Vloedman v. Cornell

• Decision Date: 07 July 1999
• Citation: 161 Or. App. 396,984 P.2d 906
• Parties: Herbert R. VLOEDMAN, Jr., Appellant, v. William Franklin CORNELL, IV, and Kathleen Kelly Cornell, Respondents. William Franklin Cornell, IV, and Kathleen Kelly Cornell, Respondents, v. Herbert Vloedman, Sr., and HRV Ranches, Inc., an Oregon corporation, Appellants.
• Court: Oregon Court of Appeals

984 P.2d 906

161 Or. App. 396

Herbert R. VLOEDMAN, Jr., Appellant, v. William Franklin CORNELL, IV, and Kathleen Kelly Cornell, Respondents.

William Franklin Cornell, IV, and Kathleen Kelly Cornell, Respondents, v. Herbert Vloedman, Sr., and HRV Ranches, Inc., an Oregon corporation, Appellants.

(9600053CV; CA A101202)

Court of Appeals of Oregon.

Argued and Submitted December 14, 1998.

Decided July 7, 1999.

Robert F. Nichols, Jr., Lakeview, argued the cause and filed the briefs for appellants. With him on the briefs was Bogardus & Nichols, P.C.

Michael W. Peterkin, Bend, argued the cause for respondents. With him on the brief was Michael W. Peterkin, P.C.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.

LANDAU, P.J.

The question before us is whether a statute providing for an award of attorney fees to a successful plaintiff in an action for damages to crops applies when the action was initiated after the statute's effective date but was based on conduct that occurred before its effective date. The trial court concluded that the attorney fee statute applies, and we agree.

Herbert Vloedman, Jr., and HRV Ranches, Inc., a corporation owned by Vloedman and his family (collectively referred to as "the Vloedmans"), developed and farmed 40 acres of land in Lake County owned by the Cornell family, who were absentee owners. When the Cornells learned of the Vloedmans' farming operation, they disputed the right of the Vloedmans to use the land. In 1996, the Vloedmans responded by initiating this action against the Cornells for adverse possession, claim and delivery, and conversion. The Cornells counterclaimed under ORS 105.810, alleging that, from 1992 to 1994, the Vloedmans unlawfully removed crops from the land. The Cornells alleged a right to treble damages and attorney fees, as provided under ORS 105.810.

Trial resulted in a verdict in favor of the Cornells, and, pursuant to ORS 105.810(1), the trial court entered judgment for treble the verdict. The Cornells petitioned for an award of attorney fees under ORS 105.810(2). The Vloedmans objected on the ground that the attorney fee provision was not enacted until 1995 and took effect after the conduct that gave rise to the Cornells' successful counterclaim. According to the Vloedmans, the attorney fee provision contains no retroactivity clause nor any other indication that the legislature intended it to apply retroactively and therefore should not apply to this case. The Cornells argued that application of the attorney fee provision to this case involves no issue of retroactivity, because the counterclaims were filed well after the effective date of the statute. In any event, they argued, the attorney fee provision is remedial in nature and therefore is presumptively retroactive. The trial court awarded fees to the Cornells.

On appeal, the Vloedmans contest only the trial court's award of attorney fees. They argue that the trial court erred in applying ORS 105.810(2) retroactively to this case. The Cornells argue that application of the statute to this case is not "retroactive" application, and, even if it is, such application is what the legislature intended.

We begin with the Cornells' suggestion that this case is not really about "retroactivity." Unfortunately, the term is a somewhat slippery one. All laws operate retroactively, in the sense that they determine the legal significance of past events. See Whipple v. Howser, 291 Or. 475, 488-89, 632 P.2d 782 (1981) (Linde, J., concurring)

("`Retroactivity' itself is a deceptively simple word * * *. [A]ll new laws operate upon a state of affairs formed to some extent by past events."); Bryant Smith, Retroactive Laws and Vested Rights, 5 Texas L. Rev. 231, 233 (1927) ("There is no such thing as a law that does not extinguish rights, powers, privileges, or immunities acquired under previously existing laws. That is what laws are for."). Scholars have observed that courts are inconsistent in their usage of the term. Some use the term to apply broadly to any enactment that changes, from its effective date forward in time, the legal effect of past actions. Others use the term narrowly to apply only to enactments that change the effect of past actions automatically upon passage. See, e.g., Jan G. Laitos, Legislative Retroactivity, 52 Wash. U.J. Urban & Contemp. L. 81, 86-87 (1997); Smith, 5 Texas L. Rev. at 232. The statute at issue in this case would be considered retroactive by the former courts, but not the latter.

Oregon courts appear to use the term in its broader sense. In Dean Vincent, Inc. v. Chamberlain, 264 Or. 187, 193, 504 P.2d 722 (1972), for example, the court addressed the applicability of an attorney fee statute enacted after the conduct that gave rise to the litigation took place but before the action was filed. The court characterized the question as whether the attorney fee statute had "retroactive application." Id. at 194, 504 P.2d 722. Precisely the same situation is presented in this case. Thus, whether applying ORS 105.810(2) to this case accurately may be characterized as "retroactive" in the abstract, the fact remains that the courts of this state so characterize it.

We turn, then, to the question whether such retroactive application is required in this case. Whether a statute applies retroactively is a matter of legislative intent, determined in the usual manner of construing the intended meaning of statutes. State v. Lanig, 154 Or.App. 665, 670, 963 P.2d 58 (1998). We examine the text, in context, and, if necessary, the legislative history and other aids to construction. Id.

ORS 105.810 provides, in part:

"(1) * * * [W]henever any person, without lawful authority, willfully injures or severs from the land of another any produce thereof * * * in an action by such person * * * against the person committing such trespasses if judgment is given for the plaintiff, it shall be given for treble the amount of damages claimed, or assessed for the trespass. * * *

"(2) A court may, in its discretion, award to a prevailing plaintiff under subsection (1) of this section reimbursement of reasonable costs of litigation including but not limited to investigation costs and attorney fees."

Subsection (2) became effective September 9, 1995. Or Laws 1995, ch 721. The statute does not expressly state whether it is intended to apply to actions that are filed after the effective date but that are based on conduct that occurred before the effective date. Nor does the wording of the statute provide any other cues as to possible retroactive intentions. See Newell v. Weston, 150 Or.App. 562, 569, 946 P.2d 691 (1997),

rev. den. 327 Or. 317, 966 P.2d 221 (1998) (phrasing of statutory language, including verb tense, may indicate legislative intent as to retroactivity). The legislative history likewise is...