Case of the Day – Tuesday, December 2, 2025

Posted on December 2, 2025 by TLRoot tagged.

IN THE VAST WORLD OF LAW…

… there’s plenty of half-vast lawyering going on.

I found myself thinking that in connection with a case I was reviewing yesterday, one that had nothing to do with trees (but a lot to do with plants, those being Cannabis sativa, and involving trucks and conspiracies and the pesky Controlled Substances Act).

Potheads or not, I thought, the defendants deserved better lawyering than they got. There’s a lot of that substandard, just-barely-enough-to-prevent-a-malpractice-suit representation, not only in the criminal courts but in civil practice as well.

Today’s case is an excellent example of phone-it-in representation on both sides of the courtroom. The plaintiff’s lawyer seems to simply have loaded a civil action blunderbuss and fired away. It was evident that the defendant’s tree roots were destroying the boundary wall by pushing against it from the defendant’s side of the edifice. Therefore, the roots were located on the defendant’s property. So why would the lawyer include a trespass count? Any first-year law student could tell you that the roots were not on his client’s land, and being on someone else’s land without permission is the sine qua non of trespass.

And before the defendant starts to feel smug about the plaintiff’s pleading miscue, she should look at her counsel’s performance. That lawyer spent the defendant’s money on a couple of experts, who may or may not have rendered solid, helpful opinions. We’ll never know – because the defendant’s lawyer did not bother to put the expert’s opinions in affidavit form – a pure rookie mistake.

The defendant might have walked away from this lawsuit relatively inexpensively by getting the plaintiff’s entire complaint dismissed. But she never had a chance to make her substantive argument because her lawyer overlooked something everyone knows – that statements by experts and witnesses must be in affidavit form.

Half-vast lawyering all around…

1212 Ocean Ave. Housing Development Corp. v. Brunatti, 50 A.D.3d 1110, 857 N.Y.S.2d 649 (Sup.Ct.N.Y. 2008). 1212 Ocean Avenue Housing Development Corp., a soulless, faceless corporation, if ever there was one, owned property next to Debbie Brunatti’s place. The two properties are separated by a 10-foot-high retaining wall built in 1924 when an apartment building was constructed on 1212’s premises. The heartless corporate suits alleged that an elm tree planted on Debbie’s property more than 40 years ago grew over time so that its trunk came to rest atop the retaining wall. The roots of this tree also damaged the retaining wall, causing it to crack and curve. In December 2004, the New York City Department of Buildings issued a summons to 1212, requiring it to fix the defective retaining wall. Shortly later, 1212 sued Debbie to recover damages for nuisance, trespass, and negligence.

Debbie had the tree removed about four months after being sued. She argued, among other things, that the defective condition of the retaining wall had not been caused by tree roots, and that 1212 could not maintain an action for damages because it had not engaged in self-help to remedy the situation. The trial court denied Debbie’s motion.

Debbie appealed.

Held: The trial court properly denied Debbie’s motion to dismiss for nuisance and negligence.

The unsworn reports from two engineers she submitted in support of her application were insufficient to establish, as a matter of law, that the tree roots did not damage 1212’s retaining wall. “Furthermore,” the court said, “while it has been recognized that a property owner may resort to self-help to remove tree roots encroaching upon his or her property and that this may constitute a sufficient remedy in some circumstances, the defendant failed to demonstrate that self-help would have been practicable here, where it is undisputed that the tree roots rested entirely on her property.”

However, the Court said, the trial judge should have granted that part of Debbie’s application for summary judgment on the trespass count. Since the tree roots rested entirely upon Debbie’s property, there was no intentional intrusion or entry onto the 1212’s property, which could constitute trespass.

– Tom Root

Case of the Day – Monday, December 1, 2025

Posted on December 1, 2025 by TLRoot tagged.

LET’S LEAVE GOD OUT OF THIS

There’s plenty of talk about old-time religion around. A few years ago, the Supreme Court held that a Catholic social services agency in Philadelphia could defy city rules and refuse to work with same-sex couples who apply to take in foster children. In 2022, the Court walked back its decision in Roe v. Wade that the right to an abortion was protected by the due process clause of the 5th and 14th Amendments. A year later, it upheld on 1st Amendment grounds the right of a web designer to refuse to create a website celebrating a gay wedding, which ran counter to her religious convictions. Tomorrow, it hears a case from a group of faith-based pregnancy centers that the New Jersey attorney general’s office alleges may have misled women about whether it provides certain reproductive-health services.

If there’s a lesson for us here, it’s that we shouldn’t try to enlist the Almighty too easily as justification for falling trees.

But the folks at the Ohio Department of Natural Resources are all too willing to overlook the separation of church and state when it’s especially convenient to do so. When one of ODNR’s decrepit cottonwoods fell on Mr. Vondrell’s seawall (or perhaps “lakewall,” because there are only freshwater lakes in Ohio), the State said, “Oops, an act of God.” The winds were blowing pretty fiercely that day, but the DNR figured that was enough to claim that the tree fell in a storm. Just a capricious Almighty, don’t you know? Which of course meant that the DNR wasn’t liable.

It may have been breezy, Mr. Vondrell countered, but the cottonwood that crushed his concrete wall fell because it was good and dead, and had been for a long time. Perhaps so, DNR responded, but we didn’t know it was dead.

The Court of Claims sided with Mr. Vondrell. An act of God has to be all God, the Court said. If the cause of the falling tree is aided at all by the agency of man, even the fact that the deadfall resulted primarily from an act of God won’t relieve a defendant from liability.

Still, for a defendant to be negligent, he, she, or it had to be on actual or constructive notice of the hazard posed by the tree. Here, the fact that the tree had been dead for over five years and DNR employees had been seen in the area of the tree was enough for the Court to conclude that DNR reasonably should have known about the defective tree.

So when there’s an act of God, it better be all God… and no man (or woman).

Vondrell v. Ohio Dept. Natural Resources, 2007 Ohio 7232, (Ohio Ct. Claims, Dec. 4, 2007), 2007 Ohio Misc. LEXIS 503. Mr. Vondrell had a seawall on his lakefront property. A cottonwood tree next door in a state park fell during a windstorm and damaged the concrete. The agency managing the park, the Ohio Department of Natural Resources, argued that the damage was due solely to an “act of God,” the high winds that caused the tree to fall. Mr. Vondrell argued the damage-causing tree was dead, that DNR personnel had years of prior knowledge the tree was dead, and that DNR knew or should have known the dead tree presented a falling hazard. Photographic evidence showed the tree was clearly dead.

Mr. Vondrell argued the tree that fell was very tall and was dead when he had bought his adjacent property in 1999, five years before the collapse. Additionally, he said, DNR personnel were seen in the area around the dead cottonwood trees many times between 1999 and 2005. He contended his property damage was proximately caused by negligence on the part of DNR in maintaining a known hazard on park premises and not merely by high winds falling a healthy tree.

Mr. Vondrell sued in the Ohio Court of Claims, which has jurisdiction over claims against the State.

Held: DNR was negligent and had to pay. The agency adduced all sorts of evidence as to high wind speeds on the day in question, but high winds alone do not an act of God make.

It’s true, the Court said, that no liability can attach to an act of God. However, an act of God must proceed from the violence of nature or the force of the elements alone: the agency of man must have nothing to do with it.

The Court held that Mr. Vondrell proved that DNR had constructive notice of the condition of the tree. The tree stood dead for over five years, and DNR employees were often seen around it. Under Ohio law, the Court said, it wasn’t enough that DNR argued it didn’t know about the condition of the tree. It was on constructive notice of the condition of the tree.

In a situation such as this one, where two causes contributed to an injury, one cause which was a defendant’s negligence and the other an act of God, a defendant may be held liable if a plaintiff’s damage would not have happened but for the defendant’s negligence. If proper care and diligence on the part of DNR would have avoided the act, it is not excusable as an act of God. Essentially, if DNR’s negligent act concurs with an act of God to cause damage, a defendant cannot escape liability.

– Tom Root

Case of the Day – Friday, November 28, 2025

Posted on November 28, 2025 by TLRoot tagged.

WRITE ME UP A VERBAL CONTRACT

OK, what’s a little New York case about a miniature golf course construction contract doing on a tree law blog? It’s here as a cautionary tale …

A miniature golf operation called Oasis Park hired Bill Oberholtzer – who was both a miniature golf course owner and a mini-golf course builder – to jazz up Oasis Park before the mini-golf season started up in the Troy, New York, area. Disregarding the universally accepted good practice in construction of starting with a nice, neat signed agreement setting out the scope of the work, payment terms, time to completion, and other such details, the Oasis Park people and Bill pretty much sketched out their agreement on the back of a cocktail napkin. And that was a mistake.

Later, Oasis Park needed a more formal document in order to convince its bank to release financing. Bill, of course, accommodated Oasis Park by signing one. You can guess what happened. When the parties’ working relationship soured, Oasis claimed that the accommodation document – and not the “cocktail napkin” – was the real deal between the parties covering the scope of the work. Bill countered that he had already been working for weeks, and the plans had changed.

You probably need a little more contract detail than you can fit on a napkin.

Nevertheless, within six weeks after some fateful April 29 “thing” occurred — and even the Court couldn’t tell what the “thing” was — Oasis fired Bill amid claims that he hadn’t adhered to some nonexistent schedule, hadn’t provided workers, and hadn’t provided materials. For good measure, Oasis claimed that Bill’s work was substandard.

Bill naturally argued just the opposite, asserting that he couldn’t buy supplies because Oasis Park wouldn’t pay him. The whole mess ended up in federal court, where the judge threw up his hands and said no one was getting summary judgment. The entire kerfuffle would have to be sorted out at trial.

So now, let’s all grab our calculators and figure out how Bill saved by not wasting his money on a lawyer preparing a contract with Oasis Park upfront. Not much, we guess. And you arborists, tree trimmers, loggers, and owners – let’s remember this: No contract, no winners.

Paone, Inc. v. Oberholtzer, 2007 U.S. Dist. LEXIS 75092, 2007 WL 2455074 (N.D.N.Y., Aug. 23, 2007). Oberholtzer agreed to provide all labor and materials necessary to remodel Paone’s miniature golf course. Beyond that fact, the parties could agree on nothing.

Paone said that under a contract dated April 29, 2004, Oberholtzer was to build a bumper boat pond, including walls, docks, light fixtures, a cave, a filter system, a perimeter walkway, and a staging area deck. As well, Paone said, the contract required Oberholtzer to renovate the course’s clubhouse entrance, the third hole, and the practice green. Paone said that under the contract, Oberholtzer began the project in May 2004, but its laborers did not show up for work, causing the project to fall behind schedule. To rectify the situation, Paone claims that it hired temporary workers.

Even with these outside laborers, the project did not move forward because Oberholtzer failed to provide supervision and direction. Paone said it had to supply all materials to the site and hire various construction professionals to inspect the work. Paone contended that these professionals found that Oberholtzer’s work violated building code requirements and fell below industry standards. After the project had gone on for about a month, Paone notified Oberholtzer that it was in default of the contract.

Oberholtzer, on the other hand, claimed that he reached an agreement to perform work for Paone well prior to April 29, 2004. Oberholtzer said he began preparatory work in March. The April 29th document, Oberholtzer contended, was merely an estimate prepared at Paone’s request, intended by both parties to help Paone get a bank loan released. The April 29th agreement was conformed to an earlier budget from the winter of 2003-2004, which Paone had submitted to the bank to support its initial loan application.

Consequently, Oberholtzer argued, the estimate did not reflect intervening changes of which both parties were aware, including a different location for the bumper boat pond, changes in site elevations for the clubhouse and parking lot, which required alteration of a ramp and deck, and additional concrete walkways on the course.

Oberholtzer said he had already made significant progress before April 29, 2004, including filling in traps, reconfiguring the practice green, removing an existing sidewalk near the old practice green, building a deck between the seventh and eighth holes, and removing fixtures and equipment from the old clubhouse. What’s more, Oberholtzer asserted, he had also cleared and trimmed trees for a new picnic area, built retaining walls for a walkout basement, constructed a deck attached to the clubhouse, erected bumper boat pond walls and skimmer baskets, and backfilled the pond.

As for the schedule, Oberholtzer argued that the April 29th document did not include such a timeline or any other time-related requirements. Oberholtzer said that Paone knew Oberholtzer would be opening and operating his own miniature golf course in Georgia at the end of May. Therefore, Oberholtzer claimed, Paone knew that Oberholtzer would not be available to work on the project on a regular basis. Furthermore, Oberholtzer argued that several weeks of delay resulted from the actions of an unrelated contractor who placed heavy equipment in the area of the future bumper boat pond. Also, he said, Paone failed to make timely payments, preventing Oberholtzer from buying materials and advancing the project. Finally, Oberholtzer complained that Paone had approved all building plans and that town building inspectors routinely inspected the progress and noted no building code violations.

Paone sued for breach of the contract and for negligence, and then moved for summary judgment.

Held: Summary judgment was denied in this fact-laden morass. The Court observed that Paone’s causes of action for breach of contract and breach of the implied covenants of good faith and fair dealing both required first that there be an enforceable contract with sufficiently definite terms. Here, the parties could not even agree whether the document was a contract, let alone what its terms were. Paone contended the document represents the parties’ complete agreement, but Oberholtzer asserted that the document was an estimate used solely for the purpose of obtaining funding. While Paone said the performance period commenced in May 2004, Oberholtzer alleged that it had already completed substantial portions of the project prior to that time.

What’s more, the Court found that reference to the April 29th document wasn’t helpful because it contained no details about the parties’ responsibilities or the construction schedule. The document was labeled “Spring 2004 Construction” and merely set forth the various projects and the price for each. In light of these disputes, the Court held, it could not determine whether an enforceable contract existed between the parties without evaluating the parties’ conflicting factual accounts. On the basis of the April 29, 2004 document alone, the Court held, it could not determine the construction schedule or the parties’ respective contractual responsibilities.

A trial would be necessary to straighten out the whole mess.

– Tom Root

Thanksgiving 2025

Posted on November 27, 2025 by TLRoot

Case of the Day – Wednesday, November 26, 2025

Posted on November 26, 2025 by TLRoot tagged.

ME AND MY SHADOW

Removing covenants can be like herding cats … which explains why Robby Ricciardello looked for a shortcut.

I had occasion about ten years ago to round up a majority of 55 subdivision owners in order to revoke some (then) 25-year-old restrictive covenants. The rules were pretty harsh – no work vehicles with signage in front of the house, no sheds, no yard signs…

It helped that almost everyone in the subdivision was already violating one or more of the covenants. I explained – over a several-month education program – that all it would take is one jerk moving into the neighborhood who wanted to stick it to his neighbor, and we’d all face trial court Armageddon.

I got a majority to sign on, but it was like herding cats, an exhausting effort. I made our filing deadline by a nose. The whole experience gave me a heightened appreciation for the long-suffering neighbor in today’s case.

The case concerns poor Robby Ricciardello. Well, maybe not poor in the fixed-asset sense. Robby owned five lots in a subdivision, and he had big plans — plans like building a barn, storing bulldozers, hunting, growing mangoes — you know, the kinds of things we all like to do with our lots in the middle of subdivisions.

A man oughta be able to do what he wants with his own property … right?

But he had a problem. His deed contained one of those pesky restrictive covenants that restricted the use of the lots to the construction of one-family homes only. Fortunately for Rob, the restrictive covenants provided that they could be amended or terminated by a vote of the owners of six of the subdivision lots.

Robbie decided to build a barn anyway, and he hatched a plan to pull it off. He told his neighbor Jim Carroll what he was going to do. Jim panicked, because he knew Rob had five lots and only needed the concurrence of one more owner. So Jim hatched a plan of his own, launching a drive to amend the covenants to make them harder to circumvent. Finally, Rob announced he wouldn’t build a barn after all, so Jim abandoned his efforts.

Any sense of relief Jim felt was short-lived because Rob did an end run on the subdivision owners. He formed his own limited liability company, which he then used to buy an additional lot. Rob essentially had a meeting with himself as an owner of five lots and Connecticut Outfielder LLC – of which he himself was the president – being the sixth lot owner. Rob took a nose count, and — mirable dictu — the owners of the minimum six lots were present! The vote was unanimous, unsurprisingly, as Rob agreed with himself to terminate the covenants.

My shadow is duly incorporated …

Pretty slick, Rob. But Jim didn’t think so, and he sued. Connecticut Outfielder protested that it had done nothing wrong. It just agreed to terminate the covenants, something it as an owner had a right to do. Rob and his alter ego LLC moved for summary judgment, pointing out that the restrictive covenants had been terminated. The court disagreed, finding that issues of fact existed, not the least of which being whether Rob had misled James to induce him to abandon trying to amend the covenants, and whether one guy – by controlling six lots himself or through corporate devices – could validly terminate the covenants.

James B. Carroll 2003 Revocable Trustee v. Ricciardello, 2007 Conn. Super. LEXIS 1681, 2007 WL 2080583 (Conn.Super.Ct., Apr. 4, 2007). It seems that Robert Ricciardello and James Carroll were adjacent landowners in the Ferrando Subdivision of Glastonbury, Connecticut. The Subdivision lots were subject to a “Declaration of Covenant and Restrictions” that provided, in part, that “[e]ach lot shall be used and maintained solely and exclusively for one-family residential purposes … No trailer, tent, shack, garage, barn or other outbuilding erected on any Lot shall at any time be used as a residence temporarily or permanently … [The] covenants and restrictions are to run with the land and shall be binding on the Declarant, purchasers or owners of any Lot … for a period of twenty (20) years from the date of recording … During the twenty-year period that this Declaration is in effect, any or all of the covenants, conditions and restrictions contained herein may be amended or terminated by an instrument signed by the then owners of at least six (6) of the Lots described on Schedule A hereto, which instrument shall be recorded on the Glastonbury land records.”

In June 2004, Ricciardello told Carroll he intended to build a barn on one of the six lots he owned. Carroll started talking to the other owners about amending the covenants to, among other things, raise the number of lot owners needed to amend or terminate the covenants. Then Ricciardello told Carroll he had decided not to build the barn, and Carroll abandoned his efforts to stiffen the covenants.

But Ricciardello, ever the crafty one, formed a Connecticut limited liability company named “Connecticut Outfielder LLC.” The same day it was formed, the entity bought lot two of the subdivision. Three weeks later, Ricciardello and Connecticut Outfielder — who together owned six lots in the subdivision — executed a “Release of Declaration of Covenants and Restrictions,” that was recorded in the Glastonbury town clerk’s office, which wiped out all of the covenants and restrictions on the books.

Ricciardello proceeded to do as he liked with his lots, planting an orchard, hunting for small game and storing construction equipment. Carroll sued, claiming that the release of the covenants was improper, and asked for an injunction. Ricciardello and Connecticut Outfielder answered, counter-claimed and filed for summary judgment. Connecticut Outfielder contended there are no genuine issues of material fact and that Connecticut Outfielder is entitled to judgment as a matter of law on the breach-of-restrictive-covenants count and the counterclaim seeking a declaratory judgment that the release of covenants is valid. Connecticut Outfielder’s grounds for the motion were that Carroll testified that Connecticut Outfielder did not breach the covenants, and the plaintiff did not allege any wrongdoing by Connecticut Outfielder in the operative complaint. Carroll objected that there were genuine material issues of fact.

Held: Summary judgment was denied. Summary judgment, of course, is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Here, the Court said, genuine issues of material fact exist concerning whether Ricciardello and Connecticut Outfielder breached the covenants and whether the covenants were properly released. Also, there was an issue as to whether Carroll relied on Ricciardello’s false assurances that he wouldn’t build a barn in deciding to abandon his quest to amend the covenants to block Ricciardello’s plans.

As long as those issues remain, the case must go to trial.

– Tom Root

Case of the Day – Tuesday, November 25, 2025

Posted on November 25, 2025 by TLRoot tagged.

LOOKING FOR SOMEONE TO BLAME

No matter how rational and discerning television juries might be, in real life, the decisions that the finders-of-fact make can be a crap shoot, especially with a roomful of parties.

I recall an old, wise lawyer telling me years ago that cases with multiple defendants were a headache for defense counsel, because jurors naturally assumed with so many people accused of damaging the poor plaintiff, someone must be at fault. “So they listen to the poor plaintiff’s sob story,” the wizened old barrister said, “and they start looking around the courtroom for someone to blame.”

A cautionary note to plaintiffs: Sometimes that backfires, because when so many parties with differing, interlocking relationships cram the defendant’s dock, convincing the jury that one or more of the defendants owes a duty to your poor, injured plaintiff can be like trying to catch a greased pig. Such as in today’s case.

The tree was rotten. It had been rotten for a long time. It collapsed onto a passing cyclist, out enjoying a country ride on a dedicated bike path. An electric utility owned by a mega-power holding company (imagine a corporation with buckets full of cash) held an easement over the bike path and adjacent land to trim the trees away from its lines, and that utility had a thundering herd of contractors signed up to do the hazard tree analysis and trimming for it.

Shouldn’t be too hard to get the money flowing to the plaintiff, right? Well, let’s see…

Rossetti v. American Electric Power Co., 2004-Ohio-118, 2004 Ohio App. LEXIS 109 (Ct.App. Licking County, Ohio, Jan. 12, 2004). Rosemarie Rossetti and her husband, Michael Leder, were riding bicycles on the T.J. Evans Bike Trail in Licking County when a Linden tree collapsed and fell onto an Ohio Power line and across the bike path. The tree then hit Rosemarie, seriously injuring her.

The Linden tree that fell was located about 51 feet off of the bike trail on land adjacent to the bike trail owned by Karen Matz and John Skowronski. The tree, which was about 80 years old and 101 feet tall, leaned over the power lines. According to the Rossetti’s expert, Dr. Sydnor, there was a huge cavity in the base of the tree, and the “tree was hollow for… three, four feet up.” The tree had been hollowed out at the base for over 20 years, and there was decay around the base that had existed for almost the entire life of the tree. Both the decay and the hollowed-out part of the base faced away from the bike path. According to Dr. Sydnor, the tree was rooted in the stump and the “root had actually grown through the stump and was growing up the hill. The root is – the failure of that root was what caused the failure of the tree. That was the only thing that was actually holding the tree up.”

Ohio Power had an easement over Karen & John’s property and the bike trail for trimming or removing trees along the trail that interfered with its power lines. The Linden tree was not located within Ohio Power’s easement but instead was about 51 feet from the trail and 25 feet from a wire fence marking the edge of the trail property.

Ohio Power trims and removes the trees in and around its easement on a three-to-five year trimming cycle. Under this cycle, the trees next to the bike trail were inspected and maintained in 1988-1989, between 1990 and 1992 and in 1995. As part of its tree trimming program, Ohio Power contracted with both ACRT and Nelson Tree. ACRT, under its contract with Ohio Power, hired work planners who, as part of the trimming/removing cycle patrolled the electric lines and identified easement trees needing trimming or removal. Nelson Tree Service would then perform the actual trimming or removal for the 1995 cycle.

Sticking a defendant with a duty to the plaintiff was a greased pig of a task…

Rosemarie and Michael sued everyone, including Ohio Power, ACRT, Nelson Tree, and Karen and John. Everyone responded with motions for summary judgment.

The trial court granted the defendants’ motions for summary judgment, holding that “it was not foreseeable that the Linden tree would fall onto the bicycle path and cause a person physical harm” and that “given the lack of evidence beyond mere inference indicating the Linden tree was trimmed by the utility Defendants under the tree-trimming program, Plaintiffs cannot establish proximate cause.”

Rosemarie and John appealed.

Held: The defendants’ motions for summary judgment were properly granted.

In a negligence case, the Court said, a plaintiff must prove that: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) the plaintiff suffered harm; and (4) the harm was proximately caused by defendant’s breach of duty. The existence of a duty depends on the foreseeability of the injury. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.

Here, the Court said, it was not reasonably foreseeable that the tree would fall onto the bicycle path and cause a person physical harm. John, who owned the private property on which the tree was located, testified there was no reason to notice the tree before it fell because “it looked healthy. I mean, there was no reason to notice it. It wasn’t as if the crown was brown or the bark was peeling.” Dr. Sydnor, Rosemarie’s and Michael’s ‘ own expert, agreed that “earlier on in the growth of this tree it would have been more readily identified as a hazard tree than later on.” While he testified that the tree would have been identified as a hazard in the 1980s, Dr. Sydnor admitted that it was not reasonably foreseeable in 1980 that the linden tree was going to fall within the next 18 years.

“Looks fine to me…”

What’s more, Dr. Sydnor testified that the Linden tree was leaning for its entire life and that the tree had been hollowed out at its base for over 20 years, and that the decay around the tree’s base had been there “well in excess of 20 years, probably 40… maybe 80” years. Using the formula generally accepted in his field, Dr. Sydnor said the linden tree had a live crown ratio of 66%, which was “good.” According to Dr. Sydnor, the tree was either the dominant or co-dominant tree in the canopy, which indicates that it, at some point, had to have been fairly healthy. Thus, Dr. Sydnor said, even if Ohio Power, ACRT, and Nelson Tree Service actually examined and trimmed this specific linden tree in 1995, and observed the decay, hollowed cavity, and poor root structure, it was still not reasonably foreseeable the tree would fall in the next four years, which would have brought Ohio Power and its contractors to the next trimming cycle. Dr. Sydnor did testify that the tree would fall someday, but, the Court of Appeals said, “such testimony does not create a genuine issue of material fact since most trees will eventually fall.”

Others, including a Right-of-Way Program Developer with Davey Resource Group formerly employed by ACRT as a supervisor to the Utility Forestry Pre-Planner, and a Licking County Park District Ranger who saw the tree shortly after it fell, both agreed that the “crown, the top of the tree, was full of leaves…it looked like a healthy tree.”

Furthermore, the Court said, Nelson Tree – as part of its contract with Ohio Power – had no duty to inspect the trees on and adjacent to Ohio Power’s easement. Instead, its job was merely to trim or remove trees that were marked by ACRT. Nelson had no discretion with respect to which trees were to be trimmed or removed.

Based on all of that, the Court held, it was not reasonably foreseeable that the tree would fall, according to Rosemarie’s and Michael’s own expert evidence, and thus, “no duty arose on behalf of Defendants to take any action with regard to the Linden tree.”

– Tom Root

Case of the Day – Monday, November 24, 2025

Posted on November 24, 2025 by TLRoot tagged.

T.H.E. CAT

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this 1960s action series ...

Robert Loggia as Thomas Hewitt Edward Cat, accomplished second-story man turned bodyguard in this short-lived 1960s action series …

Remember T. Hewitt Edward Cat? If you do, I should mention that this is Medicare open enrollment season, because you’re old enough to care about that…

Anyway, Mr. Cat… His hangout was at the jazz joint Casa del Gato. And Lalo Schrifin wrote the cool theme music.

That’s OK if you don’t recall the show, because the cat we’re talking about today is anything but the black-clad suave Robert Loggia. More Garfield than cool cat, the Dinuccis’ tabby kept wandering into Mr. Lis’s yard. The Dinuccis — who, face it, didn’t have a great rapport with their neighbor to begin with — didn’t give a hairball about Lis’s complaints.

Finally tired of it all, Mr. Lis trapped the feckless feline and turned it over to the City. The City charged the Dinuccis with an “animal at large” minor misdemeanor. About this time, old softie Mr. Lis contracted a case of the “guilts.” He could hardly live with himself if the Dinuccis found themselves doing 30-to-life in some hard-labor gulag. So he relented and asked the city law director to dismiss the charges.

Big mistake. Proving someone’s old adage that no good deed goes unpunished, the Dinuccis promptly sued Lis for malicious prosecution.

After the long-suffering neighbor paid a metric ton of legal fees, the trial court threw the case out, and the Court of Appeals agreed. The Dinuccis’ case suffered from a simple problem: they never denied that their cat was free-range (how could they?), and that was all the ordinance required. Because there was probable cause to believe that the peripatetic pussycat had gone feral, there was probable cause to believe the ordinance had been violated. That being the case, there could not be malicious prosecution.

Nevertheless, if he ever sees the stray cat strut across his lawn again, we’d bet Mr. Lis’ll demand the City Prosecutor throw the book at ‘em — and probably overdose their sweet little kitty with industrial-strength catnip. Ingratitude isn’t only unbecoming… often, it’s self-defeating, too.

Dinucci v. Lis, 2007 Ohio App. LEXIS 3702, 2007 WL 2269740 (Ct.App. Ohio, Aug. 9, 2007). This dispute between neighbors started over the capture and eventual safe release of a house cat. The parties were before this court in an earlier dispute, which involved trespass, property damage, and continuing nuisance claims by the Dinuccis against their next-door neighbor, Matthew Lis. Then the Dinuccis had claimed Lis was liable for 1) delays in the construction of their house due to his objections, 2) damage to their lawn caused by trespassing, 3) willow tree branches hanging over their property, and 4) creating a nuisance by having the Lis yard look like a construction site for over two years. Out of all of that, the Dinuccis won a princely $150 for damage to their lawn, the rest of their claims having been thrown out. The Dinuccis appealed to no avail.

At the same time, it appears that Lis had been complaining since 2004 about Dinuccis’ cat wandering around the Lis homestead. Lis contacted the North Royalton, Ohio, animal control department. The City’s animal control officer told the Dinuccis that the City had received complaints from neighbors about the cat and warned them that they would be cited if the problem wasn’t resolved.

It wasn’t, and a few months later, Lis captured the feline on his property and turned it over to the City. The Dinuccis were charged with a violation of North Royalton Ordinance 618.01, the “Animal At Large” provision. The North Royalton prosecutor met with the parties, at which time Lis agreed with the recommendation to dismiss the criminal charge against the Dinuccis. But after the charges were dismissed, the Dinuccis filed a civil lawsuit against Mr. Lis, alleging malicious prosecution and intentional infliction of emotional distress. The trial court granted Lis’s motion for summary judgment and dismissed the case. Dinuccis appealed.

Held: The case was correctly thrown out. The Court observed that, after all, North Royalton Ordinance 618.01 clearly stated that ‘[n]o person who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, dogs, cats, geese or other fowl or animals shall permit them to run at large upon any public way or upon unenclosed land” and that “[t]he running at large of any such animal in or upon any of the places mentioned in this section is prima facie evidence that it is running at large in violation of this section.” In order to establish the tort of malicious prosecution, the Dinuccis had to prove malice in instituting or continuing the prosecution, a lack of probable cause, and termination of the prosecution in favor of the accused. And here, the Dinuccis couldn’t show a lack of probable cause.

Probable cause does not depend on whether the claimant was guilty of the crime charged, but instead, only on whether Lis had probable cause to believe that the Dinuccis were guilty. Lis wasn’t bound to have evidence sufficient to ensure a conviction, but instead was required only to have evidence sufficient to justify an honest belief of the guilt of the accused. Here, the Court said, the evidence showed that both the city and Lis had a reasonable belief that Dinuccis violated North Royalton Ordinance 618.01.

Indeed, the Dinuccis didn’t deny violating the ordinance either at the trial court level or in their brief. Their cat was captured on Lis’s property. As a result of Lis’s reasonable belief that the violation occurred, probable cause to investigate existed. The evidence was sufficient to justify an honest belief in the guilt of the accused.

– Tom Root