263 So. 3d 189
Fla. Dist. Ct. App.2018Background
- A large pine tree stood on Balzer’s property with roots encroaching under Cindy Ryan’s driveway, damaging Ryan’s sewer line.
- Ryan hired Hoyt Maxwell to remove and replace the driveway; Maxwell cut some of the encroaching roots during the work.
- Root cutting weakened the tree’s structural integrity and increased the risk the tree might fall; Balzer paid to have the tree removed and sued to recover removal costs.
- After a county court nonjury trial, Balzer recovered part of her costs; both sides appealed to the circuit court (Balzer appealed the award amount; Respondents argued no liability).
- The circuit court reversed, holding Ryan had a privilege to cut encroaching roots and therefore Respondents were not liable; Balzer petitioned this court for second-tier certiorari review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a neighboring landowner who trims encroaching roots is liable to the tree owner for damage to the tree | Balzer: Respondents negligently damaged her tree and must pay removal costs | Ryan/Maxwell: Adjoining landowner may trim encroaching roots and therefore are not liable for resulting tree damage | Denied certiorari; no clearly established Florida law on liability for damage to a tree from permitted trimming, so circuit court did not depart from the essential requirements of law |
| Whether the circuit court’s decision departed from clearly established law warranting certiorari relief | Balzer: Circuit court misapplied negligence principles and controlling precedent | Respondents: No Florida precedent directly controls; circuit applied general law to new facts | Court: Review is narrow; without controlling Florida precedent, certiorari relief cannot be granted |
Key Cases Cited
- Gallo v. Heller, 512 So. 2d 215 (Fla. 3d DCA 1987) (adjoining owner may trim encroaching branches or roots at own expense)
- McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992) (general negligence principles as applied to landowners)
- Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) (scope of second-tier certiorari review; departure from essential requirements of law standard)
- Dep’t of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904 (Fla. 1st DCA 2011) (certiorari relief requires clearly established law)
- Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) (need for controlling precedent to show violation of clearly established law)
- Nader v. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712 (Fla. 2012) (certiorari cannot create new law where court applied correct general law to new facts)