Case of the Day – Monday, April 8, 2024

Posted on April 8, 2024 by TLRoot tagged.

WORKERS COMP TRUMPS CREATIVITY

Whenever an accident results in permanent disability, it is understandable that the injured party and his family looks for as many deep pockets as they can find.

A million bucks sounds like a lot of money (unless you’re Congress), at least until you deduct a third for the lawyers, and spend the rest on a lifetime of care and support for a paraplegic. The facts of today’s case are rather prosaic: workers from a landscaping service were trimming a tree. Something may have slipped — or maybe it was just one of those things — but a tree limb fell and struck José Garza, who was on the ladder, knocking him off and causing spinal cord injury.

Missouri workers’ comp awarded José $1 million. But he nevertheless sued his employer and the other workers who present that day, alleging negligence. The Missouri trial court quickly threw out the claim against the employer — after all, this kind of litigation was just what workers’ comp was supposed to avoid. But the Court struggled with the claims against his jobsite supervisor and two fellow landscapers.

The move was creative. After all, José argued, the statute just protected the employer from liability, not anyone else who happened to be there (like co-workers, who – face it – can sometimes be dim bulbs). Why shouldn’t other employees, especially supervisors, be liable for negligence?

The Court of Appeals said, “No way, José.” In order to take the co-workers outside the protection of the statute, José would have to show some they had engaged in some sort of purposeful, affirmatively dangerous conduct, much more than the garden-variety negligence he alleged had occurred that day. To rule otherwise would completely undermine the policies underlying workers’ comp, and at the same time make it just about impossible to recruit and afford to keep employees (who would demand insurance coverage as a condition of employment).

Thus, the courts never reached the question of whether anyone had been negligent that day, because even if everything José alleged were true, it would just not be enough.

Garza v. Valley Crest Landscape Maintenance, Inc., 224 S.W.3d 61 (Ct.App.Mo. 2007). José Garza worked for Valley Crest Landscape Maintenance, Inc., as a landscaper. One day, he was told to report to a home to provide landscaping services. Brad Mason, a supervisor, directed which trees to trim. Garza’s crew leader, Rafael Moya, instructed Garza to climb a ladder and cut a specified limb. Moya placed the ladder against the tree, held the ladder, and rigged ropes to the limb to be cut. Javier González held the rope which Moya had rigged, while Garza climbed the ladder. While Garza was on the ladder, the limb knocked him to the ground, causing a permanent spinal cord injury.

Garza filed a worker’s compensation claim and collected over $1 million on the claim. He then filed a complaint in state court against Valley Crest, Mason, Moya and González, alleging negligence. The Defendants moved to dismiss on lack of subject matter jurisdiction, claiming that worker’s compensation was the sole remedy available to Garza.

The trial court agreed. Garza appealed.

Held: The dismissals were affirmed. Normally, workers compensation is intended to be a worker’s only remedy for injuries on the job, even where those injuries are the result of the negligence of the employer. Generally, co-employees enjoy the same protection under the exclusive remedy provision of the workers compensation statute as the employer, absent a showing of something more. That “something more” is a determined on a case-by-case basis and includes any affirmative act, taken while the supervisor is acting outside the scope of the employer’s duty to provide a reasonably safe environment, that breaches a personal duty of care the supervisor owes to a fellow employee.

Allegations by Garza against his co-workers that they failed to securely hold a ladder, failed to properly rig ropes to the branch being cut, failed to create a proper support with the rope, and failed to use reasonable care in holding the rope did not amount to the purposeful, affirmatively dangerous conduct that was required to move the co-workers outside the protection of the statute’s exclusive remedy provisions.

The Court held that mere allegations of negligence are “not the kind of purposeful, affirmatively dangerous conduct that Missouri courts have recognized as moving a fellow employee outside the protection of the Workers’ Compensation Law’s exclusive remedy provisions.

– Tom Root

Case of the Day – Tuesday, February 6, 2024

Posted on February 6, 2024 by TLRoot tagged.

WYSIWYG

Referees make mistakes. And that’s a good thing. It keeps our juices flowing, gives us a safe target for our anger, and even – thanks to the Internet – lets us relive our ire even when the underlying game’s been forgotten.

Judges make mistakes, too. If that weren’t so, there’d hardly be a need for courts of appeal or even the Supreme Court.

In today’s case, an electric utility sued back in the 1960s to force a landowner to give it an easement for building and maintaining power lines. The court granted the easement — which consisted of four separate rights — but somehow left out the part where it got an easement of 25 feet on either side of a right-of-way to keep trees trimmed. Some 45 years later, the utility wanted to assign its right to the City of Jackson, Missouri, so the City could build its own power line.

The case ended up in court, where the utility argued that just because the 1969 court forgot to mention the 25-foot easement, that didn’t mean it wasn’t there. After all, the utility asked for it and the court never said it couldn’t have it. When the damages were assessed so the landowner could get fair compensation for the condemnation, the commissioner charged with assessing the cost included the 25-foot easement. Just an oversight, the utility argued.

There’s an old adage in the law that a court speaks through its record. And in this case, while the 1969 Order probably did omit the 25-foot easement through oversight, that didn’t matter. The Order was clear and unambiguous in how it described the easement. Where the language is clear, a reviewing court won’t second-guess.

The 25-foot wide strips were not covered by the prior easement, no matter what the parties may have meant at the time. Like the Dramatics’ old song went, “Whatcha see is whatcha get.”

City of Jackson v. Bettilee Emmendorfer Revocable Trust, 260 S.W.3d 913 (Mo.App., 2008). The Bettilee Emmendorfer Revocable Trust owned land in Jackson, Missouri, which had been subject of a condemnation action 40 years before when the property was owned by others. Back then, Union Electric petitioned for rights over four portions of the land: a 100-foot easement, for the purpose of installing electric transmission lines, 25-foot sections on either side of the 100-foot easement for maintaining trees, overhanging branches and obstructions, two smaller easements for use in connection with the transmission lines, and an easement for ingress and egress.

The court’s order in that prior case granted Union Electric the 100-foot easement, easements to the two separate parcels, and an easement for ingress and egress. However, the court failed to mention Union Electric’s request for an easement on the 25-foot strips on either side of the 100-foot easement. A report of commissioners filed in the case indicated the commissioners viewed the 25-foot sections on either side of the 100-foot easement as well as the 100-foot portion itself to be within the easement, and it set damages at $22,224.

In October 2006, Union Electric entered into an agreement with the City of Jackson to allow Jackson to build a new electric line on the eastern edge of the 100-foot easement. Jackson and Union Electric entered into a partial assignment of the easement in accordance with that agreement. But noticing the old trial court order had a hole in it, the City sought a declaration of rights as to whether the 1969 condemnation action awarded Union Electric the 25-foot sections on either side of the 100-foot easement, whether Union Electric has the right to assign to Respondent the right to construct an electric transmission line on the 100-foot easement, and whether the construction of an additional electric transmission line amounts to an additional taking of property from the Trust. The Trust asserted the 1969 Order made no mention of an easement or other rights condemned or established on either side of the 100-foot easement. The Trust also argued that construction of an additional electric transmission line would increase the burden on the property “beyond the scope of the intended and authorized use of the easement,” grant of the easement would be “inconsistent with the original use of the easement,” and the additional utility poles and electric transmission lines would interfere with reasonable use and enjoyment of the property.

The trial court held that Union Electric’s easement included the right, permission and authority to trim, cut and remove trees, overhanging branches and obstructions on 25 feet on each side of the 100 feet right of way which may endanger the safety of or interfere with the transmission lines, and it had the power to assign the right to the City. The Trust appealed.

What the court’s actual order says is what goes …

Held: The 25-foot strips are not covered by the easement. The 1969 order establishing the easements made no mention of and contained no reference to the 25-foot sections on either side of the 100-foot easement, and thus, those portions are not part of the easement. When interpreting easements, courts ascertain the intention of the grantor from the instrument itself. Only when the language of the deed is “unclear and ambiguous” should a court resort to the rules of construction and consider extrinsic evidence. A contract is not ambiguous simply because parties disagree about its meaning. Rather, an ambiguity arises only “when the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.

Here, the Court said, nothing in the lower court language was unclear or ambiguous in the documents creating the easement, thus leaving a court to judge the easement only by the plain language of those documents without the need to refer to extrinsic evidence. The report of the commissioners, while it apparently valued the 25-foot sections in determining damages, does not supersede the court’s unambiguous order.

As for the right to assign, the Court held, it was equally clear and unambiguous that the order granted the easement holder the ability to construct a “line or lines,” permitted the holder to “add to and relocate” the electric transmission lines, and referenced “successors and assigns,” thus indicating that assignments are permitted.

– Tom Root

Case of the Day – Wednesday, January 31, 2024

Posted on January 31, 2024 by TLRoot tagged.

DOING DAMAGE

Most of the time, the object of a civil lawsuit is to collect damages. Damages may either be compensatory – intended to compensate or to put the victim in the same place he or she would have been had the wrong not occurred – or punitive, intended to punish the wrongdoer.

Today, we’re going to talk about compensatory damages. How much has an injured party been damaged by loss of or damage to trees? The first question to be answered is whether the trees were commercial or “ornamental” in nature.

If the tree taken was commercial timber, the calculation is straightforward. Courts use either the stumpage value or the timber value. Stumpage value and timber value estimates depend upon timber volume estimates, which in turn are based upon the raw data collected in the field by timber cruisers. Put another way, estimating the value of timber taken in a trespass involves a three-step process. First, a timber cruise is conducted, and measurements are taken in the field. Timber cruising includes identifying a tree species, taking stump diameter measurements, taking measurements from the stump to the top of the tree left on the ground, taking measurements of any logs left on the ground, and recording measurements on a tally sheet. Second, the collected measurements are converted into volume estimates using established mathematical formulas. Third, those volume estimates are then converted into value estimates.

The distinction between timber and stumpage value only comes into play during the third step of the process. Stumpage value is the value of standing trees or what one might pay for the right to cut and remove trees. Timber value is the value paid by mills for cut logs. If timber value is used, it would be fair to argue to the Court that a deduction should be included for the cost of cutting and hauling the lumber. But where the timber trespass was especially egregious, don’t hold your breath waiting for compensatory-damage compassion from the bench.

But what about where the tree is not commercial timber, like that 80-year-old oak that used to shade your front yard before a confused tree service company employee cut it down, thinking he was to be at your house instead of a place two streets away. The single oak’s commercial value won’t begin to compensate you for the loss.

There’s always a tension between the value a lover of the land places on his or her trees and the price tag affixed to those same trees by bean counters testifying in some cold courtroom. That’s why courts in many states apply different rules when the wrongfully taken tree was a stately old elm shading the farmhouse, a tree with maybe $1,000 in timber value but much greater value to the wronged property owner. The fact is that the wronged owner just plain likes the trees that had been taken, and the fact that his or her enjoyment of the trees might not be quantifiable in a real-estate-value analysis, makes little difference.

Anderson v. Howald, 897 S.W.2d 176 (Court of Appeals of Missouri, 1995). Melba Anderson discovered the limits of gratitude. For 40 years, she had let her neighbors, the Howalds, use a 7-foot wide path across the corner of her land to get to their property. In 1991, the Howalds – apparently deciding that they shouldn’t settle for free use of a mere path where a free superhighway could be installed – brought bulldozers onto the Anderson land to “improve” the path. They knocked down trees, dug up rocks, and gouged things out but good.

Ms. Anderson sued and won an injunction throwing the Howalds and their bulldozer out, but the trial court only gave her $6.40 in damages.

She appealed.

Held: The puny damage award was reversed. The Court of Appeals noted that “ordinarily, the measure of damages… is the market value of the property at the time it was removed from the land.” In this case, the trees being shade and ornamental trees of no commercial value, that value was slight. That seemed to offend the Court, especially when it saw the photos in the record of the extensive damage done by the Caterpillars.

The Court held that “in at least one instance, this court approved the use of before and after values of the real estate as a measure of damages… where the things taken, injured, or destroyed by a willful trespass have no substantial market value when considered in their severed state. The “general rule is that the measure of damages for trees that are not valuable for timber is the injury to the land caused by destroying them. This rule is based on the obvious reason that the value of such trees considered apart from the land would not be adequate compensation for the trespass.”

Courts, then, generally apply a measure of damages that considers the fair market value of the property with the tree and without the tree (which can be substantial for a single huge specimen that is the signature tree on the property). More often, the courts hold that the proper measure of damages is the replacement cost of trees rather than the value of real estate, even if the property owner cannot prove that the destruction of trees diminished the value of the property as a whole.

Courts often permit consideration of such replacement costs where the trees have an aesthetic value to the owner as ornamental and shade trees or for purposes of screening sound and providing privacy in determining damages. Because one simply cannot replace a 50-year-old sugar maple tree with a similar tree, the courts apply a multiplier to the replacement cost to account for the number of years it will take for a replacement tree to reach the size and maturity of the tree that was removed.

– Tom Root

Case of the Day – Monday, December 11, 2023

Posted on December 11, 2023 by TLRoot tagged.

GARBAGE IN, GARBAGE OUT

Originally a phrase used in the computer programming world, “garbage in, garbage out” was just too useful an aphorism to stay in Silicon Valley.

Today’s case provides a good illustration as to why. One sanitation worker was backing up a garbage truck while the other, the son of a spelling-challenged mother named Kert Seymour, was holding onto a platform on the back. The truck veered too close to a tree growing along the boulevard, and strap-hanger Kert bashed his hand between the truck and the tree trunk.

If you have not studied the law (having instead favored useful pursuits), you might think that garbageman Kert had only himself to blame for not moving his hand as the tree trunk approached. Or maybe blame the driver, who should have kept the truck farther from the tree. That’s much too logical.

There are two problems with your thinking. First, Kert couldn’t very well sue himself. There was no money there. Likewise, he could not collect much from his co-worker driver, who, if he had a lot of money, probably would not be driving a garbage truck. The employer, who owned the truck, was immune from liability to sanitation worker Kert except for whatever worker’s comp would pay. Which clearly wasn’t enough to satisfy Kert.

So what to do? The answer is obvious. You sue the homeowner’s association that owned the private road on which the accident happened, arguing that if it had not planted the tree where it did, the accident could have been avoided.

If you’re a plaintiff’s lawyer, this is how you follow the money. There’s just one problem: how do you convince a jury to overlook the fool who didn’t pay attention, or the driver who couldn’t back straight, in favor of the association that owned the tree?

The three essential elements of negligence are (1) the negligent party must owe a duty to the injured party; (2) the negligent party must have breached its duty; and (3) as a direct result of that breach, the injured party must have been actually damaged.

Before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. That was the issue in this case.

Alleging that the defendant breached a duty to sanitation worker Kert for letting a tree grow was “garbage in.” Unsurprisingly, Kert got “garbage out.” You’d think he would have known that’s how garbage works.

Seymour v. Lakewood Hills Association, 927 S.W.2d 405 (Court of Appeals of Missouri, Eastern District, Third Division, 1996). Kert Seymour (whose spelling skills obviously landed him in his chosen occupation) was a sanitation worker. Kert was riding on the back of a garbage truck when his co-worker, who was backing the truck down a private residential street, hit a tree standing in the boulevard. Kert’s hand was crushed between the truck and the tree.

The road was owned and maintained by the Lakewood Hills Association, so naturally, Kert sued the Association for planting the tree where his co-worker could hit it. After all, while its connection to the accident seemed tenuous, the Association did have something no other likely defendant had: money.

The trial court said Kert’s position was garbage, and granted summary judgment for the Association. Kert appealed.

Held: The Court of Appeals held the Association owed Kert nothing.

Under Missouri law, if a condition on the property is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, the landowner does not breach its standard of care unless it should anticipate the potential harm despite such knowledge or obviousness. The failure to protect an invitee like Kert against conditions that are open and obvious as a matter of law does not fall below the applicable standard of care.

Lakewood Hills argued the tree in the center of the road was so open and obvious that a person should reasonably be expected to see it and recognize the danger posed. Both Kert and his co-worker admitted that they knew the tree was there. Kert stated that he had seen it many times when collecting trash. The tree being clearly visible from the end of the street, common sense dictates that a reasonable person would have appreciated the harm likely to occur should a vehicle strike the tree.

The Court held that “as a matter of law, that the dangerous condition presented by the tree was open and obvious.” In other words, Kert, if you remain vigilant while the truck is moving, you might Seymour.

The Court consigned Kert’s lawsuit to the dustbin of litigation. Which Kert probably emptied. One-handed.

– Tom Root

Case of the Day – Friday, November 17, 2023

Posted on November 17, 2023 by TLRoot tagged.

YOU HAVE ONLY YOURSELF TO BLAME

I just got back from a week in London. It may sound like I’m bragging, so I won’t mention the day I spent talking Southampton football with Prime Minister Rishi Sunak, my counseling of the King on bringing Prince Harry and Meghan back into the fold, or my reviewing the rehab plans for Big Ben.

The primary reason I mention none of those things is that the reason for the trip was so we could see our granddaughters. They live in London these days (with our son and daughter-in-law, but once the grandkids arrive, your children become an afterthought).

While there, I rented a car and tried English driving for the first time. That is my segue into today’s topic, the very English common-law tort of negligence.

Negligence is a tort law concept borrowed from the English and a living, breathing description of my adventures in a four-door, manual-shift Skoda. To prove negligence, one either needs a photo of me in the driver’s seat navigating a roundabout, or one must prove three essential elements The negligent party must owe a duty to the injured party, the negligent party must have breached its duty, and as a direct result of that breach, the injured party must have been actually damaged. Surprisingly, most of the litigation on tree-related negligence results from questions of the extent of the duty owed to the injured party.

The bulk of the negligence actions related to trees result from trees or branches falling on people and property. The states are nearly uniform in holding that a property owner who has actual or constructive notice of a defect in his or her trees has a duty to owners of adjoining property and the public who may be passing by to ensure that the tree does not injure persons or property.

Actual notice is fairly self-explanatory. A landowner who has been told that a tree is defective has actual notice. However, constructive notice is much more nuanced. Visual evidence of decay, a history of falling branches, advice of an arborist or tree professional that a tree poses a hazard – all of these may be enough for a court to find that a property owner was on constructive notice of a defect. Some cases have suggested that if a tree professional installs cabling or bracing to support a tree, that fact alone is constructive notice to the landowner of a serious defect in a tree.

Even if evidence of decay or distress is not clear from the ground, some courts have held that landowners have a general duty to regularly inspect trees on their property that may cause damage or injury if they fall. Most states recognize two levels of landowner duty. A rural property owner, because the size of the land holdings is generally larger than in urban areas and because there is a lesser concentration of people and property to be injured, has a duty to inspect that is significantly lesser in scope than the duty of a urban landowner. An urban landowner usually has fewer trees, and those have a greater likelihood of causing injury or damage if they fall. Thus, what is an adequate inspection program for a rural landowner may not be enough for an urban property holder.

Generally, before negligence can be determined, the extent of the defendant’s duty to the injured has to be defined. The great illustration can be taken from today’s case:

Sellens v. Christman, 418 S.W.2d 6 (Sup. Ct. Missouri, 1967). Elvin Christman had invited Jim Sellens to go out with him to try out his new chainsaw. They tacked some trees in the woods, and promptly dropped the first one into a notch on a second one. Jim concluded the lodged tree was safe, and was cutting a second tree near it when the whole thing gave way. The lodged tree collapsed on Jim, causing the loss of a leg. Elvin was nowhere nearby at the time.

Nevertheless, Jim sued Elvin.

The trial court held that Jim had not established that Elvin was at fault for the accident. In fact, there was no evidence that anyone other than Jim was at fault for the accident. But Jim tried to get a leg up by appealing. The case found its way to the Missouri Supreme Court.

Held: Jim didn’t have a leg to stand on.

The Supreme Court upheld the dismissal but focused more on the duty that Elvin owed to Jim. It held that Jim was an invitee, meaning that Elvin had a duty to take ordinary care to prevent injury to Jim, more care than if Jim were a mere trespasser.

Although Jim’s status was an invitee, the Court said there was no breach of any duty by Elvin to make the premises safe for Jim or to warn him of the danger. “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like,” the Court reasoned, “in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers.”

You have only yourself to blame, Jim.

– Tom Root

Case of the Day – Thursday, September 28, 2023

Posted on September 28, 2023 by TLRoot tagged.

FORGIVE US OUR TRESPASSES

I found myself wondering the other day, as I mentioned an allegation of trespass in a post, whether we talk about basic garden-variety trespass often enough. So here we are.

The United States inherited the law of trespass from medieval England. At common law, a trespass upon land occurred when a person, acting without authority, physically invades or unlawfully enters the premises of another, and damages result (even though the damages may be insignificant). The entry may be intentional or negligent. Just about every entry onto the land of another that occurs happens due to negligence, because it requires remarkably little negligence to accomplish a trespass.

I watched a lot of football this past weekend, starting with high school football on Friday night, as my beloved Norwalk Truckers blew away the Vermilion Sailors, 27-0. Saturday night, my bride of 44 years and I watched our Ohio State Buckeyes – we went to OSU, so we have a right to be Scarlet and Gray fans – pull off a last-second win by literal inches over Notre Dame. Sunday, I was shocked, shocked I tell you, to watch the Cleveland Brown thoroughly pound the hapless Tennessee Titans, 27-3. Mighty fine weekend, I’d say.

But because I have football on my mind, let me liken trespass to catching a pass on the inbounds white line. If you deliberately run out of bounds and then catch the pass, the pass is no good. Call it trespass. If you catch one right on the line, and your foot accidentally steps on the white line as you catch it, the pass is no good. It’s still trespass.

If you catch a pass in bounds, and while you’re in the air catching it, a defender wraps you up and carries you out of bounds, however, the pass is complete. It’s not a trespass.

In other words, you can intentionally trespass. You can negligently trespass. But if your body is deposited on someone else’s land through involuntary means, it’s not a trespass.

Trespass is most commonly asserted by people who have lost trees to a misguided tree cutter taking timber on the wrong side of an unclear or misunderstood property line. It has also been applied where people took self-help a little too far, and went onto neighboring property to aggressively trim a problem tree. Trespass has been found where people mistakenly believed they owned the property they had occupied, where a party has negligently caused livestock or water to enter another’s land, and where someone was on the property with permission to cut down certain trees, but cut down trees he had been told to avoid.

Muir v. Ruder, 945 S.W.2d 33 (Court of Appeals of Missouri, Eastern District, 4^th Div. 1997). Jim Ruder, a landscaper, agreed to buy trees on the Muirs’ property. Ruder was to remove the trees, and pay $6.00 a tree. He also agreed to transplant 120 trees for Muir, and repair any ruts or holes created in the process. The deal went south, as such deals sometimes do, and the Muirs sued. They said Ruder had committed trespass by breaking the contract and then entering the property and unlawfully removed about 220 trees. Ruder said he only took 130 trees, and the rest were stolen by persons unknown. He admitted he didn’t paid for any trees, fill in ruts or holes, or transplant any trees. He claimed he told the Muirs he didn’t have the right equipment to move the specific trees they wanted transplanted.

The trial court agreed that Ruder had trespassed, and awarded the Muirs $6,160 in damages.

The Court of Appeals reversed, providing some basic guidance on the law of trespass in the process. It said the evidence failed to prove the elements of either trespass or conversion. Common-law trespass, the Court said, is the unauthorized entry by a person upon land of another. For damages to be awarded for trespass, a plaintiff has to show that the defendant intended to be on the property and that he directly interfered physically with that property. Removing trees from someone else’s property may also be statutory trespass. A person can wrongfully cut down a tree in two ways, either of which would result in trespass under § 537.340 RSMo. He can enter the land without permission and cut down the trees. Alternatively, he can enter with the owner’s consent and then exceed the scope of the consent by cutting down trees without permission.

Here, the Court found, Muir – wisely or not – had given Ruder permission to enter his property. Muir argued that the agreement was broken because the landscaper removed the first batch of trees, but did not transplant the trees Muir wanted moved. Ruder testified that he had already removed the first trees before he realized that the trees Muir wanted transplanted were too large for his equipment. Ruder nevertheless returned to the property for more trees. Muir said he “objected” when Ruder took the second load before paying for the first load, but he didn’t tell Ruder to leave or to bring the first load of trees back. Instead, he watched Ruder take the second load, and even had Ruder show him how to bag trees. The Court said, “One who silently watches another enter upon his land, and then willingly engages him in conversation while standing on the premises, may not later complain of trespass.”

More high school football coming up tomorrow. Go, Truckers!

– Tom Root

Case of the Day – Thursday, April 27, 2023

Posted on April 27, 2023 by TLRoot tagged.

DEDICATED TO THE ONE I LOVE

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

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

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

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

The Brands tore up the asphalt a bit…

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

The trial court obliged on a record that was pretty thin. It ordered that Corewood was public, told the Branches to repave it, pay $10,000 to the Tinnes for having obstructed it, and $250 (which it trebled to $750) for having trimming the Tinnes’ trees without permission.

The Court of Appeals reversed it all.

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

And how much was nominal in this case? The Court of Appeals cut the damage award to one dollar. About enough for one-fifth of a Starbucks Double Chocolaty Chip Crème Frappuccino® Blended Crème.

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

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

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

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

The Brands appealed.

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

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

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

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

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

– Tom Root