Case of the Day – Thursday, May 12, 2016

MURRELL II – WINNING THE BATTLE BUT LOSING THE WAR …

So many say. But it's their clients who are driving the train ...

So many say. But it’s their clients who are driving the train …

Those fun-loving Murrells of Rolling Hills, California, are back for an encore performance! The couple’s quixotic effort to hold their condo association liable for all sorts of alleged backroom dealing and breach of trust in cutting down their trees to improve the view of their neighbors, the Fullers, was covered in our Case of the Day for Wednesday, May 11, 2016 (funny, it seems like only yesterday). Lest you think that the decision we covered was the end of the saga, we bring you Murrell II, the Very Expensive Sequel.

If you’re the kind of person who remembers what kind of mayo was on your sandwich at lunch a week ago last Thursday, you’ll recall that the Rolling Hills Community Association held an easement across the Murrell’s’ property for “[r]oads, streets, or bridle trails, parkways and park areas[, p]oles, wires and conduits for the transmission of electricity…; [p]ublic and private sewers, storm water drains, land drains, and pipes, water systems, water, heating and gas mains or pipes; and … [a]ny other method of conducting and performing any public or quasi-public utility service or function on, over and under the surface of the ground.” The easement gave the Association the right to trim or cut trees within its limits. The Fullers, whose view of the ocean was obscured by the Murrells’ trees, convinced the RHCA to trim back some of the Murrells’ trees and whack down a few others, so that they could enjoy the million-dollar vista they had paid for when they bought their place.

That’s “long story short.” The actual history of the tortured litigation and thundering herd of parties is byzantine with a small “b”, and is amply (if not completely) recounted in the full opinion. The Murrells ended up suing the Fullers, the RHCA, and an individual member of the RHCA board (who was seemingly picked at random). There were counterclaims and crossclaims. When the 2007 dust settled, the board member was dismissed, and judgments or pieces of judgments were rendered against the RHCA and the Murrells. Board member Donald Crocker was held not to have breached any duty. And a judge ordered the Murrells to pay more than $700,000 in legal fees for the Fullers and RHCA.

And you thought that it was confusing if you missed a couple episodes of Downton Abbey!

Naturally, everyone appealed. And that brings us to today’s 2011 decision.

Recollect that the Murrells argued the RHCA had no right to cut down trees to improve someone else’s view. In today’s case, they added the argument that the community association should have been equitably estopped from cutting down the trees because it had approved the Murrells’ construction of an addition to their home with a wall of windows, and the Fullers had not objected. Both parties, the Murrells contended, had lulled them into building something that depended on their trees for privacy, and the defendants could not fairly be allowed to strip their privacy away by cutting down those trees, even if it otherwise had the legal right to do so.

The Court of Appeals made short work of the Murrells’ latest lament. First, it concluded that the easement let the RHCA cut down trees for any reason it liked. As for the “equitable estoppel” argument, the judges held that “[t]he Murrells fail to cite pertinent authority that RHCA should be estopped from removing a tree on its easement because of the Murrells’ addition plans.” The decision was not elegant, but then, the Court pretty clearly thought the argument was so foolish as to not deserve much analysis.

Much of the remainder of the decision is dedicated to the Murrells’ complaints about how much they were forced to pay for the RHCA’s and Fullers’ attorneys. The lengthy recitation is mind numbing (unless you happen to be a lawyer, in which case $250.00 an hour for a second-year associate who carries your briefcase is a “feel good” story). The Murrells ended up winning $30,000 from RHCA and nothing from the Fullers. It cost them $500,000 in legal fees for themselves and another $492,000 in the defendants’ legal fees, all to fight for their recently departed Aleppo pine tree.

pyrric140710“Another such victory and I am undone!” King Pyrrhus is reputed to have said. So could the Merrills. At the same time, most of us find it difficult to imagine being able to drop $1.6 million on a legal battle over some trimmed trees.

Oh, to live in Rancho Palos Verde Estates. Or at least to be able to afford to do so …

Murrell v. Rolling Hills Community Association, Case No. B202019 (Ct.App. Cal., Jan. 31, 2011). A contentious and costly feud over trees and a neighbor’s view has spawned multiple legal actions, cross-actions, five appeals and two cross-appeals. To obtain an unobstructed ocean view, the Fullers wanted certain trees on “the Murrell property” trimmed or removed. The Murrells, who sought to preserve privacy, resisted. So began a decade-plus dispute.

After many attempts to mediate, the case went to trial in 2007. The Fullers obtained judgment in full against the Murrells in the amount of $10,000, and the Murrells obtained judgment in the amount of $30,000 against RHCA on RHCA’s breach of its covenants, conditions and restrictions (CC&Rs) and breach of fiduciary duty.

The Murrells incurred $892,000 in attorney fees. They were awarded $400,000 as attorney fees against RHCA but were ordered to pay $159,000 as attorney fees to RHCA on a separate claim and $334,000 as attorney fees to the Fullers.

The Murrells claimed the CC&Rs did not authorize RHCA to “trim, top and/or remove trees and foliage on the Murrell property” for the purpose of providing the Fullers with an ocean view. The Fullers sued in turn for injunctive and declaratory relief that they had the right to have the trees cut or trimmed. The Murrells also sued RHCA for breach of the CC&Rs, breach of fiduciary duty, trespass, and conversion, alleging that by going onto the Murrell property and removing a pine tree in order to benefit the Fullers’ view at the expense of the Murrells’ privacy, RHCA acted contrary to the CC&Rs and its fiduciary duty to act in good faith and fair dealing.

In so doing, the Murrells claimed RHCA violated the CC&Rs because they did not empower RHCA “to remove trees in the easement on the Murrell property for any reason unrelated to the express and implied purposes of the easement, which are the creation of and maintenance of roads, bridle trails, utilities, parkways, park areas, above ground poles, wires and conduits as well as sewers, drains, pipes and below ground conduits.” denied the complaint’s material allegations and pleaded 17 affirmative defenses.

The trial court granted summary judgment to the RHCA. The Murrells contended summary judgment was improper on the grounds that neither RHCA nor the trial court addressed their equitable estoppel claim. The Murrells argued the CC&Rs cannot be interpreted to authorize RHCA to remove the pine tree, which was on RHCA’s easement, for the purpose of enhancing the Fullers’ view. They further argued that even if such authority existed, questions of fact existed regarding whether RHCA complied with its fiduciary duty to the Murrells in light of expert evidence that removal of the pine tree was unnecessary to improve the Fullers’ view.

The Murrells argued RHCA was estopped from asserting any right to remove the pine tree for the reason RHCA and the Fullers did not complain to the Murrells about their plans to construct an addition to their residence involving floor to ceiling windows, and in reliance on this “silence, ” the Murrells constructed this addition with the expectation that their “foliage and mature trees[, including the pine tree ]” would preserve their privacy.” The Court held that the Murrells failed to cite pertinent authority that RHCA should be estopped from removing a tree on its easement because of their addition plans. The estoppel argument failed.

Britney Spears, shown here in one of her less glam moments, spent over a million on lawyers just to get through rehab. But the Murrells and Fullers weren't far behind ...

Britney Spears, shown here in one of her less glam moments, spent over a million on lawyers just to get through rehab. But the Murrells and Fullers weren’t far behind …

The Murrells also contended RHCA was not authorized to remove the tree to enhance the Fullers’ view, which was not a reason recognized as an easement use under section 2(b) of article V under the CC&Rs. The Court held that the “fallacy of their position lies in their misinterpretation of the pertinent provisions of the CC&R’s. When viewed in context, these provisions reveal RHCA has the right to remove trees located in its easement, without regard to purpose.”

The Court said that the “language of the CC&Rs governs if it is clear and explicit, and we interpret the words in their ordinary and popular sense unless a contrary intent is shown.” The Court interpreted the CC&Rs “to make them lawful, operative, definite, reasonable and capable of being carried into effect, and [to] avoid an interpretation that would make them harsh, unjust or inequitable.” Here, it was uncontroverted that the Murrell property is burdened by an easement in favor of RHCA and that the pine tree was located on this easement portion of that property. RHCA had the right to remove trees located on that portion of the Murrell property burdened by its easement. The Court said that the unambiguous language of the CC&Rs in the phrase “in or along any easements” referred to the physical location of the tree which RHCA is authorized to remove rather than to any particular qualifying reason for its removal, for example, solely for an easement use or purpose. Thus, the fact that enhancing a member’s view is not an enumerated easement use is inconsequential.

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Case of the Day – Wednesday, May 11, 2016

NO, RODNEY, WE CAN’T JUST GET ALONG

Rodney King (1965-2012), whose DUI stop turned into a beating at the hands of the police, making him an unwitting icon of racial injustice and a plainspoken advocate for understanding.

Rodney King (1965-2012), whose DUI stop turned into a beating at the hands of the police, making him both an unwitting symbol of racial injustice and a plainspoken advocate for understanding.

From California, the land of pleasant living … we take you to a war zone. Compton? South LA? No, it’s the City of Rolling Hills, California, perched on the Rancho Palos Verde peninsula, a place where poverty – which in includes anyone driving a vehicle worth less than a hundred grand – appears to have been banned.

It’s unlikely Rodney King would have lived here.

Remember Rodney? Decades before #Blacklivesmatter, King was the poster child for police brutality against minorities, or – if you roll this way –he was the man who should have known better than to be driving around after dark while being Black.  After some of the police officers involved in his beating were acquitted, rioting ensued. Rodney’s plaintive plea for peace, which went viral before going viral became fashionable, asked, “can we all get along?”

Amid its 23 miles of horse trails, the 690 homes and the 26 miles of roads, the people in Rolling Hills apparently cannot. The Fullers made it a habit to complain about the Murrells’ trees because it spoiled their view (something people on Rodney’s side of town probably didn’t worry much about). The Murrells kept trying to get along, acceding to trim job after trim job, until they had finally had enough. But they didn’t sue the Fullers. Instead, they sued the Rolling Hills board of directors, and specifically Donald Crocker, for having caved in to years and years of the Fullers’ fulminations about the trees.

Naturally, Mr. Crocker, who was a volunteer board member, didn’t much like being sued. After all, he said, he was just doing his job. And the Court agreed. In California, as is the case in many places, directors of corporations, for-profit and not-for-profit alike, are protected by a “business judgment rule.” The rules shields directors from liability when they have acted in good faith, haven’t engaged in self-dealing and have acted on an informed basis. (Note: the “business judgment rule” varies from state to state, and can be rather nuanced. You should not assume that the application of the “business judgment rule” in this case represents what would happen in your own state).

Besides, the Court said, the Murrells shouldn’t be allowed to benefit after leading the Board and everyone else to believe that year after year they were agreeing – however reluctantly ­­– to the tree trimming, and only when they reached the breaking point, did they decide sue for everything that had ever happened.

Sgt. Joe Friday, iconic LA cop who would not have approved of the Rodney King beating, but would have used the Murrells' prior acquiescence against them, just as the court did.

Sgt. Joe Friday, the iconic LA cop. Joe would not have approved of the Rodney King beating, but he would have used the Murrells’ prior acquiescence against them, just as the court did.

There are a couple of morals here. One is that if you just try to get along, your efforts to do so “can and will be used against you in a court of law,” as Sgt. Joe Friday liked to tell defendants. The second, and more basic moral, sadly enough, is that turning the other cheek in Rolling Hills is just an invitation to your neighbor to smite you on that one, too.

Sorry, Rodney. Guess we can’t “just get along.” That’s why there are lawyers and courts.

Murrell v. Crocker, Not Reported in Cal.Rptr.3d, 2007 WL 1839478 (Cal. App. 2 Dist., June 28, 2007). The Murrells and Fullers are neighbors in Rolling Hills, California. They are members of the Rolling Hills Community Association, a nonprofit cooperative corporation governed by a five-member board of directors, one of whom is Mr. Crocker.

A governing document called the CC&R sets out the rights and obligations among the RHCA, the Murrells and the Fullers. According to the CC&R, in order to improve the view and to protect adjoining property, the RHCA has the authority to cut back or trim trees and shrubs on a member’s property. The RHCA also has a 10-foot wide easement along the boundary of each lot in which it has the right to remove trees or shrubs.

In 1997, the RHCA passed a resolution establishing procedures for maintaining and improving views. At that time, the Fullers demanded that the Murrells remove foliage to create a view for the Fullers. To be good neighbors and to avoid a dispute, the Murrells did so. In 2000, the Fullers brought a view complaint to the RHCA, which “caused the removal” of five trees and the trimming of an additional 12 trees on the Murrell property.

In 2002, the Board adopted yet another resolution, which contained more detailed procedures to maintain and improve views.

The next year, the Fullers submitted a second view complaint to the RHCA, which recommended that two of the Murrells’ trees be trimmed. The Murrells did so, but the Fullers complained that the trees were not trimmed enough, and in 2004 the Board ordered that a pine in the RHCA easement be removed and that other trees not on the easement be severely trimmed.

Finally the Murrells had had enough. They sued Crocker and the RHCA Board for taking actions inconsistent with their fiduciary duties and the CC&Rs, including failing or refusing to inform other Board members that the CC&Rs did not permit the removal of trees or other plantings from the portion of the Murrells’ property outside of the easement; adopting resolutions inconsistent with the powers granted to the RHCA under the CC&Rs; letting the Fullers pretty much call the shots, and trimming of trees so that the trees would not grow back for three or four years.

Crocker moved for summary judgment on the grounds that he had no individual liability to the Murrells, and that the claims in the complaint were specious. He complained that the first view complaint was resolved by an agreement between the Murrells and the Fullers after meetings with the Committee and an arborist. He argued the Murrells had agreed or acquiesced to almost all of the trimming. Although George Murrell denied any such agreement, he felt that because the Committee and the Board had a negative attitude toward him and his wife, he “had no choice but to play along with the concept that some agreement had been reached as the Association Board and View Committee were claiming.” His wife said she had been trying to “avoid a confrontation in the hope that the … Board would, in the end, make some effort to protect some aspect of our privacy.”

The trial court dismissed Crocker as a party. The Murrells appealed.

The Palos Verde peninsula offers stunning vistas of the Pacific Ocean, when the neighbors' trees aren't in the way.

The Palos Verde peninsula offers stunning vistas of the Pacific Ocean, when the neighbors’ trees aren’t in the way.

Held: Crocker was dismissed as a party. The Court noted that under California law, directors of nonprofit corporations, such as a homeowners association, are fiduciaries who are required to exercise their powers in accordance with the duties imposed by the Corporations Code. A director fulfills his duty to a member of the association by strictly enforcing the provisions of the CC&Rs but has no fiduciary duty to exercise his discretion one way or the other with regard to a member so long as the director’s conduct conforms to the standard set out in § 7231 of the Corporations Code.

That section of the law sets out the standard of care for directors of nonprofit corporations, known as “California’s statutory business judgment rule,” providing that a “director shall perform the duties of a director … in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use in similar circumstances.” In performing such duties, a director “shall be entitled to rely on information, opinions, reports or statements … prepared or presented by … one or more officers or employees of the corporation whom the director believes to be reliable and competent in the matters presented; counsel … or a committee of the board upon which the director does not serve … so long as, in any such case, the director acts in good faith, after reasonable inquiry when the need therefore is indicated by the circumstances and without knowledge that would cause such reliance to be unwarranted.” A person who performs the duties of a director according to the rule has no liability based upon any alleged failure to discharge his or her obligations as a director.

Here, Crocker provided a declaration that he performed his duties in connection with both view complaints in good faith and with due care within the meaning of the rule, and the Murrells had no evidence to the contrary. The Court found that Crocker’s only involvement with the Murrells or the Fullers has been in public meetings of the RHCA or in officially sanctioned trips to their property, that he has no personal relationship with either the Murrells or the Fullers and had no personal interest in the outcome of their dispute, that Crocker was not the “primary driving force” behind the alleged improper treatment of the Murrells, that the votes were unanimous in all Board actions regarding the Murrells and the Fullers, and that he did not knowingly or with reckless disregard for the truth take any action, or encourage any other Board member, to take any action inconsistent with a Board member’s fiduciary duties or the CC&Rs.

The Court also noted that the Murrells had admitted that they engaged in conduct leading Crocker and the RHCA to believe that the Fullers and the Murrells had come to agreements involving the removal and trimming of the trees. The Court held that because there was no reason for Crocker to suspect that the Murrells were laboring under any mistake as to their legal rights, there was no duty for him to make any disclosures on the point. Any unexpressed position on the part of the Murrells concerning the view complaints did not, the Court said, create an issue of fact as to Crocker’s good faith compliance with his duties.

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Case of the Day – Tuesday, May 10, 2016

DON QUIXOTE GETS WINDMILLED

quixote150416A Yankee landowner ­– we’ll call him El Ingenioso Hidalgo Don Hamilton de la Vermancha – was furious at the Holland Town select board when it announced plans to widen the road in front of his house. He complained to the Town, and it scaled back the plans. That wasn’t good enough for our hero: He sued.

The case went to the Supreme Court of Vermont twice, where our landowner proved his point. The Court held that the Holland Town tree warden couldn’t cut down the trees in front of Don Hamilton’s house without holding a hearing first.

A tree warden is a concept unique to New England, a municipal official given powers by statute to make decisions about the cutting and trimming of diseased or hazard trees. The tree warden’s powers are defined by statute.

In today’s case, when all the legal dust had settled, the Town succeeded in widening the road, the tree warden was able to cut down the trees standing in the way of progress, and all necessary hearings were held, with everyone – including Don Hamilton receiving due process, that is, the “process that is due.”

For Don Hamilton’s considerable efforts in protecting the due process rights of all landowners who might have the tree warden try to cut down healthy trees without a prior hearing, the plaintiff was rewarded with damages … of one dollar.

Of course, Mr. Hamilton used two lawyers and spent about $30,000 in pursuit of his glorious quest, and for reasons you can read about in the full case, he didn’t win any attorneys’ fees. But he has his dollar, and the sense of satisfaction that he stepped up and made a difference.

road150416Hamilton v. Town of Holland, 950 A.2d 1183, 2007 WL 4633546, 2007 VT 133 (Sup.Ct. Vt., 2007). Hamilton owned property on Lackey Road. In 2001, the Town select board decided to widen a half-mile section of Lackey Road because the section was not wide enough to allow large vehicles-such as a truck, snowplow or school bus-to pass each other safely. The Town engaged the assistance of the State District/Regional Highway Commission in selecting and marking the trees that needed to be removed for the road project.

As originally planned, the road-widening project required removal of many trees as well as ledge, which would have required blasting, digging drainage ditches, and installing culverts. Hamilton objected to the tree-cutting proposal. The select board voted to go ahead with the project anyway, but it scaled back the road and reduced the number of trees to be cut. Hamilton sued for a declaratory and injunctive relief, seeking to prevent the Town from cutting down the trees. Hamilton argued that the Town must follow the statutory procedures for altering a public highway, including performing a survey of the road, before proceeding with the widening project. The Town argued that it had authority to maintain Lackey Road, and that widening the road is part of the Town’s maintenance responsibility. The Town also argued that the Town’s tree warden was not required to hold a hearing before removing the trees, because they were a hazard to the public. The trial court granted summary judgment for the Town, and Hamilton appealed.

The Vermont Supreme Court reversed the decision, holding that the record did not support the court’s grant of summary judgment, because the trial court had grounded its decision in part on the fact that the trees to be cut were all located within the right-of-way for Lackey Road, and that all of the work would take place within that right-of-way, but the location of the right-of-way and the trees to be cut was an issue of fact that was not resolved. The Supreme Court also agreed with landowner that state law on tree wardens did not grant the tree warden authority to cut public shade trees under the public hazard exception if the trees themselves do not present the public safety hazard.

On remand, Hamilton amended his complaint, raising a 42 U.S.C. §1983 claim deprivation of his constitutional right to due process based on the failure of the tree warden to hold a hearing prior to removing the trees in question, a claim of trespass, and a claim of conversion of trees pursuant to state statute. The trial court concluded that the road project was “more extensive than routine maintenance,” but that it did not constitute “a major alteration to the road as that term is defined in state law.” Therefore, the court held, the project did not trigger the requirements of 19 V.S.A. §704 for a survey. The trial court also concluded that the tree warden’s failure to hold a hearing on the proposed cuttings violated 24 V.S.A. §2509, but that Hamilton wasn’t injured by the violation. The court awarded nominal damages in the amount of $1.00 for his §1983 claim, and — because of these nominal damages, Hamilton was the prevailing party under federal law and entitled to attorney’s fees. The Town appealed, and landowner cross-appealed.

dollar150416

Hamilton only won a dollar – but what a nice dollar it must have been!

Held: The trial court’s determination that the widening was not a major alteration was upheld. According to the statute, “ ‘[a]ltered’ means a major physical change in the highway such as a change in width from a single lane to two lanes.” If the change constituted an alteration, then the Town was required to comply with 19 V.S.A. §704, which required expensive studies of project before it was undertaken.

The project involved cutting fifteen trees in front of Hamilton’s property, a total of thirty to thirty-nine trees along the entire length of the road, and regarding and adding gravel. Hamilton argued that the original project was much more extensive, but the Court said that the Town’s response to Hamilton’s original complaint — to scale back the project — was an appropriate response, and the statute had to be applied to what was finally done, not what was originally planned. The Court observed that the project did not widen Lackey Road from one lane to two, but rather all of the work was done within the existing right-of-way. No culverts were installed or blasting done. Ditches were improved and gravel spread, which appeared to be maintenance under state law. Trees were removed, but such removal is specifically contemplated as a matter of maintenance by 19 V.S.A. §904. The Court agreed with the Town that all the work it performed qualified as maintenance under state law. As such, the Town did not need to perform the survey requirements found in §704.

Hamilton had spent $2,000 planting new trees, but he had admitted the took place in an area different from where the Town proposed to cut trees and was completed before any cutting by the Town. The Court thus found that Hamilton’s plantings were not related to the roadwork.

Inasmuch as Hamilton did prove a deprivation of due process and a violation of his property rights in the removal of trees located in the Town’s adjacent right-of-way, the superior court was correct to award him nominal damages of $1.00. Because the Town cut down the trees without holding a tree-warden hearing, the Court said, Hamilton’s due-process rights were violated regardless of his inability to prove loss or damage.

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Case of the Day – Monday, May 9, 2016

HEAD IN THE SAND

ostrich150416When Dom Cristino got sued for cutting down a silver maple and a couple elms on his neighbor’s land, he wasn’t worried. What did he need a high-priced lawyer for?

He soon found out, because as his own attorney, he had a fool for a client. He missed the deadline for pleading, and he couldn’t figure out that the judge was throwing him a life ring when he suggested Dom work something out with the plaintiff’s attorney. When Dom did not, the court entered a default against him. When the judge ruled that the tree damage was about $12,000, Dom thought that maybe having a mouthpiece wasn’t such a bad idea.

The new solicitor asked the court to set aside the judgment because Dom thought his brother’s lawyer was his lawyer, too. Horse-puckey, the Court said. Then Dom said he and his brother hadn’t cut the trees down willfully, meaning that treble damages could not be assessed under state law. The Court had to balance justice and judicial efficiency, fairness and the public interest in finality. Dom had had his chance to argue that he hadn’t deliberately chopped down the trees. He sat on his rights.

The judge may have been no Solomon, but he did all right: he decided that justice demanded that Dominick not be hammered with treble damages — which, after all, are punitive in nature — without a chance to be heard. So the court told the plaintiff he could take the $12,000 and run, or the Court would decide the treble damage issue on the merits.

The judge was not Solomon, and he kept the swords out of the courtroom - but he brokered a balanced, efficient and fair result.

     The judge was not Solomon, and he kept the swords out of the courtroom – but he brokered a balanced, efficient and fair result.

Still, Dominick would have done a lot better if he had hired counsel at the outset.

Bontempo v. Cristino, 2007 WL 3014707 (Mass.Super., Sept. 6, 2007).  Bontempo sued the Cristino brothers for the harm caused when Dominick Cristino cut down three trees located on the Bontempo property without permission. One brother settled, but Dominick Cristino did not defend the action. A default judgment was entered against him, despite the fact he was in court when it occurred. He declined the court’s invitation to talk to the plaintiffs to settle, and offered no reason why a judgment should not enter against him. At a damages hearing, Noel Bontempo and Dominick Cristino both testified. An expert estimated the replacement cost of the silver maple that had been cut down at $30,000 and two other elms at $7,000 each. The court determined that damages in the amount of $12,000 should be awarded against Dominick Cristino. But after the hearing, Dominick Cristino hired a lawyer and moved to set aside the default on the grounds that Dominick Cristino was misled into thinking that the law firm representing his brother also represented him. Also, Dominick and his brother Antonio filed affidavits maintaining they acted on the mistaken but good faith belief, that the trees in question were located on their land.

chop150416Held: The default judgment would stand, because Dominick Cristino had admitted that he cut down trees on Bontempo’s land without license in violation of Massachusetts G.L. Chapter 242, §7. What is in dispute, according to Dominick Cristino, was whether he acted willfully. If he did, the Court held, he would be liable to the owner for three times the amount of the damages assessed. The Court held that the interests of justice required that Bontempo should be given the opportunity to offer evidence in rebuttal to Dominick’s affidavit, and then the Court would decide the issue of willfullness on the merits, that is, whether the damages should be trebled or not. If Bontempo was satisfied with the $12,000 award, the Court would uphold that and everyone could go home.

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Case of the Day – Friday, May 6, 2016

STAKING A CLAIM

We’re rather hesitant to wander into the political morass.  But today, presumptive Republican (or is he?) nominee Donald Trump told CNBC that he was the “king of debt.”   “I love debt,” he said.   “I love playing with it.”

But what do you do when you play with debt?  If you’re the government, “playing” means spending it.    Indeed, the wisdom and prescience of the government is so awe-inspiring, we should be giving all of our extra money to our needy Washington, D.C., relative, and our cousins in the state capital, or even the folks downtown. 

What? You question whether the government spends our dollars wisely? “Like what thoughtful investments will the government make? Well, how about all those spindly trees that cities and towns plant by the hundreds, pathetic things supported by one or more posts and guy wires, standing on tree lawns and in medians with not much more than a pathetic possibility that they might someday be majestic shade trees?  We bet the Donald could make a great deal on buying some of those.

Guyedtrees

Well, maybe those aren’t the best investment. Take what happened in Kenner, Louisiana, one day. One of these staked and wired sentinels fell in high winds, and the City of Kenner, Louisiana, sent one of its crews to repair it. They replanted it in the same hole and rewired it with the same guy wires — hardly a prescription for a tree with a future. But what a prudent use of existing resources!

Maybe not this time. As it turned out, that the tree’s future after replanting could have been measured on a stopwatch. Within hours, it fell again in some more high winds, this time squarely onto Mrs. Sampedro’s car.

You’d think the Sampedros would have cheered the frugality of the City. They did not. Instead, the Sampedros sued, claiming that the City had negligently placed guy wires on the tree, and that anyway, the City should be strictly liable whenever one of its trees fall. The trial court granted summary judgment for the City.

Strict liability’s a great thing for a plaintiff. He or she is generally relieved from proving any more than that something injured him or her, and that the defendant owned or controlled it. Negligence is irrelevant. But in 1995, the Louisiana legislature gutted strict liability where a municipality was a defendant. Even in strict liability cases, the lawmakers said, the plaintiff had to prove that the municipality had notice of the defect.

The Court here ruled that it didn’t matter that the Sampedros had an expert who testified that the guy wires should have been placed differently. There were no published guidelines on how to guy a tree, and anyway, the City had planted hundreds of trees in the year before the accident, with only about a dozen of them falling. That’s about a 4% failure rate for those math whizzes among us. Not bad: imagine if the airline industry only had 2,000 crashes per day out of its 49,000 flights.

But the numbers seemed right to the Court. High winds had knocked over the tree, it said, not bad guy wires. Of course, this begs the question of why guy wires were there to begin with, if not to keep trees from falling in high winds. But Mrs. Sampedro had to repair her own car. The City was not liable.

Sampedro v. City of Kenner, 989 So.2d 111 (La.App. 5 Cir., 2008). Rosa Sampedro was driving past the intersection of Williams Boulevard and Granada Street when a tall, slender oak tree fell into the path of her vehicle. Mrs. Sampedro, who was wearing her seat belt, braked quickly and struck her knees on the dashboard of her vehicle. The tree damaged her vehicle but no other vehicles were involved. A police officer said he thought that high winds caused the tree to fall. The Sampedros sued the City of Kenner and its insurer.

Stake1

Trial testimony showed that the day before the accident, a driver lost control of his pickup truck at the same intersection and knocked down the oak tree in question. The next day, a maintenance crew from Kenner’s Department of Public Works re-planted the tree, securing it with guy wires on three sides as it had been prior to the accident. The Public Works crew used the same guy wires attached to the tree and placed them close to the base so as not to interfere with the mowing of the grass on the median. A witness from the city admitted the alternative would have been to put the guy wires farther out and instruct the mowers to be careful. The Public Works Department had planted 200 to 300 trees in Kenner in the prior year, and the department had received about a dozen complaints of leaning or fallen trees since that time. It had never received a complaint regarding the tree in question.

The court found for the City, concluding it did not have notice of a defect before the accident so it was not strictly liable for Mrs. Sampedro’s damages. Even if it had had notice, the City was not negligent under for the placement of the tree in question. The Sampedros appealed.

Held: The City was not liable. Louisiana law provided two theories under which the City might be held liable for damages: negligence under Louisiana Civil Code § 2315 and strict liability under Civil Code § 2317. Under strict liability, a plaintiff was relieved of proving that the owner of a thing which caused damage knew or should have known of the risk involved. In 1985, however, the Louisiana Legislature eviscerated this distinction in claims against public entities by requiring proof of actual notice of the defect which causes damage, thus making the burden of proof the same under either theory.

The Sampedros argued the City of Kenner was negligent because of its “want of skill” in replanting the tree that had been struck by a car the previous night. They claimed the City was negligent because the Public Works Department improperly erected the tree by placing the guy wires too near the base of the tree and too low on the trunk of the tree. They presented an affidavit from a horticulturist stating that the City “improperly tied the guy wires too low on the trunk to provide adequate stability.” The record, however, contained no guidelines for guy-wire placement that were not followed by the City of Kenner or procedures that were lacking in its installation of trees. By 2003, the City had planted between 200 and 300 trees since 2000 in the same manner as the tree in question under the direction of a landscape architect and had received only a dozen complaints of leaning or falling trees.

Sometimes, the trees fall even when they're staked and guyed in place ... like this poor thing, which toppled after a careering drunk hit it.

Sometimes, the trees fall even when they’re staked and guyed in place … like this poor thing, which toppled after a careering drunk in a pickup truck drove over it.

The Court ruled that the Sampedros had not met their burden by merely arguing that the placement of the guy wires was improper, causing the tree to fall over in high winds.

As for the Sampedros’ claim that the City was strictly liable for their damages because it knew of the defective guy wires and failed to correct the defect, the Court ruled that the complaint was foreclosed by law. Under the 1995 amendment to Louisiana’s Civil Code, “no person shall have a cause of action against the public entity for damages caused by a condition under its control absent a showing of actual or constructive notice of the particular condition and a reasonable opportunity to remedy the defective condition.”

The Sampedros had to establish that the thing which caused the damage was in the custody of the defendant, that it was defective, and that the defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time. The law defines constructive notice as the “existence of facts which infer actual knowledge.”- The Sampedros contended that the City of Kenner was aware that the tree had been knocked downed the night before this accident so it was aware that “the defective guy wire locations … had failed the night before the accident.” The Court didn’t buy it. The record supported the theory that the tree fell because of high winds the night before. The fact that a tree was knocked down then re-planted “securely” did not constitute constructive notice of a defect in the guy wire or the tree’s placement.

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Case of the Day – Thursday, May 5, 2016

¡CINCO DE MAYO!

Either the aftermath of battle ... or the morning after a U.S. celebration of Cinco de Mayo.

     Either the aftermath of battle … or the morning after a U.S. celebration of Cinco de Mayo. The Mexicans, having more sense than we do, make little fuss over May 5th.

As we anticipate the great feast awaiting us on Cinco de Mayo – this day of days commemorated in the U.S. to celebrate a surprising but utterly insignificant victory of Mexican forces over the French Army – we hoist a cerveza to Kelly Rush. Mr. Rush, like the Mexican military, won an meaningless trial court victory on the way to getting routed.

The French invaded Mexico because our neighbor to the south owed reparations to the Second Empire, but decided that a siesta was more salubrious than settling up.  By contrast, Mr. Rush was looking to be paid for the work he had done for JoAnn Goodwin. Kelly is undoubtedly an arborist and landscaping specialist of the first water, but as a businessman … well, that’s another story.

Mr. Rush bid a job for JoAnn Goodwin. And like Gaul, it was divided into three parts. One part was tree removal, one was landscaping, and one was installation of a drain system. Of course, as soon as the job began, there was mission creep. More trees were to be cut down, and then more, and extra branches were to be hauled away. Rush diligently completed the extra work, but he wasn’t nearly so diligent in getting change orders signed by his customer, leading to inevitable confusion.

Alas, hilarity did not ensue. Instead, JoAnn denied asking for any more trees to be cut down, and alleged Rush was overcharging her. Rush said more money was owed. At that point, Kelly “Who Needs a Lawyer?” Rush sued Ms. Goodwin in Justice of the Peace Court, a very informal court in Texas for small issues. He won $4,500. It was his moment, his own victory at Puebla. But recall that after getting his Gallic butt kicked on May 5, 1862, French General Charles de Lorencez responded a year later with a second Battle of Puebla. No one talks much about that one, because the cheese eaters routed the Mexican forces and headed for Mexico City. Like Monsieur General, Ms. Goodwin regrouped, reprovisioned, and came after Mr. Rush again.

In her own second battle, Goodwin appealed to the regular trial court, which was obliged under Texas law to hold a whole new trial. At that trial, Rush’s damages fell from $4,500 to $200, despite the fact he showed the court the contract, two change orders Ms. Goodwin had initialed but not signed and one which he had prepared but she hadn’t even initialed.

The stubborn Mr. Rush appealed the $200 verdict. At the Court of Appeals, Kelly Rush found himself really swimming upstream. His only argument was that the trial court’s decision was contrary to the weight of the evidence, and those cases are hard to win on appeal. To make matters worse, in his zeal to save money, Mr. Rush forgot that sometimes lawyers are good for something. That “something” here would have been to get the documents he was relying actually admitted into the trial record so the court of appeals had something to look at. Without the missing documents – which Kelly Rush hadn’t introduced into the record – the Court of Appeals said it really had nothing to look at, and the $200 award stood.

Pozole - the national dish of Mexico.

Pozole – the national dish of Mexico.

Parenthetically, one would think that the trial court would have helped out layman Kelly Rush on coaching him to introduce the documents into evidence. But it wasn’t required to. We bet Kelly Rush was glad he saved so much money by not hiring one of those worthless lawyers to help him out! Lesson: Document your work. Get signatures from the customer. Hire a lawyer when you need one. After all, lawyers hire arborists when they need them. OK, end of lesson … and the pozole’s on!

Rush v. Goodwin, Not Reported in S.W.3d, 2007 WL 3380025 (Tex.App.-Waco 2007). JoAnn Goodwin requested a landscaping bid from Kelly Rush involving three parts: tree removal, landscaping, and construction of a French drain system. After completing the work, Rush complained that he was not paid in full.

Rush complained that he ended up cutting down many more trees than originally agreed to. Both Rush and Goodwin walked the property, and they agreed to have 26 trees cut down. But Rush said that after the initial agreement, the number of trees to be cut down kept changing. He claimed that the final agreement called for removal of 36 large trees, 14 small trees, and 1 large limb from Goodwin’s property, at an agreed-upon price of $200 for each large tree, $100 for each small tree, and $100 for removal of the large limb. The total was $8,700.

At trial, Rush presented an original contract which he had signed and Goodwin had initialed stating that 26 trees were to be cut down at $200 each and a large limb removed for $100, for a total of $5,300. As well, he presented a document only he had signed – a request for removal of 36 large trees at $200 each, 14 small trees at $100 each, and removal of a large oak branch at $100 – and another he had signed and Goodwin had initialed in part by Goodwin, reflecting an agreement to cut and remove 33 trees at $6,600.

No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Conco de Mayo celebrant in a period costume. Think of him as a Mexican version of a Civil War re-enactor.

     No, this is not Mr. Rush on his way to hack down those extra trees. Rather, it is a Cinco de Mayo celebrant in a period costume, a Mexican version of a U.S. Civil War re-enactor.

Goodwin contended she only agreed to have 26 large trees removed from her property at $200 per tree. She said that after counting the stumps, only 26 trees had been removed, and that even if more than 26 trees had been removed, she never agreed to their removal. She maintained that Rush overcharged her $1,400 to remove trees that were not cut down. In addition to tree removal, the agreement called for removal of vegetation and growth, spreading of dirt, and removal of fences. Rush and Goodwin agreed that the cost of that project would be $3,600. Goodwin paid Rush $1,000 on the landscape agreement and still owed $1,600. She argued that because she overpaid $1,400 on the tree removal and other projects, she did not owe the $1,600 balance.

Rush also argued that after starting the project, Ms. Goodwin asked that extra side projects be performed, and the cost of these projects came to total of $749.94, none of which Goodwin paid. He filed suit without an attorney against Goodwin, seeking relief of only $1,600 but being awarded $4,500 plus court costs. A glorious and unexpected windfall! But Ms. Goodwin appealed to county court, where in a bench trial the court returned Rush to reality, awarding Rush a symbolic $200 with interest.

Far be it from us to plug our book, but if Kelly had "Rushed" out to buy a copy, he would have spared himself some grief.

      Far be it from us to plug our book, but if Kelly had “Rushed” out to buy a copy, he would have spared himself some grief.

Rush appealed.

Held: Rush got only his $200 award.

In his appeal, Rush claimed he was underpaid for his work and essentially argued that the $200 damage award was against the great weight and preponderance of the evidence. When seeking review of the factual sufficiency of the evidence supporting an adverse finding on which the appealing party had the burden of proof, the appellant must show that the adverse finding is against the great weight of the evidence. The appellate court must weigh all the evidence, and may set aside the finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. The appellate court isn’t permitted to pass on the credibility of witnesses or substitute its judgment for that of the trial court.

The Court found that Rush had completely bollixed up the trial. During that proceeding, Rush referred to the various documents he said established the terms of the tree removal and landscape agreement, but he failed to ask the court admit any of them into evidence. The Court of Appeals said that in order for it to consider the documents, those papers had to have been introduced and admitted at trial. Without them, the Court could only examine the parties’ testimony. That testimony was largely in conflict, and it was the role of the trial court, not the Court of Appeals, to determine which party’s testimony was more believable.

The trial court’s award of only $200 in damages, the Court of Appeal said, was not overwhelmingly against the great weight of the evidence, especially when the alleged contracts were not in evidence.

Oops. Or as the Mexicans say, “¡Ay!”

TNLBGray

Case of the Day – Wednesday, May 4, 2016

ONE STATE’S TREE IS ANOTHER STATE’S PEST

honeysWe were driving through central Missouri last Friday on the way to an Easter visit with family in Kansas. Along Interstate 70 near Columbia, the State has placed a billboard-sized exhortation to residents to help stop the spread of honeysuckle. The map tells the story – honeysuckle has spread across the midwest, and is starting to gain a foothold in Missouri. Honeysuckle can be pretty, but it’s voracious, greedy and surprisingly fecund.

It’s a long haul across the breadth of the Show-Me State, which gave us time to think about pests. That led to us thinking about Fancher v. Fagella, and a little-noticed earlier decision from New Mexico that grappled with the problems caused by cottonwood trees.

Cottonwoods can be majestic, and they were welcome enough to the pioneers that the cottonwood is the state tree of Kansas. But at the same time, there are some arborists (and more than a few homeowners) who label them as dangerous, messy and a tree that should “be removed from most residential property.

Fast growing ... and messy as a 3-year old ...

Fast growing … and messy as a 3-year old child …

Mr. Fox had a cottonwood tree he loved dearly. His neighbors didn’t fall into the same category, however. They hated the constantly shedding tree with the invasive and prolific root system. Like the banyan tree in Whitesell v. Houlton, there was a lot about Mr. Fox’s cottonwood not to like.

A few days ago, we mentioned the time-honored legal maxim that “hard cases make bad law.” It bears repeating here. Like the Whitesell v. Houlton banyan tree, Mr. Fox’s cottonwood generated sufficient horror stories in the trial transcript to explain the trial court’s decision that Mr. Fox’s tree had to go. A more level-headed weighing of the competing property and societal interests was undertaken by the Court of Appeals.

It's beginning to look a lot like Christmas ...except it's June, and the cottonwood is shedding cotton like a plantation in a tornado.

It’s beginning to look a lot like Christmas … except it’s June, and the cottonwood is shedding cotton like a plantation in a tornado.

None of that changed the outcome for Mr. Fox. He had to pay damages, and Abbinetts were free to hack away at the tree’s root system to the full extent of the Massachusetts Rule. But for those of us who admire the process, the Court of Appeals’ thoughtful opinion was a breath of fresh air.

Abbinett v. Fox, 103 N.M. 80, 703 P.2d 177 (Ct.App. N.M. 1985). The Abbinetts and Fox formerly owned adjoining residences in Albuquerque. The Abbinetts sued, alleging that while Fox owned his place, roots from a large cottonwood tree on his property encroached onto their land and damaged a patio slab, cracked the sides of a swimming pool, broke a block wall and a portion of the foundation of their house, and clogged a sprinkler system.

The Abbinetts asked for an injunction against Fox. The trial court found against Fox for $2,500, but denied injunctive relief to force Fox to remove the tree roots. Instead, the Court entered an order authorizing the Abbinetts to utilize self-help to destroy or block the roots of the cottonwood trees from encroaching on their land. The Foxes appealed the decision.

Cottonwoods are known for their intricate and aggressive root systems

Cottonwoods have intricate and aggressive root systems …

Held: The New Mexico Court of Appeals grappled for the first time with the Massachusetts Rule, the Hawaii Rule and the Smith v. Holt-era Virginia Rule. Instead, it adopted a modification of all of these, finding that when overhanging branches or protruding roots of plants actually cause – or there is imminent danger of them causing – “sensible harm” to property other than plant life, the damaged or endangered neighbor may require owner of the tree to pay for damages and to cut back the endangering branches or roots. Such “sensible harm” has to be something more than merely casting shade or dropping leaves, flowers or fruit. In so doing, the New Mexico Court anticipated the Virginia Supreme Court’s Fancher v. Fagella holding by about 22 years.

The New Mexico Court also opined that it is duty of a landowner to use his property in a reasonable manner so as not to cause injury to adjoining property. This is the Hawaii Rule. And the landowner who suffers encroachment from the tree of another may — but is not required to — “abate it without resort to legal proceedings provided he can do so without causing breach of peace.” This, of course, is the heart of the Massachusetts Rule. The New Mexico Court called all of these holdings a “modified Virginia Rule,” as indeed it was.

The Court held that a trial court may grant both damages for already incurred injuries and injunctive relief to prevent future harm, where there is showing of irreparable injury for which there is no adequate remedy at law.

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