Mary didn’t like the branches, she could remove them herself.

Unsatisfied with the result, Mary hired another attorney and had him file a complaint in the Quincy District Court, alleging nuisance and trespass. That’s when Mary found out she was playing football, not baseball.

Shiel v. Rowell, 2017 Mass.App.Div. LEXIS 30 (Ct.App. Massachusetts, August 9, 2017). It is well established in Massachusetts that an individual whose property is damaged by an overhanging tree has no cause of action against a landowner of the property upon which the tree lies. The Massachusetts Rule empowers the aggrieved neighbor to engage in self-help and lop off the trespassing. After losing in Small Claims Court, Mary Shiel sued the Rowells, asking the court to adopt the Hawaii Rule, permitting her to hold the Rowells liable for nuisance and trespass because of the encroaching tree.

Mary sued in Small Claims Court, raising her nuisance and trespass claims. The Court ruled that the Rowells were not responsible for the branches overhanging Mary’s place. Mary did not much like the result, so she hired a new lawyer, and sued the Rowells in Quincy District Court, alleging the same causes of action litigated in the small claims hearing.

The Rowells filed a motion to dismiss the case, claiming both res judicata – a legal doctrine that literally means “the thing has been adjudicated” – and that the Massachusetts Rule required dismissal. The District Court judge ruled that the Massachusetts Rule claim was directly on point, so it was not necessary to reach the res judicata question, and dismissed Mary’s lawsuit.

Mary appealed.

Held: Mary had no right to force the Rowells to trim the tree.

The appellate court made short work of Mary’s appeal, observing that she did not “ascribe fault to the trial court’s decision other than that the judge should have disregarded the settled law and applied a different standard.” Mary wanted the court to adopt the Hawaii Rule, which the court called “a deciduously dissimilar state, which rejected the Massachusetts Rule for one providing a homeowner with a cause of action against a neighbor’s tree encroachment. We decline to fell judicial precedent.”

Litigation is football. When the trial is over, it is over. Single elimination. Sudden death. Mary thought she was in the baseball post-season, and had multiple games. She only needed one win, and in the end, reverted to football with a “Hail Mary,” asking a court in the home of the Massachusetts Rule to go Hawaiian.

Your season’s over, Mary. Now go trim those branches.

– Tom Root

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Case of the Day – Friday, July 30, 2021

WHEN GOOD TREES GO BAD

The tree was just doing what trees do.

The tree was just doing what trees do.

Your tree is growing, man. Do something!

That was Ed Chandler’s lament to his neighbors, the Larsons. The nerve of those Larson people, owning a tree growing near the boundary with Ed’s place. What’s worse, they had the unmitigated gall to permit the tree to drop its leaves on Ed’s property, and to let the tree’s roots to grow up to his garage foundation. Ed complained mightily, but to no avail.

Ed could have stood for merely mitigated gall, but not this unmitigated kind. Oh, the humanity! So, this being America in general and Illinois in particular, Ed sued. He claimed that “as a consequence of the growth of that tree plaintiff’s garage had been severely and greatly damaged from the roots of the tree so that ‘the foundation has been broken, walls damaged and the roof coming apart’.”

The trial judge, being a flinty, self-reliant sort, threw out the suit, holding that the tree was doing what trees do – growing – and the Larsons weren’t responsible for that. The Court of Appeals disagreed, citing Professor William L. Prosser’s gold-standard treatise on tort law:

“[I]t is scarcely suited to cities, to say that a landowner may escape all liability for serious damage to his neighbors, merely by allowing nature to take its course. A different rule accordingly has been developing as to urban centers. * * * [W]hen the tree is in an urban area, * * * the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe. Recent decisions have extended the right to reasonable protection from travelers on the street to adjoining landowners as well.”

Like it or not, the Massachusetts Rule increasingly seems to be a relic of a bygone era. The Illinois courts still seem to discount normal tree problems – falling leaves, sap and the like – but when genuine harm (we call it “sensible harm”) results to an adjoining landowner from a tree’s natural development, the tree’s owner may be liable for repairs and removal of the tree.

eviltree160815Chandler v. Larson, 148 Ill.App.3d 1032, 500 N.E.2d 584 (Ct.App. Ill. 1986). Chandler complained that his next-door neighbor, Larson, had a tree that for some time had been growing over and onto Chandler’s property, with the roots growing under his garage and the leaves growing above his property. As a result of the tree’s growth, Chandler’s garage foundation has been broken, with the walls damaged and the roof coming apart. Chandler asked the Larsons to cut down their tree, but they refused. Chandler asked for an injunction ordering that the tree be destroyed. The trial court refused.

Held: The appeals court ruled that an urban property owner owed his adjoining landowner the duty of reasonable care, which necessarily would include taking reasonable steps to prevent damage to the adjoining landowner’s garage caused by roots of the urban property owner’s trees. A complaint which alleged that the adjoining landowner had placed the urban property owner on notice that the roots from his trees were causing considerable damage to adjoining landowner’s garage and which alleged that although urban property owner had received the notice, he refused to uproot the tree or to use other methods which would prevent further harm, stated a good cause of action for negligence.

The ruling is substantially at odds with the traditional Massachusetts Rule that an owner of land is entitled to grow trees on any or all of his land and that their natural growth reasonably will result in the extension of roots and branches onto adjoining property, and the adjoining landowner’s only remedy is to trim back the roots and branches. The appeals court in this case held urban landowner Larson to a higher “city dweller” standard. This standard is generally known as the Hawaii Rule, which imposes liability upon the adjoining landowner if the trees, plants, roots, or vines cause harm in ways other than by casting shade or dropping leaves, flowers, or fruit.

– Tom Root

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Case of the Day – Thursday, July 29, 2021

A SLOPPY AND LAZY TRIAL JUDGE

You have to appreciate the careful prose of an appellate court. Today’s case was brought in 1999, but was still sputtering along eight years later. The Rhode Island Supreme Court thought it knew why.

Never-ending litigation ... Rhode Island style

Never-ending litigation … Rhode Island style …

After a few pointed comparisons of the case to Jarndyce v. Jarndyce, the Rhode Island Supreme Court asked the trial court what the Dickens was going on. The trial judge took his dear sweet time writing a decision — about five years — leading the Supreme Court to mention in a note, “We are mindful of the inordinate delay of the decision of the trial justice, which this Court does not favor.”

Beautiful understatement! The Supremes were saying to the trial judge, “Hey, dude, you’re lazy!” Of course, in the decision, the high court also implicitly said, “Hey, dude, you’re incompetent, too.” The reason for that was the trial judge’s failure to make the findings the Supreme Court needed to adequately review the decision.

A court speaks through its opinions, and when the trial court doesn’t make findings of fact, no one wins. The winner doesn’t know why he won, the loser doesn’t know why he lost, and the rest of us can’t derive any useful guidance from the case. In this case, an unusual argument arose in the battle over the location of an easement. The easement holder claimed the prior owner had obstructed the easement — a driveway — and demanded that the easement and everything on it be shifted a few feet to the south. This is called an easement by substitution. Some testimony suggested that an easement by substitution had been created. But the trial court couldn’t be bothered to make any findings on the issue, leaving everyone to puzzle whether something hadn’t been proven, some witness hadn’t been believed, or just what?

Perhaps a little burninating in the Ocean State?

Perhaps a little burninating of indolent trial judges was called for in the Ocean State?

So after eight years, the case landed back in the trial court’s lap. Maybe the judge was waiting for the owners to tire of it all and settle, or to die or move to Florida… or for Rhode Island to be swallowed by the rising seas, or be consumed by an angry dragon… anything that would spare this poor trial judge from having to do his duty.

Nardone v. Ritacco, 936 A.2d 200 (Sup.Ct. R.I., Dec. 3, 2007). Nardone’s property bordered Lawton Foster Road. Ritacco owned an adjacent parcel of land behind Nardone’s property, with no frontage on Lawton Foster Road. In 1965, Nardone’s predecessor-in-interest, Ralph C. James, Sr., granted Ritacco a 50-foot right-of-way along the northern boundary line of what is now Nardone’s property. The right-of-way for ingress from and egress to Lawton Foster Road, has been the subject of many years of litigation.

On Memorial Day 1999, Ritacco cut trees and vegetation within the right-of-way. Nardone sued for a temporary and permanent injunctive relief to prohibit Ritacco from cutting the trees and from trespassing on Nardone’s land. The trial court entered a preliminary injunction and later found Ritacco in contempt of the order by cutting trees and vegetation outside the right-of-way. A key issue was the location of the right-of-way. In addition to arguing that the right-of-way was not originally located along the northern boundary of Nardone’s property but rather inside the boundaries of the land, Ritacco also asserted two alternative claims for relief: the existence of an easement by prescription as well as an easement by substitution over plaintiffs’ driveway. The trial court decided for Nardone, clarifying that the right-of-way was located along the northern boundary of Nardone’s property. Nardone appealed.

Held: A remand was necessary to determine whether Rotacco had acquired an easement by prescription or by substitution over Nardone’s driveway. The Supreme Court held that the trial court had properly found that the right-of-way over Nardone’s land was located on northern boundary of the land. The deed itself placed right-of-way “along the northerly boundary line” of the premises, and Nardone’s expert witness testified that, upon examining property, the boundaries were clear and right-of-way was located along the northern boundary of property. Ritacco’s expert had said that the deeds were not clear, but he hadn’t inspected the property itself, and the trial court’s discounting of his testimony was therefore reasonable.

Does this pass for judicial garb in Rhode Island?

Does this pass for judicial garb in Rhode Island?

However, Ritacco had also claimed that he had acquired an easement on land inside the Nardone boundaries by prescriptive easement. The trial court had ruled against him without a trial, but the Supreme Court ordered a remand for trial on the issues. The Supreme Court held that the trial court hadn’t addressed the issue of Ritacco’s permissive use of driveway, let alone determine whether sufficient factual support existed to conclude that permission to use driveway was given by Nardone or his predecessors-in-interest. A party who claims an easement by prescription bears the burden of establishing by clear and convincing evidence actual, open, notorious, hostile, and continuous use under a claim of right for at least ten years. In this case, the Court ruled, the trial judge had failed to make the specific findings of fact upon which he based his decision. When that happens, the trial court risks reversal or remand unless the record yields a full understanding and resolution of the controlling and essential factual and legal issues.

Here, there were unaddressed issues that were raised in pleadings and testified to at trial, including Ritacco’s testimony that perhaps Nardone’s predecessor-in-interest had granted him an easement by substitution. When the owner of a servient estate closes with a wall or other structure the original easement and points out another way which is accepted by the owner of the dominant estate, the new way may become the easement by substitution. The Supreme Court said that testimony indicated that James may have granted Ritacco an easement by substitution. However, the trial court failed to determine whether sufficient factual support existed to conclude that an easement by substitution was granted.

– Tom Root
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Case of the Day – Wednesday, July 28, 2021

MEANWHILE, BACK AT THE RANCH …

ranch

… that confounded sodbuster neighbor just done cut our power line with his plow. In the ensuing fire that swept across the plain, the trees planted in our windbreak went up like Roman candles, and the ranch hands couldn’t stop the conflagration. Sure, the farmer was negligent, but to what extent?

One of the first things new law students learn is the lesson of Hawkins v. McGee, the “case of the hairy hand,” in which we find that the measure of damages is the difference between the value before the breach or the negligence, and the difference after the breach. Nebraska law in this case held that if the trees were used for residential or recreational purposes, the damages are the replacement cost of the trees up to the value of the real estate. But if they were just used for agricultural purposes, the Hawkins v. McGee formulation is fine.

hairyhandHere, replacement of the trees would cost over $270,000, but the reduction in value of the farmland was only $30,000. David Spicer, owner of the ranch, tried to bootstrap himself into qualifying for the “recreational” formulation by arguing that not only did he use the windbreak for the usual agricultural purposes, but he relied on it for recreational purposes as well, including for his kids’ 4-H projects. The 4-H projects argument was especially touching, except that David Spicer’s youngest kid was 25 years old. And we thought the President and the “fake news” media twisted the facts occasionally

The trial court granted summary judgment on the damages question, holding that the replacement cost exceeded the value of the land, and that $30,000 was adequate to compensate for the loss of the trees. The Court of Appeals ruled, however, that whether the trees were recreational in nature or agricultural in nature was a question of fact, and the trial court was wrong to resolve that question without a trial.

The issue of how to value the loss of trees – especially where the value of the tree to the homeowner is due to noneconomic reasons such as beauty, sentimentality or recreational value, arises often, and for good reason. The aphorism in real estate is that value of a home depends on location, location, location. Much could be said of trees as well. The mighty oak that shades the plantation house is worth far more than its identical twin standing a quarter mile into the woods behind the fields. Determining exactly how much more may require juries to consider not so much stumpage prices as the quality of 4-H projects.

Spicer Ranch v. Schilke, 734 N.W.2d 314 (Neb.App., 2007). Schilke farmed leased land next to the Spicer Ranch. While he was plowing one day, he cut a power line leading to some irrigation pumps. A fire resulted, which — before it burned out – destroyed a windbreak on Spicer Ranch consisting of red cedar and juniper trees, and located about five hundred yards from the ranch house. Spicers used the windbreak, which was on a 110-acre tract of land, in the normal fashion of slowing the wind, providing shelter for cattle, for calving, for horses and for general farm use. David Spicer – mindful of how damages were figured in cases such as these – also maintained that he used the trees for recreational purposes including his kids’ cataloging the trees for 4-H projects (except it turned out that his youngest child was 25 years old). Spicer sued for negligence, which was pretty much conceded.

Claiming the windbreak was worth $270,000 was just so much puffery ...

The Court found that Spicer’s claim that the windbreak was worth $270,000 was just puffery …

In an affidavit to the trial court, Spicers’ expert valued the windbreak at $270,000 for replacement of the trees. But the trial court granted summary judgment to Schilke, finding that to value the trees on the 110-acre tract at $270,000 far exceeded the value of the real estate involved. The trees included only made up a small percentage of the tract, the Court found, and that small percentage of land likewise would not be permanently damaged because of the loss of the trees. The trial court awarded Spicer Ranch $30,000 as the highest amount of damages suffered by Spicer Ranch.

The sodbuster was relieved. The rancher was not, and appealed.

Held: Summary judgment was reversed on the damages issue. Spicer Ranch argued the district court erred in using a “before and after” measurement of damages. Instead, it said, to determine compensatory damages for destroying trees and for related damage to the land – where the owner of land intends to use the property for residential or recreational purposes – the owner is not limited to the difference in value of the property before and after the damage or to the stumpage or other commercial value of the timber, but instead may recover the cost of reasonable restoration of the property to its preexisting condition or to a condition as close as reasonably feasible.

The Court of Appeals noted that the trial court’s implicit rationale for its calculation of damages is that the land was used for the farming business, not for any recreational purposes, apparently because of the age of the youngest child was then 25 years old. The trial court’s finding failed to account for the material question of fact as to whether the windbreak was used for residential and recreational purposes, as stated in David’s affidavit, or whether the windbreak was simply a “normal and average farm windbreak,” as could be implied from David’s deposition testimony and as stated in the affidavit of a real estate appraiser. The Court of Appeals noted that measure of a plaintiff’s damages would depend upon the evidence presented at trial and might require alternative instructions, depending upon the jury’s determination of contested factual issues. Because a material issue of fact existed, the Court of Appeals held, summary judgment with respect to damages was improper.

Even under the “before and after” theory of damages used by the trial court, the evidence revealed a range of damages — not just a fixed, undisputed figure of $30,000. The trial judge made a factual finding when he awarded Spicer Ranch $30,000, which he said “is the highest amount of damages suffered by the Ranch according to the before and after damage appraisal.” He should have simply determined whether a material issue of fact existed with respect to damages, and – if one did – set the case for trial. The matter had to be returned to the trial court.

– Tom Root
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