CL729 Advanced Legal Analysis and Writing – Litigation Module 4 Assignment

CL729 Advanced Legal Analysis and Writing – Litigation
Module 4 Assignment
Hampton & Associates
1133 Westwood Blvd.
Naples, Florida
MEMORANDUM
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TO: Associate
FROM: Senior Partner
DATE: [Today]
RE: Ms. Alyson Pietro
In Module 3 you drafted the analysis section for an interoffice memorandum that addressed your client’s potential claim for intentional infliction of emotional distress. Your assignment for this module is to research a potential claim under Florida’s Spite Fence statute and draft an email letter to the client, giving your opinion regarding that potential claim. Do the analysis of the potential spite fence claim only. Assume that you have already verified the facts with the client and do not include a facts recitation. Use the Criteria as your guide and checklist. I have copied below the facts and the transcript of the initial interview with the client.
Use the statute and cases below only. Do not do any other research.
Limit the email to no more than four double-spaced pages. An email would typically be single
spaced, but double-spacing makes it easier to see your professor’s comments when your
assignment is graded and returned. Use formatting/formalities guidance found in Chapter 14 of “Writing and Analysis in the Law.”
Factual Background
Alyson Pietro owns the property at 378 Ocean View Lane in Naples, Florida. Alyson is seventy-six years old and was widowed fifteen years ago. She has lived at this address for most of her life. About six months ago, David and Wilma Driscoll, both forty-eight years old, bought the property next door to Pietro. We have learned that David Driscoll started out as a carpenter, but over the years, he built up a very profitable construction business. He recently sold that business and used the money to buy the house on Ocean View Lane. Since the other associate’s initial client interview, we have learned that the Driscolls’ address is 380 Ocean View Lane.
Transcript of Interview with Alyson Pietro
[Attorney added the notes in brackets when reviewing the transcript.]
Attorney:
Good morning, Alyson. It’s good to see you. [Attorney rises from chair, goes around the table and extends a hand.] It’s been a long time. How are you?
Pietro:
I’m just terrible. I can’t sleep. I had this terrible tic near my eye but it finally went away after several days. I am still battling shingles and I’m seeing a therapist every week. I am an emotional wreck.
Attorney:
I’m sorry to hear about that. I’m guessing that this is part of what you want to talk to be about. You gave me some information when we chatted by phone but I’m sure you will have a lot to tell me today so I will need to take some notes. I can take the notes by hand, or I can use my recorder here, so I can give you my full attention. Is it okay with you, if I use the recorder to keep track of the details?
Pietro:
It’s fine with me, especially if it will help you.
Attorney:
Great. Let’s get started. [Attorney turns on the recorder.] How can I help you?
Pietro:
There’s so much to tell you.
Attorney:
It sounds like there are few different things going on.
Pietro:
Oh yes. There certainly are.
Attorney:
I want to make sure I understand what happened first, second, etc., so let’s start at the beginning.
Pietro
Okay. Well the first thing that happened was that shortly after the Driscolls moved in next door, they came to my door – perhaps to meet me or ask me something. I don’t know. I was recovering from the flu so I asked my housekeeper, Betty, not to answer the door. The next time I was out gardening in my yard I overheard them refer to me as that “rich seacoast snob.” I actually heard that a couple of times.
Attorney:
When did that happen; do you remember?
Pietro:
No. I could look on my calendar because I had been to the doctor a few days before that.
Attorney:
That would help. Thanks. What happened next?
Pietro:
They built a tennis court, and play tennis a lot. You know how much I love gardening. I am outside quite a bit working in my garden. Their tennis balls kept flying into my garden, hitting my flowers. The tennis balls actually hit me a few times – the Driscolls aren’t as good as they think they are at tennis. I had finally had it, and the last time a tennis ball hit me on the head I stood up and shouted, “Please keep your tennis balls to yourself! They are hitting me and my flower beds.” Driscoll shouted back, “Okay, lady. You asked for it. If you want me to keep the tennis balls out of your garden, you’ve got it, snob.”
Well, just a few days later a construction crew showed up and erected a block wall fence just along Driscolls’ side of the property line. Betty measured it for me – the thing is 12 feet tall!
My flowers are dead or dying! My prized lavender hydrangeas! My lovely pink roses! That wall blocks the sunlight and my flowers are damaged or dead. They are not blooming like they should and the blossoms that have opened are dry or dying. My hydrangeas that everyone admires and my roses – they are all dying! Some flowers are dead! [She starts crying.]
Attorney:
Are those the hydrangeas that have been featured in the paper, and are the roses the ones with rose hips? As I recall, you used them to make jam.
Pietro:
Yes indeed. My hydrangeas have been featured in the paper’s gardening section several times. I give gifts of my homemade jam with rose hips every holiday. When I heard that I was getting new neighbors I thought I’d make a nice basket with jam and bread for them as a welcome gift but I’d never give those ingrates anything. My flowers and my jam are like children to me. I don’t have any children of my own and since my dear husband Edward passed away I’ve found that my biggest joy is in caring for my flowers and making my jam. Because things had already gotten very tense between us, I sent them a note explaining what was happening to my flowers. I inquired whether there is another way to keep the tennis balls out of my yard. They never responded, but one day when I was in the front yard, Driscoll yelled to me, “You’re the one who wanted the fence so you’ll just have to live with it, snob.” I ran into my house and just cried. The situation had gotten really bad, and my flowers – my passion in life – were damaged and dying or dead. That’s when I got a tic in my eye. It lasted for days.
Attorney:
I’m sorry about that and we will look into this. When you called you asked me to investigate whether they could build the fence but you also mentioned some lights.
Pietro:
Then things got even worse. Not long after that wall went up, the rotten neighbors installed lights. Bright lights. You know; those mercury vapor security lights. They lit up their house and the entire beach area. Now it seems as if they are playing tennis later and later with those lights on. [She starts crying and reaches into her purse for a tissue.] They are horrid, bright yellow-orange lights. They shine into my bedroom and in my eyes at night, making it seem like it’s 1:00 in the afternoon. I am not able to sleep because they are so bright.
Attorney:
[Alyson is still sniffling.] Would you like some water or perhaps some tea?
Pietro:
I’d be grateful for some water. [Attorney hands her some water.] Thank you.
Attorney:
Is that everything or is there more you’d like to tell me?
Pietro:
[She fidgets in her chair.] This next part is so embarrassing. It is almost too painful to discuss. [She starts to cry again, but continues.] Last week, I thought they weren’t home. Their house lights were out and they hadn’t turned on those blasted mercury vapor lights. I was so excited about that – I hadn’t been able to swim at night in such a long time. What happened next is awful.
Attorney:
What happened, Alyson?
Pietro:
Well, I went to the beach and decided that because it was such a dark night and nobody was around, I’d um – not wear my bathing suit. I frequently swam like this in the evenings right before bed before those evil people moved in. So, I went for a nude swim and had not been in the water very long when it sounded as if a group of people were approaching the cove. Sure enough, I glanced up and there was a group of eight or ten people, I think. I certainly didn’t take the time to count them. They appeared to be carrying beach chairs and drinks of some kind. They sat the chairs in the sand on the beach and seemed to settle in. I looked for a way to get to my towel and robe but they were lying fairly close to where those monsters were sitting. I didn’t know how I would get out of the water, but the night was dark so I thought that maybe I would be able to walk around some rocks to approach my towel and robe from the side. Suddenly, though, those awful lights came on! The cove and the beach were lit up like broad daylight! I was stuck in the water – truly trapped. I couldn’t get to my towel and robe at all. I stayed in the water as long as I could but I was freezing and my teeth were chattering. Finally, I called out, “Neighbors, would you please turn out the lights so I can get out of the water? I am not decent.” David Driscoll hollered back, “I’ll turn them off when we’re through using our beach, and not before, and you are definitely not decent. You are a snob.” The barbarians just laughed and laughed. The entire group was commenting and laughing. I could hear Wilma Driscoll cackling
and I saw David Driscoll raise a wine glass to me, as if in a toast, and yelled, “To that rich seacoast snob!”
I became unbearably cold so I finally ran out of the water for my towel and robe. They were all laughing and pointing at me. David Driscoll called me a “naked wrinkled old prune” and made other snide and derogatory comments but I was in such shock and in a hurry to cover up that I can’t remember what else they said. I can tell you that I have never been so humiliated, shocked, and embarrassed in my entire life. [Alyson starts crying again.] I may have mentioned on the phone when I called you that I am seeing a therapist every week. [Alyson starts sobbing.]
Attorney:
[Gets up and walks toward Alyson.] This certainly must have been awful for you, Alyson. [Pats her on the hand.] I think you’ve had enough for today. We’ll look into this and see if there’s any legal action we can take on your part. I won’t know for sure, however, until we do some research, but I expect we can have an answer or at least a preliminary answer for you by the end of next week. Will that be okay? I’ll give you a call when we know something. Then, when I have our meeting notes transcribed, I’d like to give you a call and see if we can fill in the dates. The more specific we can be with the dates, the better it will be. I will also need to know when you first noticed the tic, the shingles, when you saw a doctor about those, and when you started therapy.
Will you locate those dates for me, and would you get a notebook? Any kind of notebook will do. If the Driscolls say something to you, write it down in the notebook, noting the time and date, but don’t speak to them or have anything to do with them. For now, you should also not go into the water without a bathing suit. Don’t hesitate to call me if something else happens, especially if you are upset by something. Are you comfortable with this plan?
Pietro:
Yes. I will do that. I’ll be okay, but those terrible people have not only destroyed my flowers and cost me a lot of sleep, a tic, and shingles, but they purposely stayed on that beach to humiliate me. I don’t ever want to see those uncultured, disgusting monsters again. I’m glad that you will look into these things for me.
Attorney:
I will get back to you as soon as we complete our research. [Alyson stands, and the attorney shakes her hand goodbye, pats her on the shoulder, and escorts her from the office to the front door.]
End of transcript
[Note: The following statute is manufactured; it is not a real statute. Treat it as a recently enacted statute that has no case interpretations.]
PART I. ADMINISTRATION OF THE GOVERNMENT TITLE VII. CITIES, TOWNS AND DISTRICTS CHAPTER 49. FENCES, FENCE VIEWERS, POUNDS AND FIELD DRIVERS. and SPITE FENCES
Florida Statutes chapter 49, § 21 (2017)
§ 21. Spite Fence; Definition; Deemed to be Private Nuisance; Remedy.
A fence or other structure in the nature of a fence that unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance. Any such owner or occupant injured in the comfort or enjoyment of his estate thereby may have an action of tort for damages.
Advisory Interpretation:
In general, purpose of fence, to bring it within the statute, must be to annoy, instead of being a bona fide use of such structure for legitimate purpose, and this purpose must be controlling motive and amount to actual malevolence as distinguished from technical malice. Statute is confined to fences and structures in the nature of fences, and to such fences only as those that unnecessarily exceed six feet in height.
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Cases
Obolensky v. Trombley
Any case used in the Module 3 IIED memo