Opinion
21-P-628
06-17-2022
STEPHAN J. SLESAR, JR., & another [1] v. DAVID GOLDMAN & another. [2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
This case stems from a dispute between Medfield neighbors: the plaintiffs, Stephan J. Slesar, Jr., and Jennifer L. Slesar (the Slesars) and the defendants, David Goldman and Brenda Goldman (the Goldmans). Beginning in 2017, the Goldmans cut and removed a number of trees from the Slesars' property; erected a series of fences, tarps, and other screens near, and sometimes over, the property line to shield their activity; and engaged in erratic and loud behavior in a manner to disturb the Slesars' enjoyment of their property. The Slesars filed suit, alleging common law trespass, tree cutting in violation of G. L. c. 242, § 7, common law nuisance, private nuisance by spite fence in violation of G. L. c. 49, § 21, intentional infliction of emotional distress, and civil contempt. Following a jury-waived trial, a Superior Court judge entered judgment in favor of the Slesars on all counts except intentional infliction of emotional distress, and awarded damages. On appeal, the Goldmans primarily challenge as unreasonable the judge's award of damages on the tree cutting claim and the common law nuisance claim. The Goldmans also contend that the judge abused her discretion in declining to perform a view of the properties, and in taking judicial notice of David's criminal arrest and subsequent conviction. We affirm.
Though we refer to the parties collectively by their last names, we refer to them individually by their first names to avoid confusion.
Background.
We summarize the facts found by the judge following the jury-waived trial, supplemented by undisputed facts in the record. See Yankee Microwave, Inc. v. Petricca Communications Sys., Inc., 53 Mass.App.Ct. 497, 499 (2002). The Slesars purchased their two-acre property at 29 Noon Hill Road (Slesar property) in June 2003, and constructed a new house on the property between 2007 and 2008 for them and their two young children to reside in. The Goldmans purchased their one and one-half acre property at 25 Noon Hill Road (Goldman property) in October 2010.
By all accounts, the Noon Hill Road area is a "nature lover's wonderland," which attracted both parties. It is heavily vegetated, with hiking trails and wildlife. Noon Hill Road itself is a dirt road, with just five houses, all on the right side of the street. The left side of the street is public preservation land. The Slesar property and the Goldman property are adjacent to one another and are separated by a 370-foot lot line running from the front of both properties on Noon Hill Road to the rear of both properties. Behind both properties are protected wetlands.
Noon Hill Road does not have streetlamps and, unless lit by property owners, is dark at night. Accordingly, when the Slesars built their home in 2007 and 2008, they added lantern post lights on each side of the gravel landing at the top of their driveway bordering the Goldman property near Noon Hill Road, and four additional lantern post lights along their driveway leading to their house. In the spring of 2014, the Goldmans installed 160 feet of six-foot-high wooden fencing around their property, with approximately one hundred feet running along the front of the property bordering Noon Hill Road, and approximately sixty feet running along the side of the property bordering the Slesar property. From the time the Goldmans moved in until the summer of 2017, the Goldmans and the Slesars had little, if any, interaction with each other. That, however, changed in July 2017, when the events giving rise to this lawsuit ensued.
On July 28, 2017, upon arriving home from a trip, the Slesars discovered the Goldmans working in an area near the front of the property line close to Noon Hill Road. Specifically, the Slesars were shocked to find that trees and ground cover, which acted as a visual barrier between the two properties, had been removed. Photographs taken from this date were introduced in evidence and show freshly cut tree stumps in the area where the Goldmans were found working. Some of the stumps appear to have been cleanly sawed off, while other, larger stumps appear to have been axed. The judge found that the Goldmans cut trees from this area, and that some of the trees were cut from the Slesar property, but that it was not possible to determine the exact number of trees cut given the time and manner of removal.
On this July 2017 date, Jennifer approached the Goldmans to ask why they were clearing the area, and David, acting "jumpy" and "unapproachable," responded that he was on his property. Jennifer expressed her disagreement, and within a few days, the Slesars found a threatening note in their mailbox from the Goldmans that stated, "Hey A-holes[, ] Get ready to move your electric box!" Attached to the note was an "As-built site plan" for the Goldman property. In the following days, the Goldmans continued to clear the same area near the property line. By August 11, 2017, the Goldmans erected a mesh deer fence in that same area facing the Slesar property, and through the fence, exposed tree stumps could be seen marked with an orange substance. At some point, the Goldmans also planted evergreen trees directly behind the mesh fence and in front of the wood fence they had installed in 2014. The judge found that portions of the mesh fence, and some of the evergreen trees planted behind it, were on the Slesar property.
On August 23, 2017, the Medfield conservation commission sent the Goldmans a cease and desist letter, stating that the commission was notified on August 22, 2017, of possible work being performed within the wetlands jurisdiction at the Goldman property. The letter listed several violations observed from the public way near the home, and demanded that the Goldmans cease and desist all work on the property. On September 21, 2017, the commission issued an enforcement order to the Goldmans for the violations enumerated in the August 2017 letter. The Goldmans believed up until the time of trial that the Slesars reported them to the commission, although the Slesars repeatedly denied doing so.
Thereafter, the Goldmans' activity on the property line increased. The Goldmans began using tarps and other assorted materials to shield their clearing activity from public view, sometimes conducting their work in the cover of night with the use of lanterns. Notwithstanding the enforcement order, the Goldmans continued to clear ground vegetation near the Slesar-Goldman property line located close to Noon Hill Road, and also did so on the Slesar property near the Slesars' screened-in porch. To further conceal their activity, the Goldmans erected colorful tarps on top of the mesh deer fencing, and most notably, by the end of September 2017, the Goldmans added what they described as "privacy panels" above some of the wooden fencing. The approximately four to eight-feet black fabric panels faced the Slesar property and increased the fence's height to approximately twelve feet tall.
At the end of September 2017, by chance, Jennifer and Brenda encountered one another near their property lines and had a verbal altercation. Jennifer recorded the interaction. In the recording, Brenda could be heard shouting obscenities at Jennifer and blaming the Slesars for "light pollution," a seeming criticism of the Slesars' light posts, while Jennifer attempted to discuss the issues they were having. Specifically, Brenda referenced the multiple layers of tarps and privacy screens and stated, "Why do you think we are doing this? You put two and two together you dumb bitch. You like it? There's more going up." From this recording, as well as other evidence, the judge concluded that the Goldmans erected the various tarps and screens with the "primary intention of annoying and irritating the Slesars and interfering with their use and enjoyment of their property."
In October 2017, the police became involved when Jennifer called them to report various disturbances at the Goldmans' home, including the Goldmans yelling loudly at each other and at the Slesars. Jennifer reported also that David hid behind trees and followed the Slesars' children as they walked along Noon Hill Road. After a December 2017 incident was referenced several times at trial, the judge took judicial notice of the fact that, in mid-December 2017, David was arrested and charged with assault and battery on a family or household member (Brenda) and strangulation or suffocation, and that he was held as a dangerous person pursuant to G. L. c. 276, § 58A, and seen in a medical unit. The judge further took notice that the strangulation charge was dismissed, and that David pleaded guilty to the assault and battery charge in September 2018.
The next recorded interaction between Brenda and Jennifer took place on May 3, 2018, when Jennifer asked Brenda to remove the mesh fencing, which, as noted, was partially on the Slesar property, and Brenda erupted. Brenda shouted obscenities at Jennifer and blamed her for David's hospitalization, apparently referencing the period in December 2017 when David was seen in the medical unit. The judge credited the Slesars' testimony that the recordings of Brenda's behavior were not isolated incidents, but rather, that "the Goldmans regularly engaged in the type of emotionally disturbing behavior captured in [various] exhibits," particularly when they knew the Slesars were around.
In October 2018, the Goldmans relocated the wooden panel fencing they installed in 2014 to the approximate location where the deer mesh fencing was originally placed, causing the wooden fence to encroach on the Slesar property. The Goldmans also extended the length of the wooden fence running down the property line from sixty to 160 feet. The judge found that the relocated wooden fence encroached on 805 square feet of the Slesar property, compromising approximately 100 to 120 linear feet of the property line near Noon Hill Road. The Goldmans also reinstalled the mesh deer fence on the side of the already-encroaching wooden fence facing the Slesar property. The judge found that the mesh fence encroached on an additional thirty-five linear feet of the property line. The judge also found that, based on the site plan that the Goldmans left in the Slesars' mailbox along with that first note in July 2017, the Goldmans should have known that the wooden and mesh fences were placed, at least partially, on the Slesar property.
By January 2019, the Goldmans added their own makeshift fencing panels to the wooden fence facing the Slesar property, extending the length of the fence beyond 160 feet. They also heightened portions of the wooden fence to approximately eight or nine feet by adding horizontal panel extenders on top of the already six foot tall fence. The Goldmans also added various tarps and mylar reflective sheets to the fence, and by February 2019, the mylar reflective sheets, which resembled foil, covered nearly the entire fence that directly faced the Slesar property. Despite the Goldmans' testimony that the reflective sheets were an art installation, the judge specifically found that they were added with the intent to further annoy and irritate the Slesars and interrupt their use and enjoyment of their property. In May 2019, the Slesars filed the present suit and requested a preliminary injunction. Following a hearing, a Superior Court judge issued a permanent injunction, enjoining the Goldmans from, inter alia, physically entering the Slesar property, erecting or installing additional fencing or tarps, and contacting the Slesars in any manner. The injunction further required the Goldmans to remove all tarps, foils, and similar structures from the fence and to remove any fencing that exceeded six feet in height. Despite the injunction, the Goldmans did not remove the tarps or foils from the fence or the structural wooden framing posts that supported the horizonal panel extenders, although they did remove the horizontal extenders. The property was surveyed and staked by a professional surveyor hired by the Slesars in August 2018, and the staking of the property line definitively revealed that the Goldmans had encroached on the Slesar property. Subsequently, without notice to or permission from the court, David entered the Slesar property, removed the evergreens he had planted, and relocated the encroaching fence to the Goldman property. The Slesars then sought and obtained an ex parte restraining order to prevent David from entering on the Slesar property, which the judge found David also violated as recently as February 15, 2021.
Discussion.
1. Tree cutting damages.
General Laws c. 242, § 7, does not specify how damages for the wrongful cutting of trees are to be measured. "While the most common measures of damages are (1) the value of timber wrongfully cut, or (2) the diminution in value of the property as a result of the cutting," where those measures are inadequate, a plaintiff may recover the cost of replacement or restoration. Glavin v. Eckman, 71 Mass.App.Ct. 313, 317-319 (2008). "When applying a restoration cost measure of damages, a test of reasonableness is imposed." Id. at 319. "Not only must the cost of replacement or reconstruction be reasonable, the replacement or reconstruction itself must be reasonably necessary in light of the damage inflicted by a particular defendant." Id., quoting Trinity Church in Boston v. John Hancock Mut. Life Ins. Co., 399 Mass. 43, 50 (1987) .
The Goldmans argue that the judge abused her discretion in permitting the Slesars' expert, Scott Dolan, to testify regarding the restoration cost of trees wrongfully cut from the Slesar property, and that the judge's award of $47,443 in single damages based on Dolan's testimony was unreasonable. We address each claim in turn.
a. Dolan's testimony.
The Goldmans claim that Dolan's testimony about restoration damages was unreliable and lacked proper methodology, and thus, should have been deemed inadmissible., We disagree. "Expert testimony on matters within the witness's field of expertise is admissible when it will aid the [fact-finder] in reaching a decision," Commonwealth v. Colin C., 419 Mass. 54, 59 (1994), and when the judge determines that "the methodology or theory underlying the expert testimony is sufficiently reliable." Commonwealth v. Rintala, 488 Mass. 421, 426 (2021), quoting Commonwealth v. Shanley, 455 Mass. 752, 761 (2010). "A trial judge has broad discretion with respect to the admission of expert testimony." Colin C., supra at 59.
The Slesars contend that the Goldmans' claim regarding Dolan's testimony on restoration damages is waived because they failed to lodge a contemporaneous objection to the testimony at trial. We are not so sure. The Goldmans moved in limine to preclude Dolan's testimony as speculative and unreliable, but the judge reserved her ruling on the motion. The Supreme Judicial Court has held, in criminal cases at least, that, to preserve an issue for appeal, a party need not "object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied." Commonwealth v. Grady, 474 Mass. 715, 719 (2016). Here, while the Goldmans' motion in limine was not outright denied, the judge indicated, over the Goldmans' objection, that she was going to permit Dolan to testify about the cost of restoration. She reserved her ruling primarily because she was not sure at that stage if she would otherwise limit his testimony. Given that the judge effectively denied the Goldmans' motion to preclude the admission of the very testimony they challenge on appeal, we assume for the purpose of this decision that the issue was properly preserved and address the merits.
The Goldmans did not call their own expert witness to address damages on the Slesars' tree cutting claim.
Dolan, a landscaping contractor of twenty-four years, testified that he was "somewhat familiar" with what the area between the Slesar property and the Goldman property looked like prior to the summer of 2017, and described the area as "very dense," with "a lot of white pine." He testified that he visited the Slesar property soon after some of the trees were cut and observed tree stumps that appeared to be white pines, a type of evergreen tree. Dolan again visited the Slesar property in December 2019, observed the area that had been disturbed, and prepared an estimate for restoring the disturbed area as well as building a vegetative buffer between the two properties. Dolan testified that, in his estimate, he selected plant materials consistent with what had been removed. Specifically, he testified that he selected four different species of evergreens because they provide a dense cover, were native to the area, and would essentially replace what had been removed by the Goldmans. Dolan explained that he based his estimate on the number of trees needed to restore approximately 180 to 240 linear feet along the property line. He calculated the number of trees required by considering the size and spacing of the replacement trees for his "staggered planting plan," which would create the density the Slesars desired, and arrived at approximately twenty-seven to thirty-three trees. Dolan further explained that in addition to the cost of the trees themselves, which he purchases at a wholesale price that varies depending on the nursery, installation costs seventy-five percent of the retail price of the plants. He testified that this was consistent with industry standards. Based on the amount of trees needed, the price of the trees, and the cost of labor, Dolan opined that the total restoration cost for the areas disturbed by the Goldmans amounted to $87,155. The judge concluded that this testimony was sufficiently reliable to reach the trier of fact, which, here, was the judge, and we cannot say on this record that that her conclusion constituted an abuse of discretion. See Shanley, 455 Mass. at 761-762.
Dolan testified that he and the Slesars are social friends, and that he had been to the Slesar property multiple times per year beginning approximately thirteen years prior to trial.
The Goldmans primarily argue that Dolan's unrebutted expert testimony was inadmissible because his estimate was based largely on a "walk-through" of the property with Stephan. They further argue that, in creating the planting plan and respective estimate, Dolan did not select trees that were consistent in size, type, or location to the trees wrongfully cut. Notably, however, where an expert's method of observation is found to be "generally accepted by the relevant . . . community or otherwise reliable to support a [technical] conclusion relevant to the case," expert testimony informed by personal observation is admissible. Canavan's Case, 432 Mass. 304, 314 (2000). Moreover, and notwithstanding Dolan's testimony that he specifically selected replacement trees similar to those that had been removed, restoration need not be an exact replica of the affected area's previous state, especially where, as here, the manner and time in which the cutting was affected rendered direct restoration nearly impossible. See Glavin, 71 Mass.App.Ct. at 320. If the Goldmans disagreed with Dolan's opinion, they were free to challenge his testimony via cross-examination or retain their own expert to rebut his opinion. See Shanley, 455 Mass. at 762 ("Once admitted, the validity and credibility of the expert testimony is subject to challenge like any other testimony"). The persuasiveness of Dolan's testimony was ultimately an issue for the trier of fact, not for the judge acting as gatekeeper determining admissibility. See Commonwealth v. Hinds, 487 Mass. 212, 225 (2021).
The Goldmans also argue that, because Dolan was social friends with the Slesars, his testimony was biased. Their relationship, however, does not render his expert testimony inadmissible, but instead provided the Goldmans with fodder for cross-examination. See New England Tel. & Tel. Co. v. Board of Assessors, 392 Mass. 865, 870 (1984). See also Commonwealth v. Perkins, 39 Mass.App.Ct. 577, 581 (1995) ("Cross-examination of a witness to demonstrate his bias or interest is a matter of right. . . . An expert witness is not immune from such examination").
b. Reasonableness of tree cutting damages.
The Goldmans further argue that the judge's award of $47,443 in single damages on the Slesars' tree cutting claim was unreasonable. We are not persuaded. In calculating the restoration costs, the judge considered the expert testimony from Dolan as well as the Slesars' professional surveyor, Daniel O'Driscoll. O'Driscoll testified that the area of encroachment was approximately 155 linear feet, which the judge credited, but Dolan testified that approximately twenty linear feet near the front of the property could not be planted due to existing rocks. The judge thus arrived at 135 linear feet of encroachment to be restored. She then used a ratio considering Dolan's testimony that the restoration cost of 248 linear feet would be $87,155 to arrive at $47,443 for the restoration cost of 135 linear feet. As fact finder, the judge was entitled to consider the evidence presented to reach a reasonable determination of damages. See Glavin, 71 Mass.App.Ct. at 320. We cannot say that her assessment of damages drawn from the evidence here was not a reasonable determination of the "cost of restoring the property as nearly as reasonably possible to its original condition." Id., quoting Trinity Church in Boston, 399 Mass. at 43. To the extent that the Goldmans claim that the award of damages was unreasonable because the Slesars failed to prove that any trees were cut from their property in July 2017, or that the Slesars' damages should have been limited to the replacement of the three white pine stumps that were photographed in July 2017, the argument is without merit. There was ample evidence for the judge to find that, prior to the wrongful cutting, the affected area was heavily dense with trees, and that far more than just three trees, and likely closer to one hundred, were wrongfully cut from the Slesar property. The judge was entitled to credit that evidence and consider it in her award of damages. Direct visual or photographic evidence of the Goldmans actually cutting and removing trees from the Slesar property was not required, especially considering the great lengths to which the Goldmans went to conceal their activities. See Rolanti v. Boston Edison Corp., 33 Mass.App.Ct. 516, 522 (1992) ("Facts, which as a matter of practicality are not subject to direct proof, may be proved through inference").
2. Nuisance damages.
Where nuisance damages are not permanent, "the measure of recovery is the reasonable expense of repairing the injury plus the intervening loss of rental value for the period reasonably needed to repair the injury." Rattigan v. Wile, 445 Mass. 850, 861 (2006), quoting Guaranty-First Trust Co. v. Textron, Inc., 416 Mass. 332, 337 (1993). The judge awarded the Slesars $60,000 for the loss in rental value of the Slesar property during the Goldmans' nuisance, and further awarded the Slesars $22,125 to plant a vegetative buffer to mitigate the impact of the nuisance. The Goldmans argue that the latter award of mitigation damages was improper here because the Slesars did not build the vegetative buffer while the nuisance was ongoing, and by the time of trial, the nuisance had ceased. Again, we are not persuaded.
The Goldmans rely on Rattigan to argue that a plaintiff may recover expenses to repair a nuisance only if those expenses are incurred while the nuisance is ongoing. While, in Rattigan, 445 Mass. at 862, the plaintiffs were permitted to recover $19,200 in damages for the cost of a fence built during an ongoing nuisance because "the fence was a reasonable response to the defendant's behavior," the court did not limit recovery in the way the Goldmans suggest. Indeed, in addition to the loss in rental value, "plaintiffs [are] entitled to their reasonable expenses in preventing, reducing or abating the results of the defendant's wrongful acts." Bousquet v. Commonwealth, 374 Mass. 824, 825 (1978) . Here, the Goldmans' wrongful acts were unpredictable and sporadic, and they repeatedly violated orders enjoining them from engaging in such behavior. It was not unreasonable for the judge to conclude that the permanent injunction would alone be insufficient to thwart the Goldmans' conduct, and accordingly, award the Slesars reasonable expenses, supported by expert testimony, to prevent, reduce, or abate the nuisance caused by the Goldmans.
The judge's award of $22,125 was based on the testimony of Mark Tyburski, a real estate appraiser, who testified that the Slesars could install 295 linear feet of fencing at seventy-five dollars per linear foot to cure the nuisance At trial, it was clear that the Slesars did not intend to install a fence but instead planned to build a vegetative buffer, which Dolan testified would cost approximately $28,600 The judge, in her discretion, chose the smaller of the two figures in her award of damages It was reasonable for her to do so See Hlatky v Steward Health Care Sys, LLC, 484 Mass. 566, 592 (2020) (Lenk, J, concurring in part and dissenting in part) ("Once a plaintiff's recognized loss has been assessed and measured by the finder of fact, and then transformed into fungible money damages, it has been for the plaintiff to decide how to spend that compensatory award of damages").
3. View.
Goldmans argue that the judge abused her discretion in declining to perform a view of the two properties, despite being requested to do so by all parties. The claim requires little discussion. The decision "[w]hether to take a view is a matter within the discretion of the trial judge." Talmo v. Zoning Bd. of Appeals, 93 Mass.App.Ct. 626, 629 n.5 (2018). A view is not evidence but is meant to aid the fact finder in understanding the evidence. Id. Here, the trial judge determined that a view was not necessary for her to assess the evidence, which included hundreds of photographs and several plans of the properties, and we discern no abuse of discretion in that decision. A view at the time of trial would not have revealed what the property looked like prior to the removal of the trees or what the state of the nuisance was at its peak. See, e.g., Commonwealth v. Cataldo, 423 Mass. 318, 327 n.8 (1996) (judge properly denied jury view, which could not replicate crime that took place in early morning hours with noise and activity of bar patrons).
In their joint pretrial memorandum, the parties requested a view of the property, and the judge presiding over the pretrial conference commented, "[0]ne thing I want to do obviously is not tie the hands of another judge as to how they want to try a case and whether they think a view is appropriate. I tend to agree that it probably -- the finder of fact would benefit from the view in this case," but the judge ultimately stated that "whoever's the trial judge I think ought to make the final call on whether they want a view or not."
4. Judicial notice.
Lastly, the Goldmans contend that the judge abused her discretion in taking judicial notice of David's December 2017 arrest and September 2018 conviction. A judge may take judicial notice of criminal cases involving a party, see Ryan v. Hughes-Ortiz, 81 Mass.App.Ct. 90, 95 n.8 (2012), and may do so "at any stage of the proceeding, whether requested or not." Mass. G. Evid. § 201(c) (2022). However, "[e]ven in situations where judicial notice is appropriate, it should not be taken without notice to the parties and an opportunity to be heard." Commonwealth v. Hilaire, 92 Mass.App.Ct. 784, 788 (2018). "If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." Mass. G. Evid. § 201(d) (2022).
Here, the judge did not provide notice to the parties that she was going to take judicial notice of David's arrest and conviction. It would have been prudent and preferable for her to do so. Before trial, the Goldmans moved in limine to exclude evidence related to David's arrest, and following a hearing, the judge allowed the motion as it pertained to the police report concerning the arrest. But all agreed that the Slesars could permissibly testify about their observations on the day of the arrest and their personal knowledge independent of the police report. As a result, the events leading to David's arrest were mentioned or alluded to multiple times during trial. Moreover, in the Goldmans' motion in limine, they specifically misrepresented that David was never convicted of the allegations contained in the police report. In such circumstances, it should not have been surprising that the judge took judicial notice of David's arrest and subsequent conviction. The Goldmans did not make any posttrial motions to be heard on the issue. Even though the judge should have notified the parties prior to taking judicial notice of David's criminal record, we discern no prejudice in these circumstances such that her failure to do so requires a new trial.
We deny the Slesars' request for appellate attorney's fees and costs pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), on the ground that the Goldmans' appeal is frivolous. See G. L. c. 211A, § 15. "Although the . . . appeal is unsuccessful, it is not frivolous." Gianareles v. Zegarowski, 467 Mass. 1012, 1015 n.4 (2014) .
Judgments entered May 3, 2021, affirmed.
The panelists are listed in order of seniority.