Simington Gardens, LLC v. Rock Ridge Farms, LLC
| Decision Date | 27 January 2021 |
| Docket Number | A166806 |
| Parties | SIMINGTON GARDENS, LLC, an Oregon limited liability company; Birl G. Simington ; and Linda L. Simington, individuals, Plaintiffs-Respondents, v. ROCK RIDGE FARMS, LLC, an Oregon limited liability company, Defendant-Appellant, and John Does 1-10, Defendants. |
| Court | Oregon Court of Appeals |
Robert Koch, Portland, argued the cause for appellant. Also on the briefs were Anna Sortun and Tonkon Torp LLP.
Brian R. Talcott, Portland, argued the cause for respondents. Also on the brief was Dunn Carney Allen Higgins & Tongue LLP.
Before Armstrong, Presiding Judge, and Tookey, Judge, and James, Judge.
In this action involving tort claims for common-law trespass, conversion, and statutory "trespass to produce," ORS 105.810, plaintiffs sought damages for the loss of their organic salad crop and other property ruined by defendant's cows and workers. Defendant appeals from general and supplemental judgments, challenging the award to plaintiff of enhanced damages and attorney fees on the statutory claim and the trial court's failure to require plaintiffs to make an election of remedies.1 We conclude that the trial court did not err and affirm.
The facts are undisputed. Plaintiffs’ organic produce farm is adjacent to defendant's farm, where defendant raises heifer cows. Defendant's cows escaped from their enclosure onto plaintiffs’ field and trampled and defecated on plaintiff's newly planted crop of organic salad plants. Defendant's employees retrieved the cows and, in doing so, caused additional damage to the newly planted crop. Plaintiffs brought this action, seeking damages on theories of common-law trespass, conversion, and "trespass to produce" under ORS 105.810.
The case went to trial. As presented to the jury, the common-law trespass claim related to all of plaintiffs’ actual damages caused by the trampling of the field by defendant's cows and employees. On the statutory claim, the court allowed the jury to consider only damages caused by defendant's employees when they entered the field to retrieve the cows. See ORS 105.810 ().
In a special verdict, the jury determined that plaintiffs had prevailed on all claims. The jury awarded damages "relating to trespass" of $26,564, broken down as follows: $20,797 for loss of net income from the ruined crop; $2,534 for loss of produce and personal property; $3,233 for mitigation expenses.
The verdict form required an allocation of damages to the statutory claim, to which the jury attributed 50 percent of plaintiff's loss of produce, or $11,000.2 But the court did not add that amount to the final award for actual damages, reasoning that compensation for actual damages for loss of produce caused by defendant's employees was included within the jury's award on the common-law claim.
However, the statutory claim requires an enhanced award of double or treble damages, depending on whether the trespass was "willful" or "casual or involuntary." See ORS 105.810 (); ORS 105.815 (). The jury determined that defendant's employees injured plaintiffs’ produce "casually/involuntarily." For that reason, the trial court concluded that, under ORS 105.815, it was required to double plaintiffs’ damage award on the statutory claim. That enhancement, the court concluded, was not encompassed in the jury's award for actual damages and could be added to the final award. The court thus added the enhancement amount of $11,000 to the jury's award of $26,654 for actual damages due to trespass, for a total award of $37,654. In a supplemental judgment, the court awarded plaintiffs attorney fees of $125,000 on the statutory claim.
In its first assignment on appeal, defendant asserts that the trial court erred in making an award under ORS 105.815. Defendant argues that plaintiffs did not prevail on the statutory claim because, in order to prevail under ORS 105.810 on a claim relating to damage to produce, the damage must be caused "willfully." Defendant derives that construction of the statute from the history of ORS 105.810. Because the jury found that defendant's injury to produce was not willful, defendant contends that it has no liability on the statutory claim.
Defendant's arguments present questions of statutory construction that we review for legal error. Bergman v. Holden , 118 Or. App. 530, 848 P.2d 141, adh'd. to on recons. , 122 Or. App. 257, 857 P.2d 217, rev. den. , 318 Or. 170, 867 P.2d 1384 (1993). The first step in our analysis is to examine the statutory texts. ORS 105.810 provides, as relevant:
(Emphasis added.)
ORS 105.815(1) provides:
"[I]f, upon the trial of an action included in ORS 105.810, it appears that the trespass was casual or involuntary * * *, judgment shall be given for double damages."3
Because it underlies defendant's analysis, we first explain why we reject defendant's assumption that the statutory tort of trespass to produce or timber requires a trespass to land. ORS 105.810(1) describes the conduct that constitutes a trespass to produce or timber: the willful injury or severing of produce or timber from the land of another without lawful authority. It then refers to that conduct as "such trespasses." Although referred to as a "trespass," the conduct described in ORS 105.810 is different from a trespass to land, which focuses on a physical invasion or intrusion of the land. Martin et ux. v. Reynolds Metals Co. , 221 Or. 86, 90, 342 P.2d 790 (1959), cert. den. , 362 U.S. 918, 80 S.Ct. 672, 4 L.Ed.2d 739 (1960) (). A claim for trespass to produce or timber under ORS 105.810 focuses on injury to the produce or timber; it makes no reference to an invasion of an exclusive possession of land. A person can violate ORS 105.810 by willfully injuring or severing produce or timber without authorization, even if the person is lawfully present on the land.
ORS 105.810 does require that the land on which the produce or timber is injured, or from which it is severed, is "the land of another person." For that reason, in Bergman , 118 Or. App. at 533, 848 P.2d 141, we held that an entry onto another person's land is an element of the statutory claim. But neither we nor the Supreme Court have held that the entry must be a trespass to land—an invasion of lawful possession in a tortious sense. In fact, the Supreme Court has rejected that notion. In Pedro v. January , 261 Or. 582, 494 P.2d 868 (1972), Delbert Pedro had an interest in timber as a contingent remainder beneficiary of a life estate. He sought relief under ORS 105.810 for the life-estate holder's unauthorized cutting and removal of timber. The Supreme Court rejected the argument that, because Pedro lacked a right to possession, he had no entitlement to relief:
"The contention is made that, because the statute refers to the intrusion as a trespass, it requires a person who seeks relief thereunder to have a possessory interest because an action of trespass can be brought only by one who is entitled to possession."
Id. at 601, 494 P.2d 868. The court explained that, although the statute uses the term "trespass," it is not used in reference to an invasion of the possession of land. The court said that, "in a broader sense, the term ‘trespass’ is used as descriptive of the acts of a person who unlawfully injures the property of another." (citing 4 Thompson, Real Property 396, § 1853 (1961)). Indeed, the court held that a person seeking relief under ORS 105.810 need not have a possessory interest in the property, and that, in using the term "trespass," the legislature "was not attempting to describe the form of the action which could be brought under the statute, but it was describing an act of unauthorized injury to the real property." Id. at 601-02, 494 P.2d 868.
Thus, contrary to defendant's contention, the use of the term "trespass" in ORS 105.810 does not require a trespass to land. The trespass is the injury to the timber or, in this case, the produce. Had the legislature intended that the statutory claim require a trespass to land, it would have said so explicitly. See, e.g. , ORS 608.015 ().
We turn to defendant's contention that a claim for injury to produce must always be based on willful conduct and that enhanced damages cannot be awarded when the injury to produce is "casual or involuntary." Defendant notes that, before it was amended to address...
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