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Morris v. Kanne

Court of Appeals of Oregon

January 16, 2019

Donald R. MORRIS and Lisa Ann Morris, nka Lisa Ann Snider, Plaintiffs-Appellants,
v.
Timothy R. KANNE and Susan M. Lind, Defendants-Respondents.

          Argued and submitted April 26, 2017

          Clackamas County Circuit Court CV13040756; Heather Karabeika, Judge.

          Kenneth P. Childs argued the cause for appellants. Also on the briefs was Stoel Rives LLP.

          Mary W. Johnson argued the cause for respondents. Also on the brief was Mary W. Johnson, P. C.

          Before DeVore, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore. [*]

         [295 Or.App. 727] Case Summary:

         In this property dispute between two neighbors, plaintiffs appeal from a general judgment arguing, among other things, that the trial court erred in granting summary judgment to defendants on plaintiffs' claim for adverse possession and denying plaintiffs' cross-motion for summary judgment on the same claim. Plaintiffs further assert that the trial court erred in awarding defendants an enhanced prevailing party fee and attorney fees. Held: Viewing the evidence in the light most favorable to plaintiffs, plaintiffs failed to produce evidence of hostility for purposes of adverse possession and, as such, the trial court did not err in granting summary judgment to defendants. However, the trial court erred in awarding an enhanced prevailing party fee under ORS 20.190(3) without providing a sufficient explanation of the basis for its decision, and the trial court erred in considering the factors listed in ORS 20.075 when it made its determination on whether to award fees under ORS 20.105(1).

         Award of enhanced prevailing party fee under ORS 20.190(3) and award of attorney fees under ORS 20.105(1) vacated and remanded; otherwise affirmed.

         [295 Or.App. 728] POWERS, J.

         In this property dispute between two neighbors, plaintiffs appeal from a general judgment arguing, among other things, that the trial court erred in granting summary judgment to defendants on plaintiffs' claim for adverse possession and denying plaintiffs' cross-motion for summary judgment on the same claim. Plaintiffs further assert that the trial court erred in awarding defendants an enhanced prevailing party fee, and that the trial court erred in awarding attorney fees to defendants in a supplemental judgment. We conclude that, viewing the evidence in the light most favorable to plaintiffs, plaintiffs failed to produce evidence of hostility for purposes of adverse possession and, as such, the trial court did not err in granting summary judgment to defendants on plaintiffs' claim for adverse possession. We further conclude that the trial court erred in awarding defendants $2, 500 as an enhanced prevailing party fee without providing a sufficient explanation of the basis for its decision, and that the trial court erred in considering the factors listed in ORS 20.075 when it made its determination on whether to award attorney fees under ORS 20.105(1). Thus, we vacate and remand the enhanced prevailing party fee and the award of attorney fees, and otherwise affirm the judgments.

         In an appeal arising from cross-motions for summary judgment, the granting of one motion and the denial of the other are both reviewable. Eden Gate, Inc. v. D&L Excavating & Trucking, Inc., 178 Or.App. 610, 622, 37 P.3d 233 (2002). Where, as here, plaintiffs assign error to both the granting of defendants' motion and the denial of plaintiffs' motion, we review each motion to determine "whether there are any disputed issues of material fact and whether either party was entitled to judgment as a matter of law." Vision Realty, Inc. v. Kohler, 214 Or.App. 220, 222, 164 P.3d 330 (2007). There is no genuine issue of material fact if, based on the record, "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C. "In determining whether a genuine factual dispute exists, we review the record in the light most favorable to the nonmoving party" and draw all reasonable inferences in [295 Or.App. 729] the nonmoving party's favor. Whalen v. American Medical Response Northwest, 256 Or.App. 278, 280, 300 P.3d 247 (2013). We state the facts below in a manner consistent with those standards.

         The parties own adjoining tracts of land in Clackamas County that were once part of a single parcel of land owned by the Carsons. The property in dispute is a strip of land-a driveway approximately 18.5 feet wide- that has fences running parallel on either side. The fence to the east of the driveway, the disputed fence, was built by the Carsons before either of the parties in this case acquired their respective properties. The properties are configured as follows:

         (Image Omitted)

         In 1963, the Carsons partitioned their property, selling one tract to plaintiff Donald Morris, while retaining the other tract. Morris later granted an undivided one-half interest in his tract to his daughter, plaintiff Lisa Snider (hereinafter collectively referred to as plaintiffs). According to plaintiffs' deeds-both the 1963 deed and the later deed that granted Snider an interest in the property-the eastern [295 Or.App. 730] boundary of their property did not align with the disputed fence line, nor did it align with the parallel fence line; rather, the boundary fell within the strip of land between the two fences.

         In 1965, the Carsons sold their remaining tract to the Husemans, who in 1997 sold it to defendants, Timothy Kanne and Susan Lind. According to defendants' deed, the western boundary did not align with either fence line; rather, the boundary aligned with the eastern boundary of plaintiffs' tract and fell within the strip of land between the two fences.

         In 1983, the Husemans asked Morris to replace the disputed fence. At that time, Morris suggested that a survey be done to verify the true boundary location because he believed that neither property had been surveyed officially. The survey, however, was not completed, and the Husemans erected a new fence in the same location.

         In 2011, Morris fenced over the gates in the disputed fence and electrified that portion of the fence. Before 2011, the gates remained unlocked, and defendants and their predecessors occasionally used the gates to access the adjoining property. The parties disputed the extent and frequency of that use; however, the parties agreed that access was available and that both parties engaged in uses of the disputed strip without interference from the other on occasion. The parties further agreed that there is a separate driveway that served as defendants' primary access route to their property.

         In 2013, plaintiffs obtained a survey of their property, which revealed that the boundary line fell between their property and defendants' property, roughly in the middle of the narrow strip between the two fences. Defendants also got a survey of the tract, which revealed that the boundary line was in the same location as plaintiffs' survey. ...


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