Case of the Day – Tuesday, October 8, 2024

Posted on October 8, 2024 by TLRoot tagged.

I’M FROM MISSOURI

All right, I’m not from Missouri, but I have passed through the “Show Me State” a few times, and it’s a pretty nice place. But, given their reputation for being hard to convince, how would Missourians treat encroachments to their properties from trees not their own?

On one hand, there’s the state nickname. The most well-known and widespread story features Missouri’s United States Congressman, Willard Duncan Vandiver, who gave a speech in 1899 to some Philadelphians in which he said:

 ”I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”

 His statement may be interpreted as a claim that Missourians are not naïve: If you want someone to believe you, you better have convincing evidence.

On the other hand, Missouri’s official motto is “Salus populi suprema lex esto,” which my sainted Latin teacher, the late Emily Bernges, would have told us translates to “the welfare of the people shall be the supreme law.”

All right, let’s run with that.

When Pete Hasapopoulos’s driveway started crumbling from neighbor Joyce Murphy’s Chinese elms, was his good the supreme law? Or, because Missourians are not naïve, should he have known that Joyce’s Chinese elms were going to grow? After all, a natural tree largely does what it wants to do. It may sit on one owner’s property, but above ground, the branches may spread over the neighbor’s property, and leaves or fruit or even deadfall may make a mess of the neighbor’s house, outbuildings or yard. Underground, the root systems may spread until they meet retaining walls, basements, septic systems and underground utilities.

This phenomenon is called “encroachment.”

Traditionally, the rule has been that any property owner has the right to trim back branches and root systems to the property line, at his or her own expense. This “self-help” doctrine is known as the Massachusetts Rule, so called because it was first articulated in a Massachusetts case known as Michalson v. Nutting. The dark side of the Massachusetts Rule was that no matter how destructive the neighbor’s tree was to your property, you had no right to sue your neighbor to force him or her to trim the tree or roots or to get any financial help from your neighbor for costs you incurred in doing it.

As American society became more urbanized, other courts took a more liberal view. When a neighbor’s banyan tree – a monstrosity of a tree – began overgrowing Mr. Whitesell’s property in Honolulu, he sued his neighbor to get a court order to force the neighbor to take care of the problem. Impressed by the sheer magnitude of the nuisance caused by the tree, the Hawaii court held that in Whitesell v. Houlton that while anyone had the right of self-help as described in the Massachusetts Rule, when a tree caused sensible harm to a neighbor, the owner of the offending tree could be ordered to trim the tree or roots at his or her own expense. This is called the Hawaii Rule.

The Hawaii Rule has gained traction in a number of states over the past 20 years. Tennessee, New Mexico, North Dakota, Arizona and New York follow it. Several other states follow the rule with variations.

But not in Missouri. What’s that? “Show me,” you demand? All right, you’re from Missouri. We will.

Hasapopoulos v. Murphy, 689 S.W.2d 118 (Court of Appeals of Missouri, Eastern District, 1985). Pete Hasapopoulos experienced problems from overhanging branches and cracking of his driveway caused by the roots of two Chinese elm trees owned by the next-door neighbor, Joyce Murphy. The trial court held that Joyce was not liable, and Pete appealed.

Held: Joyce prevailed.

The Court of Appeals, agreeing with other jurisdictions “which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees,” found that Joyce was not liable. At the same time, it held that Pete retained a right of self-protection by cutting off the offending roots or branches at the property line.”

The Court observed that Missouri is “squarely among those jurisdictions which find no cause of action for damages to neighboring property caused by encroachment of the roots or branches of healthy trees, but leaves the plaintiff to his right of self-protection by cutting off the offending roots or branches at the property line.” And here, Pete had no proof the chinese elms were defective.

Application of the Massachusetts Rule, the Court, results in no injustice in this case. “Neither plaintiffs nor defendant committed a wrongful act. We are not inclined to find defendant acted unreasonably in permitting perfectly healthy trees to grow, and certainly defendant intended no harm thereby. The trees and their proximity to plaintiffs’ land existed when plaintiffs purchased their residence. They must be charged with awareness of the potential effects of growing trees. Recourse to self-help to protect from damage and to eliminate annoyance from overhanging branches was available to plaintiffs for 15 years before they had the branches cut off at the property line. Imposition of liability upon the tree owner under such circumstances would create the potential for continuous controversy between neighbors and could promote harassment and vexatious litigation, disruptive of neighborhood serenity. Possible exposure to liability would warrant the uprooting of trees and shrubbery in proximity to boundary lines resulting in non-aesthetic barrenness.”

– Tom Root

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