Case of the Day – Thursday, May 11, 2017

PARTITION

stooges160331What happens when landowners can’t get along? Not like husbands and wives — that kind of “not getting along” will always be with us. Rather, what happens when heirs end up owning property together, with each having a fractional piece and no one being able to agree with anyone else about anything?

When that happens – as it did in today’s case – the law provides that land may be partitioned, that is, divided among the owners according to statute. Where reasonable division isn’t feasible, the land is sold and the proceeds divided.

There’s another legal concept important for today’s case, and that’s what’s commonly known as the Statute of Frauds. The Statute of Frauds was intended to prevent frauds by requiring that certain types of agreements be in writing. Traditionally, the statute of frauds requires a signed agreement for

•      contracts in consideration of marriage (including prenuptial agreements);

•      contracts that by their terms cannot be performed within one year;

•    contracts relating to an interest in land (including contracts of sale, mortgages and easements);

•      contracts by the executor of a will to pay a debt of the estate with his or her own money;

•      contracts for the sale of goods totaling $500 or more; or

•      contracts in which one party becomes a surety for another party’s debt or other obligation.

The contracts covered by the Statute of Frauds can be remembered by using the mnemonic device “MY LEGS”: Marriage, contracts for more than one Year, Land, Executor (or Estate), Goods ($500 or more), Surety.

shake160330In today’s case, one landowner – called a co-tenant because the owners owned the land as a tenancy in common (an expression having nothing to do with rental) – wanted to cut down trees on two of the parcels. When the other co-tenants complained, the first (we’ll call him Greedy Gus) said he was taking the two lots on which the trees were located anyway, and letting the other owners have the more expensive, better parcel. The other owners (think of them as Sloppy and Hasty) agreed with his oral proposal, and even made a $16,000 equalization payment as part of the understanding. But when they finally got around to signing an agreement, Greedy Gus wanted to change the deal. Now he sought a whopping big equalization payment, one Sloppy and Hasty wouldn’t pay.

No deal was signed, and Gus then sued for partition under the statute (which would have valued the entire property and given him a much larger stake than what the others said he had agreed to). Sloppy and Hasty counter-claimed, but the trial court granted summary judgment for Gus. S & H appealed, and the Court of Appeals sided with them.

The appellate panel held that there were enough facts in play to require the matter to go to a jury, but the Arizona Supreme Court had the last word.  Both the Appeals Court and the Supreme Court warned the Sloppy and Hasty, the two co-tenants who were arguing for the existence of an agreement, that the alleged voluntary partition agreement was subject to the Statute of Frauds, and the amount of paper evidencing an agreement was pretty sparse.  Partial performance of a contract will exempt it from the Statute of Frauds: if I sell you a lot, and accept your payment but refuse to give you a deed, the partial performance — your payment — excuses non-compliance with the Statute. Here, the Court of Appeals was pretty clearly unimpressed with the suggestion that the tree cutting was enough performance to excuse the lack of paper.  It offered Sloppy and Hasty their day in court, but the day didn’t look too promising.

badday160331The day turned out to be anything but promising.  The Arizona Supreme Court held that in order to constitute partial performance, the act had to unequivocally prove the existence of the unwritten contract.  In other words, “part performance must consist of acts that ‘cannot, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract’.  The Supreme Court said that “in addition to providing an equitable basis for ordering specific performance, acts of part performance serve an important evidentiary function – they excuse the writing required by the statute because they provide convincing proof that the contract exists.  So that this exception does not swallow the rule, the acts of part performance take an alleged contract outside the statute only if they cannot be explained in the absence of the contract.”

Here, the Supreme Court ruled, the acts that Sloppy and Hasty called evidence of part performance were really acts that were as consistent with their one-third co-tenancy interest as they were of anything else.  With no partial performance, the unwritten contract went unenforced, too.

Owens v. M.E. Schepp Ltd. Partnership, 182 P.3d 664 (Supreme Court of Arizona, 2008).  The parties owned undivided interests as tenants in common in contiguous residential lots. Hal Owens had a two-thirds interest and Schepp Partnership had a one-third interest. Two of the three lots were vacant, and a residence and guest house were on the third. The guest house was rented to third parties, but one of the Schepp partners lived in the residence.

Perhaps one of the first cases of partitioning ...

     Perhaps one of the first cases of partitioning …

Hal sued for partition of the lots and an accounting for rents and profits. Schepp Partnership answered and counterclaimed for specific performance of an alleged voluntary partition agreement or, alternatively, damages for a purported reduction in value of two of the lots caused by Hal’s removal of mature trees. Schepp Partnership argued that statutory partition was not available to Hal because he had entered into the voluntary partition agreement.

While meeting with the Schepps over a City notice to clean up the lots, Hal had said he wanted to remove a row of mature, 65-foot tamarack trees along the northern edge the lots. Thomas Schepp objected, saying the neighbors would be upset. Hal responded that he would decide what to do because he was taking two lots and leaving the most developed one to Schepp Partnership. He also told the partners that because Schepp Partnership would be getting the more valuable lot, it might cost the partners some money.

The parties agreed to divide the lots in this manner but did not reach agreement on any equalization payment. The Schepp brothers understood, however, that Hal might make a future claim for such payment. Soon after the meeting, Hal removed the trees. He told one of the Schepps that because he had paid a great deal of money for the two lots, the choice to remove the trees was his alone. Hal and Thomas Schepp then agreed a second time that Hal would take two lesser-value lots and Schepp Partnership would take the developed one. Based on this agreement to split the lots, the Schepps allowed Hal to remove the mature trees. Schepp Partnership later paid Hal $16,600, one-third of the total removal cost, as compensation to Hal in light of Schepp Partnership’s receipt of the more valuable lot.

A few months later, the Schepp Partnership sent a partition agreement to Hal for execution, but he returned it unsigned objecting to the lack of an equalization payment provision. Hal proposed that Schepp Partnership pay him $233,333 and grant him an access easement as equalization. The parties negotiated but never reached agreement regarding whether additional compensation. The trial court granted partial summary judgment for Hal, ordering statutory partition and appointment of commissioners, and dismissing the counterclaim for specific performance, holding that there was never an agreement as to how the property is to be divided between the parties. The Schepps appealed.

The Court of Appeals reversed the trial court , but the Schepps couldn’t find much solace in that fact. Partition is a means of dividing real property among certain types of owners. Property may be partitioned by agreement, or — if agreement cannot be reached — according to the requirements of state law. Voluntary agreements to partition real property are preferred to and controlling over involuntary partition proceedings.

sof160331A contract is formed when there is a bargain, consisting of promises exchanged, and consideration. To be enforceable, a contract must be reasonably certain and definite. Agreements leaving material terms for future resolution can be enforceable nevertheless if the parties sufficiently manifested mutual assent to be bound by those agreements. Where terms are missing, extrinsic evidence can be used to establish the meaning of the parties’ contract and supply omitted terms.

Here, the Court of Appeals said, a genuine issue of fact existed as to whether the co-tenants mutually agreed to be bound by an oral partition agreement. That issue of fact precluded summary judgment. But any alleged agreement between the co-tenants to partition the lots constituted an agreement for sale of their respective interest in the other’s remaining real property for purposes of the statute of frauds. And in order to satisfy the statute of frauds, the agreement must be in writing.

Subsequently, the Arizona Supreme Court disagreed, reinstating the original trial court decision.  It held that no trial was necessary because neither the Partnership’s withdrawal of its objection to the tree removal nor its payment of one-third of the landscaping contractor’s bill was “unequivocally referable” to the alleged contract.  Put differently, neither act is of such character as not to be reasonably explicable on other grounds.  While it is true that partial performance of an oral contract is enough to take the agreement outside of the Statute of Frauds, Partnership did nothing that proved with partial performance the contract that should have been – but was not – put in writing.

– Tom Root

TNLBGray

Case of the Day – Wednesday, May 10, 2017

A PRÉCIS ON ENCROACHMENT

North Dakota - you can see the gas flares from outer space.

North Dakota – you used to be able to see the gas flares from outer space. Now, that vermilion glow is probably red ink. 

Well, campers, it’s been fun exploring the law of encroachment. And who better to wrap it up than our friends on the North Dakota Supreme Court?

Until the bottom fell out of the oil market, North Dakota was a pretty happenin’ place. It was the No. 2 oil producer in the country, unemployment there was at a measly 2.6%, 18,000 more people moved there in 2013 than left … and the state had so much underground methane that it was flaring $100 million in natural gas a month that it couldn’t use.

Now, you can’t give away houses there, equipment firms are saddled with bulldozers they can’t use, and boom towns are going bust.   But we’re not here to talk about fracking.  The natural resources we care about around here are underground only to the extent of their root systems – root systems that, along with branches, can occasionally encroach on the neighbors. And that can be a real pain in the neck.

Recently, our guest justices from the North Dakota Supreme Court took time from deciding mineral rights, liability for train derailments, mobile home park regulation and the like, to consider the law of tree encroachment. They did a bang-up job of summarizing the history, policy bases and goals of the various rules, before thoughtfully consigning the Massachusetts Rule’s proscription against lawsuits to what we here at treeandneighborlawblog call the “wood chipper of history.”

Back to the pain-in-the-neck tree. Dr. Richard Herring knows something about pains in the neck. They’re his livelihood, as long as they’re found in his patients. But this chiropractor had to deal with another pain the neck, too. The property next door, on which sat an apartment building, had a large tree with branches that were overhanging Dr. Herring’s bone-crunching office. He fought back with self-help, trimming branches, cleaning up the debris that clogged his gutters, and raking up the mess the tree made every fall. But he couldn’t keep ahead. Finally, the branches damaged his building, and the debris created an ice dam on his roof that flooded the place.

pain-neck140211The absentee owners and hired managers at the apartment house next refused his entreaties to care for the tree. So he sued, claiming that they had a duty to manage the tree so it didn’t mess up his place. The trial court threw the suit out, telling the good doctor that he could trim the parts of the tree that were overhanging his place, but that was his only remedy.

“Wait,” you say, “that’s the Massachusetts Rule.” Right you are. But, as the North Dakota Supreme Court decided, there are other rules out there as well, including some that it thinks are a whole lot better than the doddering relic from Michalson v. Nutting. It reversed the trial court, holding that a tree owner does indeed have a duty to care for his or her trees so as to avoid damage to others.

In its thoughtful opinion, the Court wrote perhaps as fine a roundup on tree encroachment rules as has yet been written.

Herring v. Lisbon Partners Credit Fund, Ltd., 2012 N.D. 226, 823 N.W.2d 493 (Sup.Ct. N.D., 2012). Dr. Herring owned a commercial building in Lisbon housing his chiropractic practice. The apartment building next door is owned by Lisbon Partners and managed by Five Star. Branches from a large tree located on Lisbon Partners’ property overhang Herring’s property and brush against his building. For many years, Dr. Herring trimmed back the branches and cleaned out the leaves, twigs, and debris that would fall from the branches and clog his downspouts and gutters. He claimed that the encroaching branches caused water and ice dams to build up on his roof, and eventually caused water damage to the roof, walls, and fascia of his building. Herring contends that, after he had the damages repaired, he requested compensation from Lisbon Partners and Five Star but they denied responsibility for the damages.

Encroaching tree roots and branches can sometimes be unsightly

Encroaching tree roots and branches can sometimes be unsightly

Dr. Herring sued Lisbon Partners and Five Star for the cost to repair his building, claiming the companies had committed civil trespass and negligence, and maintained a nuisance by breaching their duty to maintain and trim the tree so that it did not cause damage to his property. The district court granted Lisbon Partners and Five Star’s motion for summary judgment, dismissing Herring’s claims. The court held Lisbon Partners and Five Star had no duty to trim or maintain the tree, and Herring’s remedy was limited to self-help. He could trim the branches back to the property line at his own expense, but that was it.

Held: The trial court’s dismissal was reversed, and Dr. Herring was given his day in court.

The North Dakota Supreme Court began its analysis by observing that the Massachusetts Rule was the original common law on tree law in the United States, holding that a landowner has no liability to neighboring landowners for damages caused by encroachment of branches or roots from his trees, and the neighboring landowner’s sole remedy is self-help: the injured neighbor may cut the intruding branches or roots back to the property line at his own expense. The basis for the Massachusetts Rule is that it is “wiser to leave the individual to protect himself, if harm results to him from the exercise of another’s right to use his own property in a reasonable way, than to subject that other to the annoyance and burden of lawsuits, which would likely be both countless and, in many instances, purely vexatious.

The Hawaii Rule, on the other hand, rejected the Massachusetts approach as overly simplistic. Instead, it held that the owner of a tree may be liable when encroaching branches or roots cause harm, or create imminent danger of causing harm, beyond merely casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.

The Restatement Rule, based upon the Restatement (Second) of Torts §§ 839-840 (1979), distinguishes between natural and artificial conditions on the land. Under the Restatement Rule, if the tree was planted or artificially maintained it may be considered a nuisance and its owner may be liable for resulting damages, but there is no liability for a naturally growing tree that encroaches upon neighboring property.

The Virginia Rule, adopted in 1939, makes a distinction between noxious and non-noxious trees. Under the old Virginia rule, a tree encroaching upon neighboring property will be considered a nuisance, and an action for damages can be brought, if it is a “noxious” tree and has inflicted a “sensible injury.”

The district court concluded that under N.D.C.C. § 47-01-12, Herring had a “right” to do as he wished with the overhanging branches and underlying roots of the tree, and therefore this portion of the tree was “just as much the responsibility of the adjacent landowner as it is the owner of the trunk.” In effect, the district court concluded that because Herring had the “right” to the branches above his property, he therefore had the responsibility to maintain them as well.

The state Supreme Court complained that the district court had essentially nullified N.D.C.C. § 47-01-17. That statute expressly provides that when the trunk of the tree is wholly upon the land of one owner, the tree “belong[s] exclusively to that owner.” The district court’s holding that Herring in effect owned the branches above his property was thus contrary to statute. Statutes must be construed as a whole and harmonized to give meaning to related statutes, and are to be interpreted in context to give meaning and effect to every word, phrase, and sentence. The interpretation adopted by the district court did not give meaning and effect to that portion of N.D.C.C. § 47-01-17 which provides that the owner of the tree’s trunk “exclusively” owns the entire tree.

Our thanks to the Supreme Court of North Dakota for its comprehensive opinion ...

Our thanks to the Supreme Court of North Dakota for its comprehensive opinion …

Contrary to the district court’s conclusion that the Massachusetts Rule was more consistent with North Dakota statutory law, the Supreme Court held that the Hawaii Rule more fully gives effect to both statutory provisions. The Hawaii Rule is expressly based upon the concept, embodied in N.D.C.C. § 47-01-17, that the owner of the trunk of a tree which is encroaching on neighboring property owns the entire tree, including the intruding branches and roots. And because the owner of the tree’s trunk is the owner of the tree, the Supreme Court thought he or she should bear some responsibility for the rest of the tree. The Court said “we think he is duty bound to take action to remove the danger before damage or further damage occurs.”

The Supreme Court also observed that “the Hawaii Rule is the most well-reasoned, fair, and practical of the four generally recognized rules. We first note that the Restatement and Virginia rules have each been adopted in very few jurisdictions, and have been widely criticized as being based upon arbitrary distinctions which are unworkable, vague, and difficult to apply … In fact, the Supreme Court of Virginia has … abandoned the [old] Virginia rule in favor of the Hawaii Rule [in] Fancher …”

The Court said the Massachusetts Rule fostered a "'law of the jungle' mentality" among landowners.

The Court said the Massachusetts Rule fostered a “‘law of the jungle’ mentality” among landowners.

The Court also complained that the Massachusetts Rule has been widely criticized as being “unsuited to modern urban and suburban life.” The Massachusetts Rule fosters a “law of the jungle” mentality, the Court said, because self-help effectively replaces the law of orderly judicial process as the only way to adjust the rights and responsibilities of disputing neighbors. The Court observed that while self-help may be sufficient “when a few branches have crossed the property line and can be easily pruned by the neighboring landowner himself, it is a woefully inadequate remedy when overhanging branches break windows, damage siding, or knock holes in a roof, or when invading roots clog sewer systems, damage retaining walls, or crumble a home’s foundation.”

Accordingly, the North Dakota Supreme Court held that “encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance.” The rule does not prevent a landowner, at his or her own expense, from cutting away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, May 9, 2017

ONE STATE’S TREE IS ANOTHER STATE’S PEST

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

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

Long before the Virginia Supreme Court’s decision in Fancher v. Fagella, a little-noticed New Mexico decision grappled with the problems caused by cottonwood trees. Cottonwoods can be majestic, and they were welcome enough to the tired and thirsty pioneers that the cottonwood became the state tree of Kansas. But at the same time, there are some arborists (and more than a few homeowners) who label them as dangerous, messy and a tree that should “be removed from most residential property.

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

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

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

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

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

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

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

Cottonwoods are known for their intricate and aggressive root systems

Cottonwoods have intricate and aggressive root systems …

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

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

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

– Tom Root

TNLBGray140407

Case of the Day – Monday, May 8, 2017

LAST WEEK CHOCOLATE, THIS WEEK VANILLA

chocolate160325The law of encroaching trees runs a continuum from total self-help to the exclusion of any judicial remedy (theMassachusetts Rule,” which we discussed last Thursday) – to tree owner liability (the “Hawaii Rule”), with many variations in between. If the law of encroachment were administered by Baskin Robbins, the Massachusetts Rule would be chocolate ice cream, and the Hawaii Rule would be vanilla.

In Whitesell v. Houlton, a Hawaiian appellate court first adopted what is generally known as the “Hawaii Rule,” which held that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused.

Maybe the court’s holding that the Whitesell v. Houlton tree was a nuisance arose from the hard facts of the case: the tree was a massive banyan tree, with a 12-foot trunk and 90 foot height. There is an old legal maxim that “hard cases make bad law,” and the banyan tree in this case was pretty clearly monster flora, sort of the kudzu of trees. Perhaps it was that the laid-back political and cultural nature of the Sandwich Islands is far removed from the flintier New Englanders and the type of self-reliance embraced by the “Massachusetts Rule.

banyan160325For whatever reason, if a branch from a healthy tree in Massachusetts is in danger of falling into a neighbor’s yard, that neighbor may trim it at his or her own expense … but that’s it. In Hawaii, overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. Then, the damaged or imminently endangered neighbor may either use self-help to cut back on the encroaching tree, or may require the owner of the offending tree to pay for damages and to cut back endangering branches or roots. If such is not done within a reasonable time, the neighbor may even have the trimming done at tree owner’s expense.

As we said, nothing in this ruling prevents a landowner — at his or her own expense — from cutting any part of an adjoining owner’s trees or other plant life up to his property. It’s just that the Massachusetts Rule says that’s all a landowner may do. Hawaii thinks differently. Tomorrow, we’ll see that Hawaii may be on the right side of history in this debate.

Whitesell v. Houlton, 632 P.2d 1077 (App. Ct. Hawaii, 1981). The Whitesells and Mr. Houlton lived next to each other. Mr. Houlton owned a 90-foot tall banyan tree with foliage extending 100 to 110 feet from the trunk. The tree overhung the Whitesells’ property. and the two-lane street fronting both properties. The Whitesells asked Mr. Houlton repeatedly over a two-year period to trim the tree, and they took it upon themselves to do so at various times. Their VW microbus – probably chartreuse – was damaged by low-hanging branches, their garage roof was damaged by some intruding branches from the tree, and they identified branches damaged in a storm that were in danger of falling.

Despite their entreaties, Mr. Houlton did nothing. Finally, the Whitesells hired a professional tree trimmer who cut the banyan’s branches back to Houlton’s property line, and then sued Mr. Houlton to get him to pay.

The trial court sided with the Whitesells, and ruled that Mr. Houlton had to pay. He appealed.

Held: Mr. Houlton had to pay. The court surveyed different approaches taken by other states, identifying the “Massachusetts Rule” holding that Mr. Houlton had no duty to the Whitesells, or the “Virginia Rule” that said Mr. Houlton had a duty to prevent his tree from causing sensible damage to his neighbor’s property.

nuisance160325The Court agreed with Mr. Houlton that “the Massachusetts rule is ‘simple and certain’. However, we question whether it is realistic and fair. Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree. It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury or property damage on or off of his property . . . Such being the case, we think he is duty bound to take action to remove the danger before damage or further damage occurs.” This is especially so, the Court said, where the tree in question was a banyan tree in the tropics.

Thus, the Court adopted what it called “a modified Virginia rule.” It held that “overhanging branches which merely cast shade or drop leaves, flowers, or fruit are not nuisances; that roots which interfere only with other plant life are not nuisances; that overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit; that when overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

The Court pointed out that this rule did not strip a landowner of the right, at his or her expense, to trim a neighbor’s overhanging tree or subterranean tree roots up to the property line. It’s just where the Massachusetts Rule limits you to helping yourself, the Hawaii Rule lets you enlist the courts to do the heavy lifting.

– Tom Root

 TNLBGray140407

Case of the Day – May 5, 2017

¡CINCO DE MAYO!

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

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

Yeah, we recognize that we promised you a study of the Hawaii Rule today, but that was before we looked at the calendar. It turns out that today is Cinco de Mayo – this day of days commemorated in the U.S. to celebrate a surprising but utterly insignificant victory of Mexican forces over the French Army – we hoist a cerveza to Kelly Rush. Mr. Rush, like the Mexican military, won an meaningless trial court victory on the way to getting routed.

Sorry, folks… Hawaii will have to wait until Monday.

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

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

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

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

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

Pozole - the national dish of Mexico.

Pozole – the national dish of Mexico.

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

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

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

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

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

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

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

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

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

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

Rush appealed.

Held: Rush got only his $200 award.

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

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

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

Oops. Or as the Mexicans say, “¡Ay!”

– Tom Root

TNLBGray

Case of the Day – Thursday, May 4, 2017

ENCROACHMENT – MASSACHUSETTS STYLE

The tree crew we hired seemed sort of smallish, but they had really cool trucks ...

The tree crew our neighbor hired seemed sort of smallish, but they were always smiling and had these really cool trucks …

We’ve got some new neighbors, nice folks who bought a house that, while substantial, has been badly neglected. Since moving in a few months ago, they’ve been working like beavers to fix the place up.

Today, they had a tree service cut down a number of trees, large and small. We have a couple of big pine trees – which I love but my wife doesn’t – that have branches overhanging the new neighbors’ back yard.

Our neighbor came over to inquire whether we minded that he trim some of the long, spindly branches encroaching over the stockade fence into his yard. We were surprised to be asked.

“But surely you know the Massachusetts Rule,” we said. “You don’t need permission to trim the oak branch back to the property line. That’s well settled law!” Our neighbor was pleased if a little skeptical. He was sure he couldn’t touch the branch – even though it extended well into his property – without our OK.

To assuage our neighbors’ concern (and that of their tree service), we provided the foreman with the web address of the most comprehensive tree law site in the entire solar system it – this one. We confidently predicted that the site just happened to plan to cover encroachment issues the very next day.

Are we ever prescient! As it happens, today we are going to talk about encroachment… not the neutral-zone penalty that costs a defense five yards. That’s for football season, still three months away (depending whether your tastes run to high school, college or pro). The encroachment we care about is different.

Beginning140714Encroachment is what happens when your neighbor’s tree roots break into your sewer system, when leaves and nuts are dumped into your gutters, or when the branches rain down on your car or lawn. The law that governs rights and responsibilities when a neighbor’s tree encroaches on your property only developed in the last 80 years. Before that time, a simpler time perhaps, people didn’t resort to the courts quite so much.

In the beginning, there was the “Massachusetts Rule.” That Rule, something we talk about so much you’d think everyone would have heard of it by now, arose in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (Sup.Jud.Ct. Mass. 1931). This is the granddaddy of all encroachment cases, the Queen Mother. The Massachusetts Rule is the self-help mantra of neighbors everywhere.

In Michalson, roots from a poplar growing on the Nuttings’ land had penetrated and damaged sewer and drain pipes at Michalson’s place. As well, the roots had grown under Michalson’s concrete cellar, causing cracking and threatening serious injury to the foundation. Michalson wanted the Nuttings to cut down the tree and remove the roots. They said “Nutting doing.”

Encroaching tree roots can sometimes be unsightly

Encroaching tree roots can sometimes be unsightly…

Michalson sued, asking the court to permanently enjoin the Nuttings from allowing the roots to encroach on his land. Besides an order that the Nuttings essentially stop the tree from growing, Michalson wanted money, too, to ease the pain of leaf raking and root cutting. The trial judge found the Nuttings were not liable merely because their tree was growing. He threw Michalson’s lawsuit out, and Michalson appealed.

Held: In what has become known as the “Massachusetts Rule,” the Supreme Judicial Court of Massachusetts held that a property owner’s remedies are limited to “self help.” In other words, a suffering property owner may cut off boughs and roots of neighbor’s trees which intrude into another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by roots of trees belonging to adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots of tree invading plaintiff’s property or to restrain such encroachment.

Our takeaway today, therefore, would be the two concepts embodied in the Massachusetts Rule. The first is that you, the neighbor, need no permission from the tree owner to trim away roots and branches that overhang your property. That rule survives to this day just about everywhere. The second – which has been questioned to a much greater extent – is that you can’t sue your neighbor for the effects of encroachment by one of his or her trees.

Hold those concepts close, because tomorrow, we’ll see how things work on the other end of the country – Hawaii – where the law developed somewhat differently. Some say that size matters. We’ll see how true that is when the tree is a little too much for the court to ignore.

– Tom Root

TNLBGray140407

Case of the Day – Wednesday, May 3, 2017

DRIVE-BY INSPECTIONS, FEDERAL STYLE

Delaware Water Gap National Park

Delaware Water Gap National Park

Yesterday, we looked at the Federal Tort Claims Act, the king’s way of saying, “Go ahead, sue me.”  Like it’s that easy…

In yesterday’s case, the Forest Service evaded liability because how it followed the guidelines for maintaining a bike trial was considered to be a discretionary function. Today, we’re going to see how something so quotidian as tree inspection can be considered discretionary, too.

Ms. Merando and a friend had been enjoying the scenery of Delaware Water Gap National Park – a beautiful place – one summer day, when a tree (which had previously been topped) fell from an embankment and crushed the car, killing Ms. Merando and her young daughter, Kaylyn.

It was a tragedy, and sometimes tragedies drive the bereaved to push hard. That happened here, where Ms. Merando’s husband sued the National Park Service for not having removed this topped tree before it fell. The tree was a disaster waiting to happen, a dead, previously-butchered hulk leaning over the road like an ogre waiting to pounce.

Under the Federal Tort Claims Act, as alert readers may recall from yesterday, you can’t sue the government if it failed to perform a discretionary act. Whether hazard tree removal is a discretionary function is at the heart of this case.

The Court of Appeals upheld the lower court, dismissing Mr. Merando’s case. The National Park Service, it appears, had written guidelines that essentially directed every park to adopt a hazard tree removal policy that makes sense for the individual park. The result is a patchwork of unwritten policies. That sounds like a prescription for chaos.

Actually, it’s a prescription to avoid liability. If the Service had a written hazard tree removal policy and the local rangers hadn’t adhered to it with the tree in questions, then liability on the part of the government would be pretty clear. But, as some sharp National Park Service lawyer undoubtedly figured out — and yes, even Smokey the Bear has his own mouthpiece — if you don’t write it down, it’s that much harder for a plaintiff to prove that you failed to follow it.

The Delaware Water Gap National Park had a rather amorphous “drive-by” inspection policy, and Mr. Merando was unable to demonstrate that anyone had violated it. The lesson seems to be that “the less you do, the safer you are.”

Some hazard trees are easier to spot than others ...

Some hazard trees are easier to spot than others …

Merando v. U.S., 517 F.3d 160 (3rd Cir., 2008). Janine Noyes, Kathleen Merando and Kathleen’ daughter, Kaylyn, were sightseeing in Delaware Water Gap National Recreation Area. While traveling in Ms. Noyes’s car along the New Jersey side of the Park, a large dead oak tree fell from an embankment and crushed the vehicle. Mrs. Merando and her daughter were killed instantly. The tree was approximately 27 feet in length, and had been had “topped” and delimbed, leaving it standing in a “Y” shape with no bark or branches and with the dead tree pole leaning toward the roadway.

The 63,000-acre Park lies along four miles of the Delaware River in Pennsylvania and New Jersey. It is mainly forested land, and is accessed by approximately 169 miles of roadways, 68 miles of trails, and several streams. As with other national parks throughout the country, the National Park Service, an agency within the U.S. Department of the Interior, is responsible for maintaining the Park, including the area where the accident in question occurred. The Government took title to the land where the oak tree was situated in 1969 and to the roadway itself in 1996.

Plaintiff, as administrator of the estates of Ms. Merando and her daughter, sued the Government for negligence, alleging that the Government negligently pruned the tree causing it to die and eventually collapse, and that the tree constituted a hazardous and extremely dangerous condition of which the Government knew or should have known and that it negligently failed to act to remove the tree. The Government moved to dismiss the complaint on the basis of the discretionary function exception to the Federal Tort Claims Act. The Government also argued that the New Jersey Landowners Liability Act barred the action. The trial court dismissed on the basis that the FTCA stripped the court of jurisdiction to hear the case. Mr. Merando appealed.

Held: The district court’s dismissal was affirmed. The federal, as a sovereign, is immune from suit unless it consents to be sued. That consent, and the extent of the consent, is set out in the Federal Tort Claims Act, and it is a plaintiff’ burden to prove that the FTCA has waived the immunity. Generally, the government is immune from a suit claiming negligence in the discharge of a discretionary function.

The purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. In determining whether the discretionary function exception applies in any particular case, a court must first determine whether the act giving rise to the alleged injury involves an element of judgment or choice. The requirement of judgment or choice is not satisfied if the law, a regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive. – But even if the challenged government conduct involves an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. The focus of the inquiry is on the nature of the actions taken and on whether they are susceptible to policy analysis.

In this case, determining whether the discretionary function exception applied to a tort action arising when the dead tree fell on the passing car, the relevant conduct was not the National Park Service’s alleged violation of its mandatory policy not to “top” trees, because there was no evidence that the Government was involved in or consent to the topping of the tree. Instead, the relevant conduct was the Service’s decisions that comprised its hazardous tree management plan and its execution of that plan. The issue was whether the controlling statutes, regulations, and administrative policies required the Park Service to locate and manage hazardous trees in any specific manner. The Court concluded that the Service’s unwritten tree management plan did not mandate any particular methods of hazardous tree management, and its choice to use “windshield inspections” in low usage areas of the park was a discretionary decision — driven by limited resources — not to individually inspect every potentially hazardous tree in the park.

– Tom Root

TNLBGray