Morabit v. Hoag

• Decision Date: 26 November 2013
• Docket Number: No. 2010–77–Appeal.,2010–77–Appeal.
• Citation: 80 A.3d 1
• Parties: George E. MORABIT v. Dennis HOAG.
• Court: Rhode Island Supreme Court

80 A.3d 1

George E. MORABIT

v.Dennis HOAG.

No. 2010–77–Appeal.

Supreme Court of Rhode Island.

Nov. 26, 2013.

Maureen Souza, Esq., for Plaintiff.

Arthur E. Chatfield, III, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

In this dispute between neighbors, George E. Morabit (plaintiff or Morabit) appeals from several adverse rulings rendered by a Washington County Superior Court trial justice. On appeal, he argues that the trial justice committed reversible error in: (1) denying his request to depose a proposed lay witness; (2) refusing to certify one of his witnesses as an expert in the study of historic stone walls; (3) denying his motion to amend his complaint; (4) granting the defendant's motion for judgment as a matter of law; and (5) denying his motion for a new trial. After reviewing the record and considering the parties' written submissions and oral arguments, we vacate the judgment of the Superior Court.

IFacts and Travel

In 1986, Dennis Hoag (defendant or Hoag) acquired land located at 385 Snuff Mill Road in North Kingstown, Rhode Island. In 1991, Morabit purchased approximately fifty-three acres of property, abutting immediately to the north of defendant's property. Morabit's property is mostly undeveloped woodland.¹ A stone wall demarcates the boundary between the northern edge of Hoag's land and the southern edge of plaintiff's property.

While walking his property sometime in the early 2000s, Morabit discovered that a large portion of the stone wall had been destroyed. Just north of the stone wall, a significant number of trees were missing. After receiving no response to several letters that his counsel sent to Hoag, Morabit filed a complaint in Washington County Superior Court on April 27, 2005. In his complaint, Morabit sought to recover damages from Hoag under G.L.1956 § 34–20–1 (count 2). That statute renders any person who engages in the unauthorized cutting, destroying, or carrying away of any trees, timber, or wood liable to the property owner for twice the value of the trees cut or destroyed and three times the value of the wood.²

Morabit also alleged that he was entitled to damages for Hoag's destruction or removal of the stone wall under G.L.1956 § 9–1–2 and G.L.1956 § 11–41–32 (count 3).³Section 11–41–32 states that any person convicted of the theft of an historic stone wall, or a portion of an historic stone wall, shall be guilty of larceny. Subsection (d) of § 11–41–32 provides that anyone convicted of stealing an historic stone wall shall be civilly liable to the property owner for the cost of replacing the stones and any other compensable damages.⁴Section 9–1–2 provides civil liability for criminal offenses. Under that provision, a plaintiff may recover civil damages for injury to his or her estate that results from the commission of a crime or offense, irrespective of whether charges have been filed against the offender.

On January 23, 2009, three days before a trial on plaintiff's claims was scheduled to commence, plaintiff moved for a continuance. Counsel for plaintiff indicated that she had been unable to make contact with Bruce Walker, a former neighbor of Hoag's who was expected to testify as a percipient witness on Morabit's behalf. When trial commenced on the morning of January 27, 2009, counsel for plaintiff informed the court that she had learned on the previous afternoon that Mr. Walker was confined to a nursing home with an infection. Counsel requested permission to depose Mr. Walker at the nursing home, emphasizing that Mr. Walker was the only witness who could testify directly to Hoag's activities during the relevant time period.

The trial justice denied plaintiff's motion to depose Mr. Walker at the nursing home. She reasoned that plaintiff had ample opportunity before trial to take Mr. Walker's deposition. The trial justice further noted that, given Mr. Walker's advanced age of eighty-four years, plaintiff should have anticipated the need to preserve Mr. Walker's testimony.

After the trial justice denied plaintiff's discovery request, the case opened to a jury. Over the course of a six-day trial, the jury heard from multiple witnesses, reviewed several exhibits, and took a view of the property. We summarize below the evidence most relevant to the instant appeal.

Morabit testified on his own behalf. He stated that, when he purchased his property in 1991, work was under way on Hoag's parcel. In particular, Morabit testified that he had observed “constant clearing[ ] of trees” from Hoag's land and “dump truck load upon dump truck load of fill coming into [Hoag's] property.” Morabit indicated that, in addition to the dump trucks, other heavy equipment, including excavators, bulldozers, and backhoes, had been present on defendant's property at one time or another during construction. He estimated that the work on defendant's property had lasted for a period often years or more. Morabit further indicated that he and Hoag have had a less than congenial relationship since becoming neighbors in 1991.

Morabit described the scope of the damage that he observed on the southern part of his property. He estimated that the semicircular area of missing trees was roughly 400 feet long with a radius of sixty to eighty feet. Morabit believed that the missing trees were predominantly of the tupelo variety, which he asserted is a rare and historic species. The stone wall, he noted, “was destroyed and what was left in its place were various boulders that did not come from [his] property.” Morabit testified that stones from the wall appeared to have been pushed from the direction of Hoag's property towards his property. According to his estimate, the damaged portion of the wall extended 300 to 400 feet.

The plaintiff presented witness Robert Thorson, a professor of geology at the University of Connecticut with an expertise in human impacts on the landscape. Professor Thorson specified that he focuses on the study of historic stone walls. He stated that he has published three books and numerous articles relating to stone walls. Professor Thorson also indicated that he has testified in court on the subject of stone walls on at least one prior occasion.

After defendant objected to recognizing Professor Thorson as an expert, the trial justice conducted a voir dire hearing, outside the presence of the jury, on the admissibility of his testimony. The trial justice ultimately recognized Professor Thorson as an expert in the field of geology but precluded any testimony based on stone wall science. She reasoned that the study of historic stone walls was unreliable because it had not garnered sufficient acceptance in the scientific communityor been subjected to adequate peer review. The trial justice clarified, however, that Professor Thorson could offer opinions concerning stone walls to the extent those opinions were based upon his knowledge of geology.

Thereafter, Professor Thorson testified that he had twice visited Morabit's property and prepared a report based on his study of the property. He characterized the segment of stone wall marking the north-south boundary of the parties' properties as an “old historic wall” and “an established * * * boundary line wall[.]” It was Professor Thorson's opinion to a reasonable degree of scientific certainty that the stone wall was deliberately destroyed by a backhoe, bulldozer, or other piece of heavy equipment pushing the stones in the direction of Morabit's property. Professor Thorson had formed this opinion based on his observations of the arrangement, characteristics, and concentration of the stones scattered in the area immediately surrounding the damaged portion of the wall. He estimated that the altered portion of the wall stretched for a length of approximately 120 feet. He did not offer an estimate of the cost to repair or replace the damaged wall.

The plaintiff also called Matthew Largess, an expert in arboriculture science. ⁵ Mr. Largess stated that he has been a professional arborist in Rhode Island for twenty-two years and has worked in the forestry business for thirty-five years. Mr. Largess testified that he first visited plaintiff's property in August 2005. He explained that during his first visit he had observed an area of clear-cutting just north and west of the stone wall, encompassing an area of approximately 135 feet by one hundred feet. In November 2008, Mr. Largess returned to the property to take samples of the young trees that had begun to grow back in the cleared area. Based on the age of the sampled trees, Mr. Largess estimated that the clear-cutting had occurred six to seven years earlier, placing the time of removal sometime around 2001 to 2002. Mr. Largess further testified that he visited plaintiff's property again on January 15, 2009.

Mr. Largess offered an opinion as to the numbers, species, and ages of the missing trees. Although there were no stumps remaining when he visited the property, Mr. Largess explained that he could estimate the number of trees removed based on his observations of the surrounding tree groves. Using his study of the adjacent forest, Mr. Largess estimated that 190 trees were removed. He additionally estimated that the relative composition of the missing trees was 70 percent tupelos, 20 percent red maples, 5 percent poplars, and 5 percent black oaks. Mr. Largess explained that tupelo trees share a “mat” of roots and tend to grow in densely packed groves, such that a large number of tupelos often grow in a relatively small area. Based on core samples taken from the surrounding forest, it was Mr. Largess's opinion to a reasonable degree of scientific certainty that the missing trees were between eighty and one hundred years old.

Mr. Largess explained that he had prepared an estimate of the value of the missing trees by applying the Purdue University Method of tree appraisal (Purdue...