473 P.3d 1133
Or. Ct. App.2020Background
- Neighbors' dispute: defendants operated a home landscaping business using three diesel trucks; plaintiffs complained that idling trucks produced loud noise and diesel fumes that interfered with their use and enjoyment of their home and yard.
- Plaintiffs sued for private nuisance seeking injunctive relief and monetary damages for diminished property use/value.
- At trial, plaintiffs presented evidence that trucks were warmed up daily (plaintiffs said up to 20 minutes; defendants admitted 5–8 minutes), producing noise and fumes in early morning and evening; a city official testified such trucks are common in the rural community and the city did not revoke defendants’ business license after complaints.
- Jury returned verdict for defendants on all claims and counterclaims; judgment entered for defendants.
- Defendants moved for attorney fees under ORS 20.105(1), arguing plaintiffs’ nuisance claim lacked any objectively reasonable basis; the trial court awarded fees. Plaintiffs appealed.
- Court of Appeals reversed the attorney-fee award (holding the record was not entirely devoid of support for the nuisance claim) and otherwise affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a motion for directed verdict establishes the objective reasonableness of a claim for purposes of ORS 20.105(1) | The trial court’s denial of defendants’ directed verdict at close of plaintiffs’ case proves plaintiffs’ nuisance claim had an objectively reasonable basis | Denial of an early directed verdict does not bind the court; evidence and theories can change as litigation proceeds and later show a claim to be unreasonable | Denial of directed verdict does not by itself establish objective reasonableness; court rejected plaintiffs’ contention |
| Whether the record was "entirely devoid" of legal or factual support for plaintiffs’ private nuisance claim (warranting mandatory fees under ORS 20.105(1)) | Plaintiffs argued the record contained evidence (idling trucks, repeated intrusions, interference with enjoyment) sufficient to avoid a finding that the claim was entirely devoid of support | Defendants argued plaintiffs’ case lacked legal/factual support given neighborhood character, commonality of trucks, and plaintiffs’ litigation choices; thus fees were mandatory | The court held the record was not entirely devoid of support for the nuisance claim; fee award under ORS 20.105(1) was reversed |
Key Cases Cited
- Williams v. Salem Women’s Clinic, 245 Or App 476 (defines "entirely devoid" standard for ORS 20.105(1))
- Morris v. Kanne, 295 Or App 726 (fee award under ORS 20.105(1) is mandatory when no objectively reasonable basis exists)
- Waters v. Klippel Water, Inc., 304 Or App 251 (standard of review for ORS 20.105(1) fee awards)
- Cejas Commercial Interiors, Inc. v. Torres-Lizama, 260 Or App 87 (outcome depends on substantive law governing the claim)
- Mark v. Dept. of Fish and Wildlife, 158 Or App 355 (nuisance definition and relevant factors)
- Jewett v. Deerhorn Enterprises, Inc., 281 Or 469 (example of a compelling nuisance finding)