Barbara Levenson - Mary Magruder Katz 03 - Outrageous October

by Barbara Levenson

“He’s right, Ms. Katz., sustained. Ask a question. Don’t give your opinion.”

  “I don’t need to. Your honor can see for himself. Mr. Woodhouse, have you brought some pictures with you today?”

  “Sure have. Ken said you asked me to, right?” Arthur began to unroll his sheaf of papers.

  “Did you take these photos?’

  “Yup, first time I went out to the house. It helps me work on a landscape plan.”

  “Will the clerk please mark these as defendant’s exhibits?’

  The clerk hunted for her ink pad and labels. “Can I mark them later, Judge? I didn’t know we were having witnesses and exhibits and all.”

  “Okay, Lucinda. Let me have a look. We’ll just call them defense one through four.” Judge McCreary handed the photos back to me.

  I walked over to Berger and spread the photos out on his table.

  “Any objection, Mr. Berger?” I asked.

  “No, I’m glad the pictures are here. They show what a nice cover there was for my client’s privacy,” Berger said.

  “Mr. Woodhouse, will you explain to the court when and where you took each of these pictures.”

  “Sure. This first one shows the condition of the backyard such as it was when I first saw it last spring. You can see the jungle of weeds and underbrush covering a good quarter of the yard. Over here, in this photo, you see this stand of white pines. As you can see one of them is partially dead, and the others are choking this pretty maple tree. This is what happens when trees are allowed to grow without any plan. In order to keep the good trees healthy, it’s necessary to take out the weeds and worthless trees. That’s just healthy foresting.”

  “What is in this third photo and when was it taken?”

  “This is after the clearance of the undesirable growth, and just after I put in the garden beds and the low fence and trellis. I built up the soil with nutrients, fertilizer from my own mixture, and topped the beds with mulch. You can see some of the new plants and the two new trees on the corners.”

  “When was this taken?”

  “Early June. This last photo shows the whole back yard as it looked a month ago. You can see the perennial flowering plants, and the blossoms on the pear tree.”

  “What is behind the fence on Mr. Upham’s property?”

  “Looking at this last photo, you can see the back of Mr. Behr’s property. You can see a little bit of the condition of that property. Frankly, Judge, it’s a mess.”

  “Objection,” shouted Mr. Berger. His answer goes beyond the scope of the question.”

  “He’s allowed to explain his answer,” I countered.

  “Okay, folks. Let’s move along here. Any more questions, Ms. Katz?” The judge was clearly becoming bored.

  “No, Judge, thank you. Your witness, Mr. Berger,” I said.

  Berger got to his feet slowly and shuffled over to Woodhouse.

  “Mr. Woodhouse, what’s that other rolled up paper you’ve got there?” Berger asked.

  “That’s the survey of Upham’s land. I always get a survey before I start to work, so that I am sure not to go onto anyone else’s property,” Woodhouse unrolled the survey and laid it out in front of him.

  Berger walked to the side of the witness chair and looked at the survey.

  “This line here, is that on Upham’s property?”

  “No, that’s the easement between the two properties.”

  “Well, when I look at the photos after you clear cut, it looks to me like you cut all the vegetation in the easement?

  “I didn’t clear cut anything. That term implies that I took out a whole forest of trees. Yes, I cut the weeds in the easement. It looked like it hadn’t been cleaned up for years. There was a nest of rats back there. I called the county and asked if they intended to clean out the easement. They said they didn’t do work like that, couldn’t afford to, so if I wanted to I could go right ahead.”

  “Now, Mr. Woodhouse, did you go over to Mr. Behr’s house and ask him if he minded if you cut out the trees and plants behind him?”

  “No, I didn’t have to. None of this was on his property.”

  “Even so, wouldn’t it have been the neighborly thing to do?”

  “I was hired by Mr. Upham to fix up his place. He’s the only one whose permission I needed.”

  “Sir, are you aware that there is a state statute that mandates there be no cutting down of trees without government permission?”

  Listen, maybe that’s how they proceed over there in Rutland where you come from, but I’ve been in business here for twenty-five years and I’ve never heard of such a statute. No one’s ever complained about my work. I received an award from the High Pines Select Board for beautifying the village. I donate my time to planting and caring for the flower beds in front of the covered bridge.”

  “You needn’t lose your temper, Mr. Woodhouse,” Berger said. He smiled at the judge. “That’s all my questions.”

  I could see the judge was squirming in his seat.

  “Your Honor, I won’t call my client. I’ll just take a couple of minutes for a summary of my motion,” I said.

  “Thank you, Ms. Katz.” Relief was evident in the judge’s words.

  “It’s clear that Mr. Upham beautified his property. If Mr. Behr is worried about his privacy, no one is stopping him from planting whatever he wants on his own property. It’s not up to a neighbor to provide cover for someone else’s property. As long as Mr. Upham has not placed an eyesore or a danger on his property, Mr. Behr has no reason to complain, let alone to sue my client. Mr. Behr has failed to state a cause of action and his complaint should be dismissed.”

  I took my seat and immediately saw that Calvin Crumb, the side judge was whispering to the judge. Minutes passed while the judge listened to Calvin’s lengthy and heated discussion.

  Finally the judge leaned back in his chair. “My assistant judge has raised some points and I’ve given him permission to respond to your summation, counsel.”

  I glanced over at Ken who was frowning.

  Calvin smiled at Berger as he began to speak. He looked like he had just won an important battle. “Mr. Berger raised the state statute in his complaint, so I did some research. There is a statute that is still viable today, since it has never been removed by any legislative body, and it says that in order to remove a tree, there must be written permission sought and written permission given by the state government. It was passed in 1817 and still stands today. Mr. Woodhouse or Mr. Upham, did either of you get that permission?”

  Woodhouse stood up and glared at Crumb. “I’m a native here, too, Calvin. That law had to do with what went on back then. Farmers stripped all the trees out of this state. That’s why the law was passed. But look around you. The whole state is filled with forests. The timber industry is alive and well.”

  I saw that the arborist was losing his temper. His face was the color of the apples in the farmers market. I stood up and signaled him to sit down.

  “Judge, there are thousands of old laws on the books in every state, but common practice allows them to die if never used. If a law has been dormant for vast periods of time, it is considered discriminatory to use it against just one person decades later.”

  “Well, maybe where you come from, lady, but here in Vermont we value our history. Now I’ll give you an example. The Ancient Roads Act. It was found in 2006 that there were maps of ancient roads all over the state, roads that weren’t in use anymore, but they still existed on old maps. Municipalities were given a body of time to look into these roads and file certificates reviving these roads, even if it meant that they ran right through someone’s house or barn, or corn field. In fact the towns were asked to include all class four roads and trails in their certified maps. It just shows laws don’t die unless they are removed with proper procedure.” Calvin finished with a flourish.

  “Judge that defies common sense. But even if someone wants to run a road through the middle of someone’s living room, that doesn’t prove
that the tree statute can be called out of its grave,” I said.

  “Well, I was about ready to rule in this matter, but I think I’ll need some time to research this matter, so I’ll take it under advisement for a while. You’ll be notified when I issue my order.” Judge McCreary walked swiftly to the side door. Calvin Crumb strode beside him still talking.

  “The town of Barnard added fifty miles of ancient roads this year.” We heard Calvin saying as the two left the courtroom.

  CHAPTER

  FORTY-FIVE

  Ken and I were silent as we began the drive back to High Pines. He looked angry and I felt crushed. I couldn’t believe that such a simple case was turning into a crusade for trees. The silence was so thick that it felt like we were enveloped in fog even though the sun was slanting off the windshield.

  “Ken, I am so sorry this didn’t go as I had anticipated, but we’re not through yet. Common sense is still on our side. Perhaps you would have been better off if Dash had continued to handle your case. You were hampered by being represented by someone ‘from away’ as they say here.”

  “I’m not upset with you, Mary. This side judge, Crumb, is a crumb or worse. He’s the problem. I think the judge was ready to rule in my favor when he butted in. There’s something very funny about Roland Behr and his super privacy paranoia. The cop in me tells me there’s a lot more to this.”

  “Maybe Roland and his lawyer and the side judge are just some old coots who don’t have anything else to think about.”

  “Maybe, but I think there’s more to this. What’s our next move?”

  “We need to wait for the judge’s ruling. When he has time to think about this, he still may rule in our favor. If not, we can begin the discovery process; take depositions, round up other witnesses who have removed trees and never had anyone bring up this ancient statute; maybe find some state officials who can testify to the disuse of the statute and the amount of bureaucracy that would be necessary to process each and every request, statewide. I’ll go to see Dash this afternoon and give him a report on all of this.”

  We reached Ken’s house in record time, mainly because my lead foot pushed the speedometer into the stratosphere. Funny how anger and speed seem to go together. In spite of this being high leaf peeper season, we passed no tour buses and traffic was not only minimal it was nonexistent.

  “Come on in, Mary. I want to try to get my Washington connection and find out if there’s any information on the location of Sherry’s cell phone. There weren’t any messages on my cell phone when we left the courthouse, but that doesn’t mean I didn’t get any calls. You know the routine by now. Cell phones work when they feel like it.”

  As we walked down the long path to the house, Rita opened the door and waved us in.

  “Ken, you’re just in time. Randy Patterson is on the phone. I just answered. He’s been trying to get through to you,” Rita called to us.

  Ken motioned to me to follow him into his den. He shut the door. “I’ll put him on speaker so you can hear. Randy, thanks for getting back to me. I have Mary Katz with me. She’s the attorney I mentioned to you. The mother of the girl who we’re trying to find is Mary’s client.”

  “Okay, Ken, but please don’t get my name around as the go- to guy for tracing cell phones. You understand?” Randy sounded annoyed.

  “Of course, I won’t give your name to anyone, and I really appreciate any help you can give us,” I said.

  “So what can you tell us?” Ken interrupted me and held up his hand to keep me quiet, usually not an easy task. After all I am a lawyer.

  “I was able to track the cell phone to a tower in Ascutney, Vermont, on the day that you phoned me shortly after I started my work on this. There aren’t too many towers in the area and my technical people tell me this one covers a pretty wide area. I’m going to send you a map of the area on your e-mail in a few minutes, but here’s the interesting thing. After you called again with the phone number of that pay phone, and the time of the call, I found that the call was made from that same cell phone number.”

  “What do you mean?” Fred asked. “What same cell phone number?”

  “The smart phone that I was tracking. Whoever called the pay phone was using that same cell phone. We tracked it later that evening and it was again at that Ascutney location. It looks like your bad guys are using the girl’s phone.”

  “Randy, thanks. I owe you a big one,” Ken said as he clicked off.

  “Let’s go look for the e-mail map,” I said.

  We moved over to Ken’s computer desk. “You know, Mary, that’s not such a stupid move, the kidnappers using their victim’s phone. It keeps us from identifying them by any phone traced back to them.”

  The bell chimed telling us a new e-mail had arrived. Ken opened it and we saw a map of an area stretching from High Pines through a number of villages south and west. Ascutney Mountain had a large star, pointing to the area of the cell tower.

  “How far is that from here?” I asked.

  “About forty miles,” Ken said.

  “No wonder our cell service is spotty. This is a huge area.” I examined the map.

  “Look, remember those two guys at Skunk Hollow told me that Paul’s farm was somewhere between Woodstock and Bridgewater. Here are those two villages.” I pointed them out. “And here is the tower. It looks like we can draw a triangular area. Doesn’t this mean that Sherry must be somewhere in this area?”

  Ken hit the print icon and in a second the map came rolling out of the printer. He pulled out a ruler and drew lines around the area. “It’s still a big area with lots of back roads and steep hills. Rita and I have skied that area,” Fred said. “We’re going to need more resources fast if we’re going to search for Sherry.”

  “I need to go over to Dash’s office this afternoon. I confided in him about the kidnapping. He knows so many people. I thought maybe he could help us. Time is not on our side. Do you think that I shouldn’t have talked about the kidnapping with him?”

  Ken was quiet for a minute. I could see his investigator brain weighing our options. When he finally spoke, it was with the authority he must have used when he was directing his detectives.

  “Dash seems like a good guy to me. He’s well respected and he does know everyone in the valley. We won’t tell Lillian that you spoke to Dash.”

  “I’m glad to hear what you think of Dash. I guess I’m skeptical of every new person; my lawyer’s psyche, you know. I feel better hearing your opinion. I’ll share what else we’ve learned in strictest confidence.”

  “And I’ll head over to the inn and show Lillian and Brett the map and what we’ve found out.”

  “Please, call Lillian right now. She likes to charge ahead. I’m afraid that once she has all the money in hand, she may do something rash. She should have received another call by now.”

  I headed for the front door and Ken headed to the phone. What a morning this had been. I realized that it was now afternoon. I was hungry and exhausted. This was not very different from my life in Miami except that there was no Carlos to look forward to, no passionate night ahead.

  Every day and especially every night I missed him more.

  If I was honest with myself, I also missed his tribe of relatives. There was always a cousin who knew how to fix whatever needed fixing. I sure could use some fixers to get Sherry back.

  CHAPTER

  FORTY-SIX

  I decided to make a quick stop back at the house to shed my courtroom garb, change to jeans, and walk Sam who raced in circles around the hilly backyard. I realized I hadn’t checked my e-mails lately. I hadn’t been keeping up with Catherine and Joe’s day to day messages about clients in Miami. Sometimes I didn’t answer until late evening and days after receiving them.

  Catherine’s latest message was a basket of worries. The clients were getting disgusted with my absence. Some of them wanted to switch to Joe permanently. Was I going to let all my hard work building the office disappear because of my own perso
nal problems? When would I stop being so selfish and get back to Miami and back to work, and by the way, everyone sympathized with Carlos including my mother and even Lucy.

  I couldn’t possibly answer all of that rant in an e-mail, so I picked up the phone. Catherine answered on the second ring, meaning the office indeed was not busy.

  “Catherine, it’s me, the long lost Miami attorney.”

  “Oh, really. I thought by now you’d be printing cards saying you are a Vermont attorney.”

  “I’m sorry I’ve neglected you. I’ve gotten myself super involved here. I told you about the tree case. Well, it’s not going well, so I can’t leave right now.”

  “The tree case? You mean the neighborhood mish-mash over someone’s trees? You can’t resolve that? The great Mary Katz who wins murder cases, and federal terrorism cases? Come on, Mary. You just don’t want to be here anymore.”

  “That’s not true. You don’t understand how crazy this place is over trees. Anyway, Dash, the lawyer I’m doing the work for –I can’t just leave him in the lurch.”

  “I take it this Dash guy is young and cute.”

  “Sort of. There’s another problem. But I must swear you to total secrecy. I mean it.”

  “Since when have I ever divulged any private matter, client or personal?”

  “You’re right. Lillian Yarmouth is here. Sherry’s been kidnapped and the bad guys want a lot of money. I am totally freaked out that we’ll ever get her back. Lillian won’t let anyone call the FBI. I’m helping all I can, so you can see I’m not just sitting up here feeling sorry for myself. I can’t leave Brett and Lillian now.”

  “I thought you said you had lunch with Sherry and she had a new boyfriend. That was in your e-mail a few days ago.”

  “Yeah, I did and she did. That’s who kidnapped her. At least he’s one of the people. God knows how many are involved.”

  “I can’t believe it. The Yarmouths walk around with a black cloud hanging over them. Okay, I’m not so mad at you, but I hope you can get out of there soon. I miss you, your parents and brothers miss you, and I think Carlos has given up on you. He’s stopped calling here every other minute. Marco says he’s resigning himself to moving on. He’s very disappointed that you wouldn’t even give him a chance to explain anything to you.”