         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-3182
                  _____________________________

BARBARA BALZER,

    Petitioner,

    v.

CINDY RYAN and HOYT
MAXWELL, dba NORTH FLORIDA
DECORATIVE CONCRETE,

    Respondents.
               _____________________________


Petition for Writ of Certiorari—Original Jurisdiction.

                       December 31, 2018


WETHERELL, J.

     In this second-tier certiorari proceeding, Petitioner seeks
review of a circuit court appellate decision holding that
Respondents are not liable for damaging a tree on Petitioner’s
property when they cut some of the tree’s roots that had
encroached onto Respondent Cindy Ryan’s property. Because the
circuit court’s decision does not violate any clearly established
principle of law, we deny the petition for writ of certiorari.

            Factual and Procedural Background

    A large pine tree stood on Petitioner’s property near the
boundary between her and Ms. Ryan’s properties. The tree’s roots
encroached onto Ms. Ryan’s property, damaging the sewer line
that ran under her driveway. To fix the sewer line, the driveway
had to be removed and replaced, and Ms. Ryan hired Respondent
Hoyt Maxwell to do that work. While removing the driveway, Mr.
Maxwell cut some of the encroaching tree roots. Although this did
not kill the tree, it undermined the tree’s structural integrity and
increased the risk that the tree might someday fall on Petitioner’s
house. Accordingly, Petitioner paid to have the tree removed.

     Petitioner sued Respondents in county court to recover the
costs of removing the tree. After a nonjury trial, the county court
entered a final judgment awarding Petitioner only a portion of the
costs she incurred. Petitioner appealed the judgment to the circuit
court, arguing that the county court erred by not awarding all of
her costs. Respondents cross-appealed the judgment, arguing that
the county court erred in finding them liable to Petitioner for
damaging the tree because Ms. Ryan had the right to cut the tree
roots that encroached onto her property.

     The circuit court reversed the judgment. The court reasoned
that because Petitioner could not be compelled to pay for the
damage to Ms. Ryan’s sewer line caused by the encroaching tree
roots, she likewise had no cause of action against Ms. Ryan if the
tree was damaged when Ms. Ryan exercised her “privilege” to cut
the roots encroaching onto her property. The court remanded the
case for entry of a final judgment dismissing Petitioner’s claim
against Respondents with prejudice.

     Petitioner sought review of the circuit court’s decision by filing
a petition for writ of certiorari in this court.

                          Legal Analysis

     The scope of our review in this second-tier certiorari
proceeding is extremely narrow. See Custer Med. Ctr. v. United
Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010). Where, as here, it
is undisputed that the circuit court afforded the parties procedural
due process, our review is limited to determining whether the
court’s decision “departed from the essential requirements of law.”
Id. A departure from the essential requirements of law requires
something more than mere legal error; it requires a violation of a
“clearly established principle of law” resulting in a miscarriage of
justice. Id. Clearly established law can derive from controlling
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precedent, 1 but if there is no controlling precedent, “certiorari
relief cannot be granted because ‘[w]ithout such controlling
precedent, [a district court] cannot conclude that [a circuit court]
violated a clearly establish[ed] principle of law.’” Dep’t of Highway
Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st
DCA 2011) (brackets in original) (quoting Ivey v. Allstate Ins. Co.,
774 So. 2d 679, 682 (Fla. 2000)); see also Nader v. Dep’t of Highway
Safety & Motor Vehicles, 87 So. 3d 712, 723 (Fla. 2012) (explaining
that “certiorari jurisdiction cannot be used to create new law where
the decision below recognizes the correct general law and applies
the correct law to a new set of facts to which it has not been
previously applied”) (emphasis in original).

     Under Florida law, it is well-established that an owner of a
healthy tree is not liable to an adjoining property owner for
damage caused by encroaching tree branches or roots, but the
adjoining property owner “is privileged to trim back, at [his] own
expense, any encroaching tree roots or branches . . . which has
grown onto his property.” Gallo v. Heller, 512 So. 2d 215, 216 (Fla.
3d DCA 1987); see also Scott v. McCarty, 41 So. 3d 989 (Fla. 4th
DCA 2010) (noting that Gallo reflects the predominate view
around the country) (citing Encroachment of Trees, Shrubbery, or
Other Vegetation Across Boundary Line, 65 A.L.R. 4th 603 (1988)).

     The issue in this case, however, is whether the adjoining
property owner is liable to the tree owner when the self-help
remedy authorized by Gallo causes damage to the tree. There is
conflicting authority on this issue in other states, 2 but we have


    1 Clearly established law can also derive from “rules of court,
statutes, and constitutional law,” see Allstate Ins. Co. v.
Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003), but Petitioner has
not argued that the circuit court’s decision violates any rule,
statute, or constitutional provision.
    2  Compare Mustoe v. Ma, 371 P.3d 544 (Wash. Ct. App. 2016)
(holding that landowner does not owe a duty of care to prevent
damage to neighbor’s tree when cutting roots that are encroaching
onto the landowner’s property) with Brewer v. Dick Lavy Farms,
LLC, 67 N.E.3d 196 (Ohio Ct. App. 2016) (holding that landowner
exercising his right to cut encroaching branches from his
                                 3
found no Florida case addressing the issue. Accordingly, in the
absence of any controlling precedent, it follows that the circuit
court did not violate clearly established law in ruling the way that
it did.

     This conclusion is not undermined by the sole case relied on
by Petitioner in her petition for writ of certiorari, McCain v.
Florida Power Corp., 593 So. 2d 500 (Fla. 1992). Although the
general principles of negligence law discussed in that case have
been extended to suits against landowners in certain
circumstances, 3 we are not persuaded that those principles are
dispositive here because Petitioner did not allege that
Respondents’ actions caused damage to anything other than the
tree whose encroaching roots Ms. Ryan undisputedly had a right
to cut, 4 and a rule imposing liability for causing any damage to the
tree in these circumstances would effectively eviscerate that right.



neighbor’s tree must use reasonable care so as not to cause damage
to the neighbor’s property) and Fliegman v. Rubin, 781 N.Y.S.2d
624 (N.Y. Sup. Ct. App. Term 2003) (table) (holding that “an
adjoining landowner's right to engage in self-help [by cutting
encroaching tree roots] ‘does not extend to the destruction or injury
to the main support system of the tree’” (quoting 1 N.Y. Jur 2d,
Adjoining Landowners § 57)) and Booska v. Patel, 30 Cal. Rptr. 2d
241, 245 (Cal. Ct. App. 1994) (holding that landowner had a duty
to act reasonably when cutting encroaching roots from a tree on
his neighbor’s property).
    3  See, e.g., Williams v. Davis, 974 So. 2d 1052 (Fla. 2007);
Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001). Accord Hardin v.
Jacksonville Terminal Co., 175 So. 226, 228 (Fla. 1937) (explaining
that “there is no liability on the part of a landowner to persons
injured outside his lands . . . unless the owner has done or
permitted something to occur on his lands which he realizes or
should realize involves an unreasonable risk of harm to others
outside his land”).
    4  Whether and how the general principles of negligence
discussed in McCain and its progeny would apply if Respondents’
actions were alleged to have caused damages to persons or
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                           Conclusion

    For the reasons stated above, the petition for writ of certiorari
is DENIED.

WOLF and LEWIS, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Barbara Balzer, pro se, Petitioner.

Elwin R. Thrasher, III, Tallahassee, for Respondents.




property other than the tree is a different issue that is not
presented in this case.

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