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A TREE-RING CIRCUS

"I think that I shall never see/A tort lovely as a tree." Or something like that.

Bill and Sherri McDowell of Scottsdale probably wouldn't find humor in that variation on the famous Joyce Kilmer line. After all, their lawyer has told a judge that the McDowells are suffering "irreparable harm" at the hands--er, leaves--of an Australian bottle tree.

The McDowells' next-door neighbors, Mark and Debbie Willner, own the tree, whose fate is now rooted in the civil branch of Maricopa County's Superior Court system.

A New Times investigation of several hours reveals that the McDowells are asking a judge--Elizabeth Stover, not Judge Wapner--to order the Willners to chop down their beloved tree. It appears the case will go to trial next year.

This gnarly tale starts in 1980, when a homebuilder planted the tree at the Willners' residence on East San Benito.

Lynn Klinger, manager of a Harper's Nursery, says the Australian bottle tree is a popular variety that the City of Phoenix officially recommends as drought-tolerant and fast-growing. Fast-growing it is. The Willners' tree is now about 50 feet tall.

The size of the tree is about the only part of this litigation that's uncontroverted. The rest is, well, read for yourself.

The McDowells' attorney, Curtis Ekmark: "The continual and significant shedding of the bottle tree caused the [McDowells] to expend an inordinate amount of time and money in an attempt to remove the debris from their yard and pool. Despite their best efforts, the tremendous amount of debris has rendered the pool useless."

The Willners' attorney, Margaret Gillespie: "The Willners admit that they own an Australian bottle tree [the "Tree"] and that it is planted in their backyard; they admit that the tree, as trees do, sheds leaves in its immediate vicinity. . . . The Willners specifically deny that the [McDowells'] pool is in a condition that could be described as 'useless.'"

One neighbor of the feuding couples believes the McDowells are barking up the wrong tree.

"If this tree is allowed to be removed," Layne Kershner wrote recently, "a precedence will be set, and all trees that shed a leaf will have to be destroyed. . . . If there were restrictions regarding leaves, there would be NO TREES left in the City, County or State."

While Kershner seems to be going way out on a limb, the saga of the tree continues to evoke reactions from some surprising sources.

"I feel I've become more emotionally involved than anything," says the Willners' attorney, Gillespie. "It's a tree they're fighting over, and the only thing that's going to come out of it is grief on both sides. It deals with so much human emotion."

For his part, opposing counsel Ekmark insists his clients have not taken leave of their senses. He says the lawsuit was a last resort.

"We feel we have a very strong, very legitimate case, and we are confident we will ultimately prevail," Ekmark says, with the conviction some barristers muster for death-row inmates or victims of violent acts. "Suing is the last thing my clients wanted to do, but they were forced to do so. This isn't frivolous, believe me."

Court records--yes, selfless trees have given their lives so the American system of jurisprudence may flourish--indicate the McDowells moved into their home last March.

Soon after that, Bill McDowell told the Willners he planned to trim a part of the tree that hung over the fence line. According to the Willners, he then did so. Then, on May 19, McDowell allegedly sent tree trimmers into the Willners' backyard, without permission, to complete the job. Irate, the Willners ordered the trimmers to make like a tree and leave.

"Our tree then went into major shock because of the way it had been cut into," Debbie Willner recalls. So much so, she says, that the tree soon lost its leaves. "Some leaves blew into their pool, okay. But we had been keeping the tree trimmed professionally since 1991, and it wasn't out of control. A few days after all this, the neighbor shows up and says if we don't cut the tree down, he's going to sue."

Remember, folks, we're talking torts here, so there's another side to this. Attorney Ekmark, however, says his clients "will tell their story to the judge, not to a newspaper."

Okay.
So we return to the McDowells' lawsuit, filed July 12, and the following wooden prose: "Despite repeated requests by the [McDowells], including an offer to pay for a replacement tree which will not shed debris, the [Willners] refuse to remove or replace the Bottle Tree."

In other words, unless Judge Stover orders otherwise, the tree stays put.
Debbie Willner says defense of the tree is a matter of principle.
"Most people would just have given in to him and cut down the tree," she says, "even though it's one of the dumbest things I've ever heard of. Anybody can sue you and say anything, and you're going to have to pay to get help."

Saving the tree, Willner adds, will cost "anywhere between $10,000 and $20,000 in legal fees."

Klinger of Harper's Nursery notes that Australian bottle trees are not the most unkempt.

"No tree is perfectly clean or it wouldn't be a tree," she says, "but the bottle tree is fairly clean compared with many others. It has seedpods that can be a little messy. But one of the reasons for its popularity is that it generally isn't a nuisance and is easy to care for."

News of the legal battle leaves Klinger stumped. "I'm wondering, don't people have more important things to fight over?" she says.

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Paul Rubin
Contact: Paul Rubin