Harshbarger v. Klamath Cnty.

• Jurisdiction: Oregon
• Parties: Daniel HARSHBARGER, Plaintiff-Respondent, v. KLAMATH COUNTY, Oregon, a political subdivision of the State of Oregon, Defendant-Appellant.
• Citation: 432 P.3d 363,294 Or.App. 631
• Docket Number: A163379
• Court: Oregon Court of Appeals
• Decision Date: 31 October 2018

294 Or.App. 631

432 P.3d 363

Daniel HARSHBARGER, Plaintiff-Respondent,

v.KLAMATH COUNTY, Oregon, a political subdivision of the State of Oregon, Defendant-Appellant.

A163379

Court of Appeals of Oregon.

Submitted May 4, 2018.

October 31, 2018

Jeffrey D. Laveson, Washington, Linda B. Clapham, Washington, and Carney Badley Spellman, PS, filed the briefs for appellant.

Samuel A. Ramirez filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

DefendantKlamath County appeals from a general judgment awarding damages and a supplemental judgment awarding prevailing-party attorney fees and costs to plaintiff Harshbarger, a residential homeowner in Klamath County, for damage to noncommercial ornamental trees on plaintiff's property caused by the county's application of herbicide to adjacent public land.Plaintiff sued the county for nuisance, ORS 105.505, and timber trespass, ORS 105.815.On multiple occasions before and during trial, the county sought dismissal of plaintiff's timber trespass claim, arguing that plaintiff failed to allege damages in the manner required by the timber trespass statute and the case law interpreting the statute.Following trial, a jury awarded $10,000 on plaintiff's nuisance claim and $5,000 on plaintiff's timber trespass claim.The court doubled the $5,000 award for timber trespass pursuant to ORS 105.815(1), and, in a supplemental judgment, awarded plaintiff over $86,000 in prevailing-party attorney fees and costs pursuant to ORS 105.810(2).¹

On appeal, the county contends that, throughout the litigation, the trial court acted under the erroneous belief that plaintiff could prevail on his timber trespass claim in the absence of any evidence that the damage to his trees diminished the market value of his property or that the effect on property value could not be determined.As a result, the county argues that the trial court erred when it allowed plaintiff's timber trespass claim to go forward rather than dismissing it based on one or another of the county's motions.

In response to plaintiff's original complaint, the county filed a motion to dismiss under ORCP 21 A(8), arguing that plaintiff had failed to state a legally cognizable timber trespass claim because plaintiff did not plead or allege any facts related to the effect of the damage to the trees on the market value of his property.The trial court ruled that "plaintiff's claim of damages for the value of the trees is an adequate measure of damages" and denied the motion.

Plaintiff subsequently amended his complaint three times to add additional claims and allege additional facts unrelated to this appeal.The county, meanwhile, moved on two occasions for summary judgment based on plaintiff's ongoing failure to plead or allege facts related to diminution in property value.The trial court denied those motions as well.The court similarly denied the county's motion in limine asking the court to exclude plaintiff's proposed evidence of the arborist's value for each of the damaged trees as an alternative measure of damages to diminution in property value.

Finally, plaintiff rested at trial without presenting evidence related to the effect of the damage on his property value.On that basis, the county moved for a directed verdict under ORCP 60, again arguing that plaintiff had failed to present evidence of damages necessary to prevail on a timber trespass claim.The trial court denied that motion as well.

Although on appeal the county broadly assigns error to the trial court's repeated denial of the county's efforts before and during trial to have the timber trespass claim dismissed, we understand the county ultimately to be assigning error to the court's denial of the motion for a directed verdict.For the reasons explained below, we conclude that the court erred when it denied that motion.Accordingly, we reverse the judgment with respect to plaintiff's timber trespass claim.We also vacate and remand the supplemental judgment in its entirety so that the trial court may reconsider fees and costs in light of our decision.²

We review the trial court's denial of the county's motion for a directed verdict for legal error.Dickson v. TriMet , 289 Or. App. 774, 776, 412 P.3d 1188(2018).In doing so, we view the evidence and inferences reasonably derived therefrom in the light most favorable to the prevailing party at trial—here, plaintiff—to determine whether that party presented legally sufficient evidence to prevail on the claim put at issue by the motion.Id . at 776-77, 412 P.3d 1188.Our review is limited to the case presented to the jury through pleadings, evidence, and jury instructions.Cohen v. Awbrey Glen Homeowners Association, Inc. , 283 Or. App. 244, 250, 388 P.3d 1160(2016).We must affirm unless our review of the record demonstrates that there is no evidence to support the verdict.Id . at 250-51, 388 P.3d 1160.

We provide the following facts consistently with the foregoing standard of review.In June 2010, the Klamath County Department of Public Works applied herbicide along the right-of-way next to plaintiff's property.The herbicide found its way to plaintiff's property where it damaged or killed several ornamental pine trees.As alleged in his complaint, plaintiff"was damaged by losing trees in the amount of $23,486."Plaintiff also incurred the cost of tree removal and replanting.Over the course of multiple amended complaints, plaintiff sought damages related to the value of the trees killed by the herbicide and related costs.Plaintiff never made allegations related to the effect of the harm to his trees on the overall market value of his property.In fact, plaintiff conceded that he was not claiming a reduction in the market value of his property and argued, instead, that evidence of property value was irrelevant.Even during trial, plaintiff did not present evidence related to the change in value of his property.The county, by contrast, presented testimony from a property-valuation expert that the market value of plaintiff's property was unaffected by the damage to the trees.Plaintiff not only did not challenge that assertion, he conceded on cross-examination that it was factually correct.

With that factual background in mind, we turn to whether plaintiff presented legally sufficient evidence to prevail on his timber trespass claim at trial.The ordinary measure of damages in a timber trespass case, like this one, involving noncommercial ornamental trees is the diminution in the market value of the property.Cohen , 283 Or. App. at 252, 388 P.3d 1160("If the property possesses a market value, that fact should be shown, and the plaintiff's damages should be measured by the difference between the market value of the property before and after the alleged wrongful act."(CitingMoss v. People's California Hydroelectric Corp. , 134 Or. 227, 237, 293 P. 606(1930).) ).Damages in a case involving noncommercial ornamental trees "may be proved through other evidence demonstrating the ‘real value’ of the loss to the freehold caused by the harm to the trees" only if the evidence of the effect on the property's market value is unavailable.Id .In other words, unless there is sufficient evidence that the effect on market value cannot be determined, "a plaintiff cannot prevail on a timber trespass claim in the absence of proof that the trespass decreased the value of the land."Ken Hood Construction Co. v. Pacific Coast Construction, Inc. , 201 Or. App. 568, 583, 120 P.3d 6(2005), modified on recons , 203 Or. App. 768, 126 P.3d 1254, rev. den. , 341 Or. 366, 143 P.3d 239(2006)(citingHampton v. Portland General Electric , 268 Or. 121, 122, 519 P.2d 89(1974) ).

Our opinion in Cohen , a timber trespass case brought by the plaintiff against a homeowners association (HOA) after the HOA removed noncommercial ornamental trees from the plaintiff's property, illustrates when a plaintiff may demonstrate damages other than by showing a diminution in property value.In that case, the plaintiff represented to the trial court that he"could not find a real estate expert who could ‘make a number’ reflecting how the removal of the trees affected the market value of his property."283 Or. App. at 253, 388 P.3d 1160.The HOA did not challenge that representation or present its own evidence of the effect of the tree removal on the market value of the plaintiff's property, and nothing in the record called that representation into question.Id .The court then allowed the plaintiff to present evidence of the value of the removed trees based on the "trunk formula method" through the expert testimony of a licensed arborist.Id. at 254, 388 P.3d 1160.On appeal, the HOA argued that the court had erred when it allowed the plaintiff to present that alternative damage assessment.We concluded...