and submitted April 11, 2017
County Circuit Court 120553L2 Timothy C. Gerking, Judge.
Clayton C. Patrick argued the cause and fled the briefs for
Michael W. Franell argued the cause and fled the brief for
DeVore, Presiding Judge, and Garrett, Judge, and James,
Or.App. 482] Case Summary.
nuisance action, defendants, Szewc and Updegraff, appeal from
a judgment awarding damages and entering an injunction. The
injunction requires defendants to have their dogs undergo
devocalization. Defendants assign error to the injunction,
arguing that plaintiffs failed to plead that they had no
adequate remedy at law and that, in any event, damages
suffice as an adequate remedy. Defendants also assign error
to an order that granted plaintiffs' motion for summary
judgment, contending that the court should not have given
preclusive effect to Jackson County's prior
administrative ruling rejecting defendants' farm use
defense under ORS 30.935 and ORS 30.936.
trial court did not err in granting the injunction nor in
granting a limited order on summary judgment. At the hearing
on the injunction, the parties agreed to try the issue of
whether plaintiffs lacked an adequate legal remedy through
additional evidence, such that the complaint was deemed
amended to conform to that evidence. ORCP 23 B. Furthermore,
plaintiffs' damages alone did not suffice as an adequate
legal remedy because damages addressed past harm from barking
but did not provide relief to silence the incessant barking.
As to summary judgment, the trial court's ruling did not
have the effect that defendants assert. The trial court ruled
that the prior administrative decision was preclusive only as
to Szewc's reliance on the farm use defense through the
date of the administrative order. The trial court did not
preclude Szewc from raising the farm use defense at trial as
to circumstances thereafter. Nor did the court grant summary
judgment precluding the farm use defense as to Updegraff.
Or.App. 483] DeVORE, P. J.
nuisance action, defendants appeal from a judgment awarding
damages and entering an injunction. The injunction requires
defendants to have their dogs undergo devocalization
("debarking"). Defendants assign error to the
injunction, contending that plaintiffs failed to plead that
they had no adequate remedy at law and that, in any event,
damages suffice as an adequate remedy. Defendants also assign
error to an order that granted plaintiffs' motion for
partial summary judgment, contending that issues of fact
precluded summary judgment. In particular, defendants contend
that the court should not have given preclusive effect to
Jackson County's prior administrative ruling rejecting
defendant's farm use defense under ORS 30.935 and ORS
30.936. The parties dispute whether the trial
court gave preclusive effect only as to one of the
defendants, Szewc, or both defendants, and only as to
circumstances extant at the time of that proceeding, or also
as to the current circumstances at the time of trial. We
conclude that the trial court did not err in granting the
injunction nor in granting partial summary judgment with a
limited effect. Accordingly, we affirm.
are neighbors of defendants Szewc and Updegraff. Around 2002,
defendants began breeding Tibetan Mastiff dogs. According to
plaintiffs, the "dogs bark[ed] uncontrollably for long
periods of time while defendants [were] away from the
and 2005, Jackson County issued a citation to defendant Szewc
for violating a county code provision by allowing two of her
dogs to bark frequently and at length. In 2006, a hearings
officer determined that Szewc had violated the code provision
on public nuisance. See Jackson County Code §
612.09 (c)(2) (unreasonably causing noise disturbance). In a
22-page opinion, the hearings officer rejected [287 Or.App.
484] Szewc's farm use defense under ORS 30.935 and ORS
30.936, concluding that the defense was "not available
to the defendant for the events that gave rise to [the
citation]." Among other things, the opinion determined
that Szewc did not have a "farm, " that her
activities were not a "farm use, " that the use
exceeded the level of agricultural activity allowed in the
property's zoning, and that the manner in which Szewc
employed the dogs was not reasonable. Szewc was fined $400,
and she was ordered to prevent the two dogs from barking by
debarking them or moving them to a different property. The
decision was challenged on appeal and affirmed without
opinion. Szewc v. Jackson County. 222 Or.App. 525,
195 P.3d 492 (2008).
2012, plaintiffs brought this action alleging that
defendants, Szewc and Updegraff, had not taken the necessary
steps to prevent the dogs from barking and disturbing their
neighbors. Plaintiffs alleged that "[t]he noise from
defendants' dogs has substantially and unreasonably
harmed the ordinary occupation of plaintiffs' property
and caused an interference with the enjoyment of
plaintiffs' land. Defendants have intentionally and
maliciously caused the nuisance." In the prayer for
relief, plaintiffs requested "damages caused by extreme
nuisance of defendants' dogs barking incessantly"
from 2002 to the present and "an injunction against
defendants from having any dogs * * * that bark so as to
disturb their neighbors."
answered by asserting the farm use immunity defense as an
affirmative defense. Defendants alleged that they owned and
operated a farm as defined in ORS 30.930 and that their
Tibetan Mastiffs were trained as guard dogs for their
livestock operation. Defendants asserted that the use of
guard dogs is an acceptable method to protect livestock from
predators and that the use constitutes a "farming
practice" under the statute.
filed a motion for summary judgment that asked that the court
grant either partial summary judgment against Szewc for
nuisance between 2002 and the date of the 2006 administrative
decision or grant complete summary judgment against both
defendants for the entire nuisance claim. Defendants
responded that there [287 Or.App. 485] were issues of fact on
the nuisance claim and the farm use defense. Defendants
argued there was "insufficient evidence in the record
for the court to determine whether or not issue preclusion
would apply" so as to use the county's determination
against Szewc. After a hearing, the trial court denied
plaintiffs' broader motion as it pertained to issues of
liability and damages, granted a narrowed motion as to issue
preclusion on Szewc's use of the farm use defense for
events up to 2006, but denied the motion as to preclusion
regarding Updegraff's farm use defense.
trial, plaintiffs filed a second amended complaint that again
alleged substantial and unreasonable harm from the dogs'
barking, and, in the prayer for relief, requested an
injunction. Defendants' answer included a counterclaim
and affirmative defenses, but, this time, did not include the
farm use defense.
end of trial, the jury returned a verdict in favor of
plaintiffs, finding liability for negligence and nuisance
both between 2002 and 2006 and in the time thereafter. The
jury found damages of $238, 942. The trial court entertained
additional evidence on the request for an ...