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Krein v. Szewc

Court of Appeals of Oregon

August 30, 2017

Dale KREIN, and Debra Krein, Plaintiffs-Respondents,
v.
Karen M. SZEWC, and Jon Updegraff, Defendants-Appellants.

          Argued and submitted April 11, 2017

         Jackson County Circuit Court 120553L2 Timothy C. Gerking, Judge.

          Clayton C. Patrick argued the cause and fled the briefs for appellants.

          Michael W. Franell argued the cause and fled the brief for respondents.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge. [*]

         [287 Or.App. 482] Case Summary.

         In this 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.

         Held:

         The 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.

         Affirmed.

         [287 Or.App. 483] DeVORE, P. J.

         In this 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.[1] 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.

         I. BACKGROUND

         Plaintiffs 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 residence."

         In 2004 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).

         In 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."

         Defendants 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.

         Plaintiffs 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.

         Before 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.

         At the 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 ...


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