Cases from August 2014

Case of the Day – Friday, August 1, 2014

FINDERS KEEPERS

We settled a particularly difficult case yesterday. Our 9-year old neighbor Christian found a Superball (remember those?) in the grass near his house. He was busy tormenting his little sister Lexia with it – something at which 9-year old boys are especially adept – when he wondered whether he could keep his find or he’d have to “give it back.”

We asked “Give it back to whom?”

He shrugged, having no idea who the owner had once been. His situation reminded us of a sad Ohio news story a few years ago about a contractor who found a wad of money in the walls of a house he was fixing up for a new owner. The contractor and the owner and — finally — the descendants of a prior owner — all became embroiled in litigation, and in the end, the lawyers got virtually all of it. Shades of Jarndyce v. Jarndyce!

Lucky for Christian, we knew what Ohio law had to say about “treasure troves,” those little bundles of cash, jewelry, art or old Hostess products that people occasionally stumble over. It turns out that the answer is, it depends on whether the property is lost, abandoned, stolen or mislaid. If it’s lost or abandoned, it turns out, Christian’s little sister was right in the advice she gave him: finders keepers.

In today’s case, a very lucky cop found thousands of gold and silver coins scattered on a city street at 4 a.m. He picked them up, and then, being a dutiful cop, turned them in. The owner never stepped forward — and we bet there’s a story in that — so after about a year, the police officer sued for ownership.

The City opposed him, arguing that the money was located on its street and the policeman was on its time clock when he found them. None of that mattered, the Court said. All that counted was that the lost or abandoned property was found by Officer Baker, who thus had ownership rights superior to anyone other than the rightful owner.

Our advice to Christian, then, was the Superball was probably lost property, because who’d willingly abandon such a cool ball? It was his to enjoy unless the true owner stepped forward.

Sadly, our legal efforts were for naught. Shortly after our sage advice to him, Christian lost the Superball on an especially high bounce into a nearby soybean field.  Losers weepers.

Baker v. City of West Carrollton, Case No. 9904 (Ct.App. Montgomery Co., August 7, 1986) (unpublished), 1986 WL 8615. Police officer Charles Baker found a large number of gold and silver coins scattered on a West Carrollton public street. After reporting the find, he and city employees picked up 6,871 gold and silver coins and placed them in the police property room. When no one stepped forward to claim them, Baker sued to establish his right to the money. The City counterclaimed, arguing that the money was found on its street, and Baker was its employee, so the money belonged to it. The trial court agreed, and awarded the money to the City. Baker appealed.

Held:  The money belonged to Baker, not the City. The money was considered to be “lost” or “abandoned” property. Under Ohio common law, a finder who takes possession of “abandoned property” acquires absolute title. A finder of a lost article, although he does not by such finding acquire an absolute property or ownership, has a prior claim thereto as against everyone except the actual owner. The rule is practically absolute and is not affected by special circumstances of the character of the thing found, the place of finding, or the relation of the finder to the third person, even where the finder is the employee of the owner of the premises.

At common law a finder who takes possession of lost property has a duty to protect the property; to seek the true owner, and to return the property to the true owner on demand. The state had no right to found property as against the finder. Although Ohio law governs disposition of lost or abandoned property by police departments, the law requires the property to be turned over to persons with a right of possession, and Ohio courts have held that a finder of lost property which is unclaimed by the true owner is a person “entitled to possession of property” under that law. Officer Baker was such a person.

West Carrollton argued that since Baker is a police officer he should not receive a reward for performing his duty. The Court agreed that rewards for police officers’ performance of their duties aren’t appropriate, but it said that the City’s award analogy was strained. It held that Baker’s primary duty was to the true owner of the coins, and he got no reward for that.

The Ohio Supreme Court later upheld the decision.  Now, if those Justices can just help Christian search the soybeans.

Case of the Day – Monday, August 4, 2014

LOSERS WEEPERS

Last Friday, we wrote about our 9-year old neighbor’s remarkable good fortune in finding a Wham-O Superball, and what governed whether he could keep it or had to return it to another claimant. All of that turned out to be moot, as he promptly lost it in a soybean field. But we had so much fun writing about finding lost property that we though we’d take up the obverse of that coin today – what happens when the lost property was stolen to begin with.

Now, ripped from the headlines … and based on a true story, we present the tale of poor driving instructor Martha Fuqua, whose purported avocation of haunting flea markets and garage sales brought her a brief shining moment of wealth and fame.

Martha is the woman who dropped $7.00 on a dusty and faded old painting in a dilapidated frame. Or so her story goes. She says it sat around her place for a few years before she decided to get it appraised at her late mother’s urging. Lo and behold, the painting turned out to be by the French impressionist Pierre Auguste Renoir.  What a lucky break for Martha! And it seemed to be worth somewhere north of what Martha had paid for it, about 15,000 times her initial investment.

Everyone loves a story like this, an everyday Joe or Jane unexpectedly becoming rich because of serendipity. And Martha, who had lost her teaching position and was training to be a casino blackjack dealer, sure could use a windfall right about the time this one came along. But, nothing ruins a good story like an eyewitness. Or two.

When Martha sought to auction the piece of art in 2012, the word quickly spread that the piece was Renoir’s On the Shore of the Seine, a 5½ x 9-inch landscape. Martha, who began calling herself “Renoir Girl,” was basking in the publicity. Reporters and art enthusiasts tried without success to establish the provenance of the work, and someone eventually tracked it back to the Baltimore Museum of Art. Officials there denied ever having had it hanging on their walls. But shortly before the auction – which was expected to bring Martha over $100,000 – the Washington Post found documents showing that the May family, a prominent patron of the BMA, had loaned the work to the museum in 1937. Museum officials checked again, and this time found records showing the landscape had been reported stolen in 1951.

Enter Renoir Girl’s brother, Matt, who said that he had seen the painting among his late mother’s possessions several years before his sister said she had bought it for the price of a Subway foot-long and a medium drink. A mother who happened to have been an art student in Baltimore in the early 1950s, right when the diminutive painting was plucked from the wall of the museum. Other family acquaintances recalled seeing the painting at the Fuqua family’s home in Virginia in the 80s and 90s. Oh, those pesky eyewitnesses!

The BMA complained that it didn’t really care how Martha Fuqua came to possess the work, it belonged to the museum. The FBI bravely swept in, wrestled the painting to the floor, probably tased the frame once or twice, and took possession of the work. Then the courts took over.

The government filed what is known as an interpleader action in Federal court. An interpleader action states in essence that the filer is in possession of some property to which there are competing claims for ownership. It asks the Court to separate the wheat from the chaff, and sort out the claims. Ms. Fuqua said that she found the Renoir fair and square, and that anyway, she possessed it and possession is nine-tenths of the law. The BMA said that the law doesn’t let anyone, even an innocent purchaser, take title to stolen goods.

In re “Paysage Bords De Seine,” Case No. 1:13-CV-347 (E.D.Va., Jan. 14, 2014): Only two parties remained of the four claimants named by the plaintiff United States of America, Martha Fuqua – who claimed she bought the artwork at a flea market – and the Baltimore Museum of Art. The BMA claimed the Renoir landscape had been reported stolen from its walls 60 years before.

Surprisingly enough to people who follow this kind of thing, the Court actually observed that “the Fourth Circuit has endorsed the truism ‘[t]hat possession is nine-tenths of the law’.” Virginia common law presumes that the person in possession of a piece of property has a superior claim to it, although the presumption can be rebutted by sufficient evidence. The Court noted that one way of rebutting the presumption was by proving the property was stolen, because the law was clear that “even a good-faith purchaser for value cannot acquire title to stolen goods.”

BMA essentially was bringing a detinue action, a common law action to obtain an order from the court that its property be returned to it from another person – not necessarily a wrongdoer – who for whatever reason is in possession of it. In order to prevail, BMA had to prove (1) a property interest in the item; (2) the right to immediate possession; (3) that the property is capable of identification; (4) that the property is of some value; and (5) that it possessed the property at some time in the past.

The parties didn’t dispute that the property – a painting – could be identified and that it had considerable value. Ms. Fuqua, however, claimed that the museum couldn’t prove it had ever possessed the painting. The BMA produced copies of the 1951 police report, copies of its records showing that the painting had been loaned to it, and copies of board minutes from the early 1950s citing the theft and an insurance claim. (In case anyone wonders, the May family descendents had been named in the suit as potential claimants, but they waived any claim to the Renoir).

Martha Fuqua argued that the BMA records weren’t reliable evidence, but the District Court found the internal records showing the painting was loaned to it, that it catalogued it and exhibited it in due course, were convincing. Even more persuasive was the official copy of the police report, proving that the BMA had reported the painting had been purloined. Ms. Fuqua complained that the police report was hearsay, but the Court correctly pointed out that the report wasn’t intended to prove that the painting had been stolen, but rather to prove that it had been reported stolen. Too fine a point for you? Such is the nature of the law of evidence.

The Court concluded that Ms. Fuqua hadn’t offered any evidence that the painting had not been stolen, and the BMA had provided plenty of proof that it had been. As a final “hail Mary,” the Renoir Girl speculated that maybe Saidie May ­– who had loaned the painting to the museum – hadn’t had her husband’s permission to do so. Like that mattered.  The Court dismissed this canard as rank speculation.

The painting was ordered back to the museum. And by her reckoning, Martha Fuqua is out the price of a 12” meatball marinara and Coke.

Case of the Day – Tuesday, August 5, 2014

A FOOL FOR A CLIENT

Mr. and Mrs. Andrews weren’t your typical blundering homebuyers. Both attorneys, he was a tax specialist and she did appellate work. So when they settled on a beautiful homestead in the Ohio countryside next to a hillside covered with pine trees, we figure they must have carefully read all those ‘thences’, distances and bearings to PK nailsets and to iron pins and ‘principal places of beginning’, you know, the stuff other lawyers put in deeds. We don’t know how they missed the easement prior owner had granted to the gas company for two pretty big gas transmission lines buried on the place.

We’re sure they read it. But these legal beagles apparently never dreamed the easement meant what it said.

About four years after they moved in, the gas company came along and said the pine trees on the hill were encroaching on the easement and had to go. Being frugal as well as sharp, the Andrewses sued in local court, acting as their own attorneys. They argued the gas company was stuck with the trees because it had let them grow there in the first place, and anyway, it hardly needed to clear-cut a swath 80 feet wide (25 feet on either side of the two pipelines and 30 feet in the middle).

Ol’ Abe Lincoln was right: the Andrews had a pair of fools for clients.

As it turned out, Columbia Gas had a few lawyers, too, and these guys knew easements like Mr. Andrews knew tax. Maybe even better.  The gas company removed the case to federal court, where after a trial, the Andrewses had their heads handed to them. The Court of Appeals affirmed the defeat.

The court held that Columbia Gas hadn’t acquiesced to the trees, because they weren’t any there when the pipeline was built (but were planted by a later homeowner). The fact that the gas company hadn’t cut a swath of trees from the easement in 55 years didn’t matter, nor did it matter that the gas company was cutting such a wide right-of-way on neighboring easements. The court gave credence to the Columbia Gas and state utilities commission witnesses, who carried the day by carefully explaining all of the safety, economic and reasons for the gas company to want the trees removed.

The Court ruled that absent evidence to the contrary, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. New technology permitting aerial inspection, new federal regulations on pipeline safety and security, and new techniques of internal pipeline inspection, were all such “developmental changes,” arguing for the gas company to take a heightened interest in keeping its easement clear.

Andrews v. Columbia Gas Transmission Corporation, 544 F.3d 618 (6th Cir., 2008).  In 1947, Ruby W. Davies owned the piece of land in Licking County, Ohio, where the Andrews family now lives. She granted The Ohio Fuel Gas Company an easement to build and maintain a pipeline and to “lay, maintain, operate, repair, replace and remove other lines of pipe at any points on said premises upon the payment of like consideration” and the right of “ingress and egress to and from the same” over and across the property. Ohio Fuel agreed to “pay any damages which may arise to crops and fences from the laying, maintaining, operating and final removal of said pipe line.” The agreement did not specify the width of the easement.

Pursuant to the agreement, Ohio Fuel installed two large high-pressure underground natural gas transmission pipelines through the property. The first, Line K-170, is 16 inches wide and was installed in 1947. The second, Line K-205, is 24 inches wide and was installed in 1957. The two pipelines run parallel to each other about 30 feet apart. Columbia Gas succeeded to Ohio Fuel’s interest in the right of way and still operates and maintains the pipelines. The property changed hands several times over the past 50 years. In the late 1960s, the owner built a house on it and planted pine trees on the hillside behind the house for aesthetics and erosion control. The owner was unaware that he had planted the trees within 25 feet of Line K-170.

In March 2000, the Andrews bought the property with notice of the 1947 right of way agreement. By then, the pine trees had matured. The Andrews’ decision to purchase the property was motivated in large part by the rural setting and the hillside landscaping.

Columbia Gas made no efforts to clear a right of way around the pipelines until 2004, when a work crew told the Andrews that the location of the pipeline required them to remove the stand of pine trees. Columbia Gas claimed the right to remove the trees and to maintain a right of way totaling approximately 80 feet, 25 feet on each side of the two pipelines and the 30 feet between the two pipelines. The Andrews sued Columbia Gas, seeking an injunction and asking for damages if the trees were cut. After trial, the court entered judgment in favor of Columbia Gas, relying on the testimony of Timothy Seibert, a long-time Columbia Gas employee responsible for overseeing the inspection and maintenance of the pipelines running through Andrews’ property, and Paul Hollinger, an investigator for the Public Utilities Commission of Ohio, the state agency responsible for overseeing natural gas transmission lines. Based on their testimony, the Court concluded that a 50-foot right of way for each pipeline was “necessary and convenient and consistent with the language of the 1947 Davies easement.” The court declined to apply the doctrines of laches, estoppel, or waiver, noting that those doctrines do not apply to expressly granted easements under Ohio law. Finally, the Andrews were not entitled to compensation for removal of the trees because the right of way agreement only provided recovery for damage to crops and fences. The Andrews appealed.

Held:  Columbia Gas was entitled to the 80’ wide right-of-way, and the Andrews were not entitled to damages for the lost trees. Under Ohio law, an easement is an interest in the land of another, created by prescription or express or implied grant, that entitles the owner of the easement to a limited use of the land in which the interest exists. The owner of the land subject to an easement has the right to use the land in any manner not inconsistent with the easement, but has no right to interfere with or obstruct the reasonable and proper use of the easement. The owner of an easement has the right to remove objects within it that unreasonably interfere with or obstruct its reasonable and proper use.

Where the terms of an expressly granted easement are ambiguous, the Court held, a judge must determine its scope from the language of the grant, the circumstances surrounding the transaction, and what is reasonably necessary and convenient to serve the purposes for which the easement was granted. Absent contrary evidence, a judge should presume that the parties contemplated that normal development would result in some changes in the use of the easement, even if it is unlikely that the parties anticipated specific developmental changes. Acquiescence for a long time in a certain construction of a grant of an easement, estops the assertion of a different construction.

The Andrews argued that Columbia Gas never cleared any area within its claimed right of way, and never objected when the prior owner planted the pine trees in the late 1960s. But lack of action prior to this time did not stop the gas company from asserting its rights now. If Columbia Gas had consistently cleared only 10 feet on each side of its pipelines, the Court said, the Andrews’ argument would have more force. But the fact that the company did nothing is not fatal to its claim. Besides, the Court said, Columbia Gas did not acquiesce to the trees. No trees were growing there in 1947, making it reasonable for the trial court to conclude that the conduct of Columbia Gas after the trees were planted did not evidence the original intent of the parties.

The Andrews also argued that Columbia Gas acquiesced by allowing trees near its pipelines on other properties. But the original intent of the parties is the primary inquiry, and only the conduct of the parties regarding the particular property at issue is relevant. The fact that the gas company may or may not have enforced its easement to its fullest width elsewhere has absolutely no bearing at all on whether it may enforce its easement to its fullest width on the Andrews property.

Relying on testimony by expert witnesses, the lower court ultimately concluded that a 50-foot easement was reasonably necessary and convenient for the inspection, operation, and maintenance of each of the pipelines. The factual findings upon which he based that conclusion were not clearly erroneous. Although each easement case is factually unique, almost every court to construe an easement with similar language as the one at issue here has concluded that a 25-foot right of way on both sides of the pipeline was reasonably necessary and convenient. And it is beside the point to argue that federal regulations do not require natural gas companies to clear rights of way around their pipelines. Assuming that to be true, the regulations do not prohibit gas companies from clearing rights of way. Although federal law may be helpful in construing certain ambiguous easements, the rights granted in an easement ultimately flow from a private agreement. The difficulties Columbia Gas might face in conducting pipeline inspections was a primary ground for the lower court’s conclusion that a 50-foot right of way was reasonably necessary and convenient for each of the pipelines on the Andrews property.

Columbia Gas offered evidence that the trees hindered the company’s ability to conduct both aerial and close interval pipeline inspections. According to an expert witness, the presence of trees within the right of way interfered with aerial inspections. Additionally, trees within 25 feet of the center of a pipeline could hinder the company’s ability to conduct close interval surveys and to excavate the pipeline in the event of an anomalous inspection or an emergency such as a leak or rupture.

The Andrews argued that Columbia Gas had safely maintained its pipelines for decades without removing the trees and that if an emergency ever arises, it can remove the trees quickly enough at that time. The trial court recognized this as well, but also reasoned that there were some circumstances in which the additional time to remove the trees could impose a substantial hardship on customers who would be without natural gas service during the excavation and the delay to remove the trees could unnecessarily jeopardize public safety. There was ample support in the record for the conclusion that a cleared right of way was reasonably necessary to ensure a safe, timely, and efficient excavation. The trial court also considered evidence that a 50-foot right of way is standard in the gas pipeline industry.

Finally, the Andrews challenged the trial court’s determination that they are not entitled to damages for removal of the trees. Because the trees were inconsistent with the easement rights of Columbia Gas, the company was authorized to remove them.

Case of the Day – Wednesday, August 6, 2014

AND DON’T FORGET THE LITTLE WOMAN …

Small business owners sometimes skimp on the legal niceties. After all, they reason, paying out $500 to some lawyer for a bunch of forms and a vinyl corporate book doesn’t really “grow the business,” as the buzz phrase puts it. And in these rough times, who wants to squander money on a lawyer?

That’s pretty false economy, it turns out. In today’s case, a mom-and-pop timber harvesting business was hired to take down trees on one owner’s land, and —predictably enough — the chain saws wandered onto Mr. Follender’s land, to the tune of 439 commercial-quality trees cut down and removed without permission. Follender lost trees worth $54,500. After trebling and some discounts, he ended up with a $120,000 judgment against Bert Maxim, the defendant.

Unfortunately, the timber harvester had involved his wife in the business, and she did enough of the paperwork in the business that she had signed the contract for the timber operation that had gone awry. Oh, if they had only incorporated, formed an LLC, something! And if only Mrs. Maxim hadn’t signed that agreement! But hubby was out cutting down trees and they were in a hurry …

The Court ruled that her involvement in the unincorporated business was enough to maker her liable for the $120,000 judgment as well.

Sure, LegalZippy.com or LawformsRUs can sell you some boilerplate-laden forms over the Internet that’ll purportedly set you right up. But how a small business can best be structured to protect its principals from liability is a matter that varies from state to state. The legal niceties of the business organization — not just in the formation of the company but in day-to-day management — is best addressed by your local attorney or a specialist to whom he or she might refer you.

But get the advice now. Usually, by the time you realize you should have spent the money on the legalities of business formation and protection, it’s too late.

Follender v. Maxim, 845 N.Y.S.2d 484, 44 A.D.3d 1227, 2007 WL 3101953 (N.Y.A.D., Oct. 25, 2007). Follender sued Berton Maxim and his wife for “wrongful and/or cutting down/taking of timber” from the purchased property. The Maxims, doing business as Prime Hardwood, had entered into a contract with Follender’s adjacent landowners, Valentine Riedman and Christl Riedman, to log their property. In the process, they inadvertently trespassed on Follender’s property and removed trees. Follender alleged negligence and conversion, with a request for treble damages, against the Riedmans and Maxim. They named his wife as a defendant, too, calling her “Jane Doe Maxim.”

Follender dropped the Riedmans from the suit, but the Maxims failed to answer or defend. After learning that Maxim’s wife’s name was Eileen Tine, Follender filed an amended verified complaint against them both individually and doing business as Prime Hardwood.

Again, they failed to answer or appear. After Follender got a default judgment against them, the court ordered an inquest. When the Maxims again failed to appear, Follender offered extensive proof which included, among other things, the contract between the Riedmans and Tine (signing on behalf of Prime Hardwood), an affidavit from Valentine Riedman which explained that when Maxim came to log his property, he was given a survey map which showed the Riedmans’ boundary line. Valentine Riedman was unaware that Maxim would remove timber outside of those boundaries. Michael Greason, a professional forester, testified that 439 commercial species trees were cut from Follender’s property, 386 of which had a value of $54,506.68. The Court trebled the damages, and assessed damages of $120,000 against Maxim but never mentioned his wife, Tine. Follender appealed, contending that the failure to include Tine in the order awarding damages was a mistake.

Held: The judgment was modified, and the order of the trial court awarding treble damages of $120,000 against logger Maxim for negligence and conversion was rewritten to include the logger’s wife in the award of damages. She had signed the contract between Maxim’s business and the landowner’s adjoining property owners, in connection with which the logger had trespassed onto Follender’s property and from which he unlawfully removed trees.

Generally, appellate courts may correct any mistake, defect, or irregularity in a judgment, provided that the correction does not affect a substantial right of a party.

Case of the Day – Thursday, August 7, 2014

SMOKEY’S REVENGE

This is the kind of thing Smokey Bear always warned us about (and no, his name is not “Smokey the Bear.”   One hot August day in northern California, a Union Pacific track repair crew let some grass next to the tracks catch fire. They tried to put the blaze out … rather ineffectively, it turns out.

This being a hot August day, one on which plenty of wildfires are burning in California, we thought it might be a good time to revisit the tale of the Great Storrie Fire of 14 years ago.

By the time it was all over, 81 square miles of national forest burned in the Storrie Fire of August 2000. The Forest Service, which has compiled a poor record of reforestation – chiefly because of lack of money – sued Union Pacific for the cost to rehabilitate the burned-out area. Smokey Bear would have his day in court.

Before the case was to go on trial, the lawyers tussled over the proper measure of damages. The railroad argued that the correct measure was diminution of property value caused by the fire. What’s more, the losses had to be mitigated by the value of the timber that could be salvaged from the burned land. The catch was that most of the land was restricted by law, and could not be harvested until the law expired several years after the fire. Union Pacific argued that if it could have been sold, it would have fetched so much that the damages only reached about $5.7 million.

The Government cried foul, contending that the traditional measure of damages wasn’t appropriate for natural resources. Instead, it claimed damages to the timber, damages to the soil, reforestation costs and loss of environmental habitat to birds and mammals on the order of $167 million.

Big difference! So the crucial battle was joined, well before the trial commenced, when the court was asked to rule on what damages would be allowed. When the decision was handed down, it turned out to be a bad day for the railroad. The trial court showed little sympathy for Union Pacific, holding that California law let the Government pile on the damages – timber, soil, reforestation and loss of habitat. What’s more, in a double whammy if ever there was one, the District Court ruled that, even though the timber on the restricted land couldn’t be sold in 2000 (and couldn’t be for many years thereafter, because the law was extended), the value of the timber was appropriately considered in setting damages. OK, Union Pacific conceded, but then the salvage value of the timber left on the restricted land should be considered in mitigation. No, the Court disagreed, it couldn’t be considered … because it could’t be sold. The law, you know.

Having been thoroughly sandbagged by the Court, the railroad knew better than to go to trial. It settled the case for $102 million.

For all of the Court’s feel-good rhetoric about the sacred trust of the national forest, the Forest Service hadn’t done very much to remedy the mess the fire left behind in the eight years after the fire. Private landowners who suffered loss have done much more, but then they’re not hamstrung by regulation and interest groups. Once the Union Pacific millions started pouring in, the Forest Service didn’t have any excuse for further sloth.

How about Union Pacific? A settlement of over $100 million has to hurt, right? Take heart — the venerable old railroad had insurance.
As for the national forest, it’s slowly returning to green. But even an untrained eye looking at August 2013 satellite pictures can tell that the timber is gone. To the north and west of Storrie, rising from the Feather River, the unforested land stands in obvious contrast to the rest of the area.

The interesting tree law lesson drawn from today’s case is the Federal District Court’s free-wheeling approach to damages. With a creative lawyer, a political hot potato and a sympathetic court, the sky can be the limit.

United States v. Union Pacific Rwy. Co., 565 F.Supp.2d 1136 (E.D.Cal., 2008). A Union Pacific (“UP”) track repair crew negligently ignited the fire while repairing a rail, and — not recalling their Boy Scout days — didn’t put it out properly. The resulting conflagration, known as the “Storrie Fire,” destroyed 52,000 acres of National Forest in August 2000. The Government sued UP.

The issue raised before Federal district court ncerned the proper measures of natural resource damages, whether diminution of the market value of the forest land was the over-arching measure of the Government’s damage in the case, and if not, whether the Government may recover as separate injuries timber damages of over $121 million, reforestation costs of $33 million, and loss of habitat and environment during the period of regrowth of $13 million. Also, some of the National Forest had been specified by Congress as being temporarily exempt from timber harvest. Had the trees on these lands not been wholly destroyed by the fire, the Government could have harvested the trees over time, after the expiration of the law. Similarly, no logging or reforestation was allowed in the Bucks Lake Wilderness at the time of the fire, and the general forest areas were lands where commercial logging may occur subject to other legal restrictions, such as environmental assessment requirements.

The Government conducted salvage sales of the charred timber that was not located on restricted lands, recovering $335,616. UP contended a post-fire salvage sale of the burned timber on the restricted lands — had federal law permitted it — would have generated over $73.6 million. UP claimed that at most, the Government incurred only $5.7 in net lost timber value ($79.3 million minus $73.6 million).

Held: The U.S. District Court found that the loss in market value of the land was not the proper measure of damages. Instead, the Government could argue to the jury that it was entitled to recover damages for damages to the trees, to the soil and pre-merchantable timber, and its loss of use of habitat and environmental services during the period of forest regrowth. UP would not be allowed to argue at trial that it was entitled to an offset based on the theoretical salvage value of the timber. Finally, the Government’s habitat equivalency damages were legally permissible.

California law applied to the Government’s damage claims. Although UP argued that under California law, the measure of damage for negligent injury was the difference between the value of the property before and after the injury. The Court agreed this was generally correct, but California law also held that [t]here is no fixed rule for the measure of tort damages under Civil Code §3333 … [and t]he measure that most appropriately compensates the injured party for the loss sustained should be adopted.” The general measure of tort damages under California law is broadly defined as “… the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

Thus, the Court held, the Government – as the injured party here – was entitled to full compensation for all of its damages, considering the unique character of the land at issue and that natural resources have values not fully captured by the market system. Resource damages, including timber damages, rehabilitation and restoration costs, and environmental and habitat damages all were recoverable as separate injuries, the Court ruled. In this case, the fire damaged the Government’s property and reduced its value, not only through destruction of trees used for timber, but through damage to the soil. In addition, the USFS was required by law to replant to a certain minimum density, and they incurred expenses in their salvage operation. These, the Court said, were separate injuries.

UP also argued that the Government couldn’t recover damages for the value of the trees located on the restricted lands because commercial logging of those lands was not permitted by law. But, the Court held, when the Storrie Fire occurred in August 2000, the restriction was set to expire in 2004. Had the fire not destroyed the trees within the restricted areas, the trees would have been commercially available for harvesting within a few years, and the Government could have recovered their timber market value. Instead, as a result of the damage caused by the fire and the subsequent decay of the burned trees, the trees were dead or dying and no longer had any viable timber value. That the law had subsequently, post-fire, been extended, the Court ruled, was of no consequence because at the relevant time in 2000, the law had a definite expiration date.

UP argued that in areas where commercial logging is not allowed the reasonable cost of reforestation is the proper measure of damages, but the Court rejected the argument. It said that the Government’s timber damages of $121.9 million were supported by detailed expert analysis of actual timber values. The Court waxed eloquent that UP had wholly ignored the wilderness areas in question “[w]ere national treasures created by Congress ‘to secure for the American people of present and future generations the benefits of an enduring resource of wilderness’ … ” In such circumstances, the Court held, the Government could recover damages for the timber burned in the wilderness areas. Destroyed timber values were a relevant means to capture at least part of the lost value of the burned lands because there is no available real property market value by which to determine the pre- and post-fire value of thousands of acres of national forest lands that can’t be sold.

UP asserted that if such damages were permitted by the court, it should be allowed to argue to the jury that the damages calculation did not account for the full administrative costs that the Government would have incurred in marketing unburned timber at the prices it claims, including environmental assessment costs and road building costs. The Court disagreed, holding that the harm in this case was caused by UP’s admitted negligence which essentially created a “forced sale” of the trees. Thus, the Court said, deduction for administrative costs was not appropriate.

Finally, UP argued it was entitled to an offset of the timber damages based upon the amount UP contended the Government could have obtained in a theoretical post-fire salvage sale of the timber on the restricted lands, $73.6 million. The Government argued against this, noting that the law prohibited the post-fire salvage sale. UP agreed, but pointed out that the law also prohibited a pre-fire sale, and thus, if the Government were permitted damages based in part on the theoretical pre-fire, sale value of the timber on these lands, UP should also receive a corresponding offset to those damages based on a theoretical post-fire salvage sale. The Court disagreed, holding that salvage value is a question of mitigation after actual damages have been ascertained and then only for amounts that were realized or could have been realized. Thus, assessment of the Government’s actual damages are a separate inquiry from the assessment of the Government’s duty to mitigate its damages after the commission of the tort. Under the doctrine of avoidable consequences (or mitigation of damages), the person injured by another’s wrongful conduct may not recover continuing damages “that the injured person could have avoided by reasonable effort or expenditure.” Thus, the Court said, UP was entitled to an offset of damages only for the salvage value realized by the Government for its salvage sale with respect to timber not located on the restricted lands.

Case of the Day – Friday, August 8, 2014

THE BOUNDARY TREES OF WALTER PRIDDY

You know how free association goes. We heard an old Lovin’ Spoonful hit yesterday, “Summer in the City,” and pondered the line “Back of my neck gettin’ dirty and gritty.” “Gritty” rhymes with “pretty,” which rhymes with “Priddy.” And there you have it. Thinking a lot about tree law (as we do), we recalled Walter Priddy.

“Oh, yeah,” you say, “that guy James Thurber wrote about. The secret life and all … The Ben Stiller movie …” No, not ‘Mitty.’ We’re talking ‘Walter Priddy.’ No “secret life” that we know of, but something just as fascinating – a line of boundary trees, an unhappy neighbor, a homeowner’s association, counterclaims. Our meat and potatoes, you know.

It ought to be rather obvious — a court can only decide issues that have been placed before it, and can only order remedies which address the causes of action that it has found to have merit.  Courts sometimes lose their way, though, as did the California trial court in today’s case. The Boussiacoses (pronounced “them”) complained that the Priddys’ line of shade trees along their common boundary were a nuisance, messed up the Boussiacoses’ deck, and violated the homeowner’s associations’ rules. The Priddys argued that the trees did no such things, and anyway, the Boussiacoses’ deck had been built without homeowner’s association permission, constituted a nuisance itself, and violated the rules.

The trial court decided that neither side was right. Now your average observer would conclude that the decision meant that the Boussiacoses kept their deck and the Priddys kept their trees. But the trial court decided that the Boussiacoses must have reached an oral “understanding” (and we don’t know how an “understanding” surrounded by quotation marks differs one that isn’t in quotes) with the owners before the Priddys that the trees would be kept trimmed. Now, mind you, the Boussiacoses hadn’t argued that there was such an “understanding,” or that if there was it should be treated like some kind of enforceable agreement. But the trial judge – quite proud of his “solution” – decided that the phantom “understanding” should bind the Priddys anyway. He crafted a decision that let the Boussiacoses keep their deck provided the Priddys got to keep their trees, but the trees had to be hacked off at the height of some wrought-iron fence that was apparently part of the landscape.

Solomonic, you say? Not really. Remember that King Solomon never really intended to cut the baby in half. Plus, that decision at least directly addressed the issue the two warring women had placed before the King and no more – that questions being exactly whose baby the subject infant was. Here, the trial court found that there was nothing wrong with the trees and nothing wrong with the deck, but he ordered the trees trimmed anyway. It’s kind of like being charged with bank robbery, being found not guilty by the jury, but being sentenced to 5-10 years in the pen anyway because the judge thinks you probably cheated on your taxes.

The Court of Appeals thought as little of the trial court’s decision as we do. It made short work of the trial court’s order. Because no one had raised the issue of whether there had been an understanding (or “understanding”) about the trees between the plaintiffs and the prior owners of defendants’ place, the trial court couldn’t find there had been one and enter an order accordingly.

Boussiacos v. Priddy, 2007 WL 4306835 (Cal.App., Dec. 11, 2007). The Boussiacoses sued their next-door neighbors, the Priddys, for statutory nuisance and violation of their mutual homeowners association’s covenants and rules. They alleged the Priddys maintained trees which blocked the Boussiacoses’ view along the parties’ shared property line. The Priddys counter-sued, alleging nuisance and violation of the covenants and rules , because the Boussiacoses had apparently built their deck without the homeowners association’s approval.

Following a bench trial, the trial court found that neither party had proved any of the claims raised in the pleadings. However, the trial court entered judgment anyway, requiring the Priddys to maintain the trees at specified heights in accordance with an “understanding” allegedly entered into by the Boussiacoses and the previous owners of the Priddys’ property. He also ruled that the Boussiacoses could keep their deck. The Priddys appealed, arguing that the trial court couldn’t enter a judgment where it hadn’t found the Boussiacoses’ underlying claims to have any merit.

Held: The trial court’s “judgment” was thrown out. The Boussiacoses had asserted only two claims against the Priddys, statutory nuisance and violation of the homeowners’ association’s covenants and rules. Because the trial court concluded on the record that the Boussiacoses failed to prove either claim, the Court of Appeals said, the judge was without any legal authority to make findings regarding an “understanding” between the Boussiacoses and the previous owners of the Priddys’ property. Such an “understanding” wasn’t alleged in the pleadings. The judge could not conclude that this understanding was enforceable against the Priddys, and could not enter a judgment which imposed tree-trimming maintenance obligations on the Priddys.

The Court of Appeals held that a trial court’s award of relief must be based on a pleaded cause of action. Trial courts are more arbiters than gods. Here, the trial court transcended the limits of its authority. Because the record did not show that the enforcement of any agreement between the Boussiacoses and the previous owners of the Priddys’ property was before the court, the trial court erred by awarding the Boussiacoses relief on that basis.

Case of the Day – Monday, August 11, 2014

LET’S BE CAREFUL OUT THERE

It’s late summer, the dog days of August are upon us (well, just ending, astronomically speaking, but it’s doggone hot), and we’re just wanting to spend the final days of vacation in the nearby swimming hole. This is the time of summer when dumb things can happen. We must make extra effort to be caerfull careful. This might be a good time to consider due care, that is, our duty of care to others.

In a negligence action, a plaintiff generally has to show that (1) the defendant had a duty of care in relation to the plaintiff, (2) the defendant failed to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff was proximately caused by the failure.

The duty of care is a moving target, depending to a large extent on the relationship of a defendant to the plaintiff. If someone delivering your double-anchovy pizza and atomic wings falls into an open hole in your front yard, the law treats your liability a whole lot differently than if, say, a thief sneaking around at night trying to steal your garden troll statue falls into the same hole. (But even if the law doesn’t wonder, we’re puzzled that you’d order a double-anchovy pizza).

In today’s case, a young man was paralyzed for life when he dove into the lake at his parents’ house. He had made the same dive countless times before, but the defendant in the case — the non-profit corporation that owned the lake — had recently installed a dredge pipe underwater near the shore. The pipe apparently was just below the surface of the lake.

The lake’s owner argued that the young man was merely a licensee, not an invitee. The difference was crucial, because a licensee pretty much takes the property in the condition he or she finds it. The trial court agreed that the plaintiff was much more than that, and after a jury trial, the young man was awarded $1 million.

The appellate court looked at the corporate purpose of the non-profit lake owner, as well as the terms under which it acquired the lake from the public utility that had owned it previously. Both required that the lake be maintained for public purposes, despite being ringed with private homes, and that evidence convinced the Court of Appeals that the young man wasn’t just someone who was using the lake with the permission of the defendant non-profit corporation. Instead, he was an invitee, someone to whom an invitation had been extended to enter or remain on land for a purpose for which the land was being held open to the public. As such, the landowner had a much higher duty of care to the young swimmer, a duty it violated by not being more careful in installing and marking the dredge pipe.

Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475 (Ct.App.Ind., 2007). Twenty-six year old Justin Stichnoth was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin’s father, Kerry, told Justin about a dredge pipe that Shafer & Freeman had installed in the channel near their dock. Kerry explained that recently he had gotten his boat “hung up” on the dredge pipe. Shortly thereafter, Justin took a running dive off of his parents’ dock into the channel, something he had done often over the years. Justin struck his head on the dredge pipe, which was located on the channel floor about 17 feet from the dock. Justin was left a paraplegic. He sued Shafer & Freeman, alleging that the firm’s negligence caused his injuries because it didn’t warn that there was a pipe underwater, it didn’t mark the pipe so that it would be visible to users of the lake, and it didn’t use reasonable care in dredging the lake.

Shafer & Freeman denied the allegations of negligence. Later, it filed a motion for summary judgment on the issue of whether Justin was a licensee of Shafer & Freeman. The trial court denied it, and a jury found it liable to Justin, awarding $1 million to the injured plaintiff. Shafer & Freeman appealed.

Held: Justin was an invitee. Indiana law holds that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. The person’s status on the land defines the nature of the duty owed by the landowner to the visitor. Licensees have a license to use the land and are privileged to enter or remain on the land by virtue of the permission of the owner or occupier, but they take the premises as they find them. Invitees, on the other hand, are owed a much higher duty of care. The decisive factor with regard to whether a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable man would put upon the owner’s words and actions, given all of the surrounding circumstances. Here, the Court found, the lake was held open to the public, even though it was surrounded by private property, and thus Justin — who dove off a dock and struck his head on a dredge pipe located on channel floor — was an invitee rather than a licensee for purposes of personal injury action. The Court held that the articles of incorporation of Shafer & Freeman, the non-profit corporation that owned the lake, provided that the corporation would protect and enhance the water quality of lake in order to facilitate public recreational use and ensure continued public access.

What’s more, the Court said, the agreement by which Shafer & Freeman acquired the title from the electrical utility, provided that Shafer & Freeman would hold the lake for public, charitable, recreational, conservation and environmental purposes. It is not enough, to hold land open to the public, that the public at large is permitted to enter at will upon the land for their own purposes. As in other instances of invitation, the Court said, there must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use, and that the public will not merely be tolerated, but is expected and desired to come. When a landowner lets local boys play basketball on his vacant lot they are licensees only. If he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees.

Case of the Day – Tuesday, August 12, 2014

WE ONLY GET WHAT WE GIVE

Those corporation-hating New Radicals warned us in the late 1990s that “we only get what we give.” The defendants in today’s case found that out a bit too late.

In many ways, a civil action is little more than a gladiatorial contest, with the court sitting to referee according to procedural rules, to apply the law when needed, and to correct inequities only in egregious circumstances. That’s sort of what happened when the McCammons – garden center owners who were buying tree boughs wholesale from “Trees 4U” – cut the boughs they needed not only from the trees Reicosky had designated but also from some landscape trees they had been told not to damage (sounds kind of like Adam and Eve and the tree of knowledge, doesn’t it?).

The owners of “Trees 4U” — the Reicoskys — told McCammon that those trees were definitely not for him, and sued. They claimed McCammon had destroyed $35,000 in trees, and they wanted treble damages under Ohio law. McCammon claimed that Mr. Reicosky had given him permission to cut boughs from the landscape trees. Mr. Reicosky denied it. It was up to the jury to decide whose story to believe, and it believed Mr. Reicosky.

There may not have been any compelling basis for believing the one story over the other, but when the jury makes its decision, it has pretty much settled things. It’s sort of how pro football was before instant replay: what the official said happened was what had happened.  (Cursed instant replay … but that’s a rant for another day, )

The other problem the McCammons faced came with jury instructions. A trial court gives a jury detailed instructions on what the law is, so that jurors can decide how the facts they find (such as determining that McCammon cut boughs from Reicosky’s landscape trees after Reicosky said not to) leads to the legal outcome (McCammon thereby committed a trespass and was reckless). Both sides may suggest jury instructions to the Court. Here, McCammon didn’t think things through, and agreed with an instruction that the jury figure up damages by adding the market value of the tree times the number of trees. Later on, McCammon realized that the real measure of damages should be lost profits, that is, the market value of the trees minus the cost of producing and selling them. After all, even kids running a lemonade stand know that you only get to keep the money you’re paid minus what it cost you to buy the lemonade and handmade sign. McCammon complained that he should get a new trial, because the jury hadn’t considered the costs of production when it calculated damages.

The Court of Appeals said McCammon was out of luck. The jury had made its decision on his liability, and whether it’s what the Court agreed with or not, there was evidence enough for a rational jury to reach its finding. And as for the damages, well, Mr. McCammon, “we get what we give.” The instruction might have been flawed, even unfair to the McCammons, but the McCammons were happy enough with it when it was given. A party can’t make a mistake, and then cry foul that the mistake happened.

Reicosky v. McCammon, Case No. 2006 CA 00342 (Ct.App. Ohio, Feb. 19, 2008), 2008 WL 442567 (unpublished). The McCammons ran a garden center, from which they sold, among other things, tree boughs to cover gravesites. They had trouble getting enough boughs, and began buying them from the Reicoskys, who operated “Trees 4U.” The Reicoskys delivered them one year, but in subsequent years, let the McCammons come to the “Trees 4U” tree farm and cut the boughs they needed. The first year the McCammons did so, the Reicoskys instructed them not to take any boughs from trees east of a particular drainage ditch, because those were landscape trees to be resold.

The McCammons limited their cutting to the west side of the ditch one year, but the next year came back, and this time cut boughs from the landscape trees on the east side of the ditch as well. The McCammons said Mr. Reicosky had given them permission to do so on trees taller than 16 feet east of the ditch. Mr. Reicosky denied doing so, and claimed he lost 211 trees, worth over $35,000. The Reicoskys sued.

At trial, the jury heard both sides, and then found for Reicosky, holding that he had suffered $35,000 in damage. The trial court trebled this under Ohio’s treble damages statute. The McCammons’ motion for a directed verdict – in which they argued that no evidence supported the finding of recklessness was needed for treble damages – was denied by the trial court. Likewise, the McCammons’ motion for a new trial – based on the fact that the jury considered the market value of the destroyed trees without deducting any of the costs associated with selling the trees — was turned down. The McCammons appealed.

Held: The treble damages were upheld. The Court of Appeals observed that it was limited to determining whether there was any evidence that could have convinced a rational juror the McCammons had been reckless. The evidence, because the Reicoskys were the winner, had to be construed in favor of the Reicoskys.

The Court concluded that the jury simply chose to believe Mr. Reicosky’s version of what happened — that he had never given permission to cut east of the ditch and had previously made clear that the trees there were off limits — and to reject Mr. McCammon’s version. The jury is the fact finder, and its determinations as to who to believe are entitled to great deference by reviewing courts. The jury having accepted that the McCammons trespassed on the east side of the ditch without permission, the Court of Appeals was not entitled to decide that it may like Mr. McCammon’s recitation of events better.

As for the faulty calculation of damages, the Court said McCammons’ complaint was too little, too late. The McCammons had an opportunity to make sure the jury instructions accurately described how to deduct costs from the market price to determine lost profits. Instead, they submitted a jury instruction that was the same as the one the Court used, which omitted any direction as to how to calculate damages by deducting costs from market price. The Court found that “any error in the jury’s determining of damages was invited by [the McCammons]. Under the invited error doctrine, ‘a party will not be permitted to take advantage of an error which he himself invited or induced’.”

Case of the Day – Wednesday, August 13, 2014

ODDJOB

 

We suspect neighborhood grocer Jerald Walker won’t try to save a few bucks like this anymore. When he had odd jobs to be done around the store, he would offer the work to casual laborer Gene Moser and his sometimes-sidekick Paul McCubbin. Gene and Paul (think “Stan and Ollie,” if you like), would paint, repair doors, rake leaves or perform other menial tasks, and Jerald would pay them an agreed-upon price for the work.

As lawyers like to say, there came a time when Jerald needed some trees trimmed. He called Gene and offered $30.00 for the project. Gene, apparently daunted by the scope of work to be performed, recruited his swamper Paul, agreeing to split the fee 50-50. Instead, the only thing that was split was Paul’s noggin.

Gene and Paul finally showed up to do the job, and Jerald provided them with the saws they needed. They had only trimmed a couple branches when a limb being cut by Gene fell and hit Paul.

Would Pancho sue the Cisco Kid? Tonto file against the Lone Ranger? Sancho allege a tort against Don Quixote? Such weighty questions may never be answered, but we do know that Paul would sue Gene. And he did.

For good measure, Paul McCubbin also went after Jerald Walker, arguing that he deserved workers’ compensation because he had been the store’s employee and, in the alternative, contending that the tree trimming work was inherently dangerous. An “inherently dangerous” occupation provides an exception to the rule that an independent contractor cannot collect against a hiring party.

The Workers’ Compensation hearing officer ruled that Paul McCubbin was not an employee of the store, a position agreed with by the trial. For good measure, the trial court also held that tree trimming was not an inherently dangerous occupation. Paul McCubbin’s guardian – necessary because his head injuries were severe and permanent – had more luck in the Court of Appeals. That tribunal ruled that material questions of fact had been raised both as to whether McCubbin was an employee and whether the work he had been hired to do was inherently dangerous. The parties appealed to the Kansas Supreme Court.

The Supreme Court ruled that nothing in the record permitted a holding that McCubbin was Jerald Walker’s employee. The fact that Walker provided the tools and pointed out the trees to be trimmed was not determinative, because the price was set for a complete job, Walker had no control over when the job was done or how it was done, or even over how McCubbin and Moser would split the payment for the work. Thus, Paul McCubbin was the grocery store’s independent contractor, and Walker was not liable for the accident.

What’s more, the Court said, no work is “inherently dangerous” if it can be performed safely. Tree trimming can be done safely and without accident (although maybe not by McCubbin and Moser). Thus, the “inherently dangerous” exception to nonliability did not apply here.

McCubbin v. Walker, 256 Kan. 276, 886 P.2d 790 (S.Ct. Kan. 1994). Jerald and Carol Walker own Valley Market, a small, neighborhood grocery store in Kansas City, Kansas. Jerald often hired Gene Moser and Paul McCubbin, two local men, to perform odd jobs at the market, such as painting, light carpentry, and other general maintenance duties. Walker viewed the two as ‘contract labor’ rather than as traditional employees. Walker would decide on whatever job he needed to be done and then negotiate with them about the cost of performance.

In April 1989, Walker contacted Moser about trimming dead tree branches from some trees in front of the market. Moser agreed to do the job for $30.00. Moser contacted McCubbin to help him trim the trees, and the two agreed to split the money, with Moser providing all of the equipment. The two trimmed two branches from one tree and had moved onto a second tree, when a trimmed branch struck McCubbin as it fell, causing him severe and permanent injuries.

McCubbin’s guardian filed a workers compensation claim, arguing that McCubbin was Walker’s employee. The Worker’s Compensation administrative law judge held that the parties did not come under the Kansas Workers Compensation Act, as Walker did not meet the statutory definition of an employer and McCubbin did not meet the statutory definition of an employee. The ALJ found instead that both Moser and McCubbin were independent contractors.

McCubbin’s guardian next sued Walker and Moser, alleging that McCubbin’s injuries were the direct and proximate result of their negligence. Walker moved for summary judgment, arguing that McCubbin was an independent contractor and that tree trimming was not an inherently dangerous activity which would require Walker to equip, supervise, or warn McCubbin of the obvious dangers involved in the trimming of trees. The trial court held that even assuming the greatest possible duty that could be owed by Walker to McCubbin, there was no breach. The court found that McCubbin was an independent contractor, and his injuries were caused by his own and Moser’s actions, not by a condition of the premises.

The Court of Appeals reversed, holding that whether McCubbin was an employee or an independent contractor, and whether tree trimming was an inherently dangerous activity, should be determined by a jury.

Walker appealed to the Kansas Supreme Court.

Held:   Moser was an independent contractor, and the work he had undertaken was not inherently dangerous so as to impose any special duty on Walker. The Court observed that an independent contractor is someone who contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of the work. The single most important factor in determining a worker’s status as an employee or independent contractor, the Court said, is whether the employer controls – or has the right to control – the manner and methods of the worker in doing the particular task. As a general rule, when a person lets out work to another and reserves no control over the work or workers, the relation of contractee and independent contractor exists, and not that of employer and employee, and the contractee is not liable for the negligence or improper execution of the work by the independent contractor.

The Supreme Court agreed that an exception to the general rule of nonliability of an employer for the negligence of an independent contractor is the “inherently dangerous activity” doctrine. Under that doctrine, one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which the employer contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the independent contractor’s failure to take reasonable precautions against such dangers. However, an activity cannot be termed inherently dangerous merely because it may possibly produce injury; instead, the intrinsic danger of the work on which the doctrine is based must result from the performance of the work, and not from the collateral negligence of the contractor.

Here, the Court said, Moser and McCubbin were independent contractors. Walker hired Moser to produce a result, and did not recruit McCubbin. Walker did not provide the equipment, and – although he specified which trees he wanted trimmed – did not direct how the work was to be performed. Furthermore, payment was based on the completed task, and was a single sum regardless of the time and effort expended. Finally, it was relevant that Moser and McCubbin provided general maintenance and odd job services for a number of people, not just Walker.

As for the work itself, the Court held, tree trimming is an everyday activity that can be accomplished safely and, when done so, is an activity in which danger is not inherent in the activity itself. Tree trimming generally does not constitute an inherently dangerous activity.

Thus, McCubbin was not entitled to recover damages from the Walkers.

Case of the Day – Thursday, August 14, 2014

MEANWHILE, BACK AT THE RANCH …

… that confounded sodbuster neighbor just done cut the power line with his plow. In the fire that swept across the plain, the trees planted in a windbreak went up like Roman candles, and the ranch hands couldn’t stop the conflagration. Sure, the farmer was negligent, but to what extent?

One of the first things new law students learn is the lesson of Hawkins v. McGee, the “case of the hairy hand,” in which we find that the measure of damages is the difference between the value before the breach or the negligence, and the difference after the breach. Nebraska law in this case held that if the trees were used for residential or recreational purposes, the damages are the replacement cost of the trees up to the value of the real estate. But if they were just used for agricultural purposes, the Hawkins v. McGee formulation is fine.

Here, replacement of the trees would cost over $270,000, but the reduction in value of the farmland was only $30,000. David Spicer, owner of the ranch, tried to bootstrap himself into qualifying for the “recreational” formulation by arguing that not only did he use the windbreak for the usual agricultural purposes, but he relied on it for recreational purposes as well, including for his kids’ 4-H projects. The 4-H projects argument was especially touching, except that David Spicer’s youngest kid was 25 years old.

The trial court granted summary judgment on the damages question, holding that the replacement cost exceeded the value of the land, and that $30,000 was adequate to compensate for the loss of the trees. The Court of Appeals ruled, however, that whether the trees were recreational in nature or agricultural in nature was a question of fact, and the trial court was wrong to resolve that question without a trial.

The issue of how to value the loss of trees – especially where the value of the tree to the homeowner is due to noneconomic reasons such as beauty, sentimentality or recreational value, arises often, and for good reason. The aphorism in real estate is that value of a home depends on location, location, location. Much could be said of trees as well. The mighty oak that shades the plantation house is worth far more than its identical twin standing a quarter mile into the woods behind the fields. Determining exactly how much more may require juries to consider not so much stumpage prices as the quality of 4-H projects.

Spicer Ranch v. Schilke, 15 Neb.App. 605, 734 N.W.2d 314 (Neb.App., 2007).  Schilke farmed leased land next to the Spicer Ranch. While he was plowing one day, he cut a power line leading to some irrigation pumps. A fire resulted, which — before it burned out – destroyed a windbreak on Spicer Ranch consisting of red cedar and juniper trees, and located about five hundred yards from the ranch house. Spicers used the windbreak, which was on a 110-acre tract of land, in the normal fashion of slowing the wind, providing shelter for cattle, for calving, for horses and for general farm use. David Spicer – mindful of how damages were figured in cases such as these – also maintained that he used the trees for recreational purposes including his kids’ cataloging the trees for 4-H projects (except it turned out that his youngest child was 25 years old). Spicer sued for negligence, which was pretty much conceded.

In an affidavit to the trial court, Spicers’ expert valued the windbreak at $270,000 for replacement of the trees. But the trial court granted summary judgment to Schilke, finding that to value the trees on the 110-acre tract at $270,000 far exceeded the value of the real estate involved. The trees included only made up a small percentage of the tract, the Court found, and that small percentage of land  likewise would not be permanently damaged because of the loss of the trees. The trial court awarded Spicer Ranch $30,000 as the highest amount of damages suffered by Spicer Ranch.

The sodbuster was relieved.  The rancher was not, and appealed.

Held: Summary judgment was reversed on the damages issue. Spicer Ranch argued the district court erred in using a “before and after” measurement of damages. Instead, it said, to determine compensatory damages for destroying trees and for related damage to the land – where the owner of land intends to use the property for residential or recreational purposes – the owner is not limited to the difference in value of the property before and after the damage or to the stumpage or other commercial value of the timber, but instead may recover the cost of reasonable restoration of the property to its preexisting condition or to a condition as close as reasonably feasible.

The Court of Appeals noted that the trial court’s implicit rationale for its calculation of damages is that the land was used for the farming business, not for any recreational purposes, apparently because of the age of the youngest child was then 25 years old. The trial court’s finding failed to account for the material question of fact as to whether the windbreak was used for residential and recreational purposes, as stated in David’s affidavit, or whether the windbreak was simply a “normal and average farm windbreak,” as could be implied from David’s deposition testimony and as stated in the affidavit of a real estate appraiser. The Court of Appeals noted that measure of a plaintiff’s damages would depend upon the evidence presented at trial and might require alternative instructions, depending upon the jury’s determination of contested factual issues. Because a material issue of fact existed, the Court of Appeals held, summary judgment with respect to damages was improper.

Even under the “before and after” theory of damages used by the trial court, the evidence revealed a range of damages — not just a fixed, undisputed figure of $30,000. The trial judge made a factual finding when he awarded Spicer Ranch $30,000, which he said  “is the highest amount of damages suffered by the Ranch according to the before and after damage appraisal.” He should have simply determined whether a material issue of fact existed with respect to damages, and – if one did – set the case for trial. The matter had to be returned to the trial court.

Case of the Day – Friday, August 15, 2014

A SLOPPY AND LAZY TRIAL JUDGE

You have to appreciate the careful prose of an appellate court. In today’s case, a case brought in 1999 was still sputtering on eight years later, and the Rhode Island Supreme Court thought it knew why.

After a few pointed comparisons of the case to Jarndyce v. Jarndyce, the Supreme Court wondered what the Dickens was going on. The trial court took its time writing a decision — about five years — leading the Supreme Court to mention in a note, “We are mindful of the inordinate delay of the decision of the trial justice, which this Court does not favor.”

Beautiful understatement! The Supremes were saying to the trial judge, ‘Hey, dude, you’re lazy!” Of course, in the decision, the high court also implicitly said, “Hey, dude, you’re incompetent, too.” The reason for that was the trial judge’s failure to make the findings the Supreme Court needed to adequately review the decision.

A court speaks through its opinions, and when the trial court doesn’t make findings of fact, no one wins. The winner doesn’t know why he won, the loser doesn’t know why he lost, and the rest of us can’t derive any useful guidance from the case. In this case, an unusual argument in the battle over the location of an easement arose. The easement holder claimed the prior owner had obstructed the easement — a driveway — and told the easement holder to shift everything a few feet to the south. This is called an easement by substitution. There was testimony that suggested an easement by substitution had been created. But the trial court couldn’t be bothered to make any findings on the issue, leaving everyone to puzzle whether something hadn’t been proven, some witness hadn’t been believed, just what?

So the case, after eight years, landed back at the trial court level. Maybe the owners will settle or all die, or Rhode Island will be devoured by an tsunami, or the court will be consumed by an angry dragon … anything that will spare this poor trial judge from having to do his duty. We can only hope.

Nardone v. Ritacco, 936 A.2d 200 (Sup.Ct. R.I., Dec. 3, 2007). Nardone’s property bordered Lawton Foster Road. Ritacco owned an adjacent parcel of land behind Nardone’s property with no frontage on Lawton Foster Road. In 1965, Nardone’s predecessor-in-interest, Ralph C. James, Sr., granted Ritacco a 50-foot right-of-way along the northern boundary line of what is now Nardone’s property. The right-of-way for ingress from and egress to Lawton Foster Road, has been the subject of many years of litigation.

On Memorial Day 1999, Ritacco cut trees and vegetation within the right-of-way. Nardone sued for a temporary and permanent injunctive relief to prohibit Ritacco from cutting the trees and from trespassing on Nardone’s land. The trial court entered a preliminary injunction and later found Ritacco in contempt of the order by cutting trees and vegetation outside the right-of-way. A key issue was the location of the right-of-way. In addition to arguing that the right-of-way was not originally located along the northern boundary of Nardone’s property but rather inside the boundaries of the land, Ritacco also asserted two alternative claims for relief: the existence of an easement by prescription as well as an easement by substitution over plaintiffs’ driveway. The trial court decided for Nardone, clarifying that the right-of-way was located along the northern boundary of Nardone’s property. Nardone appealed.

Held: A remand was necessary to determine whether Rotacco had acquired an easement by prescription or by substitution over Nardone’s driveway. The Supreme Court held that the trial court had properly found that the right-of-way over Nardone’s land was located on northern boundary of the land. The deed itself placed right-of-way “along the northerly boundary line” of the premises, and Nardone’s expert witness testified that, upon examining property, the boundaries were clear and right-of-way was located along the northern boundary of property. Ritacco’s expert had said that the deeds were not clear, but he hadn’t inspected the property itself, and the trial court’s discounting of his testimony was therefore reasonable.

However, Ritacco had also claimed that he had acquired an easement on land inside the Nardone boundaries by prescriptive easement. The trial court had ruled against him without a trial, but the Supreme Court ordered a remand for trial on the issues. The Supreme Court held that the trial court hadn’t addressed the issue of Ritacco’s permissive use of driveway, let alone determine whether sufficient factual support existed to conclude that permission to use driveway was given by Nardone or his predecessors-in-interest. A party who claims an easement by prescription bears the burden of establishing by clear and convincing evidence actual, open, notorious, hostile, and continuous use under a claim of right for at least ten years. Here, the Court ruled, the trial judge had failed to make the specific findings of fact upon which he baseed his decision. When that happens, the trial court risks reversal or remand unless the record yields a full understanding and resolution of the controlling and essential factual and legal issues.

Here, there were unaddressed issues that were raised in pleadings and testified to at trial, including Ritacco’s testimony that perhaps Nardone’s predecessor-in-interest had granted him an easement by substitution. When the owner of a servient estate closes with a wall or other structure the original easement and points out another way which is accepted by the owner of the dominant estate, the new way may become the easement by substitution. The Supreme Court said that testimony indicated that James may have granted Ritacco an easement by substitution. However, the trial court failed to determine whether sufficient factual support existed to conclude that an easement by substitution was granted.

Case of the Day – Monday, August 18, 2014

BUYER’S REMORSE

What do you get when you cross a lousy businessman with a careless homeowner? In today’s case, you get a whopper of a lawsuit.

The lousy businessman was Jeff Davis, who may well be a very good arborist but clearly was lacking is paperwork and billing skills. The shocked homeowner was Ron Sexton, who — to put it charitably — was woefully (and conveniently) forgetful, not to mention rather unforgiving.

Ron had hired Jeff to trim trees in 2002, and he paid the invoice, which had been figured at $1,200 (although he couldn’t remember ever seeing the bill he paid). He hired Jeff again the following year, but Jeff not only didn’t prepare a written proposal or estimate, he couldn’t even be sure he had told Ron the price would be the same as the year before.

For his part, Ron kept expanding the scope of the work, appearing frequently as the crews worked to suggest additional trimming. By the time Ron was done changing the job to encompass all 60 trees on his land, Jeff’s crews had 14-1⁄2 days of work in, presenting Ron with a bill for $17,400.

You’d think that Jeff would have said something to Ron about how the bill was mounting up. For that matter, you’d think Ron might wonder at some time during the two weeks of tree work how much it was all costing him. But neither Dumb nor Dumber questioned anything until the bill arrived in the mailbox. And then, Ron refused to pay.

Like every state, Kansas has a consumer practices act, intended to protect consumers from unscrupulous businesses that prohibit unconscionable acts and deceptive practices. And even if Dorothy isn’t in Kansas anymore, that doesn’t mean that the state’s restrictions are over the rainbow: just about all states have unfair or deceptive acts and practices statutes, consumer protection statutes, consumer fraud statutes or the like. The laws are well intended, but as our homeowner hero proves today, the likelihood that they can be used for mischief is high.

Here, we suspect that Ron didn’t feel like a defrauded consumer until some lawyer suggested that some KCPA claims would be a dandy way to beat paying Jeff. So Ron claimed Jeff had violated the KCPA by deceptive practices (not telling him how much it would cost and trimming well beyond the scope of the work in order to jack up the price) and unconscionable acts (performing unnecessary work and not giving Ron his money’s worth). The jury didn’t buy it — especially the whopper that he didn’t know it was $1,200 a day because he hadn’t gotten last year’s bill, which he had managed to pay without seeing — but it did apparently find that the value fell somewhat short of $17,400, because it awarded Jeff Davis only $6,500.

And here, we encounter a popular fiction: juries are wise and Solomonic. They’re not, often hurried, bored, a collection of weak-willed people bullied by one or two strong ones, even just plain stupid. But juries as fact-finders are the foundation of our legal system, and appellate courts protect that foundation with a most deferential standard of review. Typlcally, an appeals court won’t overturn a jury’s findings of fact unless no rational juror — even taking the evidence in a light most favorable to the winner — could have made the decision the jury handed down.

Here, just about everything in the record was contradicted. But assuming the jury believed evidence in favor of Davis Tree — and the appeals court made that assumption — it could have come to the conclusion it reached. Interestingly, the Court of Appeals seems to have been less than thrilled with the jury’s verdict even while showing it deference, asking cryptically, “Would the evidence also support contrary inferences? Yes, but that is simply not the question which we are called upon to decide.”

Everyone was a loser here, especially because all of this could have been avoided with a written estimate from the arborist and a careful written record of change orders maintained throughout the job. The homeowner was negligent to the point of recklessness as well, but … well, he’s the customer. Expect them to be foolish or to try to beat the contractor out of his or her price. The tree professional has to prepare for the naïve and the cunning customer alike.

Davis Tree Care v. Sexton, 197 P.3d 904 (Ct.App. Kan., 2008). In 2003, Ron Sexton hired Jeff Davis, doing business as Davis Tree Care, to trim the trees at his house. It was a big job, over 60 trees trimmed with a final bill of $17,400. When Sexton refused to pay, Davis sued him for breach of contract and unjust enrichment. Sexton counterclaimed under the Kansas Consumer Protection Act (KCPA), alleging deceptive practices and unconscionable acts. Sexton had used Davis Tree the year before, for which he was billed $1,200 per day. He denied having seen the 2002 invoice and denied the 2002 job was priced on a per day basis, but he admitted he had paid the same amount as was shown on the invoice. He maintained that Davis had never told him the 2003 job would cost the same as the 2002 work, and that was “willful misrepresentation of a material fact” under the KCPA.

Sexton and Davis Tree agreed the work was intended to include removing two trees and removing an oak tree branch, but Sexton said he didn’t ask for anything else. Davis testified Sexton also wanted some general trimming and that he came out from time to time and pointed out additional work he wanted done. Sexton argued there was no need for general trimming because that was what Davis Tree had done the year before. The trial court found against Davis Tree on the contract claim, but it awarded Davis Tree $6,500 on the unjust enrichment claim. As for Sexton’s creative KCPA claims, the court found that Davis Tree had committed neither deceptive practices nor unconscionable acts.

Sexton didn’t appeal the $6,500 he was found to owe Davis Tree on the unjust enrichment claim, but he did challenge the findings that Davis Tree had not violated the Kansas Consumer Practices Act.

Held: Davis Tree had not violated the law. Because the trial court jury had found for Davis Tree, the appellate court had to consider the evidence in a light most favorable to the tree trimmer. If the evidence so viewed supports the verdict, the appellate court will not intervene to disturb the verdict. The question on appeal, the Court said, was whether there was evidence to support the jury’s findings against Sexton’s claims.

The issue was whether Jeff Davis believed Ron Sexton knew the price and requested added tree trimming services. There was ample evidence that he knew what he had paid the year before, and that Davis believed he knew the price would be the same in 2003. Likewise, there was plenty of evidence that Sexton had asked for extra services. Based on that, a rational jury could have found from the record that Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Under the KCPA, a supplier shall not engage in deceptive acts or practices, including the willful use in a misrepresentation of “exaggeration, falsehood, innuendo or ambiguity as to a material fact,” the willful failure to state a material fact, or the willful concealment of a material fact. Such practices are violations regardless of whether the consumer has, in fact, been misled. Here, the evidence supported that Jeff Davis of Davis Tree believed he and Sexton had discussed price and that Davis believed Sexton knew the price for the 2003 job would be the same as the prior year — $1,200 per day. Likewise, the evidence supported the inference that Sexton requested additional trimming services. That, the Court said, was sufficient to find Davis Tree did not willfully conceal or misrepresent the price or scope of the work.

Sexton also claims the trial court erred in finding Davis Tree did not commit unconscionable acts in violation of the KCPA. He argued that because KCPA cases were so “fact sensitive,” the appellate court had to conduct an “unlimited review” of findings that certain conduct was not unconscionable. But the Court disagreed, holding that the standard is “abuse of discretion,” that is when no reasonable person would take the view adopted by the trial court. This is especially true where the credibility of witnesses is central to resolution of the case. Credibility determinations will not be reweighed on appeal.

The KCPA prohibits a supplier from engaging in an unconscionable act in connection with a consumer transaction. In determining whether an act is unconscionable, a court considers a nonexclusive list of circumstances “which the supplier knew or had reason to know,” including whether when the consumer transaction was entered into, the price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by similar consumers, and whether the consumer was able to receive a material benefit from the subject of the transaction.

Sexton argued that the Davis Tree invoice lacked documentation, and compared it to invoices for other Davis Tree customers which differed both in amounts charged and in how specifically the tasks were described. Davis Tree cited the extensive equipment and complex procedures required to trim the large number of trees on the Sexton property over the claimed 14-1/2 days of work. The trial court found that “just looking at $1200 a day for three people and the equipment, the Court … does find that it has not been established by a preponderance of the evidence that the price was grossly exceeding the value of what was being provided.”

The Court of Appeals found essentially that Sexton had not sustained his burden of proof. The trial court found there were three people working on the project, using a number of machines and at least two of the people climbing trees with their gear. Even Sexton admitted to seeing the equipment and work being done. However, the trial court noted, Davis Tree’s failure to prepare specific proposals was “a bad way to run a business,” and “more of a poor business that was run by Mr. Davis and not an unconscionable act or an intentional misleading business. Just bad business practices.”

At trial, in support of the claim that he did not receive a material benefit under the KCPA, Sexton argued the work Davis Tree claimed to have done was the same as done the previous year and, therefore, unnecessary, or that Davis Tree charged for work not done, and that Sexton did not receive the benefit of the full $17,400 charged. But as the Court noted, the jury did not order Sexton to pay the full $17,400 charged. The jury’s verdict against Sexton was for $6,500, and that was not challenged on appeal.

The trial court found there was little evidence to show what the value of the work actually should be, but it considered the evidence of the number of people and amount of equipment involved to conclude $1,200 a day was not excessive and, therefore, not unconscionable. The Court of Appeals couldn’t say that no reasonable person would agree with that ruling. Thus, the trial court’s ruling that Sexton received a material benefit would not be disturbed.

Case of the Day – Tuesday, August 19, 2014

EASEMENT CREEP

It’s a common enough problem when a deal gets cut by people who later leave the company, retire, pass on, whatever. Over the years newer, younger Turks come along, who redefine the deal to suit the newer aims and needs of the company.

So it was with some gas line easements in the Mohican forest area of eastern Ohio. We’ve discussed previously why a careful description of the bounds of an easement is such a good idea. Here’s another example. When the easements for these three gas pipelines were written, they didn’t contain any description of the width of the right-of-way being provided to the easement holder. Over the first 40 years or so, the gas company kept the right-of-way cleared to 10 or 15 feet. But in 2003, the company suddenly decided it required 20 to 25 feet, and it began cutting accordingly. Even that wasn’t enough, and so in 2006, the gas company sued a church camp and some other recreational landowners for a declaratory ruling that the easement was really 50 feet wide.

The Federal district court denied summary judgment to the gas company. The gas company’s argument, reduced to its essence, was that it must obey new, stiffer federal laws and regulations in the wake of 9/11, and those require a 50-foot wide easement. The court wasn’t buying it. Finding no language to help it in the easements themselves, the court looked at other factors. It seemed pretty clear that nothing in the way the gas company had operated for 40 years or so supported a finding that the parties understood all along that they were dealing with a 50-foot wide easement. The gas company’s arguments that its operations required 50 feet failed — the court said the best it could justify based on the evidence was 29 feet wide. And the court was troubled that the gas company had met with the church in 1965, when the church was buying the campground, and told church representatives that it was looking at a 10-15 foot right-of-way. Thirty-eight years later, it told the church it needed a 20-25 foot wide easement.

Sometimes the little guy really does win …

None of this meant that after a full trial, the court might not feel differently. But for moment, it was David 1, Goliath 0. And – reading the handwriting on the wall – Columbia Gas Transmission Corp. ended the litigation several months later.

Columbia Gas Transmission Corp. v. First Congregational Church, Slip Copy, 2007 WL 4350769 (N.D. Ohio, Dec. 11, 2007). Columbia Gas owned three gas pipelines that traverse the Church’s camping retreat property. Two of the easements had been granted by the Muskingum Conservancy District, the Church’s predecessor-in-interest, providing the right to ingress and egress, the right to lay, maintain, operate, repair, replace and remove the pipe, provided the pipe would be buried so as not to interfere with the cultivation of the land. A second easement had been granted for the sole purpose of drilling for oil and gas and to use the premises for pipelines, water lines, pumps, tanks, structures and stations necessary or convenient in connection with drilling, provided that the pipelines be buried and the easement holder pay for all damages to growing crops and trees. When the Church bought the campground in 1965, gas company representatives showed the clergymen the clearings for the pipelines, which were between 10 and 15 feet wide. In 2003, the gas company expanded its cleared right-of-way to 20 to 25 feet. Three years later, the gas company told a church member it owned a 50-foot right of way, and asserted that the Department of Homeland Security required this for gas pipelines. The gas company cleared all the trees within 50 feet of one of the pipelines without informing the church of its intention. The gas company dumped brush piles in excess of 55 feet from the centerline of of the pipeline, needlessly changing the topography of the area. Shortly thereafter, the gas company sued the church for injunctive relief that its easement entitled it to clear a 50-foot right-of-way on a second pipeline. The church wasn’t alone: several other landowners were sued as well, and the court consolidated all of the cases. The Church filed a counterclaim seeking declaratory judgments and injunctive relief that Columbia Gas was not entitled to a 50-foot right-of-way in its easements for its pipelines, and sought damages from the previous tree clearing along the one pipeline. Columbia Gas moved for summary judgment.

Held: The gas company’s motion was denied. Under Ohio law, the granting of an easement includes a grant of all things necessary for the use and enjoyment of the easement. Where the complete terms of the easement are not expressed in the instrument granting it, the extent and limitation of the easement are ascertained from the language of the grant, from the circumstances surrounding the transaction, and by what is reasonably necessary and convenient to serve the purpose for which the easement was granted. The holder of an easement may not increase the burden upon the servient estate by engaging in a new or additional use of the easement. However, without specific language to the contrary, an easement holder is entitled to vary the mode of enjoyment and use of the easement by availing himself of modern inventions if by doing so he can more freely exercise the purpose for which the grant was made.

Easements should be very specific – because the people who wrote them won’t always be around.

Here, the easement agreements were ambiguous at best, and provided no basis for determining what the parties had intended. As to what is reasonable, it is true that the gas company has a duty to maintain its storage pipelines in accordance with federal law. It has a policy of not allowing any growth more than five feet tall within the right-of-way. However, its evidence of use of the easement and of hazard to pipelines from tree roots supports a clearing of only about 29 feet at most. Furthermore, Ohio courts have also looked to use and acquiescence and have refused to extend easements to fifty feet where the gas company has allowed mature trees growing within fifty feet of the pipeline. Here, even if the regulations suggested a fifty-foot wide clearing were necessary, the Court said, the parties never contemplated such a right-of-way at the time of the granting of the easement. The gas company argued that 50 feet is necessary for it to conduct aerial patrol. The Court said presumed that the parties contemplated normal developmental changes in the use of the easement, nothing in the evidence ever suggested that anyone contemplated a 50-foot right-of-way.

The parties’ experts’ discussions of the relevant safety issues is only one issue among many that the Court was willing to consider in determining the dimensions and scope of the easement. The Court also considered the language of the grants and the circumstances surrounding the transactions. Neither of those entitled the gas company to a judgment as a matter of law.

Finally, the Church argued that the Plaintiff should be estopped from arguing a larger easement than 25 feet is reasonably necessary and convenient, because it not only used a small right-of-way in the past, but its representative affirmatively showed the Church’s representative the clearings of the trees so that the Church would know what to expect — showing him clearings of 10 feet, occasionally increasing to 15 feet in width. Further, in 2003, the gas company told a member of the Church it needed 25 feet, not 50. The Court said these conversations and interactions, coupled with the gas company’s failure to remove mature trees until now, might demonstrate enough evidence of use and acquiescence to estop the gas company from arguing for 50 feet.

Case of the Day – Wednesday, August 20, 2014

SURVIVOR – LAWSUIT ISLAND

Life (and law practice) sometimes imitates art. It may be a stretch to label the long-in-the-tooth CBS series, Survivor, as art, but any number of great artists, authors and composers were unappreciated during their day, just as the Survivor writers currently allege that they are unappreciated.  Maybe some day, Survivor will be studied by college students as a paradigm of our day. Scary, isn’t it? Arthur C. Clarke once predicted just such a thing …

But our point – just like contestants are voted off the island in Survivor, weak cases are many times voted off the docket, so to speak, by summary judgment. Summary judgment is a mechanism for a judge to decide cases 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 today’s case, Stack was trimming Hernandez’s trees at Hernandez’s invitation. While working on a lawn with spotty and bumpy grass, Stack tripped on a small depression and broke his leg. He sued, of course – who wouldn’t? His suit alleged that Hernandez should have been aware of the depression and should have warned him of it. He didn’t have any proof that Hernandez was aware of the depression, and the Court very nearly granted summary judgment for Hernandez. But it concluded that a reasonable juror conceivably could — after hearing witnesses and cross-examination — conclude that Hernandez should have known about the depression, and should have either warned Stack or filled it in himself.

So after the summary judgment challenge, Stack remained a “survivor” — leaving it to a jury to vote his case off the island later.

Stack v. Hernandez, Not Reported in A.2d, 2007 WL 1893617 (Conn.Super.Ct., June 12, 2007). Stack was trimming trees at the defendant’s property at the invitation and permission of the defendant. While doing so, he stepped in a depression in the front lawn and broke his leg.

The depression was about 4 inches wide and 3 or 4 inches deep. Stack’s right toe went into the depression and stopped. The lawn was bumpy and had yellow patches in it. Stack did not see the depression before he stepped into it. Hernandez had no actual knowledge of the depression. He performed normal maintenance on the lawn himself but had never noticed the hole.

Stack sued Hernandez for negligence, alleging that Hernandez failed to remedy the depression in the lawn or to warn him of it, even though he knew or should have known of its presence. Hernandez filed for summary judgment on the grounds that there was no genuine issue of material fact on the issue of notice.

Held: Summary judgment was denied. The Court observed that summary judgment is not well adapted to negligence cases, where, as here, the ultimate issue in contention involved a mixed question of fact and law.

The conclusion that a defendant was negligent is necessarily one of fact. A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe. In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.

The existence of actual or constructive notice is a question of fact. Although Hernandez argued there was no evidence from which a judge or jury could conclude that he had actual or constructive notice of the depression or that it was a danger of which Stack was entitled to be warned, the Court found Stack’s allegation strong enough to survive a summary judgment motion.

The Court characterized Stack’s claim as weak, but conceded that a reasonable person could conclude that the depression in the lawn was a “danger” which Hernandez should have discovered and remedied with a reasonable inspection. The Court observed that a party has the same right to submit a weak case as he has to submit a strong one, and gave him his day in court to submit it.

Case of the Day – Thursday, August 21, 2014

THEY DO THINGS FUNNY IN LOUISIANA

Things are different in Louisiana. It’s the only state in America not to have a legal system based on English common law. Counties are parishes, county commissioners are “police juries,” and when a party loses in court, it may file a devolutive appeal.  

But Louisiana has a lot of trees and thus generates substantial neighbor and tree law. Today’s case is a little different, a case of a large farm seeking to get a county (parish) road – long closed due to a bridge being washed out – declared abandoned, so that ownership reverted to the farm. The evidence was all over the map, including minutes of the parish government showing an intent — albeit a desultory one — to get the bridge fixed and the road reopened, recall of the people who lived around and near the road as to when it was closed, and even a tree expert, who dated a tree growing up through the roadbed of the abandoned stretch of highway.

The trial court weighed all of the conflicting evidence, and concluded that the weight of it supported a finding that the parish had abandoned the road more than 10 years before, meaning that ownership reverted to Richland. The appellate court didn’t necessarily agree, but appellate courts review lower court decisions deferentially. Here, the standard was whether the trial judge’s findings were reasonable, based on the record, and the court of appeals said they were.

Richland Plantation, Inc. v. East Feliciana Parish, 973 So.2d 179 (La.App. 1 Cir. 2007). The Parish of East Feliciana maintained a public road running north from Richland Creek to Louisiana Highway 422 through property owned by Richland Plantation, Inc. In 2005, Richland sued, maintaining that the Parish had abandoned the road. Richland alleged that public use and maintenance had been terminated for more than ten years, and therefore the road was abandoned and full ownership of the property reverted to it.

The Parish claimed the road was temporarily closed in December 1996 because the bridge across Richland Creek was unsafe. In September 2001, the Parish filed a petition for expropriation of some of Richland’s land for the bridge, and a judgment was rendered in its favor in March 2005, but was later reversed. The Parish said the expropriation suit established that it did not have any intention of abandoning the road.

Trial witnesses had varying recollections of when the road was closed. Photographs of the gravel road south of the bridge where it was still open and maintained were compared with photographs of the closed area of the road, which was overgrown with plants and seriously eroded. The bridge railings were twisted and bent, and the wooden planks were rotted and broken. A forester testified for Richland that one of the trees in the roadbed had been growing there for eleven years; a cross-section of the trunk showing its growth rings was submitted into evidence. In addition to witnesses’ testimony, the record included some bridge inspection reports, as well as the minutes from Parish meetings, showing when and why the road had been closed and when the expropriation process to rebuild the bridge was approved. The trial court agreed with Richland, and the Parish filed a devolutive appeal.

Held: The road was declared to have reverted to Richland. The Court said that under Lousiaina law, the public may own the land on which the road is built or merely have the right to use it. The courts have held that maintenance of a road by a Parish for three continuous years gives rise to a “tacit dedication” of the road to public use by its owner. Abandonment of a public road must be evidenced by (1) a formal act of revocation in accordance with Louisiana statute, (2) relocation of the public road by the governing body, or (3) clear and well-established proof of intent by the governing body to abandon. Nonuse of a strip of land as a public road or street for a period in excess of ten years may also result in termination of the public use.

Because the Parish didn’t execute any formal act of revocation and its meeting minutes showed its intent was to rebuild the bridge and re-open the road, the Court concluded there was no proof of any intent to abandon this roadway. Thus, the only means by which the Parish’s servitude of public use of the roadway could be terminated was by factual non-use for more than ten years. Within that period, even occasional use or use by only one person constituted public use.

Reviewing the record to determine whether a reasonable factual basis for the trial court’s findings, the Court held that while there were obviously some conflicting stories about exactly when and how the northern portion of Ellis Road was closed, there was reasonable factual basis in the record for the trial court’s finding that the road had not been used for over ten years and was, therefore, abandoned by the Parish.

Richland’s licensed forester testified concerning the age of a tree that was located in the roadbed of the old road, and determined from dendrochronology how long the tree had been there. He determined that the tree growing in the roadbed was 11 years old when it was cut in June 2006, thus dating the abandonment of the road at over 10 years.

Case of the Day – Friday, August 22, 2014

REALITY BITES

Sometimes, reality bites. Not just the movie, but real life. It especially bites when the very steps a prudent man takes to protect himself become the evidence on which a court relies to put him in the jeopardy he sought to avoid.

So it was with Mr. Jackson. He sold some land by land installment contract (also known as contract for deed or installment sale agreement) to Mr. Smith. Pay attention, because land contracts have become much more popular in the last five years. A land installment contract lets a property owner safely sell land with seller financing. The buyer puts down a small (sometimes no) down payment, with an agreement to make monthly payments for a period of time until the purchase price has been paid. At that time, the seller (sometimes called the “vendor”) transfers the land to the buyer (called the “vendee”).

Land installment contracts usually aren’t very good deals, not because the terms are oppressive or one-sided, but because they represent transactions that are really financing of last resort. The vendees are often barely able to handle the payments and little more able to manage the rigors of home ownership. In our experience, many if not most land installment contracts result in evictions or foreclosure (depending on the state laws).

Perhaps because of the likelihood that the property will fall into disrepair or the vendee will default, many vendors want land contract documents that provide them with as much control over their properties as possible. This is understandable. What is less understandable is that sometimes, the more control a vendor reserves to himself or herself, the less safe he or she becomes.

In today’s case, the vendor understandably required the vendee to buy insurance on the place that named the vendor as a named insured. That made sense. After all, the vendee only had paid about 17% of the purchase price, meaning he didn’t have a very big stake in the place. But the vendor wanted to be sure the vendee did what he was supposed to, so the vendor drove by the place on a nearly daily basis, and he bought insurance for the place himself. The vendee reimbursed him, but the arrangement was at odds with what the contract required. Partly because the vendee knew how closely the vendor was watching the place, he checked with the vendor about alterations and modifications before he undertook them.

When a 10-year old boy riding a bike was struck and killed, the boy’s mother blamed obstruction in sight lines caused by untrimmed trees on the property. After a suitable period of mourning, she sued. She went after not only vendee Smith but after Mr. Jackson, too. He controlled the property, she claimed. The trial court disagreed and dismissed him from the suit.

The Court of Appeals reversed. The facts that the vendee had paid so little and Mr. Jackson had cared so much about the condition of the property — and especially because he had gotten his own insurance even though the agreement dictated that Smith would do so — suggested to the Court that there was a real question of fact as to whether Mr. Jackson had control of the premises and, therefore, might be to blame for the tree that had never been trimmed and which allegedly obscured the young boy’s view of oncoming traffic. The Court returned the case to the trial court for a jury’s consideration.

Poor Mr. Jackson. Normally, vendors aren’t liable for the conditions of premises they have conveyed pursuant to land installment contracts. But vendors want the best of both worlds, to have control over their property until they’re paid while not being liable for anything that goes wrong. Mr. Jackson was like that. He probably thought he was being very prudent in approving changes, in making sure insurance was in place, and in driving by like a stalker in Hollywood Hills. Instead, his caution only made the Court suspect that he had retained a lot more control than the typical vendor.

There’s a lesson here. If you sell pursuant to land contract, get a good lawyer to write as strong a contract as is prudent.  Then, enforce the contract. Stick to the deal.  If you want to deviate from its terms, sign a written amendment.  Don’t start “rewriting” the deal by your conduct.

Scheible v. Jackson, 881 N.E.2d 1052 (Ct.App. Ind. 2008). Jackson sold a parcel to Smith under a land installment contract. Smith lived on the premises. In early 2005, Jackson received a certified notice from the City of Columbus about saplings growing on the property that had to be removed. Jackson gave the notice to Smith, who took care of the problem.

However, a mature tree on the property hung over the sidewalk, the tree lawn and a part of 7th Street’s westbound lane. Branches of the tree drooped quite low, touching or almost touching the grass. One summer day, Mrs. Scheible’s ten-year-old son, Travis, was riding his bicycle on the sidewalk along the north side of 7th Street. Just west of the tree, Travis started to cross the street. The leaves and branches of the tree obstructed his view. A motorist struck Travis’ bicycle, killing the boy.

Travis’ mother sued Jackson and Smith. She alleged Jackson and Smith both exercised control of the property and that they owed a duty to the traveling public to maintain the property in a reasonably safe condition. Jackson moved for summary judgment, arguing that he owed no duty of care to Travis. The trial court agreed. Mrs. Scheible appealed.

Held:   The Court reversed the dismissal of Jackson. The Court, noting that young Travis was not on the property when he was struck, admitted that as an initial matter, it appeared that a vendor is not liable for physical harm caused to others outside of the land by a natural condition of the land. However, the law was clear that a possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.

The Court focused much more on control that it did on mere possession. The evidence — taken in a light most favoring Mrs. Scheible (which it must be when summary judgment is being considered) suggested that Jackson retained substantial control. Smith, who lived on the land and was buying it under land contract, had paid only a small portion — about 17% — of the total price. He testified he consulted with Jackson on major alterations, and discussed removal of the tree that allegedly obstructed Travis’ view before the tree was cut down, after the accident. The Court said it wasn’t clear whether Smith just advised Jackson or actually had to obtain his approval for alterations. To be sure, Jackson maintained a substantial interest in the property as well as a financial stake: he testified he drove by the property often.

The Court held that where a person retains control of property, regardless of the contents of the land installment contract, liability may still attach. The Court said that “[o]ne who assumes the control and management of property cannot escape liability for injuries by showing a want of title in himself.” The fact of a land-sale contract, the Court said, is not itself dispositive as to the vendor’s non-liability.

What’s more, the fact that Jackson and Smith deviated from the precise terms of the contract bothered the Court. The contract terms provided Smith would carry insurance on the property, with the Jacksons and Smith being named as insureds. However, Jackson kept his existing insurance policies on the property in place. He paid the premiums and Smith reimbursed him. The Court held that this meant that Jackson’s use of the property was insured, but Smith — the person Jackson asserted to have been the only one with control of the property — had no coverage at all. The Court found it ironic that Jackson sought to avoid responsibility for the condition of the property, yet maintained two insurance policies on which he was the sole insured. Along with other elements of the case, the Court held, Jackson’s insuring himself to the exclusion of his vendee, Smith, supported the reasonable inference that Jackson controlled the property.

Summary judgment was reversed and the case was sent to trial.

Case of the Day – Monday, August 25, 2014

ILLEGAL CONTACT

 

We’re well into the NFL preseason, and college football kicks off this week. In fact, college football already has begun with the usual early-season scandal. In honor of the upcoming football season, we consider one of the “cardinal” rules of trespass. Today we’re discussing illegal contact.

Usually illegal contact, that is, trespass to trees — where someone enters someone else’s land and cuts down trees without any right to do so — are pretty cut and dried. But not all trespasses are so clear-cut (to turn a pun).

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister, but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner. The owner and the buyer signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Gators couldn’t pull him over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew with a Hawkeye. The buyer’s contractor cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. He sued the buyer, complaining that he hadn’t given permission to do anything like that. He wanted treble damages for the wrongful cutting.

The court awarded about $5,000 in damage for the cut branches on the live oak, but it disagreed on the treble damages. The Court said that the ambiguous contract seemed to contemplate that the 12 trees would be cut down, and there was no basis for any recovery on those. As for the injured live oak, it was damaged but still standing. The statute awarded treble damages for cutting down trees, and the trimming — although a violation of the contract — wasn’t something for which treble damages could be awarded.

Distefano v. Berrytown Produce, LLC, 973 So.2d 182 (La.App. 1 Cir., 2007). Distefano owned a 2-acre vacant tract of land along Church Street. Berrytown Produce, LLC sought to buy a piece of land next to the Distefano tract to operate a produce business. That land was owned by Rose Millican, DiStefano’s sister.

A line of trees on Distefano’s land blocked the view of the Millican tract approaching it from the highway. Berrytown conditioned its purchase on obtaining Mr. Distefano’s permission to remove trees from his property. So Distefano authorized Berrytown in a written agreement to remove all trees on the property line dividing the Distefano and Millican tracts, except for a live oak tree. Berrytown hired Kemp Richardson to perform the clearing work. Richardson cut and removed 12 trees from the Distefano and Millican tracts, and he cut a significant number of branches from the live oak tree on Mr. Distefano’s tract.

Distefano filed a timber trespass action against Berrytown and Richardson, saying the defendants cut and removed five trees from his property and cut branches off the live oak tree without his permission. Distefano tried to recover damages under Louisiana Revised Statute 3:4278.1, commonly referred to as the “timber trespass” statute, that imposes a penalty of three times the fair market value of trees on people who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property. Distefano also claimed restoration damages and damages due to the decrease in the value of his land, and further urged that defendants’ cutting activities caused him to suffer non-pecuniary damages.

At the conclusion of a bench trial, the court found that the agreement between Distefano and Berrytown contemplated the cutting and removal of all trees on the Distefano property that had been actually cut down. The court found that the parties clearly understood that the live oak tree was not to be cut, and awarded Distefano $6,045.00 for the unlawful removal of branches from his live oak tree, accepting expert testimony setting the fair market value of the live oak tree at that amount. The court declined to award treble damages, finding the treble damage provision inapplicable because the tree itself had not been cut down and removed, and because there was insufficient evidence of the fair market value of the limbs removed from the tree.

Distefano appealed, challenging the court’s finding that he consented to the cutting down of five trees from his property and the denial of his treble damage claim.

Held: The trial court’s decision was upheld. The Court found that the contract called for the cutting of “all trees on the dividing property line” between the Distefano and Millican tracts, “with the exception of the live oak tree located on or near the property line.” A witness attested there were no trees on the property line itself, but there were trees close to the property line that hung over the property line, and those were the trees Berrytown wished to have removed. Distefano contended that the parties never contemplated the removal of any trees not located exactly on the common property line, but other witnesses disagreed, and the trial court’s findings of fact were found to be reasonable.

Distefano contended that the trial court should have ordered the defendants to pay treble damages. Louisiana Revised Statute 3:4278.1 imposes a penalty of three times the fair market value of the trees on those persons who unlawfully cut, fell, destroy, remove, or divert trees from a landowner’s property without the landowner’s consent. But, the Court said, no tree was cut down without permission. Instead, the oak tree was trimmed without permission, and the cut trees were taken pursuant to the agreement. Although contrary to the contract, the Court ruled, because the oak tree was not cut down, the statute did not authorize treble damages under the facts of

ILLEGAL SUBSTITUTION

College football kicks off in just a few days with a Penn State – Central Florida game to be played in Ireland, like that makes any sense. Nevertheless, we honor the start of another wacky season with some football trivia.

Illegal substitution in football is what occurs when the play begins with one team having too many players on the field. Or when a player substitutes a geek to ghost write his homework for him. Yes, Notre Dame, we’re thinking of you.

There’s another kind of illegal substitution, too, the kind we’re talking about today. That’s the kind of substitution that has to do with expert witnesses.

Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial. In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, and he named the owner of the tree and the power company that had an easement where the tree stood, among others. He claimed that the tree hadn’t been trimmed properly, and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so, but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself, but instead was only vouching for someone else’s survey. Defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

Was it a blown call? The plaintiff decried it as uglier than the new Jayhawks’ uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard pressed to argue he was hurt by the trial court’s decision.

Good luck in Ireland, Penn State. Maybe the Land of the Shamrock hasn’t yet read the Freeh report …

Slater v. Charter Communications, Inc., Not Reported in N.W.2d, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. After clearing the roadway and while returning to their vehicle, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day as a result of her injuries.

Her husband sued everyone short of The Weather Channel, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications.  Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr did not conduct the measurements or prepare the survey, but rather had verified the survey. The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and prepared the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: The judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion, and the rule generally is that justice is best served where an unlisted witness can be permitted to testify while the interests of the opposing party are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition, but noted that whether the tree was located on plaintiff’s property or in the road right-of-way were critical factual disputes, and existence of the survey had been known to Slater for about a year before trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals said, and, consequently, no abuse of discretion occurred.

Case of the Day – Tuesday, August 26, 2014

ILLEGAL SUBSTITUTION

College football kicks off in just a few days with a Penn State – Central Florida game to be played in Ireland, like that makes any sense. Nevertheless, we honor the start of another wacky season with some football trivia.

Illegal substitution in football is what occurs when the play begins with one team having too many players on the field. Or when a player substitutes a geek to ghost write his homework for him. Yes, Notre Dame, we’re thinking of you.

There’s another kind of illegal substitution, too, the kind we’re talking about today. That’s the kind of substitution that has to do with expert witnesses.

Trials aren’t supposed to be conducted by trickeration. Parties have a full chance to engage in discovery — seeing the other party’s documents, taking depositions of witnesses under oath, that sort of thing — well before trial. In today’s case, a woman was killed when a tree branch broke free in a storm and struck her. Her husband sued, and he named the owner of the tree and the power company that had an easement where the tree stood, among others. He claimed that the tree hadn’t been trimmed properly, and that negligence had led to his wife’s death.

At trial, the defendant called a witness to authenticate the location of the tree relative to the road. The plaintiff threw the red flag because the witness hadn’t been listed on the defendant’s expert witness list. An illegal substitution, he complained. The trial court didn’t think so, but offered to adjourn the trial so that the plaintiff could take the witness’s deposition. A solution neater than Pete Carroll’s hair, you say? One might think, but the plaintiff wasn’t interested.

During the witness’s testimony, it developed that he hadn’t done the survey himself, but instead was only vouching for someone else’s survey. Defendant announced it would call the two men who had taken the survey, and the plaintiff cried foul again. The trial court noted that the location of the tree was critical, and let them testify anyway. The defendant won by a touchdown.

Was it a blown call? The plaintiff decried it as uglier than the new Jayhawks’ uniform. The Court of Appeals — sitting up in the review booth — typically gives substantial deference to trial procedure decisions made by the trial court. It held that letting the witnesses testify was well within the trial court’s discretion. It noted that Slater could have taken the adjournment offered, and inasmuch as he didn’t, he was hard pressed to argue he was hurt by the trial court’s decision.

Good luck in Ireland, Penn State. Maybe the Land of the Shamrock hasn’t yet read the Freeh report …

Slater v. Charter Communications, Inc., Not Reported in N.W.2d, 2007 WL 4462396 (Mich.App., Dec. 20, 2007). The Slaters were driving on West Torch Lake Drive in Rapid City when they came upon tree branches that had fallen from a tree and were obstructing the roadway. The weather was rainy and windy. After clearing the roadway and while returning to their vehicle, a large limb from the same tree broke off, fell onto a power line and then struck Mrs. Slater in the head. She died the following day as a result of her injuries.

Her husband sued everyone short of The Weather Channel, including bringing a negligence action against Consumers Power Company and a premises liability claim against defendant Charter Communications.  Mr. Slater alleged that the tree was in Consumers’ easement and that Consumers breached its duty by failing to remove the dangerous limb from the tree. He also alleged that the tree was on Charter’s property and that Charter breached its duty to maintain the property in a safe condition by failing to remove the dangerous limb from the tree.

Consumers moved for the case to be thrown out, asserting that the facts showed that it wasn’t responsible for trimming the tree from which the limb fell. Slater admitted that he lacked any evidence that Consumers was responsible for the tree, and in light of this, the trial court granted Consumer’s motion. At trial, Charter announced that it would call John Korr, the survey department development manager for Gosling Czubak Engineering Sciences, Inc., to authenticate a tree location survey that had been submitted to the court about one year earlier. Charter argued that the tree was not on its property but rather within the road right-of-way. Slater moved to strike Korr as a witness because Korr was not listed on the expert witness list. After the trial court indicated that it would allow Korr to testify, the court offered an adjournment to allow plaintiff to obtain an independent survey and depose Korr, but he declined.

After interviewing Korr on the third day of trial, Slater informed the trial court that he had just learned that Korr did not conduct the measurements or prepare the survey, but rather had verified the survey. The trial court then allowed Charter to call Simmerson and Anderson, the individuals who had taken the measurements and prepared the survey, to testify. Following the trial, the jury found that the tree was located in the road right of way and, therefore, judgment was entered in favor of Charter. Slater appealed.

Held: The judgment for Charter was upheld. The Court of Appeals held that the trial court properly dismissed Consumers Power from the suit, because with Slater’s admission that he had no evidence that Consumers had trimmed the tree, there was no genuine issue of fact.

The Court also ruled that the trial court had not abused its discretion by allowing Korr, Simmerson, and Anderson to testify. The decision whether to allow the late endorsement of an expert witness is reviewed for an abuse of discretion, and the rule generally is that justice is best served where an unlisted witness can be permitted to testify while the interests of the opposing party are adequately protected. Here, the trial court acknowledged that Slater had not gotten to take Korr’s deposition, but noted that whether the tree was located on plaintiff’s property or in the road right-of-way were critical factual disputes, and existence of the survey had been known to Slater for about a year before trial commenced. The court offered Slater an adjournment to obtain an independent survey and to depose Korr, which he declined.

That was enough, the Court of Appeals said, and, consequently, no abuse of discretion occurred.

Case of the Day – Wednesday, August 27, 2014

HEY, IT WAS AN HONEST MISTAKE

The Peters didn’t know where the lot lines were. Their real estate agent didn’t, either. Ah, details, details … That didn’t stop them from hacking down trees on the property as soon as the ink was dry on the deed, in order to build their dream house. You probably know where this is going. Harry Peters, acting as his own tree service, goofed, and cut down 29 trees on the Kriegs’ land.

The Peters admitted their honest error, and they were willing to pay damages.  What they were not willing to do was pay the treble damages authorized in the law for wrongful timber cutting. C’mon, they complained, there wasn’t any evidence they knew they were cutting Kriegs’ trees.

The Court pointed out that the state of the evidence was precisely the problem. It was up to the Peterses to prove that they thought the land was theirs. The wife’s testimony was all they had offered, and it didn’t help: she explained they didn’t really know where the boundaries were, and never bothered to find out. But the biggest problem was what Mr. Peters testified to: nothing. He was the one who cut the trees down, and the Court seemed to expect that he would have material testimony to offer. But he didn’t testify.

There’s a well-known principle in evidence known generally as the “missing witness instruction.” It holds, as the legendary Professor Wigmore put it, that “the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.” In other words, if you have particular control of evidence, and you do not bring it forward, a court is allowed to assume it would have been harmful to your cause if you had done so.

The Court didn’t say it here, but it strongly implied that the absence of testimony from Harry Peters led it to conclude that if he had taken the stand, he wouldn’t have helped his cause any.

Krieg v. Peters, 46 A.D.3d 1190, 850 N.Y.S.2d 211 (N.Y.A.D. 3 Dept., 2007). In May 2004, the parties became adjoining property owners when the Peters family purchased the vacant lot next to the Kriegs. The Peterses intended to construct a house on their property, so Mr. Peters began clearing land without consulting the map referenced in their deed or having a survey conducted. He removed 29 trees from Krieg’s property. Following a jury trial, the Kriegs were awarded damages, including treble damages under New York statute for the removal of this timber. On appeal, the Peterses only contest the treble damages award.

Held: The treble damages were upheld. Under RPAPL §861[2], the New York treble damage statute, in order to avoid treble damages, the Peterses had the burden of proving by clear and convincing evidence that when they removed the trees from the Kriegs’ property, they “had cause to believe the land was [their] own.” Their proof in this regard was woefully inadequate. Mrs. Peters was the only defense witness to testify on this critical issue, and the appellate court found that her testimony had been more damning than helpful in sustaining their burden. She said that, before she and her husband purchased the property, she walked it on one occasion with their realtor. At that time, she specifically asked about the boundary lines but the realtor couldn’t answer her question with any certainty. She said she told her husband of the realtor’s uncertainty when they later walked the property together. She also candidly admitted that no steps were taken to obtain a survey or consult the map referenced in their deed before clearing the land. The Court found it significant that, although he had logged the property, Mr. Peters never testified. It found plenty of evidence that the defendants had no cause to know whether the land Mr. Peters was logging belonged to them or not.

The Peterses also argued that the legislature never intended for RPAPL §861 to apply to individuals such as themselves who make “honest” mistakes about boundary lines. The Court disagreed, holding that on its face, the statutory scheme clearly applied to the facts and circumstances of the case and, in the absence of sufficient proof on defendants’ part to avoid treble damages, it didn’t find the treble damage award to be inconsistent with the law’s purpose or intent.

Case of the Day – Thursday, August 28, 2014

CLIPPING

Nothing says summer like the roar of chainsaws and the whine of complaints by homeowners about utility companies’ trimming of trees in their rights-of-way. “Tree butchery!” residents complained. “Prudent and careful trimming to ensure reliable energy!” the power companies respond. Or maybe just “Shut up!”

It’s perhaps understandable that a few mad-as-hell but foolish folks sue.  We saw a report of another such legal action yesterday.  No doubt these Pennsylvanians will enrich their lawyers, but if history is any indicator, the plaintiffs are destined to be disappointed.

Tree trimming along and under an easement to protect power lines is typically done according to standards set by the North American Electric Reliability Corporation, known as NERC. Standards for tree trimming sound dry to you? Maybe a little looting, people trapped in elevators, and a power outage affecting 50 million people will get your attention. The great blackout of August 2003 had many contributing causes, but it all started when power lines – sagging in the heat of the day and under the load put on the system – became entangled in poorly-trimmed trees.

OK, tree trimming is important work. And so it was in Louisiana. It seems that a road was widened, and power lines were relocated as a result. The electric utility came along to clip vegetation along the route, but ran into Mr. James, who objected to the vigorous removal of trees and brush. He kept running the crews off, until the utility sued for a ruling that it had an agreement with the city that superseded Mr. James’ complaints.

That’s where things got interesting. Mr. James and the utility signed an agreement that permitted the utility to trim back to the historical trim limits or to an established limit according to the kind of tree. No sooner was the ink dry but Mr. James argued that the utility had violated the deal. He sought all sorts of damages — even emotional distress — for the alleged violations.

The utility of course loaded up at trial with three of four experts, who carefully showed that the trees were cut back to their historical trim point and no more. The trial court found for the utility. On appeal, the Court agreed that despite all of the tort theories and general complaints alleged by Mr. James, because he had signed the deal with the utility, the only question was whether the deal had been kept. And as for that, the utility’s thundering herd of experts trumped Mr. James’ speculation.

With the new NERC reliability standards requiring more aggressive vegetation management, it is likely that clashes as to the extent to which utilities may trim will be more frequent and substantial. Thus, there undoubtedly be more Mr. James v. Entergy battles throughout the country.

Entergy Louisiana, Inc. v. James, 974 So.2d 838 (La.App. 2 Cir. 2008). In 1991, Highway 143 — located next to Tupaw Manor Apartments — was widened. Entergy’s distribution lines ran along Highway 143 and, with the widening of the highway, several poles were relocated. Three poles were placed so that the lines crossed the highway diagonally to the southeast corner of the apartment complex. The distribution lines at issue were contained within what Mr. James, the owner of the apartments, characterized as a “green zone” that buffers the apartment complex from the highway traffic, adding to the aesthetic value of the complex.

Entergy hired West Tree Service to trim vegetation encroaching on electrical distribution lines, the work to be done in compliance with Entergy’s “Distribution Vegetation Management Line Clearance Specifications” (“Clearance Specifications”) on file with the Louisiana Public Service Commission. During August 2004, another subcontractor sprayed the area with herbicide. Then, West cleared vegetation that had been sprayed and performed additional trimming on Mr. James’ property as per Entergy’s contract. Mr. James objected, but the West crews made several additional attempts to trim vegetation on the property. Unable to obtain consent from Mr. James, Entergy filed a petition asserting that it had an agreement with the city of West Monroe to operate electric facilities within the city and had a right-of-way easement onto Mr. James’ property for maintenance purposes. Mr. James answered and demanded damages in excess of $410,000. He claimed that Entergy engaged in the clear-cutting of trees, harvesting and removing over 200 trees, far in excess of the allowed or agreed upon width of trimming.

Prior to trial, the parties entered into a stipulated declaratory judgment in which they agreed that Entergy has the right to maintain all of its electric distribution lines and poles by trimming any encroaching trees, limbs, shrubs and other vegetation within 10 feet of Entergy’s lines in accordance with modern arboretum standards and as specifically outlined in Entergy’s Clearance Specifications, and as long as Entergy complied in good faith with the vegetation maintenance standards, Mr. James would have no right to prohibit with Entergy’s reasonable and necessary trimming of encroaching trees, limbs, shrubs and other vegetation along its distribution lines.

The Clearance Specifications provided that all trees at a minimum would be trimmed back to the previous trim point or according to a table, whichever was greater. The table provided that slow growth trees in rural settings would be trimmed to 10 feet and fast growth trees in rural settings would be trimmed to 15 feet. An exception would be made where there was a customer refusal where procedures outlined in the Clearance Specifications have been followed, provided that the exception would not result in unsafe conditions or jeopardize reliability.

Mr. James argued Entergy could only trim to an indefinite width depending on the extent to which it had actually claimed and used a right-of-way in the past or 10 feet under the Clearance Specifications. Mr. James alleged that Entergy exceeded the allowable width, causing damage to the aesthetic value of the “green zone” around the apartment complex. Mr. James filled out a Tree Cutting Refusal Form expressing his objection to having any trees removed, which he contended requires Entergy to then seek a court order to continue trimming. Entergy’s letter to Mr. James noted that the trimming was necessary to ensure safe, reliable electrical service to the area, including the apartment complex.

Entergy sued to get the court order. At trial, Entergy provided detailed testimony regarding the existence of a prior trim point, and that all trimming was within that point. Mr. James provided testimony that there were log trucks being loaded with cut trees coming and going from the property, which was contradicted by West employees. The trial court framed the issue as whether Entergy had complied with its Clearance Specifications in performing the trimming, and found that Mr. James failed to carry his burden of proof and was, therefore, entitled to no damages. He appealed.

Held:  Entergy had the right to trim the vegetation. The Court concluded that the stipulated declaratory judgment signed by the parties prior to trial controlled the allowable trimming width of the vegetation on the James property. Thus, the issue was whether Entergy complied with its Clearance Specifications. Entergy produced several qualified witnesses, whose testimony was thoroughly outlined by the trial judge, who found strong evidence of re-sprouts and prior trim points. The Court found no abuse of discretion. Although the Court noted that the Clearance Specifications might, in certain circumstances, lead to unauthorized, increased and unchecked trimming on private property, it concluded that under the specific facts of the case, Mr. James was bound by the stipulated declaratory judgment.

Case of the Day – Friday, August 29, 2014

INCORPOREAL HEREDITAMENTS

Today, we’re considering incorporeal hereditaments.  Lawyers like cool terms like these, because they can charge more when their clients can’t understand what they’re saying.  Here at Treeandneighborlaw.com, we de-mystify the law for you.  That’s us – the homeowner’s friend.

Before we pull a muscle patting ourselves on the back, let’s get to today’s topic. A hereditament is nothing more than a right that can inherited. A corporeal one is that may be seen and handled, like a piece of real estate. Back in the day, conveyance of land was done by livery of seisin, wherein the propert seller would actually hand the buyer a twig or clump of dirt, a ritual conveyance of the real estate being sold. An incorporeal hereditament, on the other hand, is something that couldn’t be symbolically passed off, something intangible like an easement.

Sound boring?  Some North Carolinians found out that boring or not, it’s important. A couple of landowners had, over the past 11 years or so, planted trees, built fences and otherwise taken actions inside a 30-foot driveway easement that encroached on the use of the passage by its owners. The easement owner, stymied in his use of the drive, sued. The defendants argued “too little, too late:” the plaintiffs were way beyond the 6-year statute of limitations for suing on incorporeal hereditaments. The plaintiffs said “poppycock!” The statute didn’t start running until the invasion of the easement had passed the 20-year period for adverse possession of land or prescriptive easements. In other words, the plaintiff argued, he had 26 years from the time the trees were planted and fences were built to bring a lawsuit.

The Court of Appeals disagreed, siding with the defendants. This wasn’t a case of someone trespassing, taking land by adverse possession or a right by prescriptive easement. This was someone trying to undo an express easement. The lawsuit simply related to an incorporeal hereditament, and it was subject to the 6-year statute.

The result is curious. It means that an owner of an easement, a right that is often as valuable as the property itself, can lose that right by interference by the servient estate owner in a relatively brief period of time. To use a legal term, “you snooze, you lose.”

Pottle v. Link, 654 S.E.2d 64 (N.C.App., 2007). The Pottles owned Tract 6 on Cedar Island, and Snug Harbor South, LLC, owned Tract 4. Both of these owners held 30-foot wide easements allowing ingress to and egress from the public road to Tracts 6 and 4 and other lots. Mr. Link owned Tract 3 and Mr. Willets owned Tract 5, adjacent lots which were the servient estates over which the easements ran. About 11 years before the lawsuit was filed, Link planted several oak, cypress, holly, and cedar trees on Tract 3, joined several years later by two more oak trees to replacing two that had been destroyed by hurricanes.

He maintained the trees by installing an irrigation drip line and planting other vegetation on the tract In the summer of 2004, Willets installed a post and rope fence on Tract 5, and in 2005, Link built a fence. The Pottles and the LLC sued, arguing that Link’s trees and impeded traffic on the easement, and that Willets’ post and rope fence encroached on the easement as well. Plaintiffs filed a motion for summary judgment, arguing that Link and Willets had refused to clear the easements to provide access to property that had no other routes of access. Link and Willets moved for summary judgment, too, arguing that the 6-year statute of limitations for injuries to incorporeal hereditaments had expired, and that the plaintiffs’ actions constituted an abandonment of the easement. The trial court granted summary judgment to the plaintiffs, and defendants appealed.

Held:  Summary judgment for the plaintiffs was reversed, and the defendants won on many of the issues. The Court of Appeals noted that the parties agreed that all encroachments, except the fences installed in 2004 and 2005, were planted or installed approximately nine to eleven years before the lawsuit. The only question, the Court said, was which statute of limitations applied. An affirmative easement is a right to make some use of land owned by another without taking a part thereof, while a negative easement prohibits the owner of a servient estate from doing something otherwise lawful upon his estate, because it will affect the dominant estate. Easements are incorporeal hereditaments, which is defined as “[a]n intangible right in land, such as an easement.” N.C. Gen.Stat. §1-50(3) requires that an action for injury to any incorporeal hereditament be brought within six years. The plaintiffs argued that the injury in this case was similar to an adverse possession, having a limitation period of twenty years, but the Court disagreed, holding that the cases relied on by the plaintiffs related to a defendant’s continuous trespass onto the plaintiffs’ property, not on plaintiffs’ incorporeal hereditament.

Because an injury to an incorporeal hereditament was at issue in this case, rather than a continuous trespass or a prescriptive easement to property held in fee, the Court held that  N.C. Gen.Stat. §1-50(3) applied, and that plaintiffs’ case was barred where the six-year statute of limitations had been satisfied. All but two encroachments onto the plaintiffs’ easement began 9 to 11 years before the lawsuit. The defendants were therefore entitled to partial summary judgment as a matter of law. The fences had not been in place more than six years, but because the defendants argued that the fences did not encroach on the easement, an issue of fact existed, and summary judgment in favor of the plaintiffs had to be reversed.

The case was sent back to go to trial on the question of whether the fences encroached on the easement.