THOMAS J. MINIHAN, Plaintiff-Respondent,
THOMAS STIGLICH, Defendant-Appellant. THOMAS J. MINIHAN, Plaintiff-Appellant,
THOMAS STIGLICH, Defendant-Respondent.
Argued and submitted on November 02, 2012.
Clackamas County Circuit Court CV08090475, Robert D. Herndon, Judge.
R. Daniel Lindahl argued the cause for Thomas Stiglich. With him on the briefs were Lindahl Law Firm, PC, and Andrew M. Cole, and Cole Tait, PC.
Michael B. Merchant argued the cause for Thomas J. Minihan. With him on the briefs were Margaret E. Schroeder and Black Helterline LLP.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
Defendant Stiglich and plaintiff Minihan are neighbors in a residential area located next to the Willamette River. Plaintiff, along with several dozen other homeowners not including defendant, owns an undivided interest in a narrow lot that provides access to the river. The southern border of plaintiff's access lot runs along the northern border of defendant's property. After defendant erected a fence on the access lot and engaged in other activities that interfered with plaintiff's use of the lot, plaintiff sued defendant. After a bench trial, the court awarded plaintiff $10, 000 in compensatory damages and $40, 000 in punitive damages on plaintiff's claim of intentional trespass and subsequently granted plaintiff summary judgment on plaintiff's quiet title claim. In A144998, defendant challenges the damages awards as well as the order granting summary judgment. In A145972, plaintiff assigns error to the trial court's denial of his motion for attorney fees under ORS 20.105(1), which allows a prevailing civil litigant to obtain fees from an opponent who had no objectively reasonable basis for asserting a defense to the claim. We affirm.
A. The Boundary Dispute
We begin with the background of the dispute leading to the compensatory and punitive damages awards on plaintiff's trespass claim. We view the record in the light most favorable to plaintiff, who prevailed below. Lunda v. Matthews, 46 Or.App. 701, 703, 613 P.2d 63 (1980) ("[In] an appeal from a judgment in favor of plaintiffs, private landowners, granting damages and injunctive relief in an action for trespass * * * [t]he evidence [is] viewed in the light most favorable to plaintiffs[.]").
The access lot, Lot 16, is a 15-foot-wide strip of land running west to east along the northern border of defendant's lot, Lot 10, from a neighborhood street to the Willamette River. Lot 16 is jointly owned by plaintiff and all of the homeowners owning property in the River Park subdivision of West Linn, and the lot provides them with access to the river and an adjoining stretch of beach. Plaintiff has been an owner of Lot 16 since 1987. Plaintiff purchased his home, in part, because it was accompanied by the deeded interest in Lot 16. Before the conflict that led to this litigation, plaintiff regularly used Lot 16 to access the river and its beach without interference to engage in various recreational activities, such as walking his dogs, enjoying the open air with his wife, and viewing the local fireworks display each Independence Day with family members whom he would invite to join him for the occasion.
Defendant is the sole owner of Lot 10 and resides in a home on that property. Defendant purchased Lot 10 from the previous owner, Bates, in 2001. Several years before selling Lot 10 to defendant, Bates and the owners of Lot 16, including plaintiff, had a disagreement over the boundary line. After arranging for a survey to determine the boundary line, Bates conceded that the line lay where plaintiff had asserted it was located and then removed personal property--a metal shed and a large winch system--that he had placed on Lot 16.
Defendant began encroaching on Lot 16 shortly after he purchased Lot 10, building a grape trellis and dog run on the access lot. Plaintiff notified defendant that the trellis and dog run were on Lot 16. Defendant disagreed, asserting that the boundary line lay further north. For several years thereafter, defendant continued to dispute the location of the boundary line and frequently accused plaintiff of trespassing when plaintiff was utilizing Lot 16. Defendant began to verbally harass plaintiff when plaintiff would use the access lot.
The conflict escalated on July 4, 2006, when plaintiff and his wife set out to go to the river via Lot 16 and discovered that defendant had strung a rope between some trees directly across the front of the access lot and posted a "No Trespassing" sign. Defendant had placed the obstruction there that day in order to prevent plaintiff and his invitees from using Lot 16 to access the river. When plaintiff and his wife walked past the obstruction and continued on Lot 16 toward the river, defendant came out from his home and stood in front of them to block them, accused them of trespassing, began cursing at them, and insisted that he would not permit plaintiff or plaintiff's invitees to use Lot 16 to access the river that evening. As a result, plaintiff cancelled his plans to walk down to the beach that night with visiting family to observe fireworks.
Plaintiff's neighbor and co-owner of Lot 16, Hurd, subsequently commissioned an engineer to locate and map the monuments identifying the boundary line between the access lot and Lot 10. The engineer located the boundary monuments while defendant was present. Those monuments demonstrated that the property line was located where plaintiff had previously indicated. Defendant nevertheless refused to accept the results and continued to contend that his property extended beyond the boundary line established by multiple surveys.
Shortly thereafter, in November 2006, defendant requested that the county perform a survey of the property. The county agreed and hired Compass Engineering to establish the boundary line. Although defendant was aware that previous surveys of Lot 10 were available at the county surveyor's office, he never attempted to review them.
While waiting for the results from the survey that he had requested, defendant continued to interfere with plaintiff's use and enjoyment of Lot 16. Two significant events occurred during the summer of 2007. On June 27, plaintiff and his wife were sitting at the beach on Lot 16 when defendant approached them, accused them of trespassing, and then called the police. Defendant's sons and several other individuals, who were drinking alcohol, also approached plaintiff and his wife, surrounding them, until the police arrived. Although plaintiff was on his own property, he volunteered to relocate further up the beach to placate defendant. After the police left, however, defendant continued yelling at plaintiff, and plaintiff elected to return home rather than endure further harassment from defendant.
Several days later, on July 3, defendant erected a chain-link fence on Lot 16. The fence was located wholly on Lot 16 and ran diagonally across Lot 16 from the southwest corner to the northeast corner. Plaintiff could not use the access lot to reach the river the following day, the July 4 holiday. Because of the fence, plaintiff's use and enjoyment of the property was "[p]retty much eliminated."
Compass completed its survey of Lot 16 the following month, August 2007, and submitted it to the county for review and approval. The survey confirmed that the boundary line was located where the earlier surveys had established it, i.e., where plaintiff had long maintained that it lay. The survey specifically concluded that defendant's fence was wholly located on plaintiff's property. Defendant refused to accept that the survey was accurate and did not remove the fence. Defendant continued to maintain that plaintiff was, in fact, trespassing on his property. The county accepted the survey and filed it in April 2008.
Plaintiff and defendant retained counsel, and, in July 2008, plaintiff sent several letters to defendant citing the survey results and demanding that defendant remove the trespassing fence. Defendant responded by asserting--without offering any legal or factual basis for his position--that he owned the disputed portion of Lot 16.
B. The Continuing Dispute and the Trial on Plaintiff's Claims for Trespass and Ejectment
Plaintiff commenced this lawsuit in September 2008. Plaintiff's complaint stated claims for, inter alia, trespass and ejectment, alleging that, without legal basis or justification, defendant had wrongfully claimed ownership of part of Lot 16, wrongfully possessed Lot 16 by erecting the fence with knowledge that such conduct was trespassory, and intentionally "interfere[d] with [P]laintiff's use of Lot 16 by harassing and threatening Plaintiff, his co-owners, guests and invitees when those persons were using Lot 16." Plaintiff further alleged that he had "been damaged by [his] inability to access the Willamette River and enjoy the benefits of ownership of Lot 16." Plaintiff requested "damages for the loss of use and quiet enjoyment of Lot 16 in an amount not to exceed $10, 000[.]" The complaint, as amended, also requested an award of $75, 000 in punitive damages on the theory that defendant's conduct was the type of conduct that such damages are intended to deter. In addition to damages for trespass, plaintiff sought declaratory and injunctive relief ordering defendant to remove all encroachments onto Lot 16 and an award of attorney fees pursuant to ORS 20.105.
Shortly after plaintiff filed his complaint, defendant initiated construction to expand his driveway up to the fence and onto Lot 16. On October 23, the trial court issued a temporary restraining order to prevent defendant from further construction on Lot 16. The court subsequently entered a preliminary injunction enjoining the construction and barring defendant from trespassing on Lot 16 as identified in the Compass survey and the 2006 monument survey that plaintiff's neighbor commissioned.
On October 14, 2008, less than a week after plaintiff had served defendant with the complaint, defendant commissioned a new surveyor, Chase Jones, to determine where the fence was located in relation to the boundary line. Chase Jones informed defendant on or about November 5 that the fence was located on Lot 16.
Defendant's answer, as ultimately amended, admitted that the fence "was substantially located on Lot 16." Defendant, however, denied many of plaintiff's allegations and asserted several affirmative defenses, including failure to mitigate damages, ownership, and good faith, and, in regards to plaintiff's quiet title claim, failure to join necessary and indispensable parties. Defendant also asserted several counterclaims.
Defendant finally removed the fence in March 2009--approximately 20 months after first installing it. Defendant also removed the grape trellis and the dog run.
Before trial, the presiding judge bifurcated resolution of the claims, deferring action on the quiet title claim. The case proceeded to a bench trial on the trespass and ejectment claims in January 2010. On the first day of trial, in response to a series of pretrial motions, the trial court, "for the purposes of this proceeding, " struck defendant's affirmative defense that plaintiff had failed to join all necessary parties to the quiet title action. The court similarly denied as moot a motion by defendant to dismiss the quiet title claim on the ground that not all necessary parties had been added to the case.
At trial, plaintiff offered evidence that, over the course of several years, defendant had intentionally placed several physical barriers on Lot 16 to interfere with plaintiff's use and enjoyment of the lot; that defendant had done so well after he knew that he was trespassing; that defendant had harassed, threatened, and physically intimidated plaintiff and his wife; and that defendant's conduct had in fact interfered with plaintiff's use and enjoyment of Lot 16.
For his part, defendant asserted that he had a reasonable and good faith belief that the boundary line lay farther north than plaintiff contended and that, therefore, the fence and other encroachments were located on his lot, Lot 10. For example, defendant disclaimed knowledge of the resolution of the dispute between Bates and the owners of Lot 16 over the boundary line. According to defendant, he reasonably assumed that the portion of Lot 16 that Bates utilized and maintained was, in fact, part of his lot. He also claimed that Kliewer, a county employee working at the pump station located to the north of Lot 16, confirmed his understanding of the boundary line and that, before he erected the fence on Lot 16, he had hired an unknown individual from a survey firm to confirm that its placement would be on his lot. Defendant additionally argued that all of the surveys prior to the one he commissioned from Chase Jones were flawed in some way and that discrepancies between those surveys justified his opposition to plaintiff's claim as to the boundary line.
Before the close of evidence, plaintiff withdrew his claim for ejectment. Plaintiff requested, however, that the preliminary injunction previously issued be made permanent. In his closing argument, defendant conceded that the facts justified awarding damages to plaintiff but argued that the evidence was not sufficient to support the requested amount of $10, 000 in compensatory damages.
The trial court orally announced its decision following the close of evidence. As to the trespass claim, the court awarded plaintiff $10, 000 in compensatory damages and $40, 000 in punitive damages. The court also made permanent the preliminary injunction ...