BENTON - Reasonable jurors could find Nathan Marlen of Freeburg directed a costly trespass next to his property near Vandalia, U.S. District Judge Phil Gilbert ruled on June 21.
Gilbert found plaintiff Joseph Lucas of Missouri, who owns 15 acres for hunting, provided enough evidence to create an issue of fact about a meeting that led to the damage.
The meeting happened in 2021 and included Marlen, his late father Jim Marlen, and construction contractor Doug Blankenship of Greenville.
They agreed that Blankenship would farm on land that belonged to Jim Marlen as trustee of his family’s trust.
They also agreed the trust would reduce the rent in exchange for improvements.
According to Gilbert, Jim Marlen and Blankenship discussed earthwork for better drainage and removal of a concrete drainage structure.
“Nathan was present, but did not say anything in response,” he wrote.
Blankenship’s company entered Lucas’s property, without his knowledge by his testimony.
The company excavated a ditch, dug a ditch, and removed the drainage structure.
In the process they cut down trees.
Lucas sued Nathan Marlen, Blankenship, and Blankenship Construction last year.
By that time Jim Marlen had died.
Nathan Marlen moved to dismiss, stating Lucas failed to state a claim.
Blankenship moved to dismiss, stating the controversy didn’t meet the $75,000 minimum for federal jurisdiction.
District Judge Staci Yandle denied both motions last June.
She found Lucas sufficiently stated claims against Marlen for trespass, conversion and wrongful tree cutting.
She found Lucas met the minimum by submitting a $210,750 estimate for replacing trees.
She recused herself in October after she confirmed and disclosed that she knew Nathan’s brother, lawyer Matthew Marlen.
Gilbert took charge and Marlen moved for summary judgment in his individual capacity only.
He claimed Lucas lacked admissible evidence that he directed Blankenship’s actions.
Gilbert found the evidence Lucas needed came from Blankenship.
He found Blankenship stated in response to an interrogatory and in his deposition that he didn’t receive instructions or directives from Nathan Marlen.
He found Lucas pointed to other parts of Blankenship’s testimony.
He found Blankenship answered a question about the drainage structure by stating it was “agreed upon between all three of us that it needed to come out.”
He found Lucas pointed to places where Blankenship said “they” to describe who approved removal of the structure and drainage work.
He found Lucas argued that the idea of drainage work came from Nathan Marlen.
He found Lucas argued that Nathan Marlen arranged the meeting, had a beneficial interest in the trust, and stood silent when Jim Marlen told Blankenship to remove the structure.
“The parties may of course present their varying versions of what happened and if the jury believes Nathan was simply a fly on the wall who did nothing to encourage or recommend the Trust’s entering into the agreement, it can find in his favor," he wrote.
He has set jury trial in October.