nuisance

EVEN THE PARANOID HAVE ENEMIES

Those tin hats really work — it’s just that THEY want you to think there’s something wrong with wearing ’em …

Could you say that “it’s not paranoia if they’re really out to get … your trees?” Put on your tin foil hat, conspiracy enthusiasts! Or not, if you think that’s an aluminum industry conspiracy.

In this case, the Riehl family had what could be fairly described as a mania for not trimming their trees and bushes. Their preoccupation with the natural look made the neighbors’ use of a common roadway rather tough. As a result, the Riehls were sued in the 1970s, and while the neighbors were found to have an easement, the court didn’t force the Riehls to trim the trees.

Some 15 years later, the City of Rossford passed a nuisance ordinance aimed at people who didn’t trim their trees along streets. And suddenly, the odor of conspiracy wafted through the town, spread by black UN helicopters …

The City sued the Riehls in 1997 but then cut a deal with them by dismissing the action and trimming the Riehls’ trees itself. But in subsequent years, aided no doubt by the Illuminati and Council for Foreign Relations, the City cited the Riehls almost annually, hired contractors to cut the trees down, and then billed the Riehls for the trimming. Finally, the Riehls had had enough, and — proving that a man who acts as his own lawyer has a fool for a client — they filed their own complaint, alleging everything from fraud to contract breaches to infliction of emotional distress to multiple Constitutional law violations. And they sued the City, the prosecutor and all of their neighbors.

The trial court (probably in the pockets of the New World Order) threw out the suit even with respect to the defendant who didn’t answer. The Court of Appeals agreed, expressing bafflement as to why the neighbors were even named, and finding that the fact that the City made a deal in 1997 didn’t mean that it couldn’t come back every year after.

Time for the Riehls to raise their own militia … and maybe set them to work trimming the bushes.

Riehl v. City of Rossford, 2007-Ohio-3824, 2007 Ohio App. LEXIS 3498, 2007 WL 2164158 (Ct. App. Ohio, July 27, 2007). This case is the latest installment in the ongoing dispute between property owners in Eagle Point Colony about an undedicated access road/alley commonly known as Thirwal Drive. The Riehls owned property along Thirwal Drive and their perpetually untrimmed trees and bushes encroached on the road to the detriment of other property owners who use it, as well as delivery and trash truck servicing all of the owners along the road. In 1977, a number of the other residents sued the Riehls seeking to enjoin them from clogging, choking or narrowing the width of Thirwal Drive. The court ruled that the other owners had an easement by prescription over the Riehls’ land in the form of Thirwal Drive and permanently enjoined the Riehls from clogging, narrowing, or impeding the use of Thirwal Drive.

But when the neighbors filed a contempt motion because the Riehls weren’t cooperating, the trial court determined that the Riehls didn’t have the obligation to remove or trim the bushes and trees, or otherwise to repair or maintain the easement.

Thereafter, in 1995, Rossford City Council passed Ordinance No. 94-045, which held that “[e]very occupant of land shall maintain his property so that no brush, trees, bushes or obstructions extend into, on or over any public or private way generally used for the passage of persons or vehicles so as to obstruct or interfere with the passage of such persons or vehicles, or with the ingress and egress of emergency, maintenance, repair or service vehicles or equipment.” Pursuant to the ordinance, the City cited the Riehls in 1997 but later dismissed the case. Thereafter, it cited the Riehls virtually every year, trimmed the trees and bushes itself, and billed the Riehls for the cost.

Finally, in 2005, the Riehls sued the City, the prosecutor, and all of the other neighboring property owners. The poorly drafted complaint alleged the City had breached a contract by passing an ordinance charging the Riehls for the trimming, committed fraud, violated the Riehls’ property rights, and retaliated against them by enforcing the nuisance ordinance. The trial court dismissed the action on all counts as to all defendants. The Riehls appealed.

Held: The dismissal was affirmed. The Court said the current litigation, reduced to its essence, was simple: it involved the Riehls’ continuing violation of Rossford’s nuisance ordinance, which was passed after the 1978 decision. Nothing in the prior decision of the trial court had any effect on the subsequently-passed ordinance. And, the Court held, the Rossford nuisance ordinance had a real and substantial relation to the safety and general welfare of the public and is neither unreasonable nor arbitrary. It seeks to prevent Rossford property owners from obstructing any public or private way that is used for the passage of persons or vehicles, including emergency, maintenance, repair or service vehicles or equipment. The nuisance ordinance applies equally to the Riehls and all other residents of Rossford.

At its heart, the Riehls’ complaint alleged that the 1997 judgment granting the city’s motion to dismiss the first nuisance action filed against the Riehls, amounted to a res judicata determination that the Riehls never again had an obligation to trim their bushes and trees and prevent them from obstructing Thirwal Drive. However, the Court held, a political subdivision or an employee of a political subdivision is immune from liability in a civil action for injury or loss to property when the claims are in connection with the political subdivision’s or employee’s performance of legislative or quasi-legislative functions, or the enforcement or nonperformance of any law. What’s more, the Supreme Court of Ohio has expressly stated that “[t]here are no exceptions to immunity for the intentional torts of fraud and intentional infliction of emotional distress …”

Because the Riehls’ claims against the city arose out the city’s performance of governmental functions, and because no exceptions to immunity apply with regard to the Riehls’ claims against the city for fraud and intentional infliction of emotional distress, the city was entitled to summary judgment on those claims.

The city’s immunity doesn’t extend to contracts. The Riehls argued that in 1997 the city of Rossford entered in to a settlement agreement with the Riehls approved by Judge Dwight Osterud. They claim that the city agreed to trim the Riehls’ bushes and trees that encroached on Thirwal Drive. Nevertheless, in 2003 and 2004, the city of Rossford passed ordinances assessing the costs of trimming against the Riehls’ real estate. The Riehls claim that the February 1997 judgment entry amounted to a contract and that through their actions, the governmental defendants breached this contract with the Riehls.

The Court rejected their argument. It held that there was no enforceable plea agreement. The City got no benefit and the Riehls suffered no detriment from the deal. Thus, the Court held, there was no consideration for the contract, and thus there could be no contract. The Riehls also argued that assessing them for trimming their trees constituted an unconstitutional taking of their property without compensation. But the Ohio Supreme Court has held that the government must pay just compensation for total regulatory takings “except to the extent that ‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property.” That’s all that was happening here. There was evidence that the nuisance ordinance had been enforced against other residents, too, so the Riehls’ claim of disparate treatment failed as well. Finally, there was no evidence that the city had enforced the tree nuisance ordinance against the Riehls as punishment for their voicing their views pursuant to their First Amendment rights.

Just like everyone else in Rossford, the Riehls must keep their bushes and trees trimmed at their own expense.

– Tom Root

POUND ON THE TABLE

The sun setting in the east?

Will Mark and Elizabeth Heil be having their neighbors Stewart and Christina Hines over to enjoy margaritas and the sun set over the ocean? Don’t bet on it for two reasons, neither of which is more likely than the other: First, the Heils and Hines are neighbors on beautiful Hilton Head Island, South Carolina, and thus, it’s physically impossible for them to watch the sun set in the east over the Atlantic. The second reason is that they’re pretty clearly NILOs (neighbors in location only). They may have homes next to each other, but there’s no love lost between them.

The Heils had a vacation home on the Island, next to a house owned by the Hines (who, being more frugal, perhaps, rented it out to tourists). One November, the Heils visited their Shangri-La, only to notice branches from one of the Hines’ healthy oak trees overhanging the house’s roof. They observed no roof damage and saw nothing to suggest the tree was diseased or failing. Nevertheless, the Heils asked the Hines to do something about it.

The Hines were good neighbors, albeit thrifty ones. They asked the Heils to get some bids from tree services, and the Heils complied with bids in the thousands. The Hines found Sam’s Tree Service, a guy with no insurance, an undocumented worker (guess Biden should have built that wall, right?), and probably a beat-up truck, too, for all we know. But he was properly licensed and had no record of complaints. More importantly for the Hines, Sam did the job for a mere $500.00.

Just a little hole…

Many months later, when the Heils next visited their house, they found a hole in the roof and water damage everywhere. Their insurance carrier denied coverage because inspectors determined that the Hines’ tree had rubbed against the roof, causing the hole. (That alone is worth a whole blog, but we’ll pass on that issue). The Heils demanded that the Hines and Sam pay for the damage, but both declined.

Sam said his climber performed the limb removal while he supervised from the ground, and never stood on the roof. Instead, he was suspended above the roof on a safety harness. The encroaching limbs were tied off, cut and lowered down to the ground. While performing the trimming, Sam’s man noticed only a dented shingle, nothing that would affect the roof’s integrity, so he did not pass on the information about the shingle.

The Heils, of course, sued. They fired a negligence blunderbuss at the Hines, saying they were negligent for not inspecting the tree, for hiring Sam, for paying so little to have the work done, and even for letting an undocumented worker do the trimming. The trial court found no evidence that the Hines had breached any duty to the Heils by failing to inspect and maintain their tree, and by negligently hired Sam’s Tree Service.

The court gave Heils short shrift, upholding the standard that homeowners have no duty to repair damage caused by their healthy trees of which they are not aware. The Hines hired a tree service within a month of being asked to do so, and no evidence explained why – let alone showed that – Sam’s low price, lack of insurance, or undocumented worker status led to the hole that the Heils found in their roof.

The real problem here was that the Heils, apparently unaware of the Massachusetts Rule or too chary to care, left it to well-meaning neighbors to remedy a problem that belonged to them. The Hines’ principal mistake was in not telling the Heils to pound sand to begin with, and to trim the branch themselves.

Sure, you say, but how about the Hawaii Rule? Fancher v. Fagella? To that we say, even if the Heils could have shown that the tree was a nuisance – which on verdant Hilton Head Island (where the vegetation grows prodigiously) might be a real stretch – the costs borne by both parties probably would have been less. The branch was healthy, the cost of remediation was slight, and the Heils were consenting adults who should look after the integrity of their own house.

There’s an old legal aphorism that when your case is weak on the law, pound on the facts. When your case is weak on the facts, pound on the law. When your case is weak on both the law and the facts, pound on the table.

The Heils broke the table.

Heil v. Hines, Case No. 2015-001988 (Court of Appeals of South Carolina, Nov. 9, 2016). Mark and Elizabeth Heil had a vacation home on Hilton Head Island, next to a rental house owned by the Stewart and Christina Hines. One fall, the Heils observed branches from a healthy oak tree owned by the Hines overhanging their house roof. They saw no roof damage, and no disease or decay on the tree. The Heils asked the Hines to trim the tree.

At the Hines’s request, the Heils provided bids from tree services, but the Heils hired a local company, Sam’s Tree Service. Sam’s was licensed but not insured, and he had used a worker who was (horrors of horrors!) an illegal alien. Sam’s charged $500.00 to trim the tree.

The following spring, the Heils found substantial water damage in their home from a hole in the roof. Their insurance company denied them coverage because inspectors found the damage was from a roof hole caused by the Hines’ tree.

The blunderbuss – a crude but destructive weapon. Likewise, the blunderbuss complaint… Sam’s was negligent because its trimmer lacked a green card? Really?

The Heils sued, contending that the Hines were negligent for not inspecting the tree and for hiring Sam’s, who must have caused the damage and was too cheap, too uninsured and too willing to hire people who were in the country illegally). The trial court granted summary judgment to the Hines, finding that the Heils lacked evidence either that the Hines had neglected their healthy tree or that Sam’s removed the branch in a negligent manner.

The Heils, of course, appealed.

Held: The Court of Appeals ruled that the Heils “produced no evidence from which an inference could be made that [the Hines] breached their duty of care.” The Court held that to make out a claim for negligence, the Heils had to allege facts showed (1) a duty of care owed by the defendant; (2) a breach of the duty by a negligent act or omission; and (3) damage proximately caused by the breach.

Here, the Court said, the oak tree was a live, healthy tree, and the Heils – who didn’t see any roof damage themselves – presented no evidence that the Hines “could have observed, by reasonable inspection, the damage possibly caused by the tree limb.” Note the word “possibly” – the plain fact was that the Heils had no evidence that the tree limb caused the hole, or even when the hole was formed.

What’s more, the Court said, when the Hines were notified the tree needed to be trimmed because it was encroaching on the Heils’ roof, the Hines hired Sam’s Tree Service and the work was completed within a month of notice. The Heils had no explanation – let alone evidence – for their claim that Sam’s Tree Service’s use of an undocumented worker and its low fee somehow constituted a breach of the Hines’ duty to the Heils.

The Heils had no proof that Sam’s Tree Service performed its work in a negligent way or that “another tree service company would have known or communicated that a single dented shingle was cause for structural concern – if the dented shingle was the cause of the damage.”

– Tom Root

Case of the Day – Thursday, March 7, 2024

EVEN THE PARANOID HAVE ENEMIES

Case of the Day – Wednesday, March 6, 2024

POUND ON THE TABLE