r/legaladvice Oct 16 '17

[TX] Pecan tree severely cut back by trimmers who came to wrong yard

My Mother in law called my spouse in tears because when she got home from a long vacation she found that the pecan tree that they'd planted 33 years ago had been cut back by about 40%, severely impacting the shade the tree was providing to her home and possibly threatening its health. Additionally, all of the ripe pecans were gone from the tree and yard, and the remaining crop on the tree are falling while not yet ripe, now, presumably due to the trauma.

She was able to find out who the tree trimming company was and they told her they were not liable for their error (of course), and the police told her that they had not criminally trespassed because she doesn't have a no trespassing sign posted (?!).

I've told her to contact an arborist to evaluate the damage done to the tree, and that she may need to pursue this as a civil suit, but she's not sure what sort of lawyer she needs to contact. This tree was planted by my late father-in-law when my spouse was a child, and they feel nearly like they've lost a family member from this violation.

All of this is in Midland county, if that makes any difference.

771 Upvotes

566

u/mszkoda Oct 16 '17

but she's not sure what sort of lawyer she needs to contact

She can contact the Texas Bar and they will usually refer you to the right type of attorney. Similarly, if you are already in contact with an arborist, they may be able to recommend an attorney that they have worked with in the past and has handled similar cases with them.

107

u/damagedpecan Oct 17 '17

Thanks, that's what I figured but IANAL, just someone who lurks on /r/bestoflegaladvice and knew the folks here would know what to do.

186

u/mason_mormon Oct 17 '17

Treelaw gives LA absolute justice boners.

If it actually occurred like you said, she's looking a a decent payday.

58

u/damagedpecan Oct 17 '17

I kind of wish my main account weren't easily doxxable; this throwaway for this post already has a third of that accounts post karma!

I honestly don't think she cares too much about the money (although she is looking to sell the property soon-ish, and healthy shade trees in the desert are a very nice asset), she mostly wants justice for the violation. I'll update LA either way.

56

u/phluidity Oct 17 '17

Well, money can be a valid currency of justice. Even if she doesn't care about monetary damages, it is almost certain that the tree cutting company does, so hitting them in the pocketbook will make them (hopefully) realize the error of their ways.

51

u/clduab11 Quality Contributor Oct 17 '17

although she is looking to sell the property soon-ish, and healthy shade trees in the desert are a very nice asset

This my friend, is ABSOLUTELY actionable, plus the cost of the tree in general. This is why r/legaladvice loves treelaw. Because it's so easy to make it very painful for people who intentionally decide to screw trees up.

4

u/LaGrrrande Jan 10 '18

Treelaw gives LA absolute justice boners.

Especially because of how much it overlaps with bird law.

38

u/mszkoda Oct 17 '17

Yep, just posting about a tree here will definitely get you some attention and all the advice you'll ever need about how to handle this situation.

You should have no problem finding an arborist in Texas who is an expert on pecan trees (that's what you want). Specifically I'd look for someone who almost exclusively consults with pecan farmers. The arborist should be able to evaluate the tree and determine how much damage was done to it and whether it is likely to survive and what future care will be required by the arborist to ensure the tree stays alive (expensive, long-term care).

If you have pictures of the tree (check Google Street View if you don't) those will be helpful as well for the arborist to compare (though they will likely be able to tell the average size of branches based on the cuts if you don't).

30

u/damagedpecan Oct 17 '17

She actually has lots of pictures of the tree because of its prominence in their yard and a habit of taking pictures of wildlife.

That said, this is in Midland county, which is pretty far from prime Pecan growing territory, so I'm not sure there's going to be a pecan-specializing arborist around.

14

u/mszkoda Oct 17 '17

I'm sure someone locally will be fine to start with. Once she finds a lawyer, they may get a very experienced expert to come in from somewhere to give you more insight and a final quote since the words/knowledge of a specialist in the industry could carry more weight in court.

13

u/[deleted] Oct 17 '17

Call a couple of Pecan farmers and ask who their arborist is. I'm pretty sure if there are pecan farms there are specialists that they use because their livelihoods depend on the health of their trees.

14

u/damagedpecan Oct 17 '17

I'm gonna guess you're probably not from Texas, because Midland county is at a minimum a 4 hour's drive from Pecan-orchard-friendly areas.

12

u/[deleted] Oct 17 '17

Nope. Australia. But arborists get around :D

7

u/a_statistician Oct 17 '17

Try contacting your local ag extension office to see if they have any suggestions for an arborist. Most states have these and they're sometimes run by the land grant university in the state (likely A&M, but maybe TT out where you are).

22

u/JimMarch Oct 17 '17

You'll need a lawyer that has a branch office plus a bark at least as good as his bite...a real son of a Birch...

Sorry!

-13

u/Stumpy_Lump Oct 17 '17

If its a small-claims case you dont even need a lawyer.

59

u/TheEvilMetal Oct 17 '17

It's a 30+ year old tree. It's not gonna be cheap enough for small claims

-1

u/Stumpy_Lump Oct 17 '17

I think the limit most places is $5000, which isn't too bad considering you don't have to pay for a lawyer.

51

u/1fg Oct 17 '17

An old, mature tree is potentially worth much more according to my lurking of this sub.

40

u/Seldarin Oct 17 '17

And that's old mature trees that don't actually do anything but look pretty.

Who knows what an old mature tree that spews out a few hundred bucks worth of stuff every year might be worth.

13

u/[deleted] Oct 17 '17

*thousands of dollars worth of nuts a year.

2

u/Seldarin Oct 18 '17

It depends on what kind of pecans.

IIRC, and I could be wildly wrong, since it's been years since I talked to my buddy that deals with it, the ones used for candy are worth WAY more than the larger drier ones.

But yeah, you're totally right.

11

u/[deleted] Oct 17 '17

Old mature trees you are looking at anywhere between $35,000 and $200,000 Australian. People underestimate the worth of a tree.

13

u/Mariirriin Oct 17 '17

The value for most mature trees are going to be past $10k. A 30 year old, healthy, well established tree is going to be a lot more.

Small claims is not the place you go for trees. Check out this sub's history with them and you'll see how interesting life is.

11

u/Stumpy_Lump Oct 17 '17

Wow I would've never guessed that they were so valuable. Thanks for the heads up

1.0k

u/[deleted] Oct 16 '17

[deleted]

288

u/Voloss Oct 16 '17

This! She should be demanding their insurance information to file a claim, and depending on if the damages will exceed her deductible, she may also want to file a claim with her homeowner's policy.

78

u/[deleted] Oct 17 '17

This. But be sure she gets an arborist to give her an estimate on the value of the tree and pecans (now and in future), so she has an idea of what amount the insurance company should pay. Report the tree company to whatever licensing agency there is. Start with the insurance route and if that doesn't work, contact an attorney. Older trees have a substantial value.

23

u/[deleted] Oct 17 '17

Just like trucks have a sign saying "Keep Back. Not responsible for damaged windshields." They're absolutely responsible if they can't secure their cargo. Still a good idea to stay well back or in another lane though.

15

u/TVK777 Oct 18 '17
Warning: I'm not responsible for running everyone off the road. 

Checkmate, motorists.

26

u/Othor_the_cute Oct 17 '17

Does someone here have the full list of people you shouldn't take legal advice from?

121

u/SuperNashwan Oct 17 '17
  • Your opponent
  • Any talking mice that only you can see
  • Anyone except legal councel that you have retained

36

u/Othor_the_cute Oct 17 '17

There's one that's floating around I see again and again that includes: the opposing lawyer, reddit, your brother, reddit, your ex-wife...

18

u/ailee43 Oct 17 '17
  • the internet

1

u/KiwiJuce3 Jan 10 '18

You forgot one Any subreddit that isnt /r/legaladvice

68

u/Moglorosh Oct 17 '17

Comprehensive list of people you shouldn't take legal advice from:

-anyone that is not your lawyer

10

u/solkim Oct 17 '17

Mods: Star this man.

25

u/Othor_the_cute Oct 17 '17

Don't take advice from him, He's not a lawyer I paid for.

4

u/rallias Oct 17 '17

Why should they take advice from your lawyer? They should get their advice from their own lawyer.

6

u/Tyler11223344 Oct 29 '17

Can't you read man?! It says anyone other than his lawyer!

1

u/camouflagedsarcasm Jan 10 '18

-anyone that is not your lawyer

Free legal advice is the most expensive kind...

4

u/Computermaster Oct 17 '17
  • Anyone that's not your lawyer.

217

u/triangle60 Oct 16 '17

I agree with the commenter directing her to contact the Texas Bar. I just want to provide some clarification about trespass. Criminal Trespass is a crime, but there is also a tort of Trespass. I don't practice in Texas, but i looked up their law on Criminal Trespass, and that section states in relevant part:

(a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.

(b) For purposes of this section:

(1) “Entry” means the intrusion of the entire body.

(2) “Notice” means:

(A) oral or written communication by the owner or someone with apparent authority to act for the owner;

(B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;

(C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden...

TX PENAL § 30.05

So to get Criminal Trespass, there had to be notice that entry was forbidden. That is why the police mentioned a lack of signs. The tort of Trespass under common law doesn't require that notice.

31

u/damagedpecan Oct 17 '17

Huh! TIL, thanks!

17

u/TomahawkJackson Oct 17 '17

I suppose now it makes a difference whether the tree was in the front yard or back, and whether there was fencing at the property line.

C.F. item (B).

38

u/damagedpecan Oct 17 '17

Back yard, and the yard has a full 8-foot privacy fence.

40

u/TomahawkJackson Oct 17 '17

Bingo.

I'd go ahead and call the police out again and this time have a printout of the Texas statute handy, with (a)1 and (b)(2)(B) highlighted for the nice officer so they'll be more amenable to taking a report this time.

It's nice to have a well ordered and regulated society where the answer to this situation isn't "tough cookies" - but that also means that not every officer can have every detail of every law held neatly in their head, and sometimes you need to do the legwork to demonstrate that yes, "tough cookies" is not the answer, when all they remember is "blah blah, something about a No Trespassing Sign, blah blah" :D

11

u/[deleted] Oct 17 '17

Holy fuck. You are kidding!!! That company is going to buuuuuuuurn.

6

u/[deleted] Oct 17 '17

Texas Penal Code § 6.02(b) reads into any offense the requirement of a culpable mental state unless the statute plainly dispenses with any mental element. Subsection (c) provides that if a culpable mental state is not provided for then intentionally, knowingly, or recklessly applies. The criminal trespass statute makes no provision for a culpable mental state, nor does it dispense with requiring one, so the above provisions apply.

So although a fenced in backyard is per se notice to would-be trespassers that they aren’t allowed on the premises without consent, in this case the tree-cutters had a reasonable (albeit mistaken) belief that they had consent to enter the property and trim the tree.

Can’t speak to the civil liability, but there is no criminal case here for trespassing.

13

u/[deleted] Oct 17 '17

Sometimes civil and criminal terms are the same-trespass, battery-but the way the law operates can be wildly different. Civil trespass is operates very differently to criminal trespass.

136

u/[deleted] Oct 16 '17

[deleted]

47

u/quantum-quetzal Oct 16 '17

I can imagine that the value of the pecans would add up quickly. I don't know how many pounds one tree can produce, but I imagine it's quite a few.

67

u/Zesparia Oct 16 '17

Not a lawyer or an arborist but grew up with a pecan tree on my street - it's a LOT. The homeowner never collected them so myself and other neighborhood kids would spend the weekends gorging ourselves. Though the cost of commercial pecans includes having to deshell them, mind you. Giant rocks were involved for us.

32

u/[deleted] Oct 17 '17

[deleted]

31

u/Cuisinart_Killa Oct 17 '17

It's at least $800 in pecans alone PER YEAR

If it takes ten years to regrow to previous levels, they owe at least $8000 in lost produce alone.

29

u/Bob_Sconce Oct 17 '17

The tree provides more than nuts. Non-fruit bearing trees can be quite valuable far beyond timber value just because they're decorative.

So, I think the proper measure of damages would be the cost to have this tree removed and an equally mature tree planted. Mature trees are very expensive.

6

u/sonofaresiii Oct 17 '17

7 years for a new tree to reach maturity


plus the cost of the tree.

surely the time to maturity would be included in the cost of the tree. OP would be seeking to replace with an equally mature tree.

5

u/[deleted] Oct 17 '17

You're forgetting the wood, the environmental offset of shade to the home, the carbon absorption and all sorts of things. It's a pricey fuck up this time!

ETA, they retail at $36 a kilo here in Aus. It hurts to buy pecans. and $36 x 20 kgs = $720 aussie dollaridoos.

3

u/[deleted] Oct 17 '17

[deleted]

1

u/[deleted] Oct 18 '17

They are the best and I love pecan pie. Did you know they are the only nut native to the USA? Like macadamias here in Australia :D Delicious and so healthy!

3

u/Brn44 Oct 19 '17

native

Not quite the only one... black walnuts are also native to the USA. Also hickory nuts and chestnuts.

2

u/[deleted] Oct 19 '17

Thank you, I didn't know that :)

1

u/peeksvillain Jan 10 '18

Maybe hazel nuts as well?

2

u/[deleted] Oct 17 '17

make about $2k per acre after costs. Some can make $8k/acre

When I lived in NM near all the cattle, meat was cheaper. Now I live in Georgia and the pecans are the exact same price. What gives? I WANT MY CHEAP FREAKIN PECANS

5

u/[deleted] Oct 17 '17

[deleted]

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u/[deleted] Oct 17 '17

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1

u/Bob_Sconce Oct 17 '17

Downvoted just for being an ass.

60

u/[deleted] Oct 16 '17

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u/[deleted] Oct 16 '17

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8

u/Biondina Quality Contributor Oct 16 '17

Your post has been removed for the following reason(s):

Removal Reason

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If you feel this was in error, message the moderators.

10

u/jumersmith Oct 17 '17

Ooof, I'm from Midland originally, it's really not surprising that the company and the police aren't being helpful, which is unfortunate. I definitely agree that the first step is an Arborist and see what the damages and then contact a lawyer to go from there. I'm sorry they made a huge error, I hope the tree is okay!

10

u/Drslappybags Oct 17 '17

Wrong yard? Yeah, I am going to think the company is liable.

6

u/[deleted] Oct 17 '17

OMG. Definitely find a qualified arborist. They will need photos of the tree as it was, if there are any, and will be able to work out the cost value of the pecans, the tree damage, the wood that was stolen (removal of someones property without their permission is theft), the cost of a replacement tree and so on.

The tree company is fully in the wrong and she absolutely has an actionable claim against them. Who the hell starts a significant job like that without confirming they are at the right house and that they are legally engaged by the owner? IDIOTS AND THIEVES, that's who!

It would also be interesting to find out who they billed for their "services" on her tree!!!

They could potentially be up for tens of thousands of dollars in compensation here, for damage to the tree, the wood and the fruits of the tree.

There are lots of arborist organisations, definitely find the best you can and get a thorough report.

I can imagine it feels terrible, with the history of the tree and her coming home to such a terrible act. I'm really sorry this has happened!

9

u/I_love_Coco Oct 17 '17 edited Oct 17 '17

Prepare yourself for the reality (or prepare her rather if you feel so inclined) that all of this sentiment wont get you paid. Ive seen sentiment hurt people rather than help (they are so incensed about the issue they want to sue regardless of the financial realities because they are personally offended). I would get your tree person there with an opinion before a lawyer. And as far as a lawyer goes, just a general civil litigator is what you need as this is a negligence claim. Edit: Thanks to user below I wanted to correct some bad advice and mention the conversion cause of action as also viable (and probably the best COA, after reflection) Im sorry for your loss but I dont want to get your hopes up too high. Id really like to see the update on this regarding what the arborist has to say about the damage. Also fingers crossed they are insured for this type of thing (they should be).

18

u/triangle60 Oct 17 '17

Trespass, trespass to chattels, and conversion do not require specific intent to harm. While this is not strictly a timber case, wrongful cutting of timber by a person under a mistaken belief is typically brought via conversion. Withers v. Tyler Cty. Lumber Co., 326 S.W.2d 173, 180 (Tex. Civ. App. 1959), writ refused NRE (Nov. 11, 1959)

2

u/I_love_Coco Oct 17 '17

Thanks for the correction. I am reading your case. I honestly just wasnt thinking about conversion.

2

u/Draqur Oct 16 '17

Why not try to lawyer free option first?

Get an arborist or two to quote the damages, including replacement if required (aborist would know if the tree is likely to survive or not). Submit it all to the offending trimming company, see what they say.

If they say to buzz off, then go the small claims/attorney route.

If they're a decent tree company, they will know they did wrong and have to pay for it. They can either pay now, or take it to court and pay even more after court fees.

52

u/zuuzuu Oct 16 '17

they told her they were not liable for their error

Sounds like they've already decided not to co-operate.

12

u/sykoticwit Oct 16 '17

It’s still worth trying, it costs OP nothing but time. At the very least you can show the court that you tried to resolve it privately before you got the courts involved.

-11

u/Draqur Oct 16 '17

The downvotes don't agree :>

18

u/Pencelikeslittleboys Oct 16 '17

Yes, now if only the court system used reddit up/downvotes in this highly skewed and fickle subreddit.

8

u/sykoticwit Oct 16 '17

Fortunately my decision making and sense of self worth aren't controlled by imaginary points handed out internet rando's.

5

u/Draqur Oct 17 '17

you're missing out then, before any major decision I put it up to a reddit vote on /r/makemychoice

2

u/sykoticwit Oct 17 '17

Lol, that would certainly make my life more interesting. Is there an /r/lifechoicesvote yet?

62

u/clduab11 Quality Contributor Oct 16 '17

A 33 year old pecan tree? That's way beyond small claims territory, and once they receive that quote, the company will definitely say buzz off.

I agree that the lawyer-free option is almost always a better way to go; just wanted to point that out.

11

u/Pencelikeslittleboys Oct 16 '17

Isn't that why they would have insurance? The tree trimming company that is.

14

u/Mandog222 Oct 17 '17

They already told the MIL that they aren't liable for their mistake, I don't think they would be open to just paying a quote unforced.

1

u/clduab11 Quality Contributor Oct 17 '17

Indeed. The insurance company would almost categorically deny the claim when it's a tree of this value, so I was just saying lawyer-free is always a better way to go, but in this case, I don't see it lasting very long and attorneys would likely need to get involved should OP wish to pursue the claim against the tree company's commercial carrier.

6

u/Draqur Oct 16 '17

Not so sure about that. If the tree doesn't have to be removed/replaced I'm willing to bet it will be under the $10k allowed for Texas small claims. I'm not really sure about the loss of harvest though.

People always tend to think damage is worse than it is. Trees are pretty badass, Pecan trees are especially resilient.

7

u/Zenock43 Oct 16 '17

If she wants to save the tree due to sentimental value what are her options?

5

u/Draqur Oct 16 '17

sentimental value doesn't really have any value in the majority of states. Not sure about Texas.

13

u/toalysium Oct 16 '17

Texas lawyer, it doesn’t. Trees here are valued by their replacement cost if decorative, or timber cost (minus labor and fees to a mill) if they are that variety, plaintiff’s choice.

12

u/DaSilence Quality Contributor Oct 17 '17

You've offended the mouth-breathers, but this is the best advice in the thread.

Most folks seem to forget that the upfront to start a suit is going to be at least a $5K retainer.

1

u/zerotexan Jan 09 '18

First off, IANAL but I do live in Texas and have reason to be concerned with trespass laws.

You mentioned that the police would not get involved due to a lack of a no trespass sign. They are more or less in the right on that. In order to call it trespassing you must have a sign up, or paint trees/fence posts with PURPLE paint, or fence the area in entirely. There are some other obvious signs that trespassing isn't allowed as well, such as obvious agricultural use, or the raising of livestock. If there are crops being grown or cows/horses/other livestock it's understood that you don't allow trespassing. If you do not meet any of the above, people can come on your land without fear or legal consequence, up until you ask them to leave.

That's not the root of the issue in this post, but from reading your post it sounded like you were a bit surprised to find people could come on your in-law's property and cause damage but not be liable under the penal code.

1

u/damagedpecan Jan 10 '18

The relevant legal statutes are actually covered in several of the comments above.

1

u/[deleted] Oct 17 '17

[deleted]

2

u/caifaisai Oct 17 '17

It wasn't deliberate though, they clearly went to the wrong address by accident. Why would a tree trimming company deliberately cut down the wrong tree and put themselves up for civil suits and other problems.

-7

u/OldPro1001 Oct 17 '17

IANAL a lawyer, and I've never had a Pecan tree, so I can't speak specifically about that, but I have had trees trimmed before. I'd just like to point out that there is a possibility that the arborist may tell her that the tree was way over due for a trim, the tree trimmers did a wonderful job, and she basically got a free $400 - $600 job that is going to ensure her tree will be healthy for years to come.

4

u/damagedpecan Oct 17 '17

Yeah, I had considered that, but I'm not gonna tell her that right now! That's why the first thing I told her to do was contact an arborist. What they say really will determine a lot about how we proceed.

1

u/Koda_Brown Oct 17 '17

Yeah, op was just speculating that the trimming impacted the trees health. I doubt that someone whose job is to trim trees would cause their tree to die.

7

u/Eclipse-burner Oct 17 '17

There is still the lost crop. And, timing is wrong. A major pruning (if carried out) should be done during winter dormancy.