Case of the Day – Wednesday, July 19, 2017


Residential developments often have restrictions in deeds, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block a neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When – several years later – those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable.

Ms. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners association. Instead, she sued them, and her lawyer found a hook.

The restrictions on trees had been modified in 1993, a few years before she moved in. But then a year later, the association’s lawyer, trying to be helpful, decided to rewrite things a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” You know, he was just trying to be helpful, to make it a little clearer. Only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

legaleseThe Court concluded that the evidence showed that the association’s lawyer never intended his rewrite the change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good faith confusion as much as bad-faith avoidance, and the non-trimmer would hire a mouthpiece who would try to drive a chainsaw through his “helpful” re-write. And why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? punchThe lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs. It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Or.App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings or fencing over 6 feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

The Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that, even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.

– Tom Root


Case of the Day – Tuesday, July 18, 2017


Facts150501Courts of appeal sit mostly to determine how the law should apply to facts. Usually, when a trial court decides a legal question, a court of appeal will give a fresh look to the issue, called “de novo” review. You Latin scholars will recall that this literally means “of new.” Think “fresh look.”

Not so with facts. Whether the trial court got the facts right is something that seldom worries an appellate court. Usually, the appellate court won’t alter a grail court’s factual finding unless it’s clearly wrong. This is known generally as the “clearly erroneous” standard.

The different states and Federal government apply slightly different standards of review to different types of cases, and generalizing may be useful for our purposes, but not for real life. Still, as a rule, appellate courts treat trial courts’ findings of fact with great deference. Today’s case is one of those decisions that make you wonder why they should.

The Tinnes had owned a lakefront resort for years and used a private road, Corewood Lane, for their guests to have access to the beachfront property. When they retired, the couple sold all of the place except for a small piece on the north side, where they built a retirement home.

The Brands tore up the asphalt a bit ...

The Brands tore up the asphalt a bit …

Their golden-age digs had a driveway that attached to Corewood Lane. The new resort owners, the Brands, promptly began obstructing Corewood Lane, even tearing out big chunks of the asphalt. Finally being roused from their retired reverie by the Brands’ unfriendly conduct — which even included the Brands trimming trees on the Tinnes’ property — the retired couple sued for a judgment that Corewood Lane had become a public road by implied dedication. They asked for an injunction against future obstruction, and treble damages for the cut tree limbs.

The trial court obliged on a record that was pretty thin. It ordered that Corewood was public, told the Branches to repave it, pay $10,000 to the Tinnes for having obstructed it, and $250.00 (which it trebled to $750.00) for having trimming the Tinnes’ trees without permission.

The Court of Appeals reversed it all.

It turned out that Mrs. Tinnes had herself testified that she and her husband had never intended Corewood to be a public street.  The landowner’s intent is the most crucial element in an implied dedication of a private road as a public one. What’s more, no one bothered to introduce any evidence of the amount of damage that had been caused by the trespass and pruning of the Tinnes’ trees, and at any rate, Missouri’s treble damage statute related to cutting down trees, not just pruning them. To be sure, damages are presumed when a trespass is proven, but the damages that are awarded are nominal – think “symbolic and puny” – unless actual harm is shown.

And how much was nominal in this case? The Court of Appeals cut the damage award to one dollar.  About enough for one-fourth of a Starbucks Oprah Cinnamon Chai Crème Frappuccino® Blended Crème.

One is left to wonder what evidence the trial court was weighing when it throttled the Brands to begin with. It would appear that the trial judge decided the case with his heart, not his head.

Tinnes v. Brand, 248 S.W.3d 113 (Mo.App. S.D. 2008). Corewood Lane runs through property once owned by the Tinnes but now owned by the Brands. When they owned the land, Mr. and Mrs. Tinnes ran a lakefront resort on the property. Corewood Lane was the access road through their property to the resort site and lakefront. When the Tinneses sold the resort in 1996, they retained four acres on the property’s north side, where they built a home and a driveway leading to Corewood Lane.

As soon as they bought the resort, the Brands started obstructing Corewood Lane with tree limbs, boats, and open ditches. They also removed asphalt pieces (which they claimed were broken) from the paved road, after which parts of the road eroded and washed away. They even trimmed some tree limbs on the Tinnes property.

The Tinneses sued for a declaratory judgment that Corewood Lane was “a road easement for Plaintiffs, and the public,” or alternatively that plaintiffs had the right to use it as an easement appurtenant to their residential property. They also sought an injunction requiring the Brands to repair the road, and not damage or obstruct it in the future, plus actual and punitive damages. The trial court found that the entire length of Corewood Lane was dedicated to the public for use as a roadway; ordered the Brands to repair and repave the road at their own expense; enjoined them from interfering with use of the road by plaintiffs or the public; awarded $100 actual damages against the Brands for obstructing and damaging the road; and awarded trespass damages of $250, “trebled according to law” to $750, for the Brands’ cutting of trees and limbs on the Tinnes’ property.

The Brands appealed.

The Tinnes didn't need a formal street dedication ... but if they had actually intended to dedicate the street, it would have helped ...

The Tinnes didn’t need a formal street dedication … but if they had actually intended to dedicate the street, it would have helped …

Held: The decision was reversed, because the evidence didn’t support a finding that Corewood Lane had been dedicated to public use.

To show implied or common-law dedication of a roadway, a plaintiff must prove (1) the landowner’s unequivocal intent to dedicate the land to public use; (2) public acceptance; and (3) public use. Intent must be unequivocally manifested, expressly or by plain implication. Here, plaintiff Deanna Tinnes herself denied on the stand that they had ever intended to dedicate the lane to public use. The Court held that the record did not “convincingly demonstrate” that any landowner meant to create public rights in Corewood Lane adverse to the owner’s own rights.

As for the $250.00 trespass award, “trebled according to law” to $750.00, the Court of Appeals held that that the Brands had only cut tree limbs, not any whole trees, and neither party presented evidence as to damages. However, the Brands admitted the trespass, and the Tinnes were entitled to nominal damages, even if they proved no actual damage. Because the trial court awarded $100.00 for the Corewood Lane access damages, the Court of Appeals said that the $250.00 damages for the trespass could hardly be called nominal.

The Court ordered damages for the tree trimming to be reduced to $1.00.

– Tom Root


Case of the Day – Monday, July 17, 2017


watergat160524Today’s case is all about someone named Nixon, government break-ins, abuses of power and that sort of thing. You’re thinking Watergate, 1972?  That’s so 20th Century. There weren’t even any Russians involved

The Nixon we’re talking about is Diane Nixon, and the government is that of Montgomery County, Maryland. It seems that Nixon — who was the victim here, not the NCA — had a rather unkempt lawn. The Housing Code people inspected and sent her a certified letter telling her to clean it up or the County government would (at her expense). Ms. Nixon received the letter and made some half-hearted attempt to straighten the place up. But after the ten days provided for in the County’s letter elapsed, the housing inspector and a gang of worker broke through a gate, cut the grass, removed the trees and hauled off the junk.

Ms. Nixon, apparently more adept at scape-goating than landscaping, sued the County, claiming that it and its employees had committed grievous violations of her due process rights by giving inadequate notice of what it intended to do, by trespassing and destroying perfectly good trees, and — while they were at it — hauling off a picnic table.

The federal district court dismissed the case, finding that the County had complied with due process by giving adequate notice of what it intended to do and when, and the Court of Appeals agreed. At its heart, due process requires notice and an opportunity to be heard. Ms. Nixon got adequate notice and she was afforded a right to a hearing, which she didn’t ever exercise. As for the picnic table, the trees and a wheelbarrow that the workers allegedly spirited off, the State had a procedure for Ms. Nixon to employ in making claims for such damages. After all, due process is nothing more that “the process that is due.”

President Nixon reminds us with his gesture that due process has two (count 'em, two) components - notice and an opportunity to be heard.

President Nixon reminds us with his gesture that due process has two (count ’em, two) components – notice and an opportunity to be heard.

Nixon v. Montgomery County, 251 Fed.Appx. 141 (4th Cir., 2007).   The Montgomery County Department of Housing and Community Affairs received a complaint about Diane Nixon’s place in Silver Spring, a housing code inspector determined that it was in violation of the County Code. He sent Nixon a notice by certified mail, return receipt requested, stating that her property was in violation of the Housing Code, which prohibits “weeds and generalized growth to exceed 12 inches in height limit in a subdivision.”

The notice complied with the Code: it offered Nixon a 10-day waiting period, the opportunity to appeal the notice, and the telephone numbers for the Board of Appeals and for the inspector. But the notice warned that after the waiting period, the County would enter the property for the purpose of bringing it into compliance with the Housing Code. After receiving the letter, Nixon failed to appeal, but she said he hired some youths to help clean up the place. Nonetheless, after the 10-day period expired, the inspector and a work crew arrived at Nixon’s property, entered it through a chain link gate that they removed from its hinges, and proceeded to clean up the place. The inspector said the property was still in violation of the Code when he arrived on November 7, and that, in cleaning the property, he cut back and removed dead vegetation, vines, overgrown bamboo, logs of wood, and dead, dying, or leaning trees. He also removed a picnic table and wheelbarrow, maintaining that these items were unusable and constituted trash.

Nixon claimed that she had sufficiently cleared the yard of overgrowth to be within the Housing Code, and that the inspector actually destroyed healthy trees, ornamental shrubs, and plants with an estimated value of $17,362. She sued the inspector and the County alleging violations of her constitutional rights to due process and freedom from unreasonable search and seizures under both the federal and state constitutions, as well as state tort claims for trespass and conversion. The federal district court granted summary judgment to all defendants on all claims.

mower160524Held:  The Court of Appeals upheld the dismissal of her claim. The Due Process Clause guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of the law.” The general rule developed under the Due Process Clause is that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.

Nixon claimed the County’s notice was deficient. But the Court said the notice had to be judged according to three standards: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the probable value, if any, of additional or substitute procedural safeguards. Finally, the County had to weigh Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Applying these factors, the Court concluded that the County provided constitutionally adequate process to Nixon concerning the removal of the items covered by the Code.

The removal of the solid waste items, covered by Chapter 48 of the Code, appeared closely related to the cleanup of the Chapter 58 items. Although the notice lacked specificity, the Court said, it clearly presented the County’s general concerns, indicated the County’s proposed solution, and provided Nixon with a means to appeal if she so chose.

Nixon also claimed the County exceeded its legitimate authority under any section of the Housing Code by destroying healthy trees and a functional picnic table and wheelbarrow. But the Court said that Nixon didn’t have a viable due process claim because Maryland provided a post-deprivation process that offered Nixon sufficient redress for her alleged property loss.

– Tom Root


Case of the Day – Friday, July 14, 2017


We make countless assumptions every day, based on our experience and education and sometimes prior hard luck. Where we live, whenever you see a cross the road in front of you, you slow way down, because experience has taught you that there’s probably a second, and even a third, tailing along. When we grab some fast food, we assume that the acne-challenged teens cooking it in the back are practicing good hygiene, because we know that the County Health Inspector is on the case, and we know that the restaurant knows that, too. And when the Cleveland Browns draft a new dream quarterback, we know the coming season is going to be a disaster, because… well, we just know.

The law indulges us our reasonable assumptions, because those assumptions are the grease that make society work. If we see a person collapsed by the side of the road and call an ambulance, the law will protect us from a claim by the injured party that we should pay for the emergency squad because they never asked us to call. If we see a toddler wandering in the Walmart parking lot, our reasonable assumption that the child is lost protects us from liability for taking her hand and leading her to the store manager.

Even in this era of unusual domestic arrangements, the law permits us our reasonable assumptions. When Phil and Marlee Snowdon decided they wanted to clear some trees and brush along their property line adjoining the neighbors, Hal and Carol Dickinson, they did what good neighbors do: they asked for the Dickinsons’ consent. Phil and Hal walked the boundary line, Phil described what he and Marlee wanted to do, and Hal consented.

What Phil and Marlee did not know was that Carol had owned the property since before she married Hal, which was about 15 years before. She paid all the bills on the place and made all the decisions. Hal was just a kept husband.

Believing they had permission, Phil and Marlee hired Charter Oaks Tree & Landscaping Co., Inc., to perform the work. Charter Oaks was a few days into the tree and shrub removal when Carol returned from an out-of-town trip and blew a gasket. It did not matter that Hal had given permission, Carol fumed, because she had not.

Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting of trees. The Snowdons admitted she had not given them permission, but argued that her husband, acting as her agent, had done so. Carol said that didn’t matter, because he lacked the authority to do so, and no sense that he was acting as her duly-authorized agent could be inferred from her conduct, because she had never said a thing that would make Phil and Marlee think he could speak for her.

Poor Hal, the kept man. He could not have felt very good about how his wife legally emasculated him. And neither, apparently, did the court. Not because he’s a guy, but rather because you ought to be able to rely on the promises of one marriage partner to bind both.

Sure, marriage alone isn’t enough to presume an agency relationship exists, but assuming that hubby and wifey speak for each other is some of that societal grease we mentioned. Clearly, the court – while mouthing the legal platitude about no presumption of agency arising from the marriage – was going to find a way to make Hal his wife’s agent. The alternative would be to throw sand in the neighborhood gears, requiring the folks next door, the banker, the grocer and auto mechanic all to question one marital partner expressing the demands and desires of the couple. How could anything ever get done?

This court wasn’t going to be a party to that. Hal was found to have apparent authority to let Phil and Marlee cut the boundary trees.

Dickinson v. Charter Oaks Tree & Landscaping Co., Inc., Case No. 02AP-981 (Court of Appeals, Franklin County, Ohio, April 24, 2003) 2003-Ohio-2055, 2003 Ohio App. LEXIS 1940In October 1997, Marlee Snowdon and her husband Richard moved next door to Carol Dickinson and her husband, Hal. Carol Dickinson had lived in her house for 30 years. After Hal and Carol married some 15 years before, he began living there, too. Notwithstanding that, Carol owned and managed the property. Significantly, she admitted the Snowdons had no idea who owned the property.

One spring, the Snowdons decided to clean out substantial vegetation overgrowth along the side of their property abutting the Dickinson property. After Marlee and Richard decided to do the work, Richard told her he had received permission from Hal Dickinson after the two men walked the joint property line together and Richard Snowdon pointed out to Hal Dickinson what the Snowdons wanted to do. Marlee Snowdon hired Charter Oaks to do the work.

Marlee Snowdon told Charter Oaks that the Dickinsons had given their consent to removing vegetation along the border between the properties. Charter Oaks’ normal practice was to rely on the representations of the contracting party about the consent of adjoining landowners. Charter Oaks began removing the vegetation between the Dickinson and Snowdon property.

Hal watched Charter Oaks run chippers and perform its work the first day. But on the second day, Carol returned from an out-of-town trip, and became upset about the work.

Carol sued the Snowdons and Charter Oaks for trespass and wrongful cutting.

Held: Hal acted with apparent authority, and the Snowdons and Charter Oak were within their rights to rely on his consent. The evidence showed that not only did Hal work frequently in the Dickinson yard, both alone and with Carol, but he trimmed and removed vegetation from the Dickinson property, including the area along the joint property line with the Snowdons. Hal dealt with contractors, including a tree service Carol hired that performed work on the Dickinson property. No evidence suggested the Snowdons were told Hal had limited or no authority to make decisions regarding landscaping matters on the Dickinson property. That evidence let a reasonable person infer that Carol knowingly permitted Hal to act as though he had authority over landscaping matters on the Dickinson property.

What’s more, the evidence showed that Richard Snowdon believed in good faith that Hal had apparent authority to give permission to the Snowdons and Charter Oaks to enter onto the Dickinson property to remove vegetation in the area of the joint property line.

A defendant is not liable for trespass or destruction of vegetation if he is privileged, by receiving the consent of the owner or her agent, to enter onto the property of another to remove vegetation. “Because competent evidence was presented at trial to support a reasonable conclusion that Hal Dickinson was Carol Dickinson’s agent and had apparent authority to give consent to defendants to enter onto the Dickinson property and to remove vegetation,” the Court said, Carol’s claims against the Snowdons and Charter Oak failed.

– Tom Root


Case of the Day – Thursday, July 13, 2017


forgot150430Before we forget to do this, we’d like to report on a case of a conveniently-forgetful property owner from the Land of 10,000 Lakes.

Mr. Meixner made an agreement with his neighbor, a sawmill, to replace some boundary fences. The first several fencelines were replaced according to the parties’ agreement, with Meixner and the sawmill sharing the costs. Everything seemed hunky-dory, as they like to say in Minnesota..

Out of nowhere, Mr. Meixner sued, claiming that the sawmill had cut down 73 trees on his land before replacing the second of the three fences.

The sawmill said, “Yup. Sure did.” These Minnesotans are people of few words (when they’re not saying things like “hunky dory”). But the sawmill employee did say, “Had to cut down the trees to build the new fence. Meixner agreed.” Those words were plenty, and the jury found for the sawmill.

On appeal, the Court agreed with the level-headed jurors. It first adopted the general principle that trees on a boundary line are owned in common by the property owners, and neither may cut down a boundary tree without consent of the other. But here, the Court said, it’s pretty clear that the sawmill employees had Mr. Meixner’s OK to axe the trees. After all, the Court observed, Mr. Meixner had given the sawmill permission to build the new fence, and he even shared the cost. If there is permission given to enter onto the property to build a new fence, that permission implies authority to do all acts necessary to completion of the task.

Don't you believe it ...

Don’t you believe it …

The sawmill employee said the trees had to go if the new fence was to be built. That evidence was good enough for the Court. Mr. Meixner wanted a fence, so he necessarily wanted the trees cut in order to build it.

Meixner v. Buecksler, 216 Minn. 586, 13 N.W.2d 754 (Sup.Ct. Minn. 1944). Meixner owned property next to a lumber company. He had an agreement with the company to replace old fences standing on the common boundary line.

Meixner and Buecksler, a tenant and employee of the company, built a new east-west fence in September 1938. Pursuant to the lumber company’s direction, Buecksler then cleared out the brush and cut down some trees in preparation for building a new fence to replace the old one which marked the boundary between Meixner’s south forty and the company’s north forty. A survey was made of this line, and thereafter Meixner and Buecksler constructed the replacement fence. A third fence was later completed, marking the east-west boundary.

Meixner contended that Buecksler and the company unlawfully cut 73 trees on his property prior to building the north-south fence, and that such acts were done without his knowledge or consent, and constituted trespass. The lumber company claimed Meixner had consented to clearing away the brush and cutting the trees, and that such acts were necessary in order to carry out the mutual plans to build the fence. The jury found for the defendants.

Meixner appealed.

Held: The appeals court upheld the verdict. It found that trees on boundary line are common property of the adjoining landowners which neither may destroy without consent of other. However, trespass is not committed if there is permission or consent to do acts complained of, which consent may be implied from circumstances, and the jury was entitled to find that the Defendants had Meixner’s consent.

Generally, the Court said, permission to do a particular act carries with it authority and right, by implication, to do all that is necessary to effect principal objects and to avail licensee of his rights under license. Meixner’s agreement with Buecksler and the company for building a line fence between the adjoining properties carried with it by implication the right to do such things as were reasonably necessary in order properly to build the fence, including the cutting of trees on boundary line.

Meixner had asked the court to award him treble damages under the Minnesota statute in wrongful cutting. The court declined, pointing out that there had to be damages in order to treble them, and Meixner simply had none.

– Tom Root


Case of the Day – Wednesday, July 12, 2017


boots150429We’re offering up a little slug of neighbor law today, actually ‘neighbor-denouncing-neighbor’ law. Who knew that such dry topics as beachfront preservation and development could be flash points for acrimony?

In today’s case from New York State, the debate – and we can’t tell for sure what it was about, although it included beaches, landscapers and trespass – devolved into name calling. And that was when someone’s skin got a little thin.

Contrary to popular belief, slander isn’t an easy thing to prove, and it’s even harder to prove that the slander was collect damages from. So what if Saltzman called Galasso “no good” and a “criminal” and “connected?” The Court ruled it was protected opinion, and even if it weren’t, Galasso couldn’t show that Saltzman actually knew what he said was false.

The decision is kind of curious, because the Court seemed to apply a First Amendment standard to slander that is usually reserved for the news media, not private spats. But it was clear that the appellate court found the complainant, Mr. Galasso, not to be guilt free. The Court noted that he could have been prosecuted for criminal trespass, and implied that the fact that he was not should be victory enough.

slander150429Galasso v. Saltzman, 839 N.Y.S.2d 731 (N.Y.A.D. 2007). In the context of a heated dispute among residential property owners in Sands Point, a beach community in Nassau County, Galasso allegedly committed criminal trespass on Saltzman’s yard by removing trees and a fence. When he threatened to do more, Saltzman obtained a cease-and-desist order.

Subsequently, Saltzman allegedly said that he was intent on “getting” Galasso, who was “no good” and “a criminal.” He alleged that Galasso was “engaged in criminal conduct” and had “committed crimes” against Saltzman’s property in an effort to “destroy both our properties and our beach.” He also claimed that Saltzman had plaintiff “checked out, and I don’t care if he’s connected, I’m going to get him.”

true150429The statements were made to a former neighbor, a current neighbor and a local businessman. Galasso conceded that he held meetings with the subdivision neighbors to explain his protest actions.

When the trial court denied Saltzman’s efforts to get Galasso’s slander action dismissed, Saltzman appealed.

Held: The Court dismissed Galasso’s complaint in its entirety. The Court said that given the subjective context and the facts underlying Saltzman’s statements, the statements constituted opinion and were not actionable as a matter of law.

When Saltzman said

When Saltzman said “connected,” he wasn’t talking about the electric company.

Saltzman’s listeners were familiar with the issues in dispute and with the positions of each side. Saltzman’s references to criminality referred to the arguable criminal trespasses on his property and on common areas of the subdivision. The Court found that the record did not offer a reasonable basis for interpreting the statements to imply that Saltzman knew of additional, undisclosed facts regarding Galasso’s purported criminality.

Even if the statements were not protected opinion, the Court ruled, Galasso’s general allegations that Saltzman’s alleged lies had hurt his reputation and subjected him to scorn and hatred were insufficient to support his slander claims. A viable slander claim requires allegations of special damages, i.e., economic or pecuniary loss. And Saltzman’s use of the term “connected,” generally referring to an affiliation with organized crime, did not constitute slander per se (something exempt from the requirement that special damages be pled).

Finally, the evidence did not show that Saltzman’s statements were made with “actual malice,” that is, with a reckless disregard for the truth or with knowledge that it was false. Rather, the Court said, the statements were made in the context of Galasso’s purported demolition and reconstruction activities for which legitimate issues of fact exist, the question of whether they were authorized by the Village in each instance and whether they encroached upon Saltzman’s property rights.

For that matter, the Court said, Galasso could arguably be subject to prosecution for felonious criminal mischief.

– Tom Root


Case of the Day – Tuesday, July 11, 2017


deeppocket150424In the legal world, a “deep pocket” – or sacculus profundis for you Latin scholars out there – is a defendant who possesses the wherewithal to pay a big damage award and who has the misfortune to be related to the plaintiff’s claim sufficiently enough to get a court to order the purse to be opened. Generally, the deeper the pocket (and the greater the dearth of alternative deep pockets), the more willing a plaintiff is to stretch the claim to encompass the deep pocket’s participation. Today’s case illustrates the point.

The Nelsons needed to have their trees trimmed, so they called Julian Rodriguez Landscape and Tree Service, the same tree service they and their neighbors had used many times before. The outfit seemed competent and efficient, and the Nelsons found over the years that they could simply tell the tree service owner what they wanted, and he’d make the decisions on how to do it.

During the course of the Nelsons’ dealings with Rodriguez Landscape, no one had ever asked whether the company was licensed. That, after all, was more a state requirement than a practical one. Julian Rodriguez Landscape and Tree Service did good work, and the price was right. What more does a homeowner need to know?

On the day in question, however, things didn’t go so well. Luis Flores, one of Julian’s workers, was using a polesaw when it came into contact with a high voltage line, killing him. Unsurprisingly, investigation bore out that Rodriguez Landscape had cut a few corners, technicalities such as obtaining a state license and paying workers’ compensation on its employees. Sadly, the late Mr. Flores left a family was left without a breadwinner, and no money would flow from workers’ comp to compensate the survivors for their loss.

Luckily for the Flores next-of-kin, they hired a creative personal injury lawyer whose ad probably ran on daytime TV and appeared on the back of the phonebook. Their lawyer correctly identified the Nelsons and their homeowners’ insurance policy as the only money tree available for trimming by the Flores family. Thus, he put together a wrongful death action for the family that argued that (1) under California workers’ comp law, homeowners who hire unlicensed contractors are deemed employers of the contractors’ workers for workers’ comp purposes; and (2) an obscure California criminal statute made workers and employers criminally liable if any tools came within six feet of a high voltage line. Therefore, the Flores’ legal theory went, the Nelsons – as de facto employers of Mr. Flores – were liable to his family because he died when he touched the high voltage line.

The Flores family couldn’t sell this very creative theory to the trial court, but the California Court of Appeals loved it. Unhappy with the gossamer thin argument connecting them to Mr. Flores’ accident, the Nelsons took the issue to the California Supreme Court.

The California Supreme Court let reason prevail. The purpose of the statute, the Court said, was to protect third parties from injury because a tree trimmer’s equipment comes into contact with a high voltage line. The statute was never intended to protect a worker who foolishly contacts a power line by letting him or her collect from the employer for the worker’s own negligence. That being the case, the Court said, it wasn’t necessary to figure out whether the homeowners would be considered Mr. Flores’ employer as a matter of law.

Proper use of a polesaw ... which did't happen in today's case.

Proper use of a polesaw … which did’t happen in today’s case.

A lesson here: In California – in fact, anywhere – a prudent homeowner will make sure the arborist or tree service contractor is licensed, regardless of whether a license has anything to do with competence or skill. And service providers should volunteer to customers proof of their credentials, not just because it looks professional, but because it’s the kind of attention to detail now that helps avoid lawsuits then.

Julian Rodriguez didn’t pay attention to detail, and the Nelsons never asked. Years of expensive litigation resulted, and at the end of the day, the Flores widow and kids were left destitute. In fact, the only people who were better off for it all were the lawyers.

Ramirez v. Nelson, 44 Cal. 4th 908, 80 Cal.Rptr. 3d 728, 188 P.3d 659 (Sup.Ct. Cal. 2008). Homeowners Thomas and Vivian Nelson had a number of trees, including a large eucalyptus tree, in their back yard. Every few years, Southern California Edison trims the eucalyptus tree trimmed so that its branches do not reach the very visible high voltage electrical lines that run above the tree. When Southern California Edison’s tree trimmers gave the Nelsons notice they would trim the eucalyptus tree in 2004, but failed to show up when they were expected, the Nelsons hired Julian Rodriguez Landscape and Tree Service — an unlicensed contractor, although the Nelsons didn’t know this — to “top” and trim several trees in their backyard, including the eucalyptus tree. The Nelsons and their neighbors had used Rodriguez Landscape four or five times in the past to top and trim trees, and everyone thought the company did professional work trimming trees.

The Nelsons left it to Rodriguez’s good judgment as to how, or to what height, to top and trim the trees, and they neither supervised the trimming, nor did they furnish the tools for the job. A few hours after the job began, Mrs. Nelson heard men shouting and saw them running to the eucalyptus tree. She went out onto her deck, and saw tree trimmer Luis Flores hanging in the eucalyptus tree from his safety harness. He had been had been killed by electrocution when his polesaw – made of aluminum and wood – contacted the power lines.

Luis’s family sued the Nelsons, alleging negligence and wrongful death. The Flores argued that the Nelsons knew the high voltage lines constituted a dangerous condition on their property, knew the utility company responsible for the power lines had in the past trimmed the tree on which the decedent was working when electrocuted, and knew or should have known Rodriguez and his workers were unlicensed contractors. Nonetheless, the Flores asserted, the Nelsons negligently failed to warn or act as reasonable homeowners would have acted under similar circumstances in contracting with Rodriguez to trim the tree in question.

The Flores family argued that California Penal Code §385(b) made it a misdemeanor for any person, either personally “or through an employee,” to move any tool or equipment within six feet of a high voltage overhead line. They contended that the late Mr. Flores had been the Nelsons’ employee by operation of law under Labor Code §2750.5, making the Nelsons vicariously liable for any breach of the duty of care embodied in the law.

The Nelsons argued they had hired Rodriguez Landscaping to perform domestic tree trimming services, that Mr. Flores was contractor Rodriguez Landscaping’s employee, not theirs; that they didn’t owe him a duty of care under §385(b), and that the duty of care owed to him was simply that of reasonable homeowners acting under circumstances similar to those giving rise to the fatal accident.

Mr. Flores’ status as the homeowners’ “employee at law” under Labor Code §2750.5 was pivotal to the contested claim that the homeowners should be found liable. The trial court refused to allow the plaintiffs to refer to Mr. Flores as the Nelsons’ employee, and refused jury instructions on Penal Code §385(b) or plaintiffs’ proposed negligence per se theory of the case.

The jury found for the Nelsons.

The Court of Appeal reversed the judgment, concluding Mr. Flores was the Nelsons’ employee at law under Labor Code §2750.5, and that Nelsons were liable for violating the statutory duty of care embodied in Penal Code §385(b). The Nelsons appealed to the Supreme Court of California.

Held: The Nelsons were not liable. The Supreme Court held that even if they were deemed to be the employers of Mr. Flores because they had hired an unlicensed contractor to trim trees — for purposes of liability for workers’ injuries — they owed no statutory duty of care under Penal Code §385(b).

Under the test for a statutory presumption of a failure to exercise due care based on violation of a statute, the Court said, a trial court must determine as a matter of law whether the death or injury resulted from an occurrence of the kind which the statute was designed to prevent, and whether the person suffering the death or the injury was one of the class of persons for whose protection the statute was adopted. If a plaintiff is not within the protected class of persons that a statute was designed to protect, or if the injury did not result from an occurrence of the nature which the transgressed statute was designed to prevent, then the statutory “negligence per se” doctrine has no application to the negligence claim.


The “reasonable man” – he wears both a belt and suspenders.

Here, the statute prohibiting moving tools and equipment within six feet of power lines augments the common law “reasonable person” standard of care owed to the general public with regard to the activity of moving or operating equipment in close proximity to power lines, by setting forth a standard of care making it a misdemeanor to move or operate tools and equipment within six feet of a power line, and by assigning strict liability for its violation.

The standard of care imposed by the statute amplifies the duty owed by people using tools or operating equipment near power lines to anyone in the world at large who might be injured by such conduct. However, it did not protect Mr. Flores from himself, and it certainly did not create a separate duty or standard of care owed by an employer to an employee engaged in the operation of tools or equipment in close proximity to high voltage lines. The statutory standard did not prescribe any particular course of conduct employers must take, or refrain from taking, in order to ensure their employees’ safety, or establish any standard of conduct with regard to supervision of employees engaged in such activity.

– Tom Root