Was Damage Caused by Removal of Tree?

Some disputes between neighbors are vindictive. Some cases are retaliatory. And, as a recent small claims proceedings that ended up in an appellate court split-decision demonstrates, some actions are simply petty.

Ksenia Benjaminov brought a small claims action to recover $5,000, alleging that her concrete patio and fence were damaged by the roots of a tree located on the adjacent property of Ron Zhong Zheng. At a nonjury trial, it was established that Zheng had purchased his property in January of 2016 and had since removed the offending tree. The tree had already been in existence when Benjaminov moved into her property over 20 years ago. Following the trial, the Court awarded Benjaminov the sum of $5,000. Zheng appealed.

In a small claims action, the appellate review was limited to a determination of whether substantial justice had been done between the parties according to the rules and principles of substantive law.

Benjaminov sought to recover based on trespass, nuisance, and/or negligence causes of action. In order to prevail based on trespass, her burden extended beyond proof of an invasion of her right to exclusive possession of her land to proof that such invasion or intrusion was the result of an act either intentionally done or so negligently done that such intent would be presumed. The trespass could not be based on mere nonfeasance or omission to perform a duty. Here, the appeals court found there was no proof of an intentional intrusion or that Zheng was even aware of root intrusion prior to notification by Benjaminov of the alleged damages.

To the extent that the action was based on nuisance, Benjaminov similarly could not prevail even if she could establish property damage due to an interference with the use and enjoyment of her land amounting to an injury in relation to a right of ownership in that land. The facts and circumstances required her to self-help in the first instance– and there was no evidence that self-help would have been unreasonable and unrealistic.

Similarly, Benjaminov’s claim failed as an action based on negligence. There was no proof that the injury arose due to the fault or negligence of Zheng in the removal of the tree. And Benjaminov presented no before and after photographs and there was no expert testimony with respect to the cause of any damage.

The judgment in favor of Benjaminov failed to render substantial justice between the parties according to the rules and principles of substantive law and was reversed.

But-hold on a moment. One of the judges on the appeals court dissented and voted to affirm the judgment:

The dissent agreed that the standard of review on an appeal of a small claims judgment was whether substantial justice had been done between the parties according to the rules and principles of substantive law. But relied upon the rule that the decision of a fact-finding court should not be disturbed on appeal unless it was obvious that its conclusions could not be reached under any fair interpretation of the evidence, particularly when the findings of fact rested in large measure on considerations relating to the credibility of witnesses. That principle applied with greater force to judgments rendered in small claims proceedings, given the limited scope of review.

Benjaminov claimed that, after moving in, Zheng fixed his own property and not hers, and in the process, damaged her property even more. She explained at trial that, when he took down the tree, both the fence and concrete porch were further damaged. Significantly, Benjaminov produced two photographs taken after the tree was removed and submitted three separate estimates for the cost of repair.

So, according to the dissent, Benjaminov provided prima facie evidence in the form of three estimates. There was no dispute that Zheng’s removal of the tree caused damage to her fence and porch. Defense counsel was only concerned that the estimates included work not caused by the tree removal. That point of contention was resolved by the trial court’s decision which specifically acknowledged “that claimant’s estimates included work not caused by the repair and tree removal, thus the award to claimant does not include them.”

The majority opinion focused on the fact that the tree was present when Benjaminov took residence next door over 20 years ago; that she failed to resort to self-help or to procure an expert on root and tree propensity to show that self-help would have been unreasonable for a nuisance claim; and did not produce before and after photos for a negligence claim. But she did present photos of the damage after the tree removal and the court accordingly decided what award would effectively cover the damage caused by the tree removal distinguished from other damages within the estimates. Benjaminov was not seeking relief for the long-term damage caused by the roots but for the contemporaneous damage caused by the removal of the tree. Further, the majority stated that there was no proof that Zheng was aware of root intrusion of the tree, which was on both properties, prior to notification by Benjaminov of the alleged damages. The majority ignored the fact that the cause of the damage was undisputed by Zheng.

According to the dissent, the credibility of Benjaminov’s statements and testimony was best observed and evaluated by the trial court. And the determination of a trier of fact as to issues of credibility was to be given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses afforded it a better perspective from which to assess their credibility.

A small claims judgment may not be overturned simply because the determination appealed from involves an arguable point on which an appellate court may differ. The deviation from substantive law must be readily apparent and the trial court’s determination clearly erroneous. The trial court decided that the appropriate remedy was an award of damages in the amount necessary to repair the damage caused by the removal of the tree and not the long-term damage caused by its roots. It could not be said that the determination was so clearly erroneous or shocking as to fail to render substantial justice between the parties. The trial court did not improvidently exercise its discretion in awarding limited damages.