Case of the Day – Wednesday, January 15, 2025

Posted on January 15, 2025 by TLRoot tagged.

THERE ARE LEGAL COSTS, AND THEN THERE ARE LEGAL COSTS

Let nothing come between a lawyer and his fee.

You might be cynical, and see today’s case as nothing more than a lawyer worried about collecting a large and unwarranted fee. But the case is much more than that.

The facts are rather prosaic. Some landowners failed to carefully mark the common boundary with their neighbor before setting a timber company loose on the property. Sure enough, the cutters harvested some of the neighbor’s trees. That much wasn’t an issue.

When Valarie Garvey sued the Chaceys for timber trespass, property damage and a collection of related causes of action, the Chaceys hired some aggressive litigators. Their lawyers knew that the best trial defense often is a good pretrial offense. They fought tooth and nail before trial, gaining their best tactical high ground when Valerie’s lawyer inexplicably didn’t identify the plaintiff’s timber expert by the pretrial deadlines.

The expert was crucial because he was going to testify as to the value of the timber that had been wrongfully cut. But once the expert established the value of the missing trees, Section 55-332 of the Virginia Code would let Valerie Garvey collect three times the value of the wrongly-cut timber, plus reforestation costs, plus other damages to the property (such as the private road the timber harvesters ripped up) plus “legal costs directly related to the trespass.” In short, it looked like a big payday for Valerie Garvey. She just had to do one thing. She had to prove the value of the stolen timber.

Alas, she screwed it up. Perhaps it would be more appropriate to say her lawyer screwed it up. Without the expert, Valerie had no way to get the value of the timber into evidence. When the jury decided the case, it was able to award her the princely sum of $15,135.00 (only a fraction of the reforestation costs she estimated to be $78,000.)

Valerie’s lawyer, trying to save a case that was going south pretty fast, successfully convinced the trial court that the “directly associated legal costs incurred by the owner of the timber as a result of the trespass” included attorneys’ fees. Valerie claimed she had spent over $135,000 in legal fees, and the trial court awarded even more than that – $165,000 – in fees.

I doubt that Valerie’s lawyer was going to get all of that pile of cash. In fact, Val had every right to be as mad as a wet hen over counsel’s missing the expert witness deadline. I suspect that the lawyer and client had made a deal to salvage something out of the case, a deal that would have counsel ending up with little more than cab fare (but no malpractice claims). Unfortunately, we’ll never know, because, on appeal, the Chaceys convinced the Virginia Supreme Court that whatever “directly associated legal costs” might be, they are not “attorneys fees.” The Supreme Court was impressed that wherever the legislature intended to authorize the award of attorneys fees – in over 200 statutes in the Code – it was able to clearly say so.

The Chaceys – not satisfied with hitting a triple – swung for the fence. They asked the Supreme Court to rule that where a plaintiff claiming timber trespass did not prove the value of the missing timber, the case should be thrown out. The Supreme Court disagreed. Proving a timber trespass does not require that one prove the value of the purloined pines. Of course, not doing so cuts the plaintiff out of a lot of damages, but the offense does not depend on proven damages. It just requires that a trespass to timber occur, whether the tree is worth anything or not.

As for Valerie’s attorney, I suspect he marched straight from the courtroom to his malpractice carrier’s office.

Chacey v. Garvey, 295 Va. 1, 781 S.E.2d 357 (Supreme Court of Virginia, 2015). In 1995, Valerie Garvey bought 50 acres of land from Allan and Susan Chacey. The Chaceys retained ownership of adjacent property, and they reserved to themselves an easement over Garvey’s property as a means for ingress and egress to their property.

At the end of 2012, Garvey sued the Chaceys and Blue Ridge Forestry Consultants, Inc., alleging timber theft and trespass. Garvey said the Chaceys had hired a logging company a few years previously to remove some timber located on their property, and that the company had trespassed on her property and removed timber without her permission. She alleged that she was entitled to damages for timber theft at three times the value of the timber on the stump, as well as reforestation costs not to exceed $450 an acre, the costs of ascertaining the value of the timber, and her attorney’s fees. She also asked for $30,000 for damages to her property caused by the trespass, including damage to the road, fencing, and the stone bridge.

Prior to trial, Garvey attempted to designate an expert witness for the purpose of establishing the monetary value of the timber on the stump at issue in the complaint. However, she did so too late and the trial court refused to let her expert testify during the three-day jury trial.

While she was testifying at trial, Garvey was asked by her attorney whether she had incurred legal costs in connection with the trespass. The Chaceys objected, but the trial court ruled that legal costs included attorney’s fees. Garvey told the jury that she had incurred more than $135,000 in legal costs, including attorney’s fees, which she claimed were all directly associated with the trespass. She also testified that she had negotiated with Bartlett Tree Services for the restoration of the trees, and she had paid a deposit of $440 towards that work, against a total price of $78,000.

The trial court ruled that Garvey could not recover treble damages since her expert evidence regarding the value of the timber on the stump had been excluded. However, the case could still go to the jury for consideration of damages for reforestation and legal costs.

The Chaceys argued that attorneys’ fees are not recoverable by a prevailing party in an action for timber theft pursuant to the Virginia Code § 55-331. They also contended that Garvey’s timber trespass claim should not have been submitted to the jury, because she had failed to provide any evidence related to the value of the alleged damaged timber. However, the jury found for Garvey on her claims of timber theft, trespass, and property damage. On the timber theft claim, the jury awarded Garvey $135.00 in reforestation costs. The jury also awarded her legal costs. On the trespass count, the jury awarded Garvey $15,000 in damages. The trial court held that Garvey was entitled to $165,135 in “directly associated legal costs incurred by Plaintiff as a result of the trespass, including attorney’s fees, in the amount of $150,000 …”

The Chaceys appealed.

Held: The Virginia Supreme Court split the ticket. It observed that although Virginia Code § 55-331 permits any victim of timber trespass to collect “directly associated legal costs incurred by the owner of the timber as a result of the trespass,” whether Garvey was entitled to attorney’s fees depends upon the meaning of “costs.” Garvey argued that her attorney’s fees are legal costs directly associated with the trespass. The Chaceys argued that Garvey is merely entitled to the costs necessary for the prosecution of her suit.

Tracing the definition of “costs” in other proceedings, the Court held that “the term ‘costs’ is limited to the costs necessary for the prosecution of a suit, and does not include attorney’s fees. The Code of Virginia contains more than 200 instances where the General Assembly has determined a successful litigant is entitled to ‘attorney’s fees and costs’ or ‘costs and attorney’s fees’ … However, the General Assembly did not include the right to recover attorney’s fees in this statute, something it has done in more than 200 other separate instances.”

The Court disagreed with the Chaceys, however, about the timber trespass claim. The Chaceys, no doubt wanting to capitalize on their pretrial success in keeping Garvey’s expert off the stand, argued that the trial court erred in permitting Garvey’s timber trespass claim to proceed to the jury because Garvey failed to provide any evidence related to the value of the alleged damaged timber. Essentially, the Chaceys were contending that evidence related to the value of the damaged timber is a prerequisite to awarding any of the additional damages provided for under Code § 55-332(B).

Virginia Code § 55-332(B) holds that any person who removes timber from the land of another without permission is liable to the rightful owner for “three times the value of the timber on the stump and shall pay to the rightful owner of the property the reforestation costs incurred not to exceed $450 per acre, the costs of ascertaining the value of the timber, and any directly associated legal costs incurred by the owner of the timber as a result of the trespass.” The Court held that there was nothing in the statute that stated that an owner is only entitled to reforestation costs, legal costs, or the costs of ascertaining the value of the timber after he or she had first established the value of the timber that was improperly taken. Instead, the Court said, the statute made clear that the person who removed the timber “shall be liable to pay” all of these damages to the owner. The fact that Garvey was unable to prove the value of the timber on the stump in this case did not preclude her from being able to recover the other damages she was entitled to under Code § 55-332(B).

– Tom Root

Case of the Day – Friday, January 10, 2025

Posted on January 10, 2025 by TLRoot tagged.

TRESPASS 101

There are a few basic peculiarities of trespass that I have written about repeatedly, but which do not seem to sink in. C’mon, people!

A few years ago, I was working on a case in which a utility company delivered a standard form easement to a homeowner. The owner found the document stuck in his door with a dollar bill attached. He read the easement, tore it in half, and thought nothing more of it until the utility crews – figuring he must have signed it – tore up his side yard.

The homeowner bided his time, suing many years later (but within the 21-year statute of limitations). The electric company was a Goliath and brought in a big law firm from the big city to defend it. The lawyers were derisive in their answer, contending that the trespass complaint failed because – among other reasons – the utility workers believed in good faith they had an easement to be on the land, and, at any rate, the homeowner could not prove he had been damaged by the trespass.

I well recall the utility’s lawyers’ incredulity when I suggested that at common law, their good faith and five bucks could buy a cup of coffee at Starbucks. (Well, maybe not anymore). Speaking of five bucks, the very fact of their trespass was the only damage the homeowner had to show. Where there is trespass, there are always damages. “You can go look it up,” I suggested.

They did. And the utility settled.

Today’s case – nearly as old as I am – is one where one homeowner let her pet dinosaur wander on the property of another… No, not really, but sometimes I feel that old. Instead, the case is one where a property owner thought some cedar trees were hers, not her neighbors. She hired a tree service to top them. Topping is never a good idea, but that’s a topic for another time. When the trespassing owner got sued, her defense was that she did not know the trees belonged to her neighbor, and anyway, the trespass did not cause any damage.

Those two concepts – intent is irrelevant and damages are presumed – are the bedrock of trespass.

Longenecker v. Zimmerman, 175 Kan. 719, 267 P.2d 543 (Supreme Court of Kansas, 1954). Alice Longenecker owned a piece of real estate. Kay Zimmerman, without her permission, directed the Arborfield Tree Surgery Company to enter Alice’s property and top off, injure and effectively destroy three cedar trees worth $150 each, which both provided shade and were ornamental. Alice argued she was entitled under the provisions of G.S.1949, 21-2435, to recover treble damages.

Alice and Kay owned adjoining residences and were neighbors for about five years. On September 8, 1950, Kay hired a tree surgery company to go onto Alice’s property to top three cedar trees. The trees were located some two or three feet north of Alice’s south boundary line. The trees, before being topped, were 20 to 25 feet high and were trimmed as Alice wanted them to be.

They did not meet with Kay’s approval, however. She had the tree surgeons cut about 10 feet off the tops of the trees. The topping meant the trees would never grow any higher.

Alice didn’t want the trees to stop growing. Cedars are not pruned from the top but are feathered and shaped, not cropped. Alice argued that the trees were, in effect, destroyed by improper pruning. She attached a sentimental value to them as they stood; they served a special purpose as both shade and ornamental trees.

Kay told a different story. She said the trees, prior to the time they were topped, seemed to be dying out at the top and they also contained bagworms; that two or three feet were taken out of the top of one tree and about a foot or so out of the other two; that the work she had done was beneficial to the trees and that they were not injured. The work consisted of cutting out dead branches and cleaning out bagworms.

One of Kay’s expert witnesses testified that the cutting away of dead wood would not have injured the physical condition of the tree. However, he admitted that if the top is taken out, the trunk is no longer going to grow in height. Kay said she was mistaken as to the boundary line and had believed the trees were on her property.

The trial court found for Kay, and Alice won nothing. She appealed.

Held: The trial court gave the wrong instruction on trespass, and its decision was reversed.

The determinative question on appeal was whether the trial court erred in refusing Alice’s requested instruction to the effect that because Kay had admitted the trespass on Alice’s property by topping the three cedar trees, she was liable to Alice in damages. But instead of Alice’s requested instruction, the court told the jury that because Kay had

admitted that she had plaintiff’s trees topped and therefore she has admitted the trespass and is liable in damages for such sum, if any, as you find from a preponderance of the evidence plaintiff has sustained. In arriving at the value of said trees you may, if you find from a preponderance of the evidence they have been damaged, injured or destroyed, and should take into consideration the cost of replacement and also the sentimental and utility value of the trees.

The Court held that this instruction was just plain wrong. From every trespass, that is, the “direct invasion of the person or property of another, the law infers some damage, without proof of actual injury. In an action of trespass, the plaintiff is always entitled to at least nominal damages, even though he was actually benefited by the act of the defendant.” Nominal damages are recoverable even though no substantial damages result and none are proved.”

The trial court was wrong to include a suggestion that Kay could have trespassed without causing any damage to Alice. A trespass always causes damage, even though that damage may be nominal. The trial court submitted the question to the jury whether Alice had suffered any damage by reason of the unlawful trespass, when in fact the jury should have been instructed that damages, in some amount, resulted as a matter of law.

It cannot be said that the erroneous instruction given by the trial court did not prejudice Alice.

– Tom Root

Case of the Day – Friday, November 22, 2024

Posted on November 22, 2024 by TLRoot tagged.

THOU SHALT NOT COVET THY NEIGHBOR’S TREES

Kee Nee Moo Sha, Inc., had a tract of wooded land on a lake, next to a Bible camp owned by the Baptist Church. What could be wrong with that? No loud music, no dancing all hours of the night, no boozing or riotous living… right?

The minister in charge of the Bible camp knew where the boundaries between the Baptists’ and the company’s lands lay. But he had a problem. How could he build more cabins for the pittance that had appeared in his collection plate? The Lord turned seven small loaves and a few fishes into a feast for 4,000 people. But the preacher, a lesser mortal, couldn’t stretch what little he had into more lodging.

And verily, he began to covet his neighbor’s trees.

The minister had a logger cut down about a hundred of Kee Nee Moo Sha’s pine trees. Surely this was manna from heaven — free timber! Except it wasn’t free, as the Baptists soon found out.

Kee Nee Moo Sha reacted much like a modern, more restrained version of the angry vineyard owner. It sued. The Baptists failed to heed the Lord’s admonition to make peace with the plaintiff before you get to court.

Too bad, too. The court found that the minister’s trespass was willful, and in fact, it appeared to be rather irked with the fact that – once on the witness stand – the man of the cloth wasn’t very familiar with the 9th Commandment, you know, the one about bearing false witness and all.

Kee Nee Moo Sha wanted the Baptists to pay for the enhanced value of the timber — that is, the value of the timber after being milled — and the court agreed that the measure of damages is acceptable where the trespass is willful. But the court can’t guess what that value might be, and where Kee Nee Moo Sha failed to introduce any evidence of the enhanced value, it missed its opportunity.

The Baptists introduced evidence of the stumpage value of the timber, that is, the value at the point it had been cut down, but before it was hauled and milled. Stumpage value is always lower because the owner of the timber has to deliver it to the sawmill and pay for the milling before having a product to sell. Because the stumpage value was the best evidence of value in the record, the Baptists were charged for the lower figure.

The trial court assessed punitive damages against the church camp instead of the treble damages for wrongful cutting which the statute permits. The Court of Appeals noted that this was entirely permissible because sometimes trebling the damages just isn’t good enough to deter such conduct. Where the trespass is wanton but the damage only amounts to $100, $300 might just not get an errant preacher’s attention nearly so effectively as a whopping punitive award. The Court said that either trebling or punitive damages may be applied, at the trial court’s discretion.

And thus, the Baptists rendered unto Kee Nee Moo Sha …

Kee Nee Moo Sha, Inc., v. Baptist Missions of Minnesota-Plymouth Point Bible Camp, 1990 Minn. App. LEXIS 1305, 1990 WL 212222 (Minn.App. 1990). Kee Nee Moo Sha, Inc., is a family-owned corporation organized for the purpose of holding more than 100 acres of forested land near Hackensack, Minnesota, with a resort on the southern end of the property. The resort belongs to the Baptist Church.

In late 1976, in connection with the transfer of the Baptist’s church property to another church unit, a surveyor was hired to survey and mark the boundary between the Baptists’ land and the Kee Nee Moo Sha property. Shortly after the survey was completed, and while the brush was all cleared and orange flags marked the line, the surveyor walked the boundary line with one of the church’s pastors, pointing out in detail the location of the boundary.

About four years later, the pastor wanted to build more camp buildings as cheaply as possible. Looking for some do-it-yourself financing, he arranged for a local logger to cut about 100 pine trees in and near the main camp buildings. While most of the timber was cut on church property, 26 pines were cut on Kee Nee Moo Sha land. In addition, the pastor had the logger clear-cut nearly 100 birches and aspen from the same area of the Kee Nee Moo Sha property, along with 1,600 cubic yards of sand which were used in a drain field near the Baptist building project. Kee Nee Moo Sha was unamused.

A lawsuit inevitably followed. The trial court granted Kee Nee Moo Sha damages for trespass and an injunction against further trespass by the Baptists. Unhappy with the paltry damages awarded, Kee Nee Moo Sha appealed, seeking a higher measure of compensation, a more extensive permanent injunction, and costs, disbursements and attorney fees.

Held: The appellate court upheld the trial court decision.

The Court observed that there were several possible measures of damages that could be used when trespass to property involves the taking of timber. One of the oldest is the “enhanced value” of the timber after being sawed and transported to the place of sale or transfer, to be used when the trespass is willful. The presumption in trespass cases where timber is cut is that the trespass is willful, and the burden of proof falls to the trespasser to show otherwise.

Here, the trial court found it couldn’t use the “enhanced value” measure, because no evidence was introduced to permit the Court to determine the value of the processed lumber. Consequently, the trial court used the stumpage value presented by the Baptists to set compensatory damages, and awarded punitive damages, in addition, to arriving at a fair number. The trial court, passing up treble damages that were authorized but not required by statute, awarded punitive damages instead. The trial court found that “even an award of treble damages for that taking would not adequately punish [the Baptists] or compensate [Kee Nee Moo Sha] for the willful trespass which has occurred.”

The Court agreed that the trial judge’s approach was justifiable under Rector v. C.S. McCrossan, Inc., and the treble damage statute. It observed that Rector, while referring to various measures of damages, does not refer directly to punitive damages. Punitive damages may be awarded, however, when “the acts of the defendant show a willful indifference to the rights or safety of others.” The trial court found that the Baptists’ behavior was willful, and the evidence supported it.

Minnesota law provides that any award of punitive damages will be “measured by those factors which justly bear upon the purpose of punitive damages, including… the profitability of the misconduct to the defendant… the attitude and conduct of the defendant upon discovery of the misconduct… and the total effect of other punishment likely to be imposed upon the defendant as a result of the misconduct, including compensatory and punitive damage awards.” In this case, the Court didn’t think much of the Baptists’ attitude. First, the defendant cut the timber and removed the sand in order to line its own pocket, that is, to obtain cheap building materials for the camp. Second, the pastor continued to deny any willful misconduct throughout the trial, a denial that flew in the face of proof to the contrary and his own admission that he had been shown a clearly marked boundary prior to these takings. The appellate court dryly called the jury’s awarding of compensatory and punitive damages a “just” result.

Kee Nee Moo Sha argued for the use of the “replacement value” measure of damages also authorized by Rector, but the Court noted that in instances where the cost of replacement is unreasonable or excessive in relation to the damage to the land itself, the trial court may, in its discretion, allow the jury to consider more than one measure of damages in order to permit flexibility and achieve a just and reasonable result.

– Tom Root

Case of the Day – Tuesday, November 19, 2024

Posted on November 19, 2024 by TLRoot tagged.

WOODMAN, SPARE THAT TREE!

“… touch not a single bough …”, Mrs. Chinn, the plaintiff, cried in this California case on wrongful tree cutting.

The plaintiff, Mrs. Chinn, agreed with her neighbor, Ms. Hess, to build a common fence. The worker hired to construct it found he had to trim the branches of one of Mrs. Chinn’s plum trees to make the fence fit. And that’s where the problems arose.

Mrs. Chinn’s tenants, the Schmidts, told the worker to go ahead and cut down the tree. Of course, they denied this, but the trial court found the testimony of the worker and four neighbors who watched the timber harvest unfold. Mrs. Chinn sued Forrest and Hess for trespass and for treble damages for wrongful tree cutting under California statute.

The issue was whether Forrest and Hess reasonably believed the Schmidts had the authority to speak for Mrs. Chinn. The trial court found that the authority Mrs. Chinn had given them, coupled with her own ignoring of the goings-on in the fence and tree project, gave the defendants a reasonable basis to believe that the Schmidts could give Forrest the right to cut down the tree.

Thus, there was no trespass. And, of course, no trees left standing, either.

A common fence

Chinn v. Hess, 2007 Cal. App. Unpub. LEXIS 3942, 2007 WL 1430192 (Cal.App. 1 Dist., May 16, 2007). Chinn and Hess owned adjoining properties. Chinn rented her place to the Schmidts. Chinn and Hess had agreed to build a new fence, which they had hired Forrest to complete. While he was building it, he cut down a plum tree on Chinn’s land that obstructed the planned fence.

Chinn sued Hess and Forrest for trespass and wrongful tree cutting under California Code of Civil Procedure § 733. Forrest claimed he had begun merely by trimming the tree, but the Schmidts came outside and agreed the tree should come down. The Schmidts denied this, but the weight of the evidence caused the trial court to believe Mr. Forrest.

The trial court found for Hess and Forrest. Chinn appealed.

Held: The plum tree remained cut down (of course, it would have at any rate), but Mrs. Chinn was not entitled to treble damages under California Code of Civil Procedure 733. The trial court had found that Mrs. Chinn hadn’t proved that Forrest had proceeded without consent, but Mrs. Chinn complained that it wasn’t her obligation to prove lack of consent, it was Forrest’s and Hess’s duty to prove they had consent.

The plum tree was very severely pruned.

The Court of Appeals held that lack of consent is an element of the tort of trespass, meaning that it was one of the issues Mrs. Chinn had to prove in order to establish a trespass. Still, whether she carried her burden of proof wasn’t important here, the Court said, because the trial court had concluded that Forrest and Hess had proven that the defendants reasonably believed the Schmidts were Mrs. Chinn’s agents. Mrs. Chinn had given the Schmidts authority to speak to Ms. Hess about the tree and the fence. Once the Schmidts were empowered to speak for Plaintiff, Plaintiff chose not to communicate with Defendant Marilyn Hess, and when the issue of the plum tree arose, Mrs. Chinn did not respond to messages and did not drive two miles to see the fence. Rather, Mrs. Chinn relied solely on the Schmidts to represent her regarding the fence and tree issue, just as she relied upon them to take care of the garden on the property they were renting.

The combination of her intentional conduct and her want of ordinary care, Mrs. Chinn caused Forrest and Hess to believe reasonably that the Schmidts had the authority to consent to the removal of the tree. Ostensible authority in an agent is established by showing that the principal, intentionally or by want of ordinary care has caused or allowed a third person to believe the agent possesses such authority. Such authority must be established through the acts or declarations of the principal and not the acts or declarations of the agent. Where the principal, like Mrs. Chinn, knows that the agent holds himself out as clothed with a certain authority, and remains silent, such conduct on the part of the principal may give rise to liability.

– Tom Root

Case of the Day – Monday, November 4, 2024

Posted on November 4, 2024 by TLRoot tagged.

ERR IN HASTE …

“Haste makes waste,” the old saw goes, and did it ever for the Warrens of Iron County, Missouri.

They finally realized their dream, buying land they had rented for years as cattle pasture for their dream home. First, logically enough, they wanted to mark the boundaries of the land. The Warrens asked their neighbors, the Hales, to pay for half of the survey, but the Hales declined. Why should they pay? They knew where their boundaries lay.

So the Warrens went ahead on their own. Their surveyor couldn’t find the section corner marker, which had been described in some 19th century surveys as laying certain distances on certain radials from streams and trees that weren’t there anymore. So he made his best guess, but didn’t use the technique provided for in Missouri law.

Hard to believe, but the surveyor blew it big time, marking a boundary that was way off the traditional boundaries used by the parties. In fact, his boundary included big chunks of the Hales’ land, such as their entire driveway, landscaping and front lawn and nearly their house. The day after the surveyor placed his little pink flags, Mrs. Hale complained to the Warrens that their surveyor was nuts, and she’d get another surveyor to straighten it all out. She even showed them some old 19th century abstracts, which clearly showed her ancestors had owned some of the land the Warrens now thought was theirs.

Even cousin Pug on the bulldozer had to wonder whether the surveyor’s lines weren’t just a little too optimistic …

Here’s where the Warrens blundered. Mrs. Hale might have been wrong, but her complaints, her intention to get another surveyor, and the Hales’ historical use and occupancy of the land the Warrens now thought was theirs was enough information to give a reasonable person some pause — at least for a few days while the issues were sorted out. But the Warrens weren’t the waitin’ type. They had a family member show up the next day with his bulldozer and start tearing up the Hales’ front yard and landscaping.

The Hales got an injunction, litigation ensued and another surveyor took a whack at the boundary. Oops. The Warrens’ surveyor screwed it up, the court said, failing to use the prescribed method for finding a corner where the original corner was lost. The disputed land really belonged to the Hales, and the Warrens — who had torn up things too quickly — were socked with treble damages under a Missouri statute applying where one destroyed trees or landscaping of another without probable cause to believe the land was his. The unseemly haste of the Warrens to bulldoze the disputed tract, where there seemed to be no need for such fast-track excavation, evidently played a role in the Court’s determination.

Act in haste, repent in leisure.

Hale v. Warren, 236 S.W.3d 687 (Mo.App. 2007). The Warrens bought 64 acres in Iron County, Missouri, that they had rented for the previous nine years, intending to build a home on the land and to continue to graze their cattle there. The Hales owned 80 acres or so next to the Warrens, land that had been in that family for over 150 years.

After buying the property, the Warrens wanted to have their property surveyed before beginning on the house, so they asked the Hales to share the cost of a survey. When the Hales refused, the Warrens went ahead on their own. Their surveyor determined that part of the Hales’ yard and their entire driveway lay on the Warrens’ property, as well as other areas. The surveyor marked the boundary with pink flags.

The next day, Mrs. Hale contacted Mrs. Warren about the pink flags, telling her that she disagreed with the survey, especially with one of the section corners from which measurements were taken. Nevertheless, the Warrens began bulldozing and clearing the land the next day, including right in front of the Hales’ home and along the western border of their property, within the area set out by the pink flags. By the next day, the Hales had obtained a temporary restraining order against the Warrens, barring them from “further bulldozing or other acts of destruction and possession …” The Hales then hired their own surveyor, who found that a section corner used in old surveys had been lost and — applying Missouri law — calculated a starting point by a procedure known as “double proportional measurement.” At the same time, they sued the Warrens to quiet title and for trespass.

The trial court found that the Hales owned Tracts 1, 2, and 3 by adverse possession, and that the Warrens’ survey was “not accurate and correct” but that the Hales’ survey was. The trial court entered a permanent injunction against the Warrens, prohibiting them from entering onto the land in question and assessing treble damages in favor of Hales under V.M.S.A. § 537.340 for $6,300.00. The Warrens appealed.

Held: The trial court was upheld. Much of the decision related to the appropriate use of the “double proportional measurement” system under Missouri law, an interesting if technical discussion. However, the Court’s treatment of the treble damages award in favor of Hales is relevant to arboriculture law. The Court agreed with the trial court that the Warrens lacked probable cause to believe that the property being bulldozed was their own.

Section 537.340 of the Missouri Code imposes treble damages for the wrongful cutting down of trees, without any showing of negligence or intent required. The Court observed that §537.340 “is a penal statute which must be strictly construed.” It is tempered by § 537.360, which holds that if defendant had probable cause to believe land was his own, plaintiff shall receive only single damages, with costs.”

Too bad the Warrens hadn’t read a lot of Moliere. He makes a good point.

A party would have ‘probable cause’ under the statute if there was such cause as would induce a reasonable person to believe he had the right to remove trees from another’s land. Here, the evidence showed the Hales’ driveway had always been at its present location and that the Hales had maintained the area since 1966 as part of their yard, planting trees and shrubbery in that area as well. The tracts had been owned by the Hales and their predecessors since 1855, and fencing had marked the boundary until the Warrens wrongfully removed it. The Hales had harvested timber and cut firewood on the disputed land since they purchased the property from their family in 1966.

After the pink flags were placed by the Warrens’ surveyor, Mrs. Hale showed Mr. Warren a land abstract in which her grandfather had deeded off a portion of the disputed land for a school building. She showed him the abstract to “show them that obviously this had been in our possession since the 1880’s. This particular tract of land that’s in dispute.” She told the Warrens that she disputed their survey and that she would speak to a surveyor herself.

The Court found there was sufficient evidence to rebut the Warrens’ assertions they removed the trees and landscaping at issue because they had probable cause to believe they owned the property. First, for all the years the Warrens had possessed the land as owners or renters, the Court said, it was only reasonable to conclude they should have become familiar with Hales’ general use of their property. Richard Warren admitted that when they purchased his property, he was aware that the Hales stored cars and maintained a large scrap metal pile on the land. Further, when they purchased the property, the Warrens were aware of the location of Hales’ driveway and yard and their generalized use of the land. Second, the Hales disputed the Warrens’ survey as soon as it was surveyed. Mrs. Hale informed the Warrens that she was contacting Smith & Company about the survey because she believed it was incorrect, and she showed them an old abstract relating to the prior use of the property. When the Warrens began bulldozing right away after their survey was done, it was clear that the Warrens knew of the Hales’ open and actual possession and use of the property, and knew that the Hales had issues with the survey lines at the time the bulldozing began.

The Court said it was “difficult… to believe that ‘a reasonable person’ would ‘believe he had the right to remove trees from another’s land,’ where he was faced with: a mowed yard and maintained driveway; areas that were clearly used by the landowner for storing scrap metal and other items; open protests and disputes by the landowner; and a survey which obviously did not comport with historically used property lines.” The Warrens did not meet their burden of proving they had probable cause to believe they owned the land in question at the time they bulldozed the trees and shrubs at issue.

– Tom Root

Case of the Day – Friday, October 25, 2024

Posted on October 25, 2024 by TLRoot tagged.

ILLEGAL CONTACT

What would October be without football? Pop Warner football, middle school football, high school football, college football, pro football, backyard football… and the promise of the rivalry games of November, then Ohio State-_ichigan, Army-Navy, and the bowl games starting with the dull thrum of the Celebration Bowl and Camellia Bowl on December 14th, building up to the thundering crescendo of the Sugar, Cotton, Orange and Rose Bowls, and, of course, the new 12-team college playoffs that will add spice to the major bowl games.

So, in honor of football, more football, and even more football, we’re looking at one of the Cardinal rules of trespass – illegal contact.

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

In today’s case from Louisiana, a party bought a piece of land from the tree owner’s sister but conditioned the purchase on being able to get rid of some trees on the boundary line with the tree owner. The owner – no doubt a Patriot – signed a contract entitling the buyer to cut down trees on the boundary. The problem was that the contract was imprecise as to how many, or where exactly the trees were. The only thing that was clear was that the parties agreed that wild Broncos couldn’t pull him over to cut down the tree owner’s prize old live oak.

Too bad the owner didn’t watch the tree-cutting crew like a Seahawk. The buyer’s contractor was no Saint. In fact, he was kind of a Buccaneer. He cut down 12 trees and, although he was told not to, he trimmed the live oak pretty aggressively. The owner cried “Deciduous foul!” and lawsuits flew like yellow hankies. Being unable to Bear the mess, the owner raced like a Jet to the courthouse and slapped a Giant lawsuit on the buyer, Raven that he hadn’t given permission to do anything like that, and the contractor was Lion if he said otherwise. He wanted treble damages for the wrongful cutting.

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

The plaintiff felt deflated over the whole episode.

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

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

Eisfeld should have gotten this sign with special wording, "And don't cut down my trees, Martin!"

This means you, Berrytown! Trespassing – kind of like the real property version of offsides.

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

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

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

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

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

– Tom Root

Case of the Day – Tuesday, October 22, 2024

Posted on October 22, 2024 by TLRoot tagged.

WHEN ARM’S LENGTH ISN’T QUITE FAR ENOUGH

When I was a mere first-grader, I had an uncle – a Wharton School grad – who taught me a business aphorism he had learned in B-school. Everyone thought that it was cute to hear a 6-year-old try to say, “infamous machinations,” sort of the same way that the Teddy Ruxpin creator picked the bear’s name because he figured so many children would mispronounce it so cutely.

But six decades later, I remember what Uncle Harl taught me through his omnipresent swirls of cigar smoke: “Always deal with your business associate at arm’s length. For if he be an honest man, he will respect your caution…”

Apropos of our regular discussions about independent contractors, you, Harry and Harriet Homeowner, may figure that you are being prudent by hiring your vendors and service providers as such. After all, we all know that the homeowners are not liable for the negligence of independent contractors.

Certainly, our neighbors will respect our caution.

In today’s case, however, the Svensons discovered, to their chagrin, that trespass ain’t negligence. As a result, they got no respect. When the independent contractor tree service hired by their independent contractor architect – making the tree service something akin to an independent contractor once removed – cut down a pair of boundary trees, the Svensons were sued along with the architect and the tree service. They figured they were insulated. It was the contractors’ fault, after all, not theirs.

But one can be dinged for trespass, or for causing someone else to trespass. The fact that the party that has been caused to trespass may be liable, like an eight-ball going into a side pocket, does not absolve the person who directed the trespass. Like the cue ball that put the eight ball into motion, the party who caused the trespass was indispensable to the tort. And regardless of the relationship between the director and the directee, both may share liability.

Oh, and one other thing, Svensons… if you have a good argument to make on appeal, make sure you make the same argument before the trial court. Like l’esprit de l’escalier, thinking of a great argument for the first time on appeal is about 10 minutes too late.

Swegan v. Svenson, 960 N.Y.S.2d 768,104 A.D.3d 1131(Sup.Ct.A.D., 2013). The Svensons were doing some remodeling around their place. They did it right. They hired an architect to design the project and manage the contractor. The architect hired a tree service to remove two trees. The tree service did exactly as it was instructed.

But the trees were boundary trees, partly in the Svensons’ yard and partly in the touchy neighbors’ yard. It didn’t take a New York minute for the neighbors to sue everybody involved for conversion and trespass.

The Svensons moved for summary judgment based on the novel argument that they could not be held liable for the trespass because the architect was not their agent but rather an independent contractor, and tree service certainly was not their agent but instead was an independent contractor as well. The trial court denied their motion.

The Svensons appealed.

Held: The Svensons were not entitled to summary judgment. The court held that regardless of the architect’s status as an independent contractor, the Svensons may be held liable for the trespass and ensuing conversion if they “directed the trespass or such trespass was necessary to complete the contract” between Svensons and the architect. Here, the Swegans had raised an issue of fact whether the Svensons “directed the trespass or whether such trespass was necessary to complete the contract.”

For the first time on appeal, the Svensons floated the argument that they had the right as joint owners to remove the trees because they were structurally unsafe and created a safety hazard or private nuisance. At any rate, they claimed, they should not be assessed treble damages under RPAPL 861 because there is no evidence that they acted recklessly, willfully or wantonly. The court did not consider either contention, because neither had been raised in the trial court.

– Tom Root