Glavin v. Eckman

881 N.E.2d 820, 71 Mass. App. Ct. 313
CourtMassachusetts Appeals Court
DecidedMarch 3, 2008
DocketNo. 07-P-383
StatusPublished
Cited by9 cases

This text of 881 N.E.2d 820 (Glavin v. Eckman) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glavin v. Eckman, 881 N.E.2d 820, 71 Mass. App. Ct. 313 (Mass. Ct. App. 2008).

Opinion

Grasso, J.

Looking to enhance their view of the ocean, Bruce and Shelly Eckman hired Jon R. Fragosa and his landscaping company, Three Trees, Ltd. (Fragosa), to top and remove the trees that stood in the way. Fragosa improved the Eckmans’ view by cutting down ten large, mature oak trees standing on the property of a neighbor, James A. Glavin, without Glavin’s permission.

After trial on Glavin’s claim against the Eckmans and Fragosa for the wrongful cutting of his trees, see G. L. c. 242, § 7,3 a jury rendered a special verdict in favor of Glavin. The jury found that (1) Fragosa wilfully cut trees on Glavin’s land; (2) Fragosa did not have good reason to believe that he was lawfully authorized to cut the trees on Glavin’s land; (3) the Eckmans wilfully cut trees on Glavin’s land by directing Fragosa to do so; and (4) the Eckmans did not have good reason to believe that they were lawfully authorized to cut the trees on Glavin’s land. The jury assessed $30,000 in damages as “the reasonable cost of restoring the property as nearly as reasonably possible to its original condition.”4 The judge trebled those damages as required by the statute.

On appeal, the issues before us are whether (1) the restoration cost is an appropriate measure of damages; (2) the judge erred in admitting expert testimony; and (3) trebling of the restoration cost damages renders such damages unreasonable. Separately, we consider the Eckmans’ contention that they cannot be held liable for the acts of Fragosa, an independent contractor. We affirm.

[315]*3151. Facts. From the evidence at trial, the jury could have found the following. Glavin, the Eckmans, and a third individual, named Bea Gentry, own four roughly parallel rectangular parcels of land in the Aquinnah section of Martha’s Vineyard, a place of natural beauty. Glavin owns the two westernmost lots. The Eckmans own the most easterly lot. Between the Glavin and Eckman lots is the lot owned by Gentry. By virtue of its greater elevation, the Eckmans’ lot has a southwest view to the ocean across the adjacent lots.

Glavin lives with his wife and children in a house that he built on the westernmost lot in 1985. In 1990, he bought the adjoining 1.7-acre lot directly to the east of his house lot. A significant feature of the adjoining lot was a wetland about one-half acre in size that rose to a knoll containing a stand of ten large oak trees that were ideally situated to provide shade and serve as a backdrop to a pond that Glavin planned to restore at the edge of the wetland. A general contractor of considerable experience, Glavin had previously converted wetlands into ponds at least a half dozen times.

When building their vacation home in 1996, the Eckmans asked Glavin for permission to cut the stand of trees on Glavin’s property to enhance their view of the ocean. Glavin refused their request, indicating that he had personal reasons for not cutting the trees. Subsequently, in 2001, the Eckmans hired Fragosa to trim or cut down the trees that blocked their view of the ocean. They directed Fragosa to clear as much as possible to enhance their water view, a job that Fragosa characterized as opening the view “to the max.” When discussing the job, the Eckmans and Fragosa did not walk the Eckmans’ property, but stood on the Eckmans’ back deck overlooking the area to be trimmed.

It was readily apparent that most of the trees the Eckmans wanted removed were not on their property.5 When setting about the job, Fragosa inquired of Gentry, who granted him permission to cut and trim trees on her lot. Although Fragosa obtained Gentry’s permission, he did not ascertain the boundaries of her [316]*316property relative to the Eckman or Glavin properties, nor did he seek permission from Glavin or any other property owners in the area.

In cutting down the trees necessary to open the Eckmans’ view, Fragosa strayed fifty to one hundred feet across the unmarked boundary between the Gentry and Glavin lots and cut the stand of mature oaks on Glavin’s lot. The trees that Fragosa cut ranged from eleven to thirty inches in diameter at the stumps.

2. The Eckmans’ liability. Fragosa does not contest the jury’s findings of liability against him.6 The Eckmans, however, contend that Fragosa was an independent contractor for whose acts they cannot be held liable absent a finding that they directed him to cut down the trees. They maintain that the evidence was insufficient for the jury to conclude that they so directed Fragosa.

We disagree.7 The jury could permissibly conclude that the Eckmans, not Fragosa, defined the scope of the work to be performed by virtue of their retaining Fragosa to cut trees so as to maximize their view to the ocean. While Fragosa retained control over the manner in which the trees would be cut — whether by ax, hand saw, chain saw or other method — the Eckmans retained the ultimate control over the scope of Fragosa’s work, cutting those trees that impeded the Eckmans’ view. Photographs taken from the Eckmans’ deck after the cutting and admitted in evidence show a distinct gap in the treetops that Glavin identified as the area where his trees had stood prior to being cut by Fragosa. The jury were free to disbelieve the Eckmans’ and [317]*317Fragosa’s testimony that no direction was given to cut those particular trees. Indeed, in light of the strong evidence that Glavin’s trees were the chief impediment to the Eckmans’ view, and the undisputed evidence that the Eckmans had previously requested and been denied permission from Glavin to remove the trees that impeded their view, the jury could permissibly infer that the Eckmans had directed Fragosa, explicitly or implicitly, to cut down those particular trees regardless of whether the trees stood on Glavin’s land or elsewhere.8 The jury could also permissibly conclude that having been denied permission from Glavin, the Eckmans decided to resort to self-help and enlisted Fragosa as a dupe or a willing accomplice.

3. Restoration costs as a measure of damages. The defendants maintain that the judge erred in permitting the jury to award a restoration cost measure of damages, rather than damages measured by the value of the timber wrongfully cut, or by the diminution in market value of the property as a result of the cutting. See Davenport v. Haskell, 293 Mass. 454, 456-457 (1936); Larabee v. Potvin Lumber Co., 390 Mass. 636, 643 (1983). We disagree.

General Laws c. 242, § 7, specifies that one who wilfully and without license cuts the trees of another shall be liable in tort “for three times the amount of the damages assessed therefor.” “The statute does not prescribe how the damages shall be measured.” Larabee, supra at 643. While the most common measures of damages are (1) the value of timber wrongfully cut, [318]*318or (2) the diminution in value of the property as a result of the cutting, see ibid., we discern no limitation in the statute to these measures of damages. Indeed, to limit damages to these measures would encourage, rather than deter, wrongdoers from engaging in self-help in circumstances such as when an ocean or other view is desired. The timber wrongfully removed may amount to no more than a single tree; and its removal may even improve, not diminish, the market value of the property.

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Cite This Page — Counsel Stack

Bluebook (online)
881 N.E.2d 820, 71 Mass. App. Ct. 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glavin-v-eckman-massappct-2008.