Case of the Day – Thursday, May 7, 2026

Posted on May 7, 2026 by TLRoot tagged.

BAMBOO-ZLED

The common-law rules governing rules on matters like encroachment can, of course, be modified by meddling legislatures. For example, we all know that if your neighbor’s tree encroaches above or below the soil onto your yard, you have the right of self-help and no more. You do not have the right to force your neighbor to correct things unless the encroachment causes “sensible harm,” and indeed becomes a nuisance.

The law recognizes negligence per se, which is essentially presumed negligence because you broke the law. Likewise, the law can declare that some things constitute nuisances for no better reason than the law says they are.

In Connecticut, where the state has yet to meet a tax or regulation it doesn’t like, there is a statute that declares running bamboo a nuisance. It falls on the homeowner to prevent his or her running bamboo from running into someone else’s yard, whether the encroachment causes harm or not. If you fail to control your running bamboo in accordance with the statute, you are negligent per se, and the bamboo constitutes a statutory nuisance.

Whoever imagined that running bamboo was such a problem in temperate Connecticut? Well, the legislature for one. Generally, it seems to be a common enough problem, with running bamboo making kudzu propagation look like a bonsai tree by comparison.

Whatever the reason Connecticut may have had for enacting a law directed specifically at running bamboo, it seemed to come in handy for Jean Walden when a neighbor’s running bamboo ran into her backyard. She sued, seeking an order requiring her neighbor to remove it.

The neighbor, Nationstar, a mortgage company, filed a motion seeking to apportion the damages between it and Jean. Jean was not much interested in talking about whether she was negligent: as far as the statute and Jean were both concerned, Nationstar let the bamboo encroach, and it was solely liable. Apportionment is premised on the notion that it takes two to tango, an approach that Jean, who considered herself blameless, was not interested in at all.

What ensued was an “angels-on-the-head-of-a-pin” kind of thing, where the court wrestled with whether a negligence action could be found anywhere within Jean’s complex complaint. A negligence claim would justify apportionment. A claim that did not sound in negligence would not.

Walden v. Nationstar Mortgage, LLC, Case No. KNLCV176030465S (Superior Ct. Connecticut, November 27, 2017) 2017 Conn. Super. LEXIS 4963. Nationstar controlled property which contained a colony of running bamboo that had grown beyond the property line into the Walden Property. Jean Waldon had warned Nationstar on a number of occasions to control the bamboo colony so that it would not invade her yard. Nevertheless, Nationstar’s uncontrolled colony of bamboo has crossed onto the Walden Property and started to take over the yard.

Jean hired a lawyer who knew how to plead a complaint. Her suit claimed Nationstar was negligent because it had a duty not to allow the bamboo to encroach onto Jean’s land, but failed to control the bamboo. She also claimed the bamboo colony physically invaded her property without her permission, she had asked Nationstar to do something, but it had not. She complained its failure to act was intentional. Jean also included two counts claiming Nationstar violated Connecticut General Statutes § 22a-16 and § 22a-381e (part of the “Connecticut Environmental Policy Act,” or “CEPA”), creating “an unreasonable harm and future threat of harm to the public trust in the natural resources of the state.” Finally, she alleged that the migration of the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her property.

Nationstar filed a complaint for apportionment, asking that responsibility for the negligence be apportioned between itself and Jean. as the parties responsible for negligence, under General Statutes § 52-572h. Jean quickly amended any mention of “negligence” out of the complaint, and then opposed the apportionment request on the grounds that Nationstar was maintaining a nuisance and that she should not share in any blame for it. Apportionment, she argued, was improper.

Held: Nationstar is entitled to its claim for apportionment and to responsibility for the damage apportioned between it and Jean.

Jean argued that General Statutes § 52-572h – the apportionment statute – does not apply to a violation of the CEPA because such a violation is not based on negligence, and the apportionment complaint cannot rest on any basis other than negligence. The statutory cause of action of the running bamboo, Jean said, is based on nuisance and not negligence. Nationstar retorted that a defendant found liable under CEPA will be deemed negligent by virtue of the violation because such a violation is negligence per se.

General Statutes § 22a-16 provides that “any person… may maintain an action in the superior court… for declaratory and equitable relief against… any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction…”

That is what Jean is doing, the Court said. She was enforcing General Statute § 22a-381e(b), which provides in relevant part that “[n]o person who… allows running bamboo to be planted on his or her property shall permit such bamboo to grow beyond the boundaries of his or her property.” General Statutes § 22a-381e(c) provides in relevant part that “no person shall… allow running bamboo to be planted on his or her property at a location that is forty feet or less from any abutting property…”

Negligence per se, the Court said, “serves to superimpose a legislatively prescribed standard of care on the general standard of care… A violation of the statute or regulation thus establishes a breach of duty when (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent.” Connecticut courts treat a statutory violation as negligence per se in situations in which the statutes… at issue have been enacted for the purpose of ensuring the health and safety of members of the general public.”

The CEPA was enacted to enable people to seek redress in court when someone is polluting the environment, the Court said. Plus, the Appellate Court has held that “§ 22a-16 imposes on the defendants a standard of care, the violation of which constitutes negligence per se.” The two-pronged test applied to establish negligence per se is: (1) that the plaintiff was within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent.”

Here, Jean alleges damage to her property caused by bamboo. She is within the class of persons protected by the anti-bamboo statute. Furthermore, the Court said, the alleged injury suffered by the plaintiff is of the type that CEPA intended to prevent – in this case, the continued violations of the running bamboo going beyond Nationstar’s property and onto Jean’s abutting property.

Jean also argued that the apportionment statute, General Statutes § 52-572h, applies exclusively in negligence cases. Her claim, she said, for nuisance, alleging common-law nuisance and statutory nuisance under General Statutes § 22a-318e(f). Nationstar said that a cause of action for nuisance may be based upon a defendant’s negligent misconduct, and thus, apportionment was permissible.

The Court disagreed with Jean’s alleged statutory nuisance. General Statutes § 22a-318e(f) provides that allowing running bamboo to grow beyond the boundaries of a parcel of property “shall be deemed to be a nuisance,” but Jean just argued in the complaint that the bamboo colony “unreasonably interferes with the peaceable use and enjoyment by the plaintiff of the Walden Property.” That, the Court said, sounds like common law nuisance.

A common-law nuisance claim has four elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff’s] injuries and damages. While there are some similarities between a public and a private nuisance, the two causes of action are distinct. Public nuisance law relates to the interference with a public right, such as public health and safety. Private nuisance law, on the other hand, concerns conduct that interferes with an individual’s private right to the use and enjoyment of his or her land.

Jean was alleging that the bamboo colony unreasonably interfered with the peaceable use and enjoyment of her land; she does not allege interference with a public right. Therefore, the Court said, the nuisance she alleged is a common-law private nuisance. A common-law private nuisance cause of action must show that the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his or her property. The interference may be either intentional or the result of the defendant’s negligence.

Thus, a common-law private nuisance can be based on negligence, and Nationstar’s complaint to apportion the liability can go forward.

– Tom Root

Case of the Day – Thursday, April 30, 2026

Posted on April 30, 2026 by TLRoot tagged.

MEASURING HARM

Mr. Harper accidentally cut down 70 trees on Ms. Dumas’ property, thus markedly improving his view. Oops!

The more skeptical among us think that cutting one Dumas tree would have been an accident, and cutting down a few would be a tragedy. But cutting down 70 of ‘em, and coincidentally achieving the better view Mr. Harper coveted… well, that sounds like enemy action.

The Connecticut court is considerably more credulous than we are. The judge bought the notion that Mr. Harper and his woodsmen goofed, but pondered long and hard about how to figure the damages. In a weird inversion of schadenfreude, Ms. Dumas argued her damages should be measured by the value that Mr. Harper derived from his better view. The Court rejected that.

Instead, it held that the measure of damages is either the value of the timber or the diminution in value of Ms. Dumas’ place. Harper said that the trees he accidentally lopped weren’t ornamental, so the only damage is about $1,000 worth of debris (thus proving that while he couldn’t identify a property line, old Mr. Harper didn’t lack for chutzpah).

The Court disagreed. The trees weren’t strictly ornamental, but that was their purpose, regardless of Mr. Harper’s sad attempt at botanical speciesism. The damages should be measured by the cost of repair, the Court said, and the repair will cost $16,000.

Careful testimony by Ms. Dumas’ expert was crucial to establishing her damages, and arborists and landscape professionals should consider how plenty of detail can persuade a court to side with an expert’s report. For the same reason that play-by-play people keep a color commentator near at hand, an expert should tell a story that’s not only accurate and complete, but interesting as well.

Dumas v. Harper, 2008 Conn. Super. LEXIS 264, 2008 WL 496558 (Conn. Super.Ct., Feb. 6, 2008). Yvon Dumas claims that Emery Harper and his agents entered her land without permission and cut down about 70 trees. Dumas claimed trespass and sought compensatory and treble damages under Connecticut law, and other equitable relief. The matter was tried to the judge instead of a jury.

Based on the evidence, including a site inspection, the court found that Harper and his minions had indeed cut down about 70 trees, making the area unsightly with tree stumps, branches and debris strewn about. The Court found that Harper’s trespass was the result of a mistake.

Nothing left but a stump field …

Dumas introduced evidence of the value of the “view” to Harper with the trees on her property cut down. But the Court ruled that the value of any view to Harper was not the measure of damages, but rather the damages were either the market value of the tree once cut down, or the diminution in the market value of Dumas’ property caused by the cutting. Harper argued that the only measure of damages the court was permitted to award under Connecticut General Statute § 52-560 was the market value of the 70 trees as severed from the soil, because the trees in question were neither ornamental nor shade trees. The Court disagreed, holding that while the trees were not ornamental trees as such, the evidence was that they had ornamental value insofar as their removal rendered that portion of Dumas’ property unsightly. It would make no sense, the Court said, for the damages to be limited to the value of the trees as severed from the real estate. The damages to be awarded to Dumas should be based on the reduction in the pecuniary value of the land because of the cutting.

The Court found that the decrease in value of the Dumas property should be measured by the cost of cleanup and screening the area with new trees. The Court accepted the expert opinion of Dumas’ landscape consultant, who testified that the work would take a week or more and would cost $9,180 for labor and $6,000 for new trees.

– Tom Root

Case of the Day – Wednesday, March 25, 2026

Posted on March 25, 2026 by TLRoot tagged.

CRY ME A RIVER

Law students learn in first-year civil procedure that it’s entirely proper to file utterly inconsistent pleadings. For example, if a complaint is that the defendant borrowed the plaintiff’s bucket and broke it, the defendant can answer that (1) he never borrowed it; (2) when he returned it, it wasn’t broken; and (3) it was broken when he borrowed it. And lawyers wonder why there are so many attorney jokes …

But there are limits, and complaints in civil actions should not be completely mindless in their allegations. In today’s case, landowner Fischer changed the slope of his land, rebuilt a driveway and installed a retaining wall. His neighbor, Christiana, complained that the effect of his neighbor’s construction project was to send unwanted drainage onto his property. Fischer was unimpressed. “Cry me a river,” you can imagine him saying. Christiana’s lawyer – who perhaps was charging his client by the word – obliged, tearfully filing a four-count complaint claiming negligence, recklessness, nuisance and trespass.

Fischer filed a motion to strike the recklessness and trespass counts. He argued that the complaint — even assuming everything Christiana has alleged was true — simply didn’t state a claim. Christiana depended on pretty much the same facts for recklessness as he did for negligence, except in the recklessness count, he charged that, on top of everything else, Fischer hadn’t gotten permits from the town for the project. Well, maybe that was a little sloppy, at least as far as paperwork goes, but the Court held that Fischer’s lack of a few permits didn’t constitute recklessness towards Christiana. The recklessness count was bounced.

Fischer argued that the trespass count should be dismissed because there was no allegation that he intended for the water to flow onto Christiana’s land. The Court disagreed with Fisher’s novel interpretation of trespass, holding that Fischer didn’t have to intend that the water trespass on Fischer’s land, just intend the act – that is, the diversion of the water – that resulted in the trespass. The distinction is subtle but crucial.

Thus, the trespass count remained, an important holding: the Court said, in essence, that without ever setting foot on Christiana’s property, Fischer could have trespassed just by being negligent in the way he altered water flow.

Christiana was upset because Fischer’s retaining wall left his place a little soggier than it had been before …

Christiana v. Fischer, 2007 Conn. Super. LEXIS 2660, 2007 WL 3173949 (Conn. Super.Ct., Oct. 17, 2007). Christiana sued Fischer after Fischer altered the slope of his land and built a retaining wall. Christiana sued for negligence, recklessness, nuisance, and trespass. Fischer moved to strike the recklessness and trespass counts as insufficient to state a cause of action.

Held: The Court split its holding, striking the count for recklessness but not the trespass count. Recklessness is a state of consciousness with reference to the consequences of someone’s acts, more than negligence, more than gross negligence. While the actor’s state of mind amounting to recklessness may be inferred from conduct, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. Reckless conduct takes on the aspect of highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent.

In Count 2, Christiana repeated his allegations of negligence and additionally alleged that Fischer rebuilt a driveway without a building permit and in violation of the town’s zoning regulations. Christiana, however, made no allegation that Fischer was made aware prior to completion of the alteration and construction work of any problems that he was causing that would drain water onto Christiana’s property. The Court found that the allegations failed to support a cause of action for recklessness.

As for the trespass count, Fischer argued that Christiana failed to allege any intentional conduct essential to state a cause of action for trespass, pointing out that there was no allegation that the defendants intended to direct water or other debris onto the plaintiffs’ property or that they acted knowing to a substantial certainty that the water or other debris would enter the plaintiffs’ property. But the Court held that to make out a trespass, a plaintiff had to have ownership or possessory interest in the land; there had to be an invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; the act had to be done intentionally; and the act had to cause direct injury.

In his complaint, Christiana alleged that he had notified Fischer on several occasions of severe drainage problems resulting from the land alteration and construction and that Fischer failed to take corrective action. The Court found that Christiana’s allegations were sufficient to establish a cause of action for trespass.

– Tom Root

Case of the Day – Tuesday, December 16, 2025

Posted on December 16, 2025 by TLRoot tagged.

LET’S NOT PREJUDGE ANYTHING

My favorite daughter, who holds a Ph.D. in demographics from Cal Berkeley (forgive the proud papa boast), earned her undergraduate degree in linguistics a decade or more ago at an ivy-covered campus some 2,611 miles east of San Francisco Bay.

Her B.A. in linguistics (magna cum laude) came after 20 years of listening to her mother and me complain that the English language is going to hell.

You know, to be perfectly honest, at the end of the day, I could literally die at the debasement of the King’s English. A prime example, IMHO, is the ubiquitous airline expression “preboarding.” Since when does one “preboard” by boarding? And the credit card come-on I got the other day, telling me I was “pre-qualified?” Just what is that? Am I qualified? Or not qualified? To me, “qualified” seems rather binary – you are or you aren’t.

But my Ivy League-educated daughter just rolls her eyes and tells me that “language is dynamic.” In other words, 2023 English is not 1923 English, which was not 1823 English, and so on. “Get used to it, Dad,” she counsels me.

This brings me to today’s case. Ann sued her neighbor, Mike, because after she gave him permission to perform “limited trimming” of her Norway maple tree, the branches of which were overhanging his property, she says he over-trimmed, hacked away at the tree roots, and smeared a foreign substance on the root he did not hack. Her expert said the Norway maple was worth $96,000.

C’mon, man. Ninety-six large for a tree considered to be an invasive species? Surely you jest.

Surely she did not. The whole case sounds sketchy. Apparently, Mike performed all of his depredations of the branches and roots from the comfort of his own property. Regular readers of this blog should, at this point, express shock. That sounds like the Massachusetts Rule, especially because Mike argued that her tree had encroached and damaged his property. Why did Mike even require permission to trim overhanging branches and encroaching roots?

But that’s a question for another day. What the Connecticut trial court was deciding in this opinion was whether Ann was entitled to a prejudgment remedy. “Prejudgment” here is judgment in the same sense that “preboarding” is judgment. If Ann gets her remedy, she gets to attach Mike’s property (bank account, gold bullion, beach house, dogecoins, whatever) up to the amount of the judgment to which she is likely entitled. To do so, she has to show “probable cause” to believe that Mike is liable (that he trespassed, was negligent, whatever) and that she was damaged to a likely amount.

“Prejudgment” sounds a lot like judgment to me, especially because she pleads her claim, he opposes it, and the court decides. Far be it from me to ask how a criminal law concept like “probable cause” found its way into the civil sphere, but the fact that Ann can force a paper trial before the trial, and thereby lock up Mike’s assets (thus restricting his ability to freely use his own property), makes little sense. A canny plaintiff can use the prejudgment remedy route to oppress the defendant and run up litigation costs, thus forcing a settlement that looks a lot like the defendant folding. The fact that the court was able to find probable cause to believe that Mike had trespassed by trimming on his side of the property line suggests that the legal theories are less than perfectly thought out.

It’s one thing to permit a prejudgment remedy where probable cause is present, and there is reason to believe the defendant will run off with his assets in order to make himself judgment-proof. But in Connecticut, you don’t have to show a defendant will cut and run, just that prejudgment, there is probable cause to believe you are likely to get a judgment.

Ann ultimately failed to lock up Mike’s assets because her expert testimony was pretty sloppy. Nevertheless, the whole notion of a prejudgment judgment seems like an erosion of the King’s English, let alone civil procedure.

Greco v. Gallo, 2019 Conn. Super. LEXIS 2963 (Superior Ct. Conn., Nov. 21, 2019). Ann Greco owned a beach house next to a beach house belonging to Michael Gallo. A 40-year-old Norway Maple tree stood on her property near the boundary between the two parcels. Ann claimed that on April 1, 2017, Mike requested permission to prune one of her trees that was overhanging his property. She said she granted limited permission, but Mike pruned well beyond what she had authorized. Ann alleged that Mike damaged the roots of the tree with an ax and that he applied some substance to the tree’s roots, thereby harming and perhaps destroying the tree.

Ann sued for compensatory damages, double or treble damages under C.G.S. § 52-560, and punitive damages. Her complaint alleged that Mike was individually liable for her losses under the following legal theories: (1) liability for violation of Connecticut’s tree statute, C.G.S. § 52-560, and (2) liability for common-law negligence.

Ann claimed that Mike performed arboriculture on the tree without a valid license and applied a foreign substance to the tree’s root structure. She further alleges that he or his agents caused the tree to die, and she was harmed through the loss of the tree, its valuable shade, and the cost of the tree’s removal and replacement. She also claimed Mike was negligent, in that he failed to follow her limited pruning instructions and thus breached a duty of responsible conduct and care to her tree when he performed arboriculture without a license. Ann further claimed his negligence caused the death of the tree.

Mike denied everything and argued in addition that § 52-560 does not apply to this case because Mike never entered Ann’s property, and the remaining defendant had no role in the pruning of the tree.

Not to be outdone, Mike counterclaimed against Ann, alleging damages to his real and personal property caused by her negligence for failing to keep her tree from overgrowing and encroaching on his property. He alleges that for a long time before April 2017, Ann’s tree was growing excessively on his property, causing damage to his septic system and roof and requiring demolition and rebuilding of his garage.

Not content with litigating the case to the end, Ann sought to attach some of Mike’s property even before judgment, preventing either from selling it until the case was resolved. Outside of Connecticut, prejudgment attachment normally is intended to ensure that a defendant does not render himself judgment-proof before a case is tried. But in the Nutmeg State, prejudgment attachment does not require a showing that the defendant is likely to hide assets. Instead, it appears to be a civil bludgeon with which a well-heeled plaintiff can beat a defendant into submission by making it impossible for him to do business (or even survive) for as long as a trial goes on.

Held: Ann was not entitled to truss up Mike to the tune of $30,000 pending litigation over one dead tree.

A prejudgment remedy is available upon a finding by the court that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff.” C.G.S. § 52-278d(a)(1). In order to grant prejudgment attachment, a court must determine whether or not there is probable cause to sustain the validity of the applicant’s claim. The plaintiff does not have to establish that she will prevail, only that there is probable cause to sustain the validity of the claim. “The court’s role in such a hearing is to determine probable success by weighing probabilities.

The Court said Ann proposed suing Mike in two counts alleging liability under C.G.S. § 52-560 and liability in common-law negligence.

C.G.S. 52-560 provides that

Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another or on public land, except on land subject to the provisions of section 52-560a, without license of the owner, and any person who aids therein, shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on this land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.

Section 52-560 embodies the long-standing common law that predated its passage and includes the legal concepts of trespass and damages. The elements of an action for trespass are (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion, or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury.” A trespass can exist without personal entry onto the land of another. Anything a person does that appropriates adjoining land or substantially deprives an adjoining owner of the reasonable enjoyment of his or her property is an unlawful use of one’s property.

Section 52-560 does not give a new and independent cause of action, the Court said, but instead prescribes the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable.” An action under § 52-560, therefore, is an action in trespass with a specifically prescribed measure of recovery of damages. As with trespass, the plaintiff cannot recover if the defendant had the “license,” or permission of, among others, the owner. Failure to prove the elements of the underlying trespass, the Court held, dooms an action under § 52-560.

Here, the Court held, Ann claims the evidence supports liability against Mike for violating C.G.S. 52-560, in that he admittedly pruned the tree, used an ax or hatchet on the roots of the tree, and placed some substance around the root region of the tree so as to harm it permanently. Although Mike’s actions all occurred from his neighboring property, Ann claims the trespass is established through his unauthorized actions on the tree from his property. Mike’s testimony supports that he did do such pruning from his property on her tree, but Ann alleges he went too far and was much too aggressive in that pruning process. And even further, the evidence showed he never asked permission to take an ax to the tree roots on his property, nor to put any foreign substances at or near the tree roots. This conduct beyond the permission given by Ann, the Court said, supported the probable cause finding on the trespass issue.

Ann also claimed, in addition to the § 52-560 count, that Mike was negligent. Such a common-law cause of action is permitted in tree damage cases, in addition to the statutory count. The essential elements of a cause of action in negligence are duty, breach of that duty, causation, and actual injury. Here, the Court said, the evidence permitted the court to find that Mike owed a duty to Ann once he asked her for permission to prune the tree, to exercise that permission reasonably and within the scope of permission she gave him.

The testimony and the photographs offered at the hearing supported the claim that Mike may not have been reasonable in how he conducted himself after Ann gave him limited permission to prune. Taking an ax or hatchet to the roots and placing foreign substances at the root areas, the Court held, may be a sufficient basis to find that he breached that duty and sustain the validity of Ann’s negligence claim. Thus, there is probable cause to sustain the validity of the negligence claim against Mike.

However, before the court could grant Ann’s application for prejudgment attachment, the court had to also find that the damages she claimed were supported by the requisite probable cause.

Section 52-560 is very clear as to what is or is not the measure of damages in tree damage cases, the Court ruled. Ann could seek damages for the trespass itself, for the value of the trees removed, considered separately from the land, or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land, nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel.

For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.

The proper measure of damages is either “the market value of the tree, once it is severed from the soil, or the diminution in the market value of the… real property caused by the cutting.”

Ann overreached. She sought an attachment of $30,000 each over the real and personal property of all three defendants and was “rather unclear as to the exact basis for the alleged damages related to the Norway Maple in question. And, there is contradictory evidence provided by each alleged expert arboriculturist on this topic.”

Expert testimony from Ann’s and Mike’s experts set the “reasonable value” of the tree at $98,000. The Court noted drily that

it is unclear if these sums are replacement cost figures for said tree or if they are values of the tree as timber once cut. Neither expert offered opinions with any reasonable degree of arboricultural probability in their written reports nor in their testimony at trial, and neither expert provided sufficient scientific methodology or reasoning for how they each arrived at the dollar amounts testified to. In fact, both witnesses had never testified in court before, and both had limited prior experience in placing a valuation on trees in question, such as the case at bar. Their testimony did not provide clear evidence on the replacement cost of the tree versus the cost of the tree once cut for potential lumber, as required by the statute and case law for the measure of damages under §52-560.

The Court noted that “trial judges are afforded wide discretion to serve as gatekeepers for scientific evidence because a relevance standard of admissibility inherently involves an assessment of the validity of the proffered evidence. More specifically, if scientific evidence has no grounding in scientific fact but instead is based on conjecture and speculation, it cannot in any meaningful way be relevant to resolving a disputed issue.”

Therefore, while the Court found probable cause for believing Mike would be liable, it could not find sufficient probable cause as to the amount of damages Ann claimed to justify the placement of a monetary attachment on Mike’s property.

– Tom Root

Case of the Day – Wednesday, November 26, 2025

Posted on November 26, 2025 by TLRoot tagged.

ME AND MY SHADOW

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

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

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

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

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

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

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

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

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

My shadow is duly incorporated …

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

James B. Carroll 2003 Revocable Trustee v. Ricciardello, 2007 Conn. Super. LEXIS 1681, 2007 WL 2080583 (Conn.Super.Ct., Apr. 4, 2007). It seems that Robert Ricciardello and James Carroll were adjacent landowners in the Ferrando Subdivision of Glastonbury, Connecticut. The Subdivision lots were subject to a “Declaration of Covenant and Restrictions” that provided, in part, that “[e]ach lot shall be used and maintained solely and exclusively for one-family residential purposes … No trailer, tent, shack, garage, barn or other outbuilding erected on any Lot shall at any time be used as a residence temporarily or permanently … [The] covenants and restrictions are to run with the land and shall be binding on the Declarant, purchasers or owners of any Lot … for a period of twenty (20) years from the date of recording … During the twenty-year period that this Declaration is in effect, any or all of the covenants, conditions and restrictions contained herein may be amended or terminated by an instrument signed by the then owners of at least six (6) of the Lots described on Schedule A hereto, which instrument shall be recorded on the Glastonbury land records.”

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

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

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

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

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

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

– Tom Root

Case of the Day – Thursday, November 20, 2025

Posted on November 20, 2025 by TLRoot tagged.

SIR, YOU ARE NO GEORGE WASHINGTON

Today, we conclude our consideration of the trespass problems faced by our New Hampshire landowners Larry and Laura Littoral. If you have followed along to this point (and can remember what transpired even after the news broke that Kim Kardashian did so well in the California bar exam that she has been invited to take the second half next year), you know that the Littorals’ pastoral cottage getaway – situated on a classic New England pond – has been disrupted by neighbor Wally Angler.

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

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

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

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

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

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

Wally suspects elves.

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

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

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

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

Caciopoli v. Lebowitz, 131 Conn.App. 306 (Court of Appeals, Connecticut, 2011). Dominic Caciopoli was a man who liked his privacy. He bought his place because it was isolated and private, surrounded by forest on all sides except for one area of the lot through which his driveway passed. A short while later, Jeffrey Lebowitz bought the place next door. His house was about 100 yards from Dom’s, and the area between the residences was wooded, affording each privacy from the other.

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

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

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

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

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

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

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

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

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

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

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

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

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

– Tom Root

Case of the Day – Thursday, October 23, 2025

Posted on October 23, 2025 by TLRoot tagged.

THAT EQUITY MAY PREVAIL

A barricuda in one of its habitats - the other is a courtroom.

A barracuda in one of its habitats – the other is a courtroom.

Sometimes you really wish you knew the back story of a lawsuit. Merely reading the recitation of facts and the application of the law in some cases leaves you wondering – why is this case even in the courtroom?

Today’s case is a perfect example. The Mannings lived in a housing development. Behind their well-manicured lawn lay some scrubby, undeveloped woods. Their neighbors had a back lawn that was about 30 feet deeper, and the Manning family mistakenly thought that their own lawn must be that long, too. So they cleaned and chopped weeds, took down some saplings, and installed a park bench and baseball batting cage.

But it turned out that the land wasn’t theirs. Presently, they got a letter from some limited liability company’s lawyer, telling them to cease and desist forthwith, govern their actions accordingly, and all of that legal mumbo-jumbo. Chastened, the Mannings withdrew to their own boundary.

End of story? Nope. The owner of the land, CUDA Associates, LLC — “CUDA” undoubtedly being short for “barracuda” — sued the Mannings for the grievous harm they obviously had done to its rather decrepit piece of real estate. The ‘Cuda sued for trespass, for intentional and wrongful cutting of timber in violation of Connecticut law, and for “unjust enrichment.”

OK, fo technically, the Mannings did commit a trespass ... but they left the land in better shape than they found it.

OK, so technically, the Mannings did commit a trespass … but they left the land in better shape than they found it.

And exactly who was unjustly enriched? You have to wonder why CUDA would have sued at all. After all, there was no damage to the CUDA land. In fact, the Court suggested the Mannings had improved it. What’s more, the trespass was an honest mistake, and the trespassers withdrew as soon as their attention was called to the error. We’ll never know the whys. But the trial court pretty clearly agreed with us that the whole thing was a tempest in a teapot: the judge dryly observed that “[t]he equities in this claim clearly rest with the defendants, and as such must be balanced with the nominal losses that the plaintiff has suffered.” In other words, the Mannings’ trespass was pretty minor and done honestly enough, and CUDA didn’t really suffer for it. In fact, it was better off for the trespass, because its property was left in better shape than it would have been in had the Mannings stayed home. The whole case seemed like a monumental waste of the court’s time.

However – and we should all know this by now – litigants are allowed to waste the court’s time, and they do so daily. As maligned as lawyers are, sometimes the fees they charge are the only brakes ever applied to the wacky legal claims their clients want to press in the courtroom. Unfortunately for the Mannings, no cooler heads prevailed in the offices of CUDA’s counsel, so the suit was litigated to judgment.

The court recognized that Connecticut law dictated that damages had to be awarded, even where the trespass was trifling. So it awarded CUDA $1,500, an amount which (we hope) was probably much less than its attorney’s fee. So some justice prevailed in the end, even if it was only found in a lawyer’s pocket.

CUDA Associates, LLC v. Manning, 2008 Conn. Super. LEXIS 93, 2008 WL 249974 (Conn.Super., Jan. 8, 2008). CUDA Associates owned 3,000 square feet from which the Mannings cleared trees, removed underbrush and in effect extended the back boundary of their property line by approximately 30 feet along the entire easterly line of their backyard. All of the surrounding land owned by CUDA or its successor was undeveloped. The Mannings’ house was located in a developed residential area with housing on both sides of White Avenue, and abutting the plaintiff’s property to the east and south. The Mannings installed a park bench, a baseball practice apparatus and the cutting of certain trees and undergrowth, an intrusion into the CUDA’s property that ended when CUDA wrote to them. The Mannings were operating under a mistaken belief that the property that they had encroached upon was theirs and roughly matched the back property line of their neighbor. This mistaken belief led them to do certain clearing and cutting of trees and underbrush and to use the property for their own benefit. CUDA sued for trespass, removal of timber in violation of statute and unjust enrichment.

CUDA could have erected a sign that warned against trespassing and spouted a lot of legal nonsense, like this one …

Held: The Court found that the Mannings committed a trespass upon a portion of CUDA’s property for their own use and benefit, but any loss of use for CUDA was not measurable. The trespass was negligent and not intentional and, therefore, only minimal damages were awarded. As for the cutting of trees, timber or shrubbery in violation of Connecticut General Statute §52-560, while the Mannings did cut trees, CUDA failed to establish the quantity or the value of any of the trees that had been removed. In fact, the Court said, the cutting may have actually improved the overall site appearance for CUDA’s benefit. Nothing more than reasonable and ascertainable value under the statute can be awarded.

As for unjust enrichment, the Court held that the non-permanent intrusion by the Mannings was unintentional. What’s more, any benefit derived by them from the CUDA land was coincidental to the use of their own backyard property and was of a de minimis nature. The Court said that equities in this claim clearly rested with the Mannings and had to be balanced against the nominal losses that CUDA suffered. The Court awarded CUDA $400 for the common-law trespass, $600 for the timber statute violation, and $500 for unjust enrichment.

– Tom Root