The opinion
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14-P-1642 Appeals Court
GEORGE EVANS vs. MAYER TREE SERVICE, INC., & others.1
No. 14-P-1642.
Worcester. September 9, 2015. - March 3, 2016.
Present: Meade, Wolohojian, & Milkey, JJ.
Practice, Civil, Summary judgment, Relief from judgment.
Commissioner of the Department of Conservation &
Recreation. Trespass. Real Property, Trespass, Removal of
timber. Nuisance. Consumer Protection Act, Insurance,
Unfair act or practice. Insurance, Unfair act or practice.
Civil action commenced in the Superior Court Department on
January 31, 2011.
The case was heard by Daniel M. Wrenn, J., on motions for
summary judgment, and a motion for relief from judgment was also
heard by him.
E. Douglas Sederholm for the plaintiff.
Denise M. Tremblay for Mayer Tree Service, Inc.
James T. Scomby for Marquis Tree Services, Inc.
Elizabeth W. Morse for Farm Family Casualty Insurance
Company.
1
Marquis Tree Services, Inc., and Farm Family Casualty
Insurance Company.
2
MILKEY, J. In August of 2008, an invasive, wood-boring
insect known as the Asian longhorned beetle (ALH beetle) was
discovered in the Worcester area. The ALH beetle infests
particular types of hardwood trees (host trees) that die as a
result. Federal and State officials mobilized quickly to
address the problem. Under the plans that they jointly
developed and implemented, host trees that showed tell-tale
signs of infestation were to be destroyed, together with those
additional host trees that were deemed to be at high risk of
infestation. The actual tree removal work was to be done by
State contractors (and their subcontractors).
The plaintiff, George Evans, owns property at 14 Randolph
Road in Worcester, where he lives with his wife. There were
numerous host trees at his property, including Norway maples.
It is uncontested that in February of 2009, defendant Marquis
Tree Services, Inc. (Marquis),2 entered Evans's property and
destroyed at least twenty-one Norway maples there at the
specific direction of a Federal field inspector who mistakenly
believed that Evans had given written permission to have all
host trees on his property destroyed.
The principal question before us is whether, under the
particular circumstances presented, Marquis can be liable
2
Marquis, the entity that cut Evans's trees, was a
subcontractor of defendant Mayer Tree Service, Inc.
3
pursuant to G. L. c. 242, § 7, for destroying Evans's trees
"without license" to do so. On cross motions for summary
judgment, a Superior Court judge ruled in the defendants' favor
in a detailed and thoughtful decision. Because we conclude that
material facts remain in dispute that preclude entry of judgment
as a matter of law, we vacate the judgment.
Background. 1. The Legislative response to the ALH
beetle. According to documents in the record, the ALH beetle
has the potential to devastate forestry and related industries
if it is not contained. By emergency statute enacted on January
13, 2009, the Legislature declared the ALH beetle to be a public
nuisance, and it provided the Department of Conservation and
Recreation (DCR) broad authority to address the problem. See
St. 2008, c. 493, § 1, amending G. L. c. 132, § 11. This
included authority to "enter upon any land . . . for the purpose
of determining the existence, over-all area and degree of
infestation or infection caused by the public nuisances named in
section eleven [including ALH beetles, and] suppressing and
controlling said public nuisances." G. L. c. 132, § 8, as
amended through St. 1956, c. 657, § 2. The statute also gave
DCR general authority to "make use of and require the use of all
4
lawful means of suppressing such public nuisances." G. L.
c. 132, § 11.3
2. DCR general orders. On August 8, 2008, that is, even
before the Legislature declared the ALH beetle to be a public
nuisance, DCR issued a general order addressing its plans to
eradicate the ALH beetle from Massachusetts. That order applied
to a specifically designated area of central Massachusetts
referred to as "the Affected Area." In addition to strictly
regulating the transport of firewood and certain other materials
from host trees inside the Affected Area, the order stated that
"DCR may authorize, under separate agreements, DCR's duly
authorized agents or designees . . . to enter upon the
Affected Area and undertake activities necessary for
suppressing, controlling and eradicating [the ALH beetle],
including removing or causing to be removed, and the
destruction thereof, all Regulated Articles,[4] within the
Affected Area that are, may be or have the potential to be
infested or infected by [the ALH beetle]."
The order went on to state that "[w]hile DCR seeks to implement
this Order to ensure eradication of [the ALH beetle], DCR plans
3
In the nuisance abatement context, the Legislature
sometimes has spelled out what procedural protections apply
before private property is destroyed. For example, the
statutory program designed to fight Dutch Elm disease specifies
that officials are to issue individual tree removal orders that
property owners can appeal or face the consequences. See G. L.
c. 132, §§ 26F, 26G. With regard to the ALH beetle, the
Legislature did not specify how ALH beetle eradication efforts
should be implemented but, instead, left all program design
issues to DCR.
4
"Regulated articles" was defined by reference to host
trees to include "material living, dead, cut or fallen."
5
to do so in a reasonable manner, to the extent possible, to
minimize impacts to private property." Amended orders were
issued from time to time in order to expand the geographical
scope of the Affected Area.5
3. Tree marking and removal protocols. Working in
partnership with the Animal and Plant Health Inspection Service
(APHIS) within the United States Department of Agriculture
(USDA), DCR developed protocols through which the agencies would
pursue their eradication goals. The first step in the process
was to survey trees in areas known or suspected to be infested
to look for outward signs of infestation, such as "an exit hole
or an egg-laying site on [the tree] or an actual live beetle."
Trees that revealed such signs were marked with red paint. Host
trees that did not show signs of infestation were marked with
blue paint. Thus, host trees marked with red paint
(hereinafter, red-marked trees) were known to be infested, while
host trees marked with blue paint (hereinafter, blue-marked
trees) were not. Blue-marked trees were at risk of becoming
infested, especially to the extent they were in proximity to
where infestation had been found.6
5
There was a separate Federal order released, but that
order dealt only with quarantine issues.
6
A blue-marked tree already might be infested but not show
outward signs of infestation. For this reason, we will avoid
referring to blue-marked trees as "uninfested trees." In
6
From the beginning of the ALH beetle eradication program,
red-marked trees were slated for destruction, specifically,
through their being cut down and then chipped into small pieces.
The fate of individual blue-marked trees depended on the
particular degree of risk they posed. It appears that some
blue-marked trees could be treated with chemicals while others
presented such unacceptably high risks that they would have to
be destroyed.7 As discussed below, a DCR official provided
deposition testimony that all host trees would have to be
removed in a particular area of dense infestation.
4. Individual tree removal orders. In consultation with
APHIS, DCR developed standard forms that would be sent to
individual property owners in the event that trees "on or near
the[ir] premises" were found to be infested. One form, labeled
a "tree removal" order, notified the owner that "[t]he . . .
trees that have been previously marked with red paint
(indicating an infested tree) on the above-referenced Premises
are to be cut, removed and destroyed." With regard to blue-
addition, we will avoid referring to them as "host trees" (a
shorthand used by many of the underlying documents) because both
red-marked trees and blue-marked trees are host trees.
7
Thus, for example, the "cooperative agreement" that APHIS
and DCR signed on December 22, 2008, notes that blue-marked
trees are to be chemically treated "to protect [them] from
infestation," while also stating -- without further specificity
-- that "certain high risk" blue-marked trees would have to be
destroyed.
7
marked trees, the individual orders stated that such trees "may
need to be removed and destroyed [and that] [i]f such a
determination is made by USDA or DCR, notice will be provided in
advance that such additional hardwood trees are subject to this
Order."
The individual tree removal orders also warned property
owners that "[f]ailure to permit authorized contractors to
perform the removal actions at the Premises, and any failure to
otherwise comply with this Order, will result in the DCR seeking
enforcement of this Order in Superior Court." By statute,
"[w]hoever knowingly resists or obstructs the [DCR]
commissioner, any local superintendent or employee or
authorized agent of any of them, while any of those persons
is engaged in suppressing or eradicating the Asian
longhorned beetle . . . shall be subject to a civil penalty
of not more than $25,000 for each violation."
G. L. c. 132, § 12, as amended through St. 2008, c. 493, § 2.
5. Permission forms. When DCR mailed individual tree
removal orders to property owners, it enclosed a separate
"acknowledgement and permission" form for property owners to
sign. Property owners signing that form would thereby be
acknowledging that they had received the tree removal order and
that they were granting permission to have trees "previously
marked with red paint" destroyed.8 The form specifically
8
Under an alternative version of that document in the
record, property owners were asked to permit the destruction of
"the hardwood trees that are the subject of the Removal Order,"
8
informed property owners that blue-marked trees "are not
required to be cut and removed at this time." However, property
owners also were told they could opt to have their blue-marked
trees cut, without cost to them. Thus, property owners were
presented with three options: (1) they could give permission to
have only red-marked trees on their property cut, (2) they could
give permission to have both red-marked and blue-marked trees
there cut, or (3) they could decline to sign the form
(signifying that they had not given permission for the removal
of any trees).
In the event that a property owner refused to sign the
permission form, DCR escalated its efforts to persuade the owner
to do so, and if necessary, DCR referred the matter to the
Attorney General for enforcement. At least on the record before
us, there were only two occasions where DCR had to refer the
matter to the Attorney General (both involving red-marked
trees). In both cases, DCR ultimately was able to obtain the
owner's permission without the need for a court order.
6. Mapping of property owner consent. The relevant
officials used various geographic information system maps to
without attention to whether the trees were marked in red or
blue. Internal government records from December of 2008
indicate a perceived need to modify the language of the standard
permission form so that property owners could expressly grant
permission to have blue-marked trees removed. This indicates
that the alternative version was an earlier one.
9
track the extent to which property owners had permitted the
removal of host trees from their property. The properties for
which owners had given permission to have only red-marked trees
cut were shown in red (or pink), those who had given permission
to have all marked host trees cut were shown in blue, and those
who had not given permission were marked in white.
7. The contracts. DCR solicited bids for private
contractors to do the actual tree removal work.9 Through that
process, DCR awarded a bid to defendant Mayer Tree Service, Inc.
(Mayer), who in turn awarded a subcontract to Marquis with DCR's
approval. It is uncontested that the bid specifications were
incorporated into Mayer's contractual obligations with DCR, as
set forth in the "notice to proceed." It is also uncontested
that Marquis agreed to abide by those contractual obligations in
its subcontract with Mayer.
The bid specifications to which Mayer and Marquis agreed
required Mayer to "ensure that it performs its work in such a
manner to ensure no damage to private and personal property
contiguous to tree cutting activities, including those public
and private trees designated to remain." Under the bid
9
The contracts were funded by USDA, but DCR was the only
government party to the contract. The defendants seek to rely
on DCR's statutory authority to destroy host trees, and they
have not invoked or briefed any independent authority that USDA
might have had in this regard.
10
specifications, Mayer was prohibited from entering private
property if it was not "in receipt" of written permission.10
Where a private party had given such written permission for
Mayer to enter, Mayer agreed to hold that property owner
harmless for any contractual breaches by it and for any
negligent acts by it or its officers, employees, agents, or
subcontractors. Mayer was also required to carry significant
amounts of comprehensive general liability insurance coverage
for potential third-party personal injury and property damage
claims.
8. The cutting of Evans's trees. Various tree surveys
were conducted of Evans's property in 2008, including through
the use of United States Forestry Service employees known as
"smoke jumpers" who climbed the trees. A total of thirty-six
host trees were discovered there, including twenty-five Norway
maples, nine Japanese maples, an American elm, and a white ash.
At least prior to February 9, 2009 (the first date that Evans
alleges trees were cut on his property), no infested trees had
been found there, and therefore none of Evans's trees had been
marked in red. Ten of the thirty-six host trees, all Norway
10
The relevant provision stated that "[t]he Contractor
shall not enter any private property unless [it] is in receipt
of a Permission Slip from the property owner substantially in
the same form as Exhibit C prior to the Contractor during [sic]
any tree removals." Neither the defendants nor DCR produced a
copy of the permission form referenced as "Exhibit C," and that
form is therefore not before us.
11
maples, were marked with blue paint as a result of the 2008
inspections. No explanation appears in the record as to why the
other host trees were not marked in blue at that time.
It is undisputed that Evans never signed a written
permission form permitting the cutting of any trees on his
property. Nevertheless, Crystal Franciosi, the USDA inspector
who was overseeing tree removal that day, mistakenly believed
that Evans had granted permission to cut all host trees there.11
Franciosi directed Marquis to enter Evans's property on February
10 and 11, 2009, and to destroy twenty-one Norway maples there.12
Ten days after his trees were cut, Evans received a removal
notice and order in the mail, together with the permission
form.13 These documents apprised Evans that he had the option of
11
Because Evans had not signed a permission form, his
property should have been shown in white on the map that tracked
property owner permission. APHIS investigators appear to have
concluded that Evans's property was accurately shown in white on
the map, despite Franciosi's initial claims that it was marked
in blue. In any event, at least for present purposes, it
matters not whether Franciosi erroneously read a correctly
marked map, or correctly read an erroneous one.
12
On February 9, 2009, Marquis was cutting host trees on
property owned by the Nazarene Church that abuts Evans's land.
Evans claims that four of the Norway maples that were destroyed
that day were actually on his land. However, there is nothing
in the summary judgment record (save Evans's unsubstantiated
assertions) that four trees cut on February 9, 2009, were on his
side of the property boundary, nor have the defendants admitted
this fact.
13
Curiously, the order that Evans received was dated
December 10, 2008, even though the postmark on the envelope
12
not having blue-marked trees removed at this time, and that such
trees would be removed only if he so desired.
9. APHIS investigation. After Evans complained about the
destruction of his trees, Christine Markham, the director for
APHIS's national ALH beetle eradication program, looked into the
matter. Her review confirmed that Evans had never granted
written permission to have his trees destroyed. She also
personally apologized to him both privately and publicly. In
her words, the apology was for "the mistake made by USDA in the
removal of his host trees."14
10. Total host removal area. In the course of discovery,
Evans deposed Kenneth Gooch, a DCR official. According to
Gooch's testimony, government officials had decided that in a
two and one-half square mile area that included Evans's
property, actual infestation was so widespread that all host
trees in that area would have to be removed, regardless of
whether they showed current signs of infestation, and regardless
of whether property owners were willing to give their
permission. For convenience, we will refer to such an area by
indicates that it was mailed on February 20, 2009. The
defendants have not asserted that the order was received by
Evans before his trees were cut.
14
In addition to Markham's review, APHIS also conducted a
formal investigation, which culminated in a report dated March
23, 2009. That report's conclusions are consistent with those
reached by Markham.
13
the same name used by the motion judge, the "total host removal
area."
11. The summary judgment record. On July 30, 2012, Evans
served on the defendants a motion for partial summary judgment
as to liability, supported by his verified complaint and a
separate affidavit. With discovery not having been completed,
the defendants obtained a stay of their obligation to respond to
Evans's motion. After discovery had been completed, the
defendants served their own summary judgment motions, with Mayer
filing the lead motion. Although Evans's motion was first in
time, the defendants did not treat their own motions as cross
motions to the one Evans had already served, despite Evans's
protests. Instead, they began the process of creating a second
summary judgment record, while separately responding to Evans's
motion.15
In their own statement of undisputed material facts, the
defendants averred, based on Gooch's deposition testimony, that
State and Federal officials had established a total host removal
area and that Evans's property fell within it. Evans disputed
both points in his written response to the defendants' statement
of material facts, which he served on the defendants. He also
15
Pursuant to Superior Court Rule 9A(b)(5)(v), there should
be a single consolidated statement of material facts even where
there are cross motions for summary judgment.
14
attached a second affidavit and various other documents in
support of his responses. Notwithstanding this, because of a
pointed dispute that the attorneys had over "service in
electronic form by email," see Superior Court Rule 9A(b)(5)(i),
the defendants did not include Evans's response to the statement
of material facts (including his additional supporting
materials) in the summary judgment package that they filed
pursuant to Superior Court Rule 9A (rule 9A).16 As a result,
nothing in the rule 9A package alerted the motion judge to the
fact that Evans was purporting to contest the existence and
location of any total host removal area.
12. Summary judgment ruling. In his summary judgment
decision, the judge ruled that based on the "undisputed facts
16
Counsel for Mayer took the position that she had no duty
to include Evans's response in the rule 9A package, because
Evans's counsel refused to provide her with an electronic
version of his documents (based on his view that rule 9A did not
require him to do so under the particular circumstances
presented). After the dispute between the lawyers about how
rule 9A should be interpreted became particularly unseemly,
counsel for Mayer went ahead and filed her rule 9A package
without either including Evans's response or noting its absence.
She did simultaneously file a separate "emergency" motion
seeking an order compelling Evans to serve an electronic version
of his new summary judgment documents, and in that manner sought
to raise the merits of the rule 9A dispute for judicial
resolution. However, after that motion was summarily denied (on
the basis that there was no "emergency"), Mayer's counsel
dropped her efforts to have the rule 9A dispute resolved and let
the existing rule 9A package stand. When the motion for summary
judgment eventually went forward, Evans's counsel apparently
failed to notice that the documents he had served on the
defendants by hard copy had never been put before the judge.
15
. . . Marquis had license to remove the trees in question from
the Property, and thus, the Defendants are not liable as a
matter of law under the trespass to trees statute [G. L. c. 242,
§ 7]." According to the judge, "[i]t is irrelevant that the DCR
sought to obtain permission from property owners, [because] it
was not legally required to do so[;] [i]t is clear that the DCR
had the authority to enter onto the Property and remove the
trees in question, regardless of whether Evans gave permission."
The judge also accepted as undisputed that Evans's property was
located in a total host removal area, and he relied on this fact
in part in his ruling, commenting that this helped show that DCR
had "specifically sanctioned the removal of the trees in
question."
13. Rule 60(b) motion. After judgment had entered, Evans
hired new counsel who filed a motion seeking relief from
judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974).
That motion asserted inter alia that Mayer's lawyer had
committed a fraud on the court by not including Evans's response
in the rule 9A package. It also asserted that the failure by
Evans's former counsel to raise the issue sooner constituted
"excusable neglect." The same judge who allowed the defendants'
motions for summary judgment denied the rule 60(b) motion. He
ruled that Evans could not reopen the proceedings and add the
additional materials to the summary judgment record, because he
16
had not met the standards applicable to rule 60(b) motions.17 He
added that, in any event, Evans's claims failed as a matter of
law regardless of whether his property fell within any total
host removal area. In the judge's words,
"even if Evans'[s] trees were not technically in the 'Total
Host Removal Area,' it does not change the fact that -- as
Evans concedes -- Evans'[s] trees were 'host' trees and
that Marquis cut Evans'[s] trees after receiving
instructions to do so from a USDA representative . . .
facts [that,] alone, are sufficient to show that Marquis
. . . had a 'license' i.e., permission, to cut the trees
down."
Evans filed timely appeals of both the judgment and the denial
of his rule 60(b) motion.
Discussion. 1. Marquis's liability. Evans principally
sought damages against Mayer and Marquis pursuant to G. L. c.
242, § 7.18 That section reads in full as follows:
"A person who without license willfully cuts down, carries
away, girdles or otherwise destroys trees, timber, wood or
underwood on the land of another shall be liable to the
owner in tort for three times the amount of the damages
assessed therefor; but if it is found that the defendant
17
Although the judge concluded that Evans should have
served an electronic version of his response to Mayer's
statement of material facts, the judge did not rely on the
provision in rule 9A(b)(5)(ii) that states that "[f]or purposes
of summary judgment, the moving party's statement of a material
fact shall be deemed to have been admitted unless controverted
as set forth in this paragraph." Instead, he focused on whether
the record should be expanded to include Evans's additional
materials and whether this would have made any difference.
18
Evans also filed claims against Mayer, Marquis, and their
insurer, defendant Farm Family Casualty Insurance Company, based
on the failure by all of them to remedy the damage to Evans's
trees.
17
had good reason to believe that the land on which the
trespass was committed was his own or that he was otherwise
lawfully authorized to do the acts complained of, he shall
be liable for single damages only."
Before we turn to the statute's application to this case, a few
general observations about its workings are in order. The
statute provides a tort remedy through which property owners can
seek damages from "person[s]" who cut down or otherwise
destroyed their trees "without license." So long as the act of
cutting was intentional and the act was without license,
liability exists -- albeit for single damages only -- even where
the person cutting the trees had "good reason to believe" he was
"lawfully authorized" to do so. See Moskow v. Smith, 318 Mass.
76, 77-78 (1945). Thus, liability is not based on fault. A
tree cutter faces no liability under the statute only where he
had actual "license" to cut the trees, which the statute equates
with being "lawfully authorized" to do so.
The statute dates at least as far back as a Province Law of
1698. See Province Laws 1698, c. 7, § 2. As originally
enacted, it appears aimed at the problem of people stealing wood
from other owners or from the public commons.19 However, the
19
Owners deprived of their wood were entitled to recover
"twenty shillings for every tree of one foot over, and ten
shillings for every tree under that bigness, and for other wood
or underwood treble the value thereof." Province Laws 1698,
c. 7, § 2. The applicable damages and the availability of other
sanctions changed from time to time until 1836, when the statute
18
statute's language is not limited to that context. Thus, the
language does not speak of the stealing of trees but instead
applies broadly to anyone who without license "cuts down,
carries away, girdles or otherwise destroys trees" owned by
others. We therefore have recognized that the statute applies
where someone cut down trees not to appropriate their wood, but
solely to improve his view. Glavin v. Eckman, 71 Mass. App. Ct.
313, 316-317 (2008). We also have recognized that the damages
available under the statute are not capped at the timber value
of the wood. Id. at 317-318.
In the case before us, the trees were cut incident to a
nuisance eradication program. Because property may not be used
to maintain a public nuisance, States may destroy private
property without compensation if necessary to abate such a
nuisance. Mugler v. Kansas, 123 U.S. 623, 668-669 (1887).20 It
essentially took its current form (subject only to very minor
changes since). See R.S. (1836), c. 105, §§ 10, 11.
20
This principle has long been applied to the destruction
of infested or infected trees that may spread a pestilence to
other trees. See Miller v. Schoene, 276 U.S. 272, 279-280
(1928). Of course, even when governments have been broadly
authorized to eradicate nuisances, there may be constitutional
limitations on their unfettered destruction of private property.
For example, one court has held that as a matter of due process,
a State agency that was broadly authorized to eradicate a pest
that attacked citrus trees (the burrowing nematode) must first
give grove owners a predeprivation hearing (even though the
statute provided an after-the-fact compensation scheme with
regard to uninfested trees that were destroyed in the process).
19
follows that a contractor who had been duly authorized to
destroy privately owned trees as part of a statutory nuisance
eradication program would have "license" to do so, and therefore
could not be liable pursuant to G. L. c. 242, § 7.21 Compare
Blair v. Forehand, 100 Mass. 136, 144-145 (1868) (owners of
unlicensed and uncollared dogs had no action for trespass or
trover against town constable who acted within his express
statutory authority in killing the dogs).
It is uncontested that Marquis destroyed Evans's trees at
the specific instruction of the government official who was
overseeing field operations that implemented a program broadly
authorized by the Legislature to eradicate the ALH beetles.
Concluding in effect that this necessarily meant that Marquis
was acting with "license," the judge ruled that Evans's action
failed as a matter of law. The flaw in this reasoning is that
it does not account for the possibility that the agency
instructions pursuant to which Marquis cut the trees were
invalid and the trees were simply cut by mistake. See Tower v.
State Plant Board v. Smith, 110 So. 2d 401, 407-409 (Fla. 1959).
Evans has not raised any constitutional claims.
21
For purposes of its summary judgment motion, Marquis
focused on its argument that it had license to cut the trees
because it was acting pursuant to delegated governmental
authority. It did not press its alternative theory that Evans's
being present at the site during the cutting without voicing an
objection amounted to license. A factual dispute over this
alternative theory remains.
20
Tower, 18 Pick. 262, 263 (1836) (because Legislature had
authorized summary killing of unlicensed, uncollared dogs, tort
action would not lie against defendant-neighbor except where
collared dogs were killed by mistake).
As Evans points out, DCR created a program under which it
would provide property owners specific notice of its planned
eradication actions. Whether and when privately owned trees
were actually destroyed then turned on the landowner's providing
written permission.22 Although DCR reserved the right to seek a
court order in the event that a property owner refused consent,
no host trees otherwise were to be destroyed absent that
consent. The question is whether, in creating its protocols,
DCR thereby limited its broad authority to cut trees without a
property owner's permission. In our view, that question should
not be answered based on the current summary judgment record.
The protocols that DCR developed were not the product of
formally promulgated regulations carrying the force of law. See
generally Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 496
(2010). As a general matter, unpromulgated guidelines setting
forth internal agency procedures are not considered binding on
an agency. Id. at 496 n.11. See Golchin v. Liberty Mutual Ins.
22
DCR explained that designing the program in this manner
expedited the eradication process by avoiding legal disputes
between DCR and property owners. The fact that protecting
property owner rights simultaneously may have furthered the
agency's eradication efforts is of no legal moment.
21
Co., 460 Mass. 222, 231 (2011) ("Where the commissioner does not
consider bulletins to be binding regulations, we are not
inclined to hold otherwise"). However, the case law also
recognizes that in certain contexts, agency pronouncements can
be binding on the agency even where they have not formally been
promulgated as regulations. See Macioci v. Commissioner of
Rev., 386 Mass. 752, 763 (1982) (Commissioner of Revenue had
duty to conform to guidelines issued to public). The cases have
distinguished between guidelines that "concern[] only internal
management of State agencies" and those designed to "affect the
rights of or procedures available to the public." Amato v.
District Attorney for the Cape & Islands Dist., 80 Mass. App.
Ct. 230, 238 n.15 (2011), citing G. L. c. 30A, § 1(5)
(Administrative Procedure Act codifying this distinction). See
Global NAPs, Inc., supra at 496 n.11. Where an agency has
published guidelines on how it is going to proceed and has
implicitly invited affected members of the public to rely on
them, such guidelines can be deemed to constrain the agency's
actions.
The summary judgment record before us is not well developed
on whether DCR's policy of obtaining property owners' written
consent should be treated as the sort of pronouncement that
constrains agency action. For example, there is little in the
record indicating the extent to which that policy was published
22
to affected members of the public. At the same time, there are
some indications in the record, such as Markham's public
acknowledgement that Evans's trees were cut by "mistake," that
suggest that the agencies may have intended that members of the
public rely on the policy. Another factor lending potential
support to Evans's position is that the contractual arrangements
under which Mayer and Marquis nominally were operating
prohibited them from entering private property without an
owner's written permission and otherwise included provisions
designed to protect property owner rights.23 In our view,
determining whether DCR's authority to instruct Marquis to cut
down Evans's trees was curtailed by its policies regarding
written permission needs further factual development.
We recognize that Marquis's actions were specifically
directed by Franciosi, a Federal employee. This may well
provide Marquis "good reason to believe" that it had authority
to cut Evans's trees (thus shielding Marquis from treble
23
We acknowledge that -- regardless of the nominal terms of
the contracts under which Marquis was operating -- it appears
undisputed that treecutters such as Marquis would not refuse to
enter private property unless they had written permission in
hand, but instead simply would follow the directives of the
government field inspectors. However, the existence of such an
unexplained discrepancy, if anything, provides further support
for not trying to resolve this case on the current summary
judgment record.
23
damages).24 However, Franciosi's mistaken instructions could not
provide actual "license" to cut the trees if such instructions
were legally invalid.25
In reaching our conclusion, we have assumed, without
deciding, that the judge did not abuse his discretion in denying
the Mass.R.Civ.P. 60(b) motion.26 Thus, we have not relied on
those additional factual materials that Evans sought to include
in the summary judgment record, and we have assumed arguendo
that Evans's trees fell within a total host removal area. That
Evans's trees may have been slated for eventual destruction
obviously has significant potential ramifications for the amount
24
Neither side has briefed this issue, and we decline to
reach it. We express no opinion on whether this issue can be
resolved as a matter of law or instead requires submittal to a
jury.
25
Burroughs v. Rane, 241 Mass. 1 (1922), is not to the
contrary. That case held that the State forester who -- acting
pursuant to statutory authority -- had relied on "needy" persons
to conduct a gypsy moth eradication program could not be liable
in tort for tree damage caused by a fire that may have been
started negligently. Id. at 4-6. The case does not address the
potential liability of those who actually started the fire.
26
Although we have no occasion to reach the merits of the
rule 9A dispute that underlies the rule 60(b) motion, we do note
that counsel on both sides did not clothe themselves in glory
with regard to how those issues played out, and that their joint
conduct unnecessarily placed the motion judge in an extremely
difficult position.
24
of damages to which Evans might be entitled.27 The defendants
might have prevailed on summary judgment if they had shown that
Evans in no event could have kept his trees for an appreciable
period of time had they not been cut by mistake. However, on
the current record, we cannot reasonably say that Evans has no
hope of demonstrating that. After all, the defendants have not
presented a single other example of where any host tree was cut
without an owner's permission, or even any example of where DCR
ever sought a judicial order to take down a blue-marked tree
against an owner's wishes. We further note that Marquis did not
destroy Evans's nine Japanese maples, American elm, and white
ash, and from all that appears before us, those host trees
remain today. We leave the import of whether Evans's trees fell
within a total host removal area to further proceedings.
2. Mayer's liability. It is uncontested that Marquis, not
Mayer, actually cut Evans's trees. However, it is also
uncontested that when Marquis cut the trees, it was working as
Mayer's subcontractor, and Evans has alleged that Mayer bears
liability pursuant to G. L. c. 242, § 7, as Marquis's principal.
See Corsetti v. Stone Co., 396 Mass. 1, 10-11 (1985) (contractor
is subject to liability for torts of its subcontractor where it
retains "sufficient control" over subcontractor's work). On
27
In other words, Evans's assumption that a finding of
liability necessarily would mean that he is entitled to the full
replacement value of his lost trees is flawed.
25
appeal, Mayer makes a passing argument that even if Marquis
faces liability pursuant to the statute, Mayer itself does not
because it did not in fact direct Marquis to destroy these
particular trees (even though it had a contractual right to
control Marquis's actions). That argument was not developed
below, and the judge had no occasion to address it. Especially
in light of the current state of the briefing, we decline to
reach Mayer's argument that it could not derivatively be liable
as a matter of law.28
3. Liability of the insurer. In count five of his
complaint, Evans alleges that defendant Farm Family Casualty
Insurance Company (Farm Family), which insured both Marquis and
Mayer, faces its own liability pursuant to G. L. c. 93A, § 9(3),
and G. L. c. 176D, § 3(9)(f). This count is based on the claim
that Farm Family failed to make a reasonable offer of settlement
after the liability of its insured parties had become reasonably
clear. See Van Dyke v. St. Paul Fire & Marine Ins. Co., 388
Mass. 671, 677-678 (1983). Although we have concluded that at
least Marquis faces potential liability pursuant to G. L.
c. 242, § 7, that exposure has up until now not been reasonably
clear, and it remains in significant doubt today. See Clegg v.
28
For similar reasons, we decline to address the viability
of counts three and four of Evans's complaint, in which he
alleges that Marquis and Mayer somehow face liability under
G. L. c. 93A.
26
Butler, 424 Mass. 413, 421 (1997) (reasonably clear liability
"encompasses both fault and damages"). As a result, count five
as pleaded is, at a minimum, premature.29
4. Disposition. The judgment dismissing Evans's complaint
is vacated. In view of that disposition, the appeal from the
order denying Evan's Mass.R.Civ.P. 60(b) motion has become moot,
and we dismiss it as such. The case is remanded to the Superior
Court for further proceedings consistent with this opinion.30
So ordered.
29
Farm Family argues that a different judge erred in
denying its motion to dismiss challenging the adequacy of its
c. 93A demand letter. Given that we conclude that Evans to date
has had no basis for asserting that Farm Family faced c. 176D
liability, we need not reach the formal adequacy of such a
letter.
30
Although we have ruled in Farm Family's favor with regard
to count five, the question of whether Farm Family would be
entitled to separate and final judgment is not before us. See
Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).