Bahena v. Foster

KRAUSER, J. Joyce Kilmer wrote: “I think that I shall never see a poem lovely as a tree.” 1 He apparently never lived next to the Bahenas. What was to Kilmer a vision of ineffable beauty was to the Bahenas’ neighbors, appellees Jonathan and Janey Foster, an arboreal nightmare. Overhanging the Fosters’ house was Gary and Valerie Bahenas’ tree, large and purportedly in a state of decay. Uninterested in transforming their home into a tree house, the Fosters asked the Bahenas to remove the intruding trunk.

When the Bahenas declined to do so, the Fosters filed a suit in the Circuit Court for Anne Arundel County, seeking compensatory and punitive damages for nuisance and negligence and requesting an injunction compelling the Bahenas to remove the tree. Eventually, to resolve their dispute, the parties entered into a consent order, dividing responsibility for the removal of the tree between them. When the Bahenas failed to comply with that order, the Anne Arundel circuit court held them in contempt and ordered them to pay the attorney’s fees and expert witness fees of the Fosters. Challenging both the finding of contempt and the award of attorney’s fees and expert witness fees, the Bahenas noted this appeal, presenting three issues for our review.

Reordered and reworded, they are: I. Whether the circuit court erred in finding the Bahenas in contempt without having expressly stated that they had “willfully” violated the consent order. ²⁸⁰ II. Whether the circuit court erred in awarding attorney’s fees and expert witness costs arising out of the contempt hearings as litigation expenses.

III

Whether the circuit court lacked authority to impose attorney’s fees or expert witness fees for contempt where the parties expressly struck from the consent order the provision providing for attorney’s fees in the event of a breach of that order. For the reasons that follow, we shall affirm the circuit court’s finding of contempt, but vacate its award of attorney’s fees and expert witness fees. Because we are vacating that award, we do not reach the Bahenas’ third issue, which merely presents an alternative ground for the result we have reached. Background The Bahenas and the Fosters live on contiguous properties in Annapolis, Maryland.

In the Bahenas’ back yard stands an eighty-five foot tulip poplar tree, composed of “double leaders,” that is, two connected trunks. The tree is located approximately five feet from the boundary fine separating the Bahenas’ property from the Fosters’ property. The left leader leans directly above and toward the Fosters’ home, extending across the property line into the Fosters’ yard. The right leader extends straight up.

In the spring of 2000, the right leader of the tree was struck by lightning and by the fall of 2002 had begun to show signs of decay. Janey Foster approached Gary Bahena and told him about the decay and expressed concern that the tree posed a hazard to their property. In response, Mr. Bahena denied that the tree posed any danger to the Fosters’ property. Unhappy with this answer, the Fosters sent the Bahenas a letter requesting the tree be removed.

The Bahenas responded by sending the Fosters a letter stating that the tree “appear[ed] to be healthy and pose[d] no appreciable hazard,” but, if the Fosters wanted to remove the tree, they could do so. In March 2003, the Fosters obtained opinions as to the condition of the tree from two licensed tree experts affiliated ²⁸¹ with two separate tree service companies: Ken Bringley of Severn Tree Service, Inc. and Daniel T. Helgerman of Richard’s Tree Service, Inc. Both experts viewed the tulip poplar tree from the Fosters’ backyard on separate occasions. In his report to the Fosters, Bringley stated that the “trunk that was struck by lightning is in my opinion a hazard and needs to be removed.” He cautioned that “the remaining trunk left alone would not be stable enough to withstand a severe thunderstorm and if the top or entire tree went down it would cause severe damage to the house under it.” Helgerman, in his report, came to a similar conclusion. “[B]oth leaders of the tree,” he opined, “are a potential hazard.” The Fosters sent the two reports to the Bahenas. Five months later, a large portion (forty feet) of the right leader, which had been previously struck by lightning, fell into the Fosters’ yard, causing damage to their “outbuilding/workshop” and to two maple trees.

Approximately thirty to forty feet of that leader remained standing, as did the left leader, which leaned over the Fosters’ house. Advised by the fire department not to occupy their house until a tree expert had rendered an opinion as to whether it was safe to do so, the Fosters moved into a hotel and asked Bringley and Helgerman to re-inspect the tree. Bringley reported that his re-inspection disclosed that “it is not a question of if the tree falls but when the tree falls.” When that occurs, he warned, “there will be a total loss of the house,” and that could “very well” mean “a loss of life if anyone is home at the time.” Helgerman expressed the same fear. He warned that “[t]he remaining half remains a hazard to [the Fosters’] home,” explaining, “[t]his was a double leader tree and now with one leader gone, the other leader with tons of weight over [the Fosters’] roof will fail too.” Thé Fosters sent both reports to the Bahenas and again requested that the Bahenas remove the tree.

When the Bahenas failed to respond to their request, the Fosters filed a complaint in the Circuit Court for Anne Arundel County, seeking compensatory and punitive damages for nuisance and negligence and requesting an injunction compelling the Bahenas to remove the tree. When efforts to ²⁸² mediate the dispute failed, the Bahenas filed an answer, and thereafter, a motion to dismiss or for summary judgment. After a hearing was held on the Fosters’ petition, but before the court issued a ruling, the parties reached an agreement, which was then incorporated into a consent order. That order provided, among other things: 1.

That on December 9, 2003, weather allowing, the Fosters shall trim and remove that part of the subject Tulip Poplar tree that extends over the property line, i.e. overhangs their property, in common between the Fosters and Bahenas without entering upon the Bahenas’ property except to remove small debris that has fallen on to the Bahenas’ property. 2. The Bahenas shall, within ten (10) business days, weather allowing, of the Fosters having removed that portion of the subject Tulip Poplar tree that extends over the common property line, remove in full the remaining portion of the subject Tulip Poplar tree without entering upon the Fosters’ property except to remove small debris that has fallen on to the Fosters’ property ... * * ^ 7. Upon full and complete removal of the subject Tulip Poplar tree occurring without property damage to the other, the parties, by and through counsel, shall file Lines of Dismissal with Prejudice dismissing with prejudice the above-captioned action with the parties paying equally the cost of the dismissal fee. The parties are to make payment of their own costs. 8.

That this Consent Order shall remain in full force and effect even if the Bahenas’ Motion to Dismiss or, in the alternative, Motion for Summary Judgment is granted. Either party who fails to comply with the provisions of this Consent Order, or breaches any obligations thereunder, will indemnify the other, make the other financially whole, and to be responsible for any and all damages caused by the breach of the obligations hereunder, including but not-Iimited to reasonable-attorney’-s-fees. ²⁸³ Thus, the parties agreed that the Fosters would first remove the portion of the tree “that extends over the[ir] property line” and, when that was done, the Bahenas would “within ten business days” extract “the remaining portion of the tree.” After entering into the consent order, Mr. Bahena urged the Fosters, in an email to the Fosters’ counsel, “to err on the side of taking too much down instead of too little.” The next day, pursuant to paragraph 1 of the consent order, the Fosters had the portion of the tree that extended over the property line removed. Helgerman supervised the removal. Later that day, Mr. Bahena sent an email to the Fosters’ attorney stating, “[his] daughter just phoned to say that the Fosters’ tree people appear to be doing clean up but did not remove all of the portion of the tree hanging over the Fosters’ yard.” The Fosters’ attorney responded with a letter, stating that the “portion of the tree hanging over the Fosters’ yard has been removed.” Mr. Bahena, in turn, replied in an email that “the Fosters did not cut down all of the portion of the tree that was hanging over their yard” because, “when a large portion of the canopy was removed, a good bit of the tree straightened upright and [Mrs. Foster] concluded that she was no longer obligated to remove it ... ” When the Bahenas failed to remove the remainder of the tree within ten business days of the Fosters’ removal of the portion of the tree extending over the property line, the Fosters filed a contempt petition, requesting that the court hold the Bahenas in contempt for failing to comply with the consent order and ordering that they pay the Fosters’ attorney’s fees and all expenses the Fosters incurred as a result of the Bahenas’ failure to comply with the consent order.

Alleging bad faith on the part of the Bahenas, the Fosters also requested attorney’s fees and costs pursuant to Md. Rule 1-341. In response, the Bahenas filed an opposition to the Fosters’ petition as well as a cross-petition, seeking to hold the Fosters in contempt for failing to remove all of the portion of the tree that extended over the property line. ²⁸⁴ At a hearing on the cross-petitions, Helgerman, the Fosters’ tree expert, stated that he was a “plant health care specialist” employed by Richard’s Tree Service, Inc., and that his company was hired by the Fosters to remove the portion of the tree that extended over the property line. He testified that he and his crew arrived at the Fosters’ property at 7:30 a.m. on December 9, 2003, and began trimming the tree around 8:10 a.m. Consistent with the email that Mr. Bahena sent to the Fosters’ attorney, instructing the Fosters to “err on the side of taking too much down instead of too little,” he trimmed the tree approximately two to three feet beyond the property line.

To assure compliance with the consent order, he dropped a steel cable with a steel ball attached to it over the tree so that he could determine where exactly the property line was while he and his crew were trimming the tree. Thus, Helgerman “felt very certain” that he trimmed the tree beyond the property line. He further stated that, contrary to Mr. Bahena’s assertions, the tree “did not move” or “straighten up,” after a portion of the canopy was removed. In contrast to the Fosters’ efforts to comply with the consent order, Mr. Bahena made no effort to remove the remaining portion of the tree and he so testified.

Nor was he present at the time the tree was being trimmed by the Fosters’ tree service. Ruling from the bench, the court found Gary and Valerie Bahena in contempt of the consent order, stating: The bottom line is that there was an agreement, that the Bahenas signed the agreement, the Fosters signed the agreement, the Fosters were to remove that portion of the tree that extends over the common property line. The only expert ... comes in and says “I dropped the ball on the line, I made it two or three feet closer to Mr. Bahena, over Mr. Bahena’s property line to ensure that we got all of it. We trimmed it back.

The tree did not move. I was there for six hours. The tree did not move.” ... I don’t think the tree moved ...

I think the tree stood just as it did, just as the expert indicated. ²⁸⁵ 1 do find that Mr. Bahena is in contempt of the Court’s order. I’m going to order that the balance of the tree be taken down within 10 days and I will count, have [sic] my secretary contact both counsel for a hearing on damáges. The court entered an order on January 15, 2004, holding the Bahenas in contempt of the consent order and instructing them that they could “purge themselves of this contempt” by removing the remainder of the tree on or before January 22, 2004. The court also ordered that another hearing would be held to determine “attorneyt’s] fees, costs, and other expenses” incurred by the Fosters as a result of the Bahenas’ failure to comply with the consent order. 2 On April 21, 2004, the circuit court held a “damages” hearing.

A month after the hearing, the court issued a memorandum opinion. Citing Dodson v. Dodson, 380 Md. 438 , 845 A.2d 1194 (2004), the court denied the Fosters’ request for compensatory damages, but awarded them attorney’s fees and the costs relating to the expert testimony of Helgerman. Specifically, the court awarded the Fosters $5974.09: $4974.09 in attorney’s fees and $1000.00 in expert witness fees. Explaining its ruling, the court stated: In Dodson , the Court of Appeals of Maryland ruled on an issue of first impression, namely “whether compensatory damages may be awarded in a civil contempt action.” Id. at 445 , 845 A.2d 1194 .

After exhaustively reviewing cases concerning civil contempt, the Court stated “[u]nder settled Maryland law, one may not be held in contempt of court unless the failure to comply with the court order was or is