Last night I had a discussion with someone who I almost instantly regarded as a friend. At one point during our conversation, we talked about these trees in the picture. Notably, these two trees are located in the planter’s strip in front of my house. More notable yet are the difference in the size of these two trees – the one on the left is much smaller.

This creates a certain amount of dissymmetry in and of itself. Added to this though be the fact that in late July through early August all of the leaves on the left tree shriveled up. Though they didn’t fall immediately, they did all come down with the first hard fall wind. By contrast, the tree to right appeared to cycle through the fall season normally.

The most decisive members of my family indicate that the tree is dead. I don’t want that to be the case – that would really be an asymmetrical detraction!

So, I asked my son and he promptly said: “No, the tree’s not dead; it will be back in the spring.” But then to my question: “How do you know that?” he answered: “I don’t know. I’m just a kid.” With an admixture of pain and joy I chuckled.

So what does this have to do with Summary Judgment? 

First, to be sure that we are all on the same page, Summary Judgment occurs after a lawsuit has been both filed and served but still before trial. It allows the moving party – and here it should be noted that both parties may move – to dispose (i.e. ‘cut-down or sever’) individual claims or possibly the totality of the lawsuit if the Court determines when looking at the evidence most favorably to the non-moving party that there is simply no way that they will prevail at trial.

The upshot of that determination is that the Court determines it is a waste of its time as well as the parties to go through the quite literally “fruitless motions” to come to the same conclusion at trial. As a result, the moving party with the solid case wins and the case is dismissed. [1]

Within the context of boundary disputes if a party is not able to determine whether it can win, it better be able to determine whether or not it will survive a motion for summary judgment.

The reason for this is that if it is unlikely that they will survive summary judgment, it is probably in the best interest to make your peace up front and sacrifice the land to your neighbor. 

Yet, if the matter will survive summary judgment, this can be a huge negotiating tool if properly used upfront. Essentially, one can say: “Look, you’re right, we don’t know if it is you or me who owns this land. So, we have two choices: (a) we can attempt to work this out amicably and be able to continue on as neighbors or (b) we can do the civil equivalent of ‘going to war’ and the endpoint is going to be an Armageddon in our relationship.

Because this is your neighbor, that gives new meaning to oft quoted line from Francis Ford Coppola’s Godfather whereby Al Pacino’s character Michael Coreleone said: “Keep your friends close … but your enemies closer.” [2]

So, now returning to the left tree in the above picture to which I have already pixilated at considerable length in order to drive home the point.

Is that tree dead or not? Or more appropriately within the context of contemplating Summary Judgment, should I cut it down right now or not?

Rather incredulously, my new friend suggested that of the two trees, actually it is the left one which is most healthy! He then went on to explain that it was able to enjoy an early fall because it has no need to ‘grasp’ for more photosynthetic energy produced by its leaves and was able to just … ‘Let it go!’ 

I would like to believe this full stop, but I must admit that I have some reservation. That said, I certainly am not going to cut the left tree down until I am certain whether it is dead or alive next spring. 

If it is the later, I will be very happy I didn’t exact essentially a Summary Judgment upon it. In this situation, why shouldn’t I ‘live and let live?’ I don’t see any cost benefit of not doing so. 

On the contrary, if the left tree does die, I will have to cut it down. And afterwards … I’ll feel compelled to cut down the tree to the right as well.

These trees are neighbors. They either live together … or they don’t!

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[1] Parties who believe their case was wrongly dismissed may provide notice to the trial court of their intention to appeal per RAP 2.2(a)(1) generally within 30 days per RAP 5.2.

[2] I am unsure if this language was first published in Mario Puzzo’s book of the same name and upon which the movie is based. Notwithstanding, should you be interested in viewing the movie scene to which I refer, you will find it [HERE].