Case of the Day – Wednesday, December 20, 2017

A NICE DAY FOR A FROLIC

apple_tree140217Seems like not so long ago, a class of sharp-witted grade school students at Western Reserve Elementary School asked us a question, one which seemed simple but is deceptively complex. Inquisitive kids that they are, they wanted to know whether it would be an act of theft for the owner of an apple tree to go onto neighboring property to retrieve apples fallen from the owner’s tree.

Turns out it’s a darn good question. Not much has been decided on this, requiring us to read an 1870 New York case for an answer. In that decision, a logger lost his logs in a flood. They came to rest on the riverbank, making a mess of the riverbank owner’s land. A fast talker convinced the log owner to let him negotiate with the landowner, pay the guy’s damages and retrieve the logs. He made a deal with the landowner and hauled the logs away, but he never made the promised payment. The Court ordered the logger to pay the damages, holding that the owner of property that ends up on the lands of another has a choice: abandon the property and have no liability to the landowner, or retrieve the property and pay for any damages caused by the property’s coming to rest.

Of interest to our intrepid 6th graders (after whether they have to eat that healthy gluten-free, meat-free, taste-free lunch) was this: the Court noted in passing that it was settled law that one whose fruit falls or is blown upon his neighbor’s ground doesn’t lose ownership, but instead “may lawfully enter upon the premises to recapture his property.”

There you go, sixth grade! Who says adults don’t listen to you? And as for the rest of us, isn’t it curious how contrary the holding is to the Massachusetts Rule of self-help, that was handed down some 55 years later? And at the same time, isn’t it interesting how consistent the New York court’s decision is with the North Dakota Supreme Court opinion in Herring v. Lisbon, that the portion of the tree overhanging a neighbor’s land still belongs to the tree’s owner, thus imposing on the owner a duty to ensure that the tree does not cause harm.

Sheldon v. Sherman, 3 Hand 484, 42 N.Y. 484, 1870 WL 7733 (Ct.App.N.Y. 1870), 1 Am.Rep. 569. Sherman’s logs were swept away in a spring flood on the Hudson River, coming to rest on Sheldon’s property where — Sheldon complained — they caused great damage. A third party, Mayo Pond, told Sherman he’d pay Sheldon’s damages, have the logs cut into lumber and deliver the boards to Sherman for a set fee. But then the double-dealing Pond told Sheldon he was agent for Sherman in settling the damages, and that Sherman would pay the damages agreed upon. This was news to Sherman, who refused to pay the damages because he already had a deal with Pond that Pond would pay. Landowner Sheldon sued log owner Sherman for the agreed-upon damages, and the trial court found for Sheldon. Sherman appealed.

upcreek140217Held: Sherman was up a creek without a paddle. The Court of Appeals — New York’s highest court — held that Sherman had a choice. One whose property ends up on the lands of another by an inevitable accident (such as a flood), without the owner’s fault or negligence, may elect either (1) to abandon the property, in which case he is not liable to the landowner for any injury caused by the property; or (2) to reclaim it, in which case he is obligated to make good to the landowner the damages caused by the property. Here, once Pond agreed with Sherman that he’d settle with the landowner and retrieve the logs. Pond’s authority from Sherman to remove the logs was clear, whatever his right to promise payment might have been. Thus, the law implied the existence of a promise by the log owner to pay damages.

The waters receded, but the logs were everywhere ...

The waters receded, but the logs were everywhere …

Of interest in the decision is the Court’s discussion of what it called “a large class of cases” in which injury is suffered by a party, but the law gives no redress. The Court said, “If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew. If one builds a dam of such strength that it will give protection against all ordinary floods, the occurrence of an extraordinary flood by which it is carried away, and its remains are lodged upon the premises of the owner below, or by means whereof the dam below is carried away, or the mill building is destroyed, gives no claim against the builder of the dam.” In this case, the Court said, the logs were carried down the river and deposited on Sheldon’s land without fault on the part of the defendant. Thus, Sherman was not responsible for damages, and a promise by him to Sheldon to make it good would be unenforceable.

If Sherman chose to abandon his property, he had the right so to do and no one could call him to account. He was not compelled, however, to abandon it, but had the right to reclaim it. The Court said the case was “like one whose fruit falls or is blown upon his neighbor’s ground, the ownership is not thereby lost, but the owner may lawfully enter upon the premises to recapture his property. When he does so reclaim or recapture, his liability to make good the damage done by his property arises. He then becomes responsible. Before he can reclaim or recapture the property thus astray, justice and equity demand that he should make good the injury caused by its deposit and its continuance.”

– Tom Root

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Case of the Day – Tuesday, December 19, 2017

WHEN IS FEE SIMPLE NOT SIMPLE?

Potatotruck140220Nothing light today, boys and girls. We have work ahead of us. Sure, Christmas vacation is upon us, and we all have visions of sugarplums dancing in out heads. But as that great educator M.C. Hammer once said, “Yo, sound the bell, school is in, sucker …

So listen up. When land is conveyed from one party to another without any limitations whatsoever, the conveyance is done in “fee simple absolute,” or just “fee simple” for short. The conveyance usually says that the land is conveyed “unto the said party of the second part and its successors and assigns forever,” or words to that effect.

At the time the railroad came through a part of Idaho (think “Famous Potatoes”) in the late 19th century, a lot of landowners thought they were conveying their land to the railroad in fee simple. But their deeds had not just the magic “fee simple” language, but also a “habendum clause.” A “habendum clause” is a clause in a deed that defines the extent of the interest being granted and any conditions affecting the grant.

Legal mumbo-jumbo? Not when the facts changed.

Legal mumbo-jumbo? Not when the facts changed.

In the case of the Idaho deeds, the conveyance language transferred title to the railroad “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Yeah… yadda, yadda, yadda, how lawyers like to natter on and on… None of this gibberish seemed important for a century, during which time the trains puffed up and down the track. But when the rail line was torn up, suddenly the old documents became very interesting.

Under the National Trails System Act, the government can convert an old railroad right-of-way into a recreational trail without the rail line being deemed to be abandoned. That’s what happened in Idaho. But some of the landowners whose properties were transected by the abaondoned right-of-way, talked to a smart lawyer. She said, “these old documents aren’t deeds, they’re just easements for a railroad.” That was an important distinction: the easements weren’t for the benefit of some granola-munching hikers, but rather for rolling stock.

The Federal Court of Claims had a tough task. The Idaho Federal District Court had already ruled that such deeds were conveyances in fee simple, which meant that the owners who abutted the railroad had no means of reclaiming the land. The problem was that the interpretation of the deeds was a matter of Idaho law, and the Idaho Supreme Court had never reached the precise issue. The Court of Claims carefully parsed other Idaho decisions and decided that, based on its treatment of other cases, the Idaho Supreme Court would rule — if it had been asked to  — that the references in the deeds to the “perpetual right of Way for said second party’s Rail Way Line” limited the purpose of the conveyance, and therefore made the deed a grant of a mere easement, not perpetual ownership.

With two federal courts disagreeing on what Idaho jurists would say if asked, it’s likely that the state courts themselves ultimately will have to resolve the issue by ruling definitively on the question.  They have not done so yet.

Abandoned right-of-way

Abandoned right-of-way

Blendu v. United States, 79 Fed.Cl. 500 (2007). Owners of land abutting or traversing an abandoned railroad right-of-way contested the government’s using the right-of-way as a recreational trail pursuant to the National Trails System Act, claiming that the government’s action effected a taking of their property without just compensation in violation of the Fifth Amendment.

The predecessor landowners had deeded land to the railroad about a hundred years before, with deeds that contained language in the granting clauses that convey all estate, right, title and interest in the property to the railroad, but also contained habendum clauses “to have and to hold all and singular the tenements, hereditaments and appurtenances as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever.” Under the Act, the government could convert abandoned railroad rights-of-way to trails without the use constituting an abandonment of the right of way. However, Blendu and the plaintiff property owners argued that under their deeds, they had really just given easements – not a deed in fee simple – and the cessation of rail service did not permit the government to use the easement of a trail. They moved for summary judgment in the U.S. Court of Claims, and the government cross-moved for summary judgment, arguing that the deeds were a conveyance of the property in fee.

Held: Under Idaho law, a deed which contained a granting clause which quitclaimed certain real estate to the railroad and a habendum clause stating that railroad held the real estate “as a perpetual right of Way for said second party’s Rail Way Line unto the said party of the second part and its successors and assigns forever,” the deed only conveyed an easement and not fee simple title.

The easement was for rolling stock, not for Birkenstocks.

The easement was for rolling stock …

... not for Birkenstocks.

… not for Birkenstocks.

The Court said that the use of the term “right of way” in the habendum clause unambiguously reflected an intention to convey an easement, overcoming Idaho’s statutory presumption in favor of a fee simple interest. The Court of Claims concluded the distinction between the granting clause and the habendum clause had not been made by the Supreme Court of Idaho, but the Court of Claims believed that the Idaho Supreme Court cases found the presence of the term “right of way” in any substantive part of the deed to be determinative. The deeds in this case contained the term “right of way” in the habendum clause, thus unambiguously reflecting an intention to convey an easement and overcoming Idaho’s statutory presumption in favor of a fee simple interest.

As further evidence of the conveyance of an easement, the Court said, the deeds contained a designation for use of the right of way for the Railroad’s “railway line.”

The easement was for rails, not trails.

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Case of the Day – Monday, December 18, 2017

LET’S LEAVE GOD OUT OF THIS

AOGcartoon150828There’s plenty of talk about old-time religion around these days.  The Supreme Court just heard a case pitting religious freedom against anti-discrimation laws. The Virgin Mary and a sheep get into a tussle over Baby Jesus at a nativity scene. If there’s a lesson for us here, it’s that we shouldn’t try to enlist the Almighty too easily as justification for falling trees.

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

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

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

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

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

cottonwood150828Vondrell v. Ohio Dept. Natural Resources, 2007 Ohio 7232, (Ohio Ct. Claims, Dec. 4, 2007), 2007 Ohio Misc. LEXIS 503. Mr. Vondrell had a seawall on his lakefront property. A cottonwood tree next door in a state park fell during a windstorm and damaged the concrete. The agency managing the park, the Ohio Department of Natural Resources, argued that the damage was due solely to an “act of God,” the high winds that caused the tree to fall. Mr. Vondrell argued the damage-causing tree was dead, that DNR personnel had years of prior knowledge the tree was dead, and that DNR knew or should have known the dead tree presented a falling hazard. Photographic evidence showed the tree was clearly dead.

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

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

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

AOG150828It’s true, the Court said, that no liability can attach to an act of God. However, an act of God must proceed from the violence of nature or the force of the elements alone: the agency of man must have nothing to do with it.

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

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

– Tom Root

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Case of the Day – Friday, December 15, 2017

WRITE ME UP A VERBAL CONTRACT

putt150827OK, what’s a little New York case about a miniature golf course construction contract doing on a tree law blog? It’s here as a cautionary tale …

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

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

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

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

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

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

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

sign150827Paone, Inc. v. Oberholtzer, Slip Copy, 2007 WL 2455074 (N.D.N.Y., Aug. 23, 2007). Oberholtzer agreed to provide all labor and materials necessary to remodel Paone’s miniature golf course. Beyond that fact, the parties could agree on nothing.

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

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

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

golf150827Consequently, Oberholtzer argued, the estimate did not reflect intervening changes of which both parties were aware, including a different location for the bumper boat pond, changes in site elevations for the clubhouse and parking lot which required alteration of a ramp and deck, and additional concrete walkways on the course.

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

As far as the schedule went, Oberholtzer argued that the April 29, 2004, document did not contain a schedule or other time-related requirements. Oberholtzer said that Paone knew Oberholtzer would be opening and operating his own miniature golf course in Georgia at the end of May. Therefore, Oberholtzer claimed, Paone knew that Oberholtzer would not be available to work on the project on a regular basis. Furthermore, Oberholtzer argued that several weeks of delay resulted from the actions of an unrelated contractor, who placed heavy equipment in the area of the future bumper boat pond. Also, he said, Paone failed to make timely payments to enable Oberholtzer to buy materials and to progress with the project. Finally, Oberholtzer complained that Paone approved all building plans, and that town building inspectors routinely inspected the progress and noted no building code violations.

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

obfus150827Held: Summary judgment was denied in this fact-laden morass. The Court observed that Paone’s causes of action for breach of contract and breach of the implied covenants of good faith and fair dealing both required first that there be an enforceable contract with sufficiently definite terms. Here, the parties could not even agree on whether the document was a contract, let alone what its terms might be. Paone contended the document represents the parties’ complete agreement, but Oberholtzer asserted that the document was an estimate used solely for the purpose of obtaining funding. While Paone said that the time for performance commenced in May 2004, Oberholtzer alleged that it had already completed substantial portions of the project prior to that time.

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

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

– Tom Root

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Case of the Day – Thursday, December 14, 2017

ME AND MY SHADOW

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

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

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

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

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

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

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

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

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

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

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

My shadow is duly incorporated ...

My shadow is duly incorporated …

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

James B. Carroll 2003 Revocable Trustee v. Ricciardello, Not Reported in A.2d, 2007 WL 2080583 (Conn.Super., Apr. 4, 2007). It seems that Robert Ricciardello and James Carroll were adjacent landowners in the Ferrando Subdivision of Glastonbury Connecticut. The Subdivision lots were subject to a “Declaration of Covenant and Restrictions” that provided, in part, that “[e]ach lot shall be used and maintained solely and exclusively for one-family residential purposes … No trailer, tent, shack, garage, barn or other outbuilding erected on any Lot shall at any time be used as a residence temporarily or permanently … [The] covenants and restrictions are to run with the land and shall be binding on the Declarant, purchasers or owners of any Lot … for a period of twenty (20) years from the date of recording … During the twenty-year period that this Declaration is in effect, any or all of the covenants, conditions and restrictions contained herein may be amended or terminated by an instrument signed by the then owners of at least six (6) of the Lots described on Schedule A hereto, which instrument shall be recorded on the Glastonbury land records.”

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

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

covenant150826Ricciardello proceeded to do as he liked with his lots, planting an orchard, hunting for small game and storing construction equipment. Carroll sued, claiming that the release of the covenants was improper, and asked for an injunction. Ricciardello and Connecticut Outfielder answered, counter-claimed and filed for summary judgment. Connecticut Outfielder contended there are no genuine issues of material fact and that Connecticut Outfielder is entitled to judgment as a matter of law for the breach of restrictive covenants count and the counterclaim seeking a declaratory judgment that the release of covenants is valid. Connecticut Outfielder’s grounds for the motion were that Carroll testified that Connecticut Outfielder did not breach the covenants, and, the plaintiff did not allege any wrongdoing by Connecticut Outfielder in the operative complaint. Carroll objected that there were genuine material issues of fact.

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

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

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

– Tom Root

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Case of the Day – Wednesday, December 13, 2017

T.H.E. CAT

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

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

Remember T. Hewitt Edward Cat? His hangout at the jazz joint Casa del Gato? Lalo Schrifin’s cool theme music?

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

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

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

deed150825After the long-suffering neighbor paid a metric ton of legal fees, the trial court threw the case out, and the Court of Appeals agreed. The Dinuccis’ case suffered from a simple problem: they never denied their cat was free range (how could they?), and that was all the ordinance required. Because there was probable cause to believe that the peripatetic pussycat had gone feral, there was probable cause to believe ordinance had been violated. That being the case, there could not be malicious prosecution.

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

stray150825Dinucci v. Lis, Slip Copy, 2007 WL 2269740 (Ct.App. Ohio, Aug. 9, 2007). This dispute between neighbors started over involving the capture and eventual safe release of a house cat. The parties were before this court in an earlier dispute, which involved trespass, property damage, and continuing nuisance claims by the Dinuccis against their next-door neighbor Matthew Lis. Then the Dinucis had claimed Lis was liable for 1) delays in the construction of their house due to his objections, 2) damage to their lawn caused by trespassing, 3) willow tree branches hanging over their property, and 4) creating a nuisance by having the Lis yard look like a construction site for over two years. Out of all of that the Dinuccis won a princely $150 for damage to their lawn, the rest of their claims having been thrown out. The Dinuccis appealed to no avail.

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

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

garfield150825Held:  The case was correctly thrown out. The Court observed that, after all, North Royalton Ordinance 618.01 clearly stated that ‘[n]o person who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, dogs, cats, geese or other fowl or animals shall permit them to run at large upon any public way or upon unenclosed land” and that “[t]he running at large of any such animal in or upon any of the places mentioned in this section is prima facie evidence that it is running at large in violation of this section.” In order to establish the tort of malicious prosecution, the Dinuccis had to prove malice in instituting or continuing the prosecution, a lack of probable cause, and termination of the prosecution in favor of the accused. And here, the Dinuccis couldn’t show a lack of probable cause.

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

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

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, December 12, 2017

SIR, YOU ARE NO GEORGE WASHINGTON

solong161006Today, we conclude our consideration of the trespass problems faced by our New Hampshire landowners Larry and Laura Littoral. If you have followed along to this point, you know that the Littorals’ pastoral cottage getaway, situated on a classic New England pond, has been disrupted by neighbor Wally Angler.

Wally – who is really a NINO (neighbor-in-name-only) – is an angler, and asked the Littorals to chop down some dead trees on their property to create a trout habitat in the pond for the primary (and sole) purpose of adding to Wally’s piscatorial pleasure.  You can hear him now: “Thanks for all the fish!”

The Littorals preferred that their dead timber remain standing. When Wally asked them to cut down the trees, they said, “so long,” refusing to dump their tree into the pond. Apparently reasoning that it’s easier to ask forgiveness than permission – especially where permission has already been denied – Wally then took advantage of the Littorals’ weekend absence by bringing in a tree service to cut the trees down for him. According to the Littorals, Wally affirmatively misled the tree cutters that the dead trees were on his property, and the tree service cut down the timber with alacrity.

gw161006For the record, Wally denies having anything to do with the felling of the dead trees. He seemingly maintains that he turned around one day, and mirabile dictu, the trees were on the ground. If George Washington had tried a similar woof story on his father about a downed cherry tree, we’d probably all be speaking English and enduring lousy health care right now. As every schoolchild knows, however, Little George ‘fessed up, telling his father, “I cannot tell a lie.” Channeling Lloyd Bentsen, our observation is this: Wally, we served with George Washington, George Washington was a friend of ours. Wally, you’re no George Washington.

Our analysis this week has assumed that unless Wally can produce the elves responsible for the tree cutting (and their saws), the Littorals will easily meet their burden of proof.

So far this week, we have concluded that the Littorals may bring a double-barreled complaint, alleging a statutory violation of New Hampshire’s trespass-to-tree statute, R.S.A. § 227-J:8, and a common-law trespass count. The § 227-J:8 count carries some pretty serious penalties, from three to 10 times the market value of the trees. The catch is that the penalties must be based on a multiple of market value. Market value may be the stumpage value of the wood – what it is worth on location to a lumber buyer – or on the cost to replace the tree, minus transportation and planting costs.

We’re assuming for the sake of this column that a few dead trees probably are not going to have much stumpage value. The Littorals could find an expert to establish how much replacement of the trees would cost, but replacement value has traditionally been used because everyone assumes that the destroyed trees would have continued to flourish but for the actions of the defendant. Here, the defendant’s expert would have a good argument that those trees were going to fall in the near future anyway, and awarding the Littorals new live trees to replace their old dead ones would represent as windfall to the plaintiffs.

Wally suspects elves.

Wally suspects elves.

Given Wally’s underhanded approach to getting what he wanted (and what the Littorals did not want), we don’t have much trouble with the Littorals receiving a “windfall.” The law in New Hampshire and elsewhere does, however, holding that damages should be limited to compensating for the actual injuries suffered. For that reason, the Littorals can take the confluent approach that under the common law of trespass, their real property has suffered a decrease in value because of Wally’s conduct, both because of where the dead trees are no longer standing and because of where they are currently laying.

Even then, the Littorals might have a problem because the usual assumption underlying damages for loss of trees is that standing timber will continue to stand for the indeterminate future. That assumption may be challenged where the standing timber is already dead. Nevertheless, there is ample evidence that dead trees standing have value. As we noted the other day, dead trees provide shelter or sustenance to over 40 percent of all birds, to amphibians, and to lichens and moss. Dead trees create “snow fences” that slows wind-driven snow. The snow that is trapped melts in place and saturates the ground, providing additional moisture to live trees. Dead trees create hiding cover and thermal cover for big game as well.

Even more counter-intuitive, dead trees – after dropping their needles and bark – may reduce fire hazard. Their flammability is greatly reduced compared to green trees containing flammable resins.

stumps161006In the case we’re looking at below, the plaintiff relied on standing dead timber to help maintain privacy from his neighbor. The court appeared to recognize that the elimination of the standing dead trees contributed to a substantial diminution of her property value, even while acknowledging that the trees themselves had no value. It’s not a New Hampshire case, but then there is a dearth of cases nationwide where the wrongfully cut trees were ornamental in nature and yet very dead even before tasting the ax. We were glad enough to find this one. The decision suggests that an action alleging loss of privacy may be the strongest case of all.

Caciopoli v. Lebowitz131 Conn.App. 306 (Court of Appeals, Connecticut, 2011). Dominic Caciopoli was a man who liked his privacy. He bought his place because it was isolated and private, surrounded by forest on all sides except for one area of the lot though which his driveway passed. A short while later, Jeffrey Lebowitz bought the place next door. His house was about 100 yards from Dom’s, and the area between the residences was wooded, affording each privacy from the other.

A few months after moving in, Jeff hired a tree service to clear standing dead trees from the wooded area between the two homes. Jeff believed the dead, but he didn’t check that carefully. The tree service removed all the dead timber, both standing and on the ground, some small saplings, and a few larger trees to provide more sunlight and enlarge the areas surrounding his house. Of course, it turns out that virtually all of what was cut belonged to Dom.

When Dom came home to find that his natural privacy barrier had been clear-cut, he was not happy. He went to Jeff’s front door and expressed his displeasure, pointing out the actual property line in the process. Nevertheless, the next day, the tree service returned and finished the job. The removal of the trees and brush left Jeff with an unobstructed view of Dom’s house.

Jeff tried to make amends. He sent Dom a letter admitting his error and planted some trees on Dom’s property to replace what had been taken. Dom was not happy with the results, and undertook his own extensive landscaping project in a failed attempt to restore his lost privacy.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Give a man a fish, and feed him for a day. Give a man a chainsaw, and watch trouble ensue.

Dom sued Jeff for common-law trespass and for treble damages pursuant to Connecticut General Statutes § 52-560 (the Connecticut adjunct to R.S.A. § 227-J:8). The trial court found that Dom had proven the elements of an intentional trespass action, and awarded him $150,000. for the diminution in the value of his property caused by the trespass. Notably, the trial court declined to award any damages for the value of timber removed.

Jeffrey Lebowitz appealed, alleging a lot of infirmities with the trial judgment. Of interest to the Littorals is Jeff’s appeal of the damage award.

Held: The trial court’s award of $150,000 was proper. The trial court found that after the cutting Dom’s place was worth $675,000, according to an appraisal performed by a certified general real estate appraiser. The appraiser opined that prior to the cutting, Dom’s market value was $825,000. The Court of Appeals noted that Jeff could have presented his own expert testimony on the diminution of value, but he did not. Applying the ancient legal doctrine, et dormiat, ne perdatis (“you snooze, you lose”), the court said Dom’s expert was found to be credible and competent, and absent Jeff making an expert showing at all, that was good enough.

But, Jeff complained, Dom’s expert was not qualified to give an opinion as to the effect of the removal of certain trees from Dom’s property on its market value. He argued the expert had no relevant experience, and was considered an expert only because she had a real estate appraiser’s license. However, the Court of Appeals said, the trial court relied on the fact she had conducted 1,500 appraisals before, and when the trial judge asked her whether she was able to testify as to the value of the property before and after the removal of the trees, she said she could. (This is rather like finding that she was an expert because she asserted she was, a rather bizarre ipse dixitbut the Court of Appeals was loathe to disturb a verdict, and thus to give Jeff a second bite of the apple on remand).

Jeff also argued that the court made no finding whether there was an adequate factual foundation for a “retrospective appraisal” – an appraisal after the fact of the value of the property before the cutting – and that Dom did not ask the court to find  there was an adequate foundation for allowing the opinion evidence. The Court of Appeals pointed out that it was Jeff’s burden to object to the testimony on those grounds at the time of trial. Again, et dormiat, ne perdatisThe expert testified she visited the property in January and February 2009, and had determined the lot enjoyed a high degree of privacy prior to the incident. She also studied photographs of the lot prior to the trespass and after the trespass, and noted that the pictures depicted more clearing of trees than she had imagined and thus, strengthened her opinion as to diminution in value.

No one contests that trees in the water are a good habitat for fish... but Wally should have used his own trees.

No one contests that trees in the water are a good habitat for fish… but Wally should have used his own trees.

The Court observed that Jeff pointed to no authority to suggest that the expert’s personal observation of the property, her reliance on the plaintiff’s descriptions of the prior conditions of the property and photographs of the property in its prior conditions formed an inadequate factual foundation. The Court said the expert’s personal observation of the property “complemented by the plaintiff’s descriptions of the property in its prior conditions, is not impermissibly speculative…” After all, the Court said, Dom – as the owner – was undoubtedly familiar with his property (if perhaps lacking disinterest in the outcome), and no one was more competent than he to describe to the expert what it had looked like before the cutting.

The Court held the fact that the expert “could not give a logical explanation for how she arrived at her opinion and did not articulate or apply methodology suitable to determining any diminution in value caused by the clearing of trees” was not fatal to her testimony. She testified that she examined real estate in the area, found comparable properties, estimated degrees of privacy and made adjustments, positive or negative, for the differences in the properties in order to “equal everything out.” She also noted that an appraisal is not based on science, but it is just an opinion as to value, and the Court accepted that.

Jeff had to pay the $150,000. That’s a lot of money for some dead trees that had no stumpage value.

– Tom RootTNLBGray140407