We would never call him litigious or anything, but Morton A. Bender seems to have quite a reputation around Washington, D.C. and environs:
Bender, a 73-year-old native Washingtonian who made a fortune in the family construction business, is one of the most determined men in town, both admirers and detractors say. This is not a man who likes to negotiate. He enjoys a good fight.
The local and federal courts hold stacks of cases in which he is sometimes the defendant but more often the plaintiff. He says he can’t keep track of all the people and institutions he’s currently suing and doesn’t know how many lawyers he’s hired. “I saw the mayor at an event, and he said, ‘How many cases do you have against the District?’ and I said ‘a few,’ ” Bender said….
“I stand up to be counted,” Bender is fond of saying. “No one stands up for rights anymore.”…
Early discussions between Bender and the neighbors about his plans went nowhere. He ended up suing one neighbor over a retaining wall that encroached 15 inches onto his new property. He won in D.C. Superior Court but not before the judge questioned why Bender brought the case.
“It seems to be the height of folly, laced with a bit of vindictiveness the source of which is unknown to the court, for plaintiff to insist that this attractive and necessary wall be removed simply so that it can be reconstructed about two feet further down the hill,” Judge Geoffrey M. Alprin wrote.
(Lyndsey Layton, “In D.C., It’s Big Names Vs. a Litigious Developer”, Washington Post, Oct. 30).
7 Comments
The rules of property boundaries are clearly established in most states, and the consequences of trespassing by encroachment well known. Why is it the fault of Bender when he enforces his property rights in court for 1.25 feet of his land? Should Bender wait until his neighbor gets title to his [Bender’s] land by adverse possession? How much is that 1.25 feet of land in DC worth? I bet it’s worth a lot. Would Bender be denied a building permit because his land was now 1.25 feet too short? Why didn’t the neighbor get a survey before building so he would not encroach? After it was discovered that he did encroach, why didn’t the neighbor say oops, and voluntarily move the wall back 2 feet?
Why did the judge rule for Bender even though he felt that wrecking a good looking functional wall was a waste? Perhaps he was following clearly established law and not letting his personal feelings interfere with his decision. Bully for the judge!
Hey Walter, this sounds like a meritorious lawsuit where the court did as it were supposed to! Why did you include this example in Overlawyered? There is nothing out of the ordinary here. There are no policy issues that concern this matter (such as non-wrongdoers getting snared in the legal web), and the system achieved the proper result. What more do you want?
I have to agree with Victor on this one. These days I have to ask if the neighbor knew that the wall was on Bender’s property? By putting the wall on Bender’s property isn’t Bender responsible for any property tax increase that may arise from the wall adding to the value of that property?
Hey, Victor, if you sue your neighbors, they won’t call the fire department when your roof is on fire, while you are on vacation. I have no doubt the value of 15 inches of land, even in Washington DC, is less than the total cost of this litigation. Because one can do something does not mean one should.
It is not frivolous litigation, given the legality of the concepts you reviewed. It is trivial litigation. Mature adults would settle this dispute. If I were the judge, I would have heavily sanctioned both sides for wasting the time of the court. You defend lawyer fee generating by a businessman who will have his way no matter the cost in money or feelings.
I would suggest that Supremacy Claus donate 50 to several hundred square feet of his or her property to his neighbors.
Think there would have been a dispute if the neighbor had put his fence 15″ on his side of the boundary? Funny how 15″ is said to be no big deal, but in these situations it is always always taken, not given.
I agree that it would have been highly unusual for Judge Alprin to have chided Bender for asserting this action had the neighbor committed a garden-variety fence encroachment onto usable land and had Bender no other means of forestalling adverse possession than to sue. That the situation may not have been quite of that nature is hinted by clues in the article, including Judge Alprin’s description of the relevant land as being a “hill” and a reference to negotiations having broken down.
As for whether litigious persons should be applauded for filing any and all lawsuits that a judge will later approve as legally sound, I can but invoke the great jurisprude Frederick Pollock: “We lawyers know well, and may find high authority for it if required, that life would be intolerable if every man insisted on his legal rights to the full.”
Considering how many people are trying to deprive him of the use of his property without compensation (the retaining wall, not letting him tear down the school house, restriciting building to protect mature trees) I can see why he is quick to sue.
Frank: I did not say, 15 inches of property should be given away. It should be sold away, with both sides calculating their best economic interest. The latter should include avoiding costly litigation and its long term consequences on relations with the neighbors.
And avoiding wasting the time of the court warrants sanctions, whatever the formal legal merit.
I propose a Rule of Civil Procedure requiring the publication of all the legal costs of the case after a verdict.