Cohen v. Awbrey Glen Homeowners Ass'n, Inc.

• Jurisdiction: Oregon
• Parties: Neal COHEN, trustee of the Cohen Irrevocable Trust, Plaintiff-Respondent, v. AWBREY GLEN HOMEOWNERS ASSOCIATION, INC., an Oregon mutual benefit corporation, Defendant-Appellant.
• Citation: 388 P.3d 1160,283 Or. App. 244
• Docket Number: A157521
• Court: Oregon Court of Appeals
• Decision Date: 29 December 2016

283 Or.App. 244

388 P.3d 1160

Neal COHEN, trustee of the Cohen Irrevocable Trust, Plaintiff-Respondent,

v.AWBREY GLEN HOMEOWNERS ASSOCIATION, INC., an Oregon mutual benefit corporation, Defendant-Appellant.

A157521

Court of Appeals of Oregon.

Argued and submitted January 8, 2016.

December 29, 2016

R. Daniel Lindahl, Portland, argued the cause for appellant.With him on the briefs were Stephen F. Deatherage and Bullivant Houser Bailey PC.

Steven K. Chappell argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

LAGESEN, J.

This case arises under Oregon's timber trespass statute, ORS 105.810.¹Plaintiff lives in the Awbrey Glen residential development (the development) in Bend.Defendant, the Awbrey Glen Homeowners Association, Inc., (the HOA), is the homeowners association for that development.In plaintiff's timber trespass action, a jury found that the HOA, without lawful authority, cut down eight of plaintiff's trees.The jury awarded plaintiff $ 14,720 in damages for the eight trees.The trial court trebled the award to $ 44,160 as required by ORS 105.810(1), and entered a general judgment in favor of plaintiff.The court subsequently entered a supplemental judgment awarding plaintiff his attorney fees.²On appeal from both judgments, the HOA contends that the evidence is insufficient to support the jury's finding that the HOA—rather than the Awbrey Glen Golf Club—was responsible for cutting plaintiff's trees.The HOA further contends that, regardless of who cut the trees, plaintiff's expert used a legally impermissible method to value plaintiff's trees and that, as a result, no legally competent evidence supports the jury's award of damages.We disagree and affirm.

The evidence at trial was conflicting and many of the facts were sharply disputed.However, because the jury returned a verdict for plaintiff, we are required on appeal to "view the evidence * * * in the light most favorable to plaintiff."Parrott v. Carr Chevrolet, Inc. , 331 Or. 537, 542, 17 P.3d 473(2001).We state the facts accordingly.

The development is built around the Awbrey Glen Golf Course, which is run by the Awbrey Glen Golf Club.Plaintiff's home is along the twelfth fairway, and the golf club has an easement across his property "for golf purposes."

The development and golf course are located in an area at risk for wildfires.To help reduce that risk, Deschutes County awarded a grant to the HOA to conduct fire risk reduction efforts.The HOA administered that grant, and was authorized to use grant funds to pay for fire reduction efforts taken by the golf club, as well those efforts taken by the HOA itself.The HOA had a fire prevention committee that coordinated the HOA's fire prevention efforts.That committee worked with the golf club on its fire prevention efforts.

In the course of those fire reduction efforts, the HOA determined that some of plaintiff's trees should be cut down.Those trees were located in the golf club's easement across plaintiff's property.Because so many trees needed to be removed, the HOA marked the trees that were to remain.³However, the contractor hired to perform the tree removal cut down the marked trees, not the unmarked trees.As a result, eight of plaintiff's biggest trees were cut down: one nine-inch diameter ponderosa pine; two 12-inch diameter ponderosa pines; one nine-inch diameter western juniper; and four 12-inch diameter western junipers.In plaintiff's view, those eight trees were the best trees on his property.

Plaintiff then brought this action for timber trespass under ORS 105.810.The HOA's main theory of defense was that the golf club, not the HOA, had directed the cutting of plaintiff's trees, meaning that the HOA had not committed a timber trespass.Alternatively, the HOA contended that, even if it was implicated in the tree cutting, it had not committed timber trespass because the golf club also had approved the cutting of plaintiff's trees and had the authority to do so under the terms of its easement.

Before plaintiff called his expert witnesses to testify to the value of the trees, the HOA moved to preclude plaintiff from presenting evidence of the replacement cost of the trees.The HOA argued that, under Oregon law, the only permissible measures of damages in a timber trespass case are (1) the diminution in value of the real property from which the trees were taken; or (2) the stumpage value of the timber taken.

In response, plaintiff acknowledged that one of his witnesses was going to testify to the replacement cost of the trees, but stated that his other witness was "coming in to say what the trees were worth."As to evidence of his property's diminution in value as a result of the tree removal, plaintiff explained that he had looked for a "real estate agent or somebody" who could testify to how the removal of the trees affected the value of his property, but that he could not find anyone who would do that because "[t]hey couldn't make a number."The trial court ruled that plaintiff could not present evidence of the replacement cost of the trees, but rejected defendant's argument that the sole measure of damages was the diminution in value of plaintiff's real property.After reviewing the Oregon case law on timber trespass damages, the court concluded that plaintiff could recover "[d]iminution of value or the trees themselves that were removed from the property, what were those trees worth."

Thereafter, plaintiff dismissed his expert who had been prepared to testify to the replacement cost of the trees and called his other expert, professional certified arborist Ian Smith.In Smith's opinion, plaintiff's eight trees had a total value of $ 14,720.Smith computed that value using the "trunk formula method," which, Smith explained, is

"a nationally recognized method through the Guide for Plant Appraisal.It's the Council of Trees and Landscape Appraisals.It's recognized in courts of law, through the IRS, and nationally through Realtors, to provide plant appraisal.

"Typically when we do a plant appraisal where the trees are not there anymore, * * * the trunk formula method is the standardized guideline, because the formula used to come up with your plant values can be done appropriately without actually seeing the trees, since there's no—you know, we haven't seen them before they were cut, and there's no picture evidence of the trees beforehand."

Smith further explained that, under the trunk formula method, the value of a tree is computed by taking into account a number of factors about the tree: the species, its trunk circumference, its location and particular surroundings (including whether the tree is a single tree or part of a stand), and its health.The formula uses the cost of a nursery stock tree of the same species installed as a starting point for valuing a particular tree, and then adjusts that number based on the various factors to come up with a value for the tree.Smith testified as an example that, to appraise the 9-inch ponderosa pine, he first determined that the installed cost of a ponderosa pine from a local nursery would be $ 4,200.That value, "multiplied down by your species rating, condition, and location ratings" yielded a value for plaintiff's 9-inch ponderosa pine of $ 1,615.Smith testified further that he used the same method to appraise the other seven trees, ultimately determining that the total value of the eight trees was $ 14,720.Smith admitted on cross-examination that if the trees had been hazards, under the Plant Appraisal Guide, they would have had "no monetary value."However, he questioned whether the trees that had been removed had been hazards.

Pertinent to the issues presented on appeal, at the close of the evidence, the HOA moved for a directed verdict.The HOA argued, among other things, that plaintiff failed to present sufficient evidence to permit the jury to find that the HOA, rather than the golf club, was responsible for cutting plaintiff's trees, and that the HOA was entitled to a directed verdict for that reason.Alternatively, the HOA argued that Smith's valuation of the tree was an impermissible "replacement cost" valuation, and that it was entitled to a directed verdict on the ground that plaintiff had presented no legally competent evidence of damages.

The trial court denied the motion, and the jury returned a verdict for plaintiff.The special verdict form reflects that the jury found that the golf club's easement did not authorize it to perform fuel reduction work on plaintiff's property and that removal of plaintiff's trees was not done by the golf club under its easement.The jury found further that the HOA intentionally trespassed on plaintiff's property, that plaintiff had not consented to the removal of his trees, and that the HOA's belief that it was authorized to remove the trees was not in good faith.Finally, the jury determined that the value of the removed trees was $ 14,720.As noted, the trial court trebled that amount as required by ORS 105.810(1), entered a general judgment in favor of plaintiff in the amount of $ 44,160, and then entered a supplemental judgment awarding plaintiff his attorney fees.The HOA appealed those judgments.

On appeal, the HOA assigns error to the denial of its motion for a directed verdict, contending, as it did below, that the denial was erroneous in two respects: (1) that the evidence was insufficient to permit the jury to find that the HOA, and not the golf club, directed the removal of plaintiff's trees; and (2) that the evidence was insufficient to support the jury's award of damages because plaintiff's expert, who supplied the only evidence of damages, used a legally impermissible method to value plaintiff's trees.In response, plaintiff argues that the record contains adequate evidence to support the jury's finding that the HOA, not the golf club, cut the trees.As to damages, plaintiff contends that the Supreme Court has held...