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Evans v. Mayer Tree Service, Inc., et al. (Lawyers Weekly No. 11-024-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   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.      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 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 […]

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Posted by Massachusetts Legal Resources - March 4, 2016 at 1:08 am

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