Attorney Rolf J von Merveldt, III, obtained a jury verdict in favor of his client on a “boundary tree” dispute case involving his client and the neighbors that shared a backyard property line and a cottonwood tree that caused problems for years on the boundary and to his clients property.  RVM Law, LLC obtained a negligence verdict of $17,350.00 its damages plus $18,240.19 in costs for a total judgment of $35,590.19 which was paid in full by the insurance company for the neighbors.

            Boundary tree cases in Colorado can be surprisingly complicated given a series of confusing decisions at the Colorado Court of Appeals and Colorado Supreme Court.[1]  Contact RVM Law, LLC if you have an boundary tree issue.

            The complexity of the case is evidenced by the Court’s order on summary judgment filed by the defendants which paved the way for this matter proceeding to trial:

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court on Defendants James R. Lewis, Joy D. Lewis (collectively, “Lewis Defendants”), Anthony M. Cutilleta, and Adrienne Cutiletta’s (collectively, the “Cutiletta Defendants”) (jointly, “Defendants”) Motion for Summary Judgment (“MSJ”), filed on July 31, 2023. Plaintiff Lawrence Johnston (“Plaintiff”) thereafter filed a Response on August 28, 2023. Defendants filed their Reply on September 11, 2023. The Court, having reviewed the related pleadings and relevant portions of the Court’s file, FINDS and ORDERS as follows:

BACKGROUND

This case arises out of a dispute between two neighbors involving alleged damage from a tree situated near their shared property line. Plaintiff and Defendants own or live on adjoining lots at 501 Kearney Street, Denver, Colorado 80220 and 29 Crestmoor Drive, Denver, Colorado 80220, respectively. Plaintiff alleges that the tree has been encroaching onto his property, causing damage to his fence and property. In the summer of 2021, Plaintiff further alleges that he became aware that portions of the tree had died, creating further damage and risk of future harm. Plaintiff alleges that, after this discovery, he made initial contact with Defendants informing them that the tree was in poor condition and would need to be removed, but no action was taken in response. At this time, Plaintiff commissioned a survey of the parties’ lots that revealed the fence Plaintiff had built in 1998 was located approximately nine inches inside of his platted property boundary. Following further unsuccessful attempts at communication, Plaintiff filed this suit. Defendants now move for summary judgment on Plaintiff’s negligence, trespass, and quiet title claims.

LEGAL STANDARD

The court may grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78 (Colo. 1999). The court may not grant summary judgment when the pleadings and affidavits show material facts in dispute. GE Life & Annuity Assurance Co. v. Fort Collins Assemblage, Ltd., 53 P.3d 703, 706 (Colo. App. 2001).

A material fact is one that will affect the outcome of the case. Struble v. Am. Fam. Ins. Co., 172 P.3d 950, 955 (Colo. App. 2007); Krane v. St. Anthony Hosp. Sys., 738 P.2d 75 (Colo. App. 1987). The moving party has the initial burden of showing that no genuine issue of material fact exists; the burden then shifts to the nonmoving party to establish that there is a triable issue of fact. AviComm, Inc. v. Colo. Pub. Utils. Comm’n, 955 P.2d 1023, 1029 (Colo. 1998). This burden has two distinct components: 1) an initial burden of production on the moving party, which, when satisfied, then shifts to the nonmoving party; and 2) an ultimate burden of persuasion, which always remains on the moving party. Continental Air Lines, Inc. v.Keenan, 731 P.2d 708, 712 (Colo. 1987). The initial burden may be satisfied by showing the court that there is an absence of evidence in the record to support the nonmoving party’s case. Id. Once the party moving for summary judgment has made a convincing showing that genuine issues of fact are lacking, the opposing party cannot rest upon the mere allegations or denials in his or her pleadings but must demonstrate by specific facts that a controversy exists. U.S.A. Leasing, Inc. LLC v. Montelongo, 25 P.3d 1277, 1278 (Colo. App. 2001).

ANALYSIS

I.        Negligence

Defendants contend that the summary judgment is appropriate on Plaintiff’s negligence claim as the alleged encroachment and damages were discovered ten years ago, making Plaintiff’s claim time barred. MSJ, p. 14. They further argue that Plaintiff cannot establish the breach or causation elements of a negligence claim. Id.

1. Timeliness

As to timeliness, the applicable statute of limitations for negligence actions requires that claims be brought within two years of the date of accrual. C.R.S. § 13-80-102. Time begins to accrue for a negligence cause of action “when the claimant has knowledge of facts which would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the wrongful conduct of another.” Jones v. Cox, 828 P.2d 218, 223-24 (Colo. 1992).

Plaintiff has alleged that the tree in question has caused damage to Plaintiff’s property,fence, and their surroundings. Complaint, ⁋ 49. The exact time frame put forth in the Complaint is unclear as it states “[s]ince July 2021 and before,” however the Complaint acknowledges that “a portion of the tree encroached into [Plaintiff’s] fence causing part of the fence to collapse.”Id. at ⁋ 15. As to the actual occurrence of this injury, Defendants have discharged their burden to show that Plaintiff knew of both the source and cause of the fence collapse in 2013. See Ex. C to MSJ, 46:24-47:6. Plaintiff’s Response fails to address Defendants’ argument that Plaintiff believed the collapse of his fence was due to the Defendants’ failure to maintain the tree in 2013 and instead only contends that Plaintiff became aware of the dead portions of the tree in 2021. See Response, p. 14. Consequently, Plaintiff has failed to discharge his burden to establish a genuine dispute of material fact as to the accrual of the encroachment portion of his negligence claim, and summary judgment in Defendants’ favor is therefore appropriate.

Additionally, the initial Complaint points to the “deceased portion of the tree” as a source of alleged damages incurred. Complaint, ⁋ 49. It also speaks to fungus and an ant infestation that developed from these deceased portions. Id. at ⁋⁋ 21-22. From the records at hand, Plaintiff learned of the dead segments of the tree in 2021. See, e.g., Ex. 3 to Response. This puts the initial December 2022 filing of the claim within the statute limitations.

In sum, Plaintiff’s negligence claim is predicated upon 1) the encroachment of the tree and 2) the deceased portion of the tree and its further complications. Accordingly, to the extent that Plaintiff’s negligence claim is based upon encroachment, the Court finds summary judgment appropriate because encroachment became evident as did the insufficiency of any maintenance to prevent the encroachment in 2013, so the claim is time barred. However, to the extent the negligence claim is predicated on the dead portion of the tree, Plaintiff did not learn of the nature of this injury until 2021, and as such, the Court cannot find that this portion of Plaintiff’s claim is barred by the statute of limitations.

• Elements of negligence

Turning to Defendants’ next argument regarding Plaintiff’s negligence claim, Defendants contend that Plaintiff did not establish that they either breached a legal duty or caused Plaintiff injury.

The elements of a negligence claim are as follows: 1) a duty owed to the plaintiff to the defendant, 2) a breach of that duty, 3) injury to the plaintiff, and 4) a causal relationship between the breach and the injury. Casebolt v. Cowan, 829 P.2d 352, 356 (Colo. 1992). Whether a legal duty is owed is by a defendant to plaintiff in the given circumstances, and the scope of any such duty, are questions of law for the court. English v. Griffith, 99 P.3d 90, 93 (Colo. App. 2004).

In an earlier order regarding Defendants’ Motion to Dismiss, the Court found support from both the Restatement and foreign jurisdictions of the existence of a duty of adjacent landowners to prevent harm from “defective” trees. See Restatement (Second) of Torts (1965), § 364, 366; see, e.g., Lewis v. Krussel, 2 P.3d 486, 491 (Wash. App. Div. 2 2000) (collecting cases finding landowner “in or adjacent to an urban or residential area has a duty of reasonable care to prevent defective trees from posing a hazard to others on the adjacent land”).

Determining whether a legal duty was breached is a question of fact for the jury.

Perreira v. State, 768 P.2d 1198, 1120 (Colo. 1989). Here there are disputes as to the maintenance done to the tree and the adequacy of such maintenance. See MSJ, p. 6-7; Response,p. 11. Plaintiff claims that no maintenance at all was completed, while Defendants assert that they performed routine maintenance such as trimming the tree’s branches. Id. What steps were taken to upkeep the tree will be important in determining whether a breach occurred. However, weighing the competing evidence and determining its validity and significance is the purview of the jury, making summary judgment as to the existence of a breach inappropriate. The same goes for causation and injury. Plaintiff alleges that he took steps to remove ants and fungus from the tree as well as prevent it from collapsing. Complaint, ⁋ 22. Whether these actions were catalyzed by Defendants’ actions or inactions is up to a jury to determine.

Summary judgment on Plaintiff’s negligence claim insofar as it relates to encroachment, including the reconstruction of the fence in 2013, is GRANTED. Summary judgment on the negligence claim stemming from the deceased portion of the tree is DENIED.

II.   Quiet Title

Defendants argue that Plaintiff cannot recover on his quiet tile claim because an indispensable party was not joined as a party in the case. MSJ, p. 15. The Defendants’ argument is based on a maintenance covenant, executed in 1999 between Lawrence Johnston and Gregg Design Custom Builders, Inc (“Gregg Design”). They claim that a “complete adjudication” cannot be reached because the Plaintiff failed to include Gregg Design as a party with interest in the disputed property. See id. at 17.

If Defendants are correct that Gregg Design is an indispensable party under C.R.C.P.

19(a), then the Court cannot completely determine the controversy with just the present parties. Plaintiff however posits several arguments that Gregg Design is not an indispensable party: 1) the covenant only encumbers Plaintiff’s legally described parcel, 2) the covenant does not appear in Plaintiff’s chain of title, and 3) Plaintiff has identified all parties with an interest in Defendants’ property, which is all that is required. See Response, p. 17-18.

C.R.C.P. 105(a) provides that:

An action may be brought for the purpose of obtaining a complete adjudication of the rights of all parties thereto, with respect to any real property and for damages, if any, for the withholding of possession. The court in its decree shall grant full and adequate relief so as to completely determine the controversy and enforce the rights of the parties. The court may at any time after the entry of the decree make such additional orders as may be required in aid of such decree.

C.R.C.P. 105(b) further provides that:

No person claiming any interest under or through a person named as a defendant need be made a party unless his interest is shown of record in the office of the recorder of the county where the real property is situated, and the decree shall be as conclusive against him as if he had been made a party; provided, however, if such action be for the recovery of actual possession of the property, the party in actual possession shall be made a party.

“The manifest intent of Rule 105(a) is to provide a ‘complete adjudication of the rights of all parties.’” Hopkins v. Bd. of Cnty. Com’rs of Gilpin Cnty., 564 P.2d 415, 420 (Colo. 1977). C.R.C.P. 105 is designed to ensure “security to quiet title proceedings by…‘resolving competing claims that exist at a particular time, and this purpose would be frustrated were the rule to permit piecemeal litigation of claims.’” Argus Real Est., Inc. v. E-470 Pub. Hwy. Auth., 109 P.3d 604 (Colo. 2005) (quoting 5 Krendl, Colorado Methods of Practice, Civil Rules Annotated § 105.2 (3d ed.1998).

As discussed by Defendants, the court in Keith v. Kinney held that “all of the parties who claim interest in the parcel are indispensable for a proper judgment to be entered.” 961 P.2d 516, 519 (Colo. App. 1997). Though this general rule holds true, it does not by itself determine whether Gregg Design is an indispensable party.

In Seago v. Fellet, 676 P.2d 1224 (Colo. App. 1983), lot owners in a subdivision filed suit against developer for breaching a contract to pave roads within the subdivision. The defendant argued that the plaintiffs’ claim should have been dismissed for failure to join other subdivision owners, who were indispensable parties. The court disagreed, holding that “[s]ince determining the diminution in value of these plaintiffs’ properties does not affect the rights of the other lot owners, a final, equitable determination is possible in this case without the joinder of the other owners.” Id. at 1227. In the same vein, the Court of Appeals has acknowledged that “[a] plaintiff in a quiet title action may omit an interest, or the holder of the interest, because challenging the interest would be futile, the plaintiff did not contemplate the interest, the plaintiff did not know of the interest, or the plaintiff did not care about the interest.” Camp Bird Colorado, Inc. v. Board of Cnty. Com’rs of Cnty. of Ouray, 215 P.3d 1277, 1283 (Colo. App.

2009).

No authority was located holding that a covenant holder or similarly situated entity was an indispensable party to a quiet title proceeding. Rather, parties deemed indispensable have largely been record owners of property. See, e.g., Swartz v. Bianco Fam. Tr., 874 P.2d 430, 434 (Colo. App. 1993) (“The [defendants] were clearly indispensable parties for resolution of those claims because they claimed a recorded ownership interest in the property covered by the agreement.”); Larimer & Weld Reservoir Co. v. Ft. Collins Mill. & Elevator Co., 152 P. 1160, 1162 (Colo. 1915) (in an action by a minority stockholder in a mutual ditch company to quiet the title, the company owning the ditch was an indispensable party.); Rivera v. Queree, 358 P.2d 40, 42 (Colo. 1960) (“[Plaintiffs’ grantors] were not indispensable parties to a determination of” a quiet title action).

Because no authority outright confirms whether Gregg Design is an indispensable party, the general test to make this determination needs to be employed. As relevant here, the test for indispensability is as follows:

Is the absen[t] person’s interest in the subject matter of the litigation such that no decree can be entered in the case which will do justice between the parties actually before the court without injuriously affecting the right of such absent person?

Woodco v. Lindahl, 380 P.2d 234, 238 (Colo. 1963) (quoting Ford v. Adkins, 39 F. Supp. 472 (E.D. Ill. 1941)).

Here, Gregg Design’s maintenance covenant appears to be executed upon the completion of the Plaintiff’s house and in sum provides that Plaintiff and his assigns will not impede drainage courses established on the property. See Ex. J to MSJ. Specifically, the covenant states that “Declarants” (Plaintiff) agree “to perform preventative maintenance on the Property” as described in the document. Id. Plaintiff’s quiet title claim is in regard to the discrepancy between his platted land and the fence erected between his and Defendant’s property. This fence was built in 1998 before the covenant was executed and resides approximately nine inches within the platted boundary line of Plaintiff’s property.Response, p. 4.

Because the covenant relates to water drainage and maintenance relating to drainage, it is hard to fathom how the present quiet title action would be injurious to Gregg Design. Put differently, the maintenance covenant can be read as creating an interest for Gregg Design in what Plaintiff does with the land; even if Plaintiff loses a fragment of land, Gregg Design’s interest remains unaffected. Thus, Gregg Design is not an indispensable party.

Defendants’ motion for summary judgment on the quiet title claim is DENIED.

III.          Trespass

Defendants move for summary judgment on Plaintiff’s trespass claim. Defendants argue that they could not have committed trespass because they neither planted the tree nor were they aware of any encroachment on to Defendant’s property. MSJ, p. 10. Plaintiff in turn argues that Defendants were aware of the tree’s encroachment, but they have failed to take any steps to remedy this issue. Response, p. 16.

The elements of the tort of trespass are a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property. Sanderson v. Health Mesa Homeowners Ass’n, 183 P.3d 679, 682 (Colo. App. 2008). “In Colorado, liability for trespass requires only an intent to do the act that itself constitutes, or inevitably causes, the intrusion.” Burt v. Beautiful Savior Lutheran Church of Broomfield, 809 P.2d 1064, 1067 (Colo. App. 1990). Moreover, trespass can be established when “defendants control on their property an instrumentality which sets in motion a force which, in the usual course of events, will damage the [plaintiff’s] property.” Cobai v. Young, 679 P.2d 121, 123 (Colo. App. 1984).

Since a portion of the fence dividing the adjoining properties was rebuilt further into Plaintiff’s property, it is obvious that the tree is encroaching onto Plaintiff’s property as defined by the 1998 fence. Furthermore, the Defendants have exercised control over the tree both by performing maintenance of it and commissioning others to do so. See Ex. E to MSJ; see Ex. G to MSJ. This is sufficient to, at the least, create a triable issue of fact as to Defendants’ intent with regards to the trespass. See Cobai, 679 P.2d at 123.

Defendants’ motion for summary judgment on Plaintiff’s trespass claim is therefore DENIED.

CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ Motion for Summary Judgment.

ENTERED this 6th day of October, 2023

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[1] See  Love v. Klosky, 413 P.3d 1267, 1273 (Colo. 2018); Rhodig v. Keck, 161 Colo. 337, 340 (Colo. 1966)