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Young v. Spencer

Court of Appeals of Oklahoma

June 9, 2017

ULRICH W. YOUNG, Plaintiff/Appellant,
BOB SPENCER, Defendant/Appellee.

          Mandate Issued: 11/14/2017


          Jack S. Dawson, MILLER DOLLARHIDE, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant

          James J. Hodgens, JAMES J. HODGENS, P.C., Stroud, Oklahoma, for Defendant/Appellee


         ¶1 Plaintiff Ulrich W. Young appeals (1) the trial court's order finding he was not entitled to recover damages caused to his timber, and (2) a separate order awarding attorney fees and costs. After review, we affirm in part, reverse in part, and remand for further proceedings.


         ¶2 Plaintiff and Defendant Bob Spencer own adjoining property in Lincoln County, Oklahoma. Plaintiff filed suit against Defendant for damage to his land and crops when Defendant "negligently, carelessly and recklessly applied herbicide applications on [Defendant's] property located to the south of Plaintiff's property." Plaintiff claims that Defendant's negligence caused "injury to his land, loss of crops, loss of value of crops, loss of income from crops, and diminution of value to his land." In his appellate brief, this is Plaintiff's summary of the facts:

[B]eginning in 2004, and continuing thereafter, [Defendant] (or an employee of [Defendant]) negligently, carelessly, recklessly, and sometimes intentionally, sprayed 2, 4-D herbicide from his property onto [Plaintiff's] property. [Plaintiff] filed three (3) complaints with the Oklahoma Department of Agriculture, in 2004, 2005, and 2007. The Department of Agriculture investigated each complaint and each time determined there was 2, 4-D damage on [Plaintiff's] property. The Department found that the most likely source was from the unsafe and unsuitable application of 2, 4-D by [Defendant]. In all three (3) investigations by the Department of Agriculture into [Defendant's] use and application of 2, 4-D, the Department concluded that [Defendant] was misusing and misapplying the 2, 4-D and violating Oklahoma pesticide law.

(Citations to record omitted.) Plaintiff argues that as a result of Defendant's actions, "over-sprays occurred which damaged and adversely affected [Plaintiff's] trees, crops, plants, vegetation, and timber, as well as [his] pecan and crop production."

         ¶3 After a bench trial held on December 8 and 9, 2014, and March 2 and 3, 2015, the trial court awarded Plaintiff actual damages totaling $22, 900- -first for damage to his blackberries and elderberries "as an injury to growing crops under the holdings of Burke v. Thomas, in the sum of $18, 250.00, " and second, for injury to his clover crop in the amount of $4, 650.00. The trial court, finding that Defendant acted in reckless disregard for Plaintiff's rights, also awarded Plaintiff punitive damages of $22, 900. The trial court in its order did not award Plaintiff damages for injury to timber pursuant to 23 O.S. § 72 and Short v. Jones, 1980 OK 87, 613 P.2d 452, because he failed to present evidence of "the fair market value of his land before and after the injury." The trial court also determined Plaintiff could not be awarded damages for pecan production because he "failed to prove with a reasonable degree of certainty the amount of damages that he sustained to his pecan trees as a separate claim of injury to crops." The trial court also did not award damages "for replacement[] costs for trees, crops and shrubbery as that does not appear to be the appropriate measure of damages."

         ¶4 Plaintiff then filed a motion for attorney fees and costs in the amount of $124, 382.98 as the prevailing party. After a hearing, the trial court awarded Plaintiff attorney fees of $45, 000 and costs of $11, 165.73.

         ¶5 Plaintiff appeals both orders.


         ¶6 Plaintiff argues the trial court erred when it failed to award damages for timber pursuant to 23 O.S.2011 § 72. This presents a question of statutory construction which is a question of law. Mariani v. State ex rel. Oklahoma State Univ., 2015 OK 13, ¶ 7, 348 P.3d 194. Our standard of review is de novo on a question of law which we review without deference to the trial court's reasoning or result. Id.

         ¶7 Plaintiff further argues the trial court incorrectly determined his attorney fees and costs. "The reasonableness of attorney fees depends on the facts and circumstances of each individual case and is a question for the trier of fact." Parsons v. Volkswagen of America, Inc., 2014 OK 111, ¶ 9, 341 P.3d 662. "The standard of review for considering the trial court's award of an attorney fee is abuse of discretion." Id. "Reversal for an abuse of discretion occurs where the lower court ruling is without rational basis in the evidence or where it is based upon erroneous legal conclusions." Id. However, "[w]hether a party is entitled to an award of attorney fees and costs presents a question of law subject to the de novo standard of review." Hastings v. Kelley, 2008 OK CIV APP 36, ¶ 8, 181 P.3d 750.


         I. Timber Damages

         ¶8 Plaintiff first asserts error in failing to award damages for timber pursuant to 23 O.S.2011 § 72 which provides:

A. For wrongful injuries to timber upon the land of another, or removal thereof, the measure of damages is not less than three (3) times nor more than ten (10) times such a sum as would compensate for the actual detriment, unless:
1. The trespass was casual and involuntary;
2. Committed under the belief that the timber or land belonged to the trespasser; or
3. The timber was taken by the authority of highway officers for the purposes of a highway, in which case the damages are a sum equal to the actual detriment.
B. The prevailing party shall be entitled to costs and attorney's fees.
C. For purposes of this section, the term "timber" shall be defined as the term is defined by Section 1301-102 of Title 2 of the Oklahoma Statutes.

         Pursuant to 2 O.S.2011 § 16-2 (9), [1] "timber" is defined as "live and dead trees and the profit in any live and dead trees including, but not limited to, bark, foliage, wood, vines, firewood, crossties, and shrubbery."

         ¶9 In Short v. Jones, 1980 OK 87, 613 P.2d 452, the Oklahoma Supreme Court in interpreting this statute concluded that damages to the plaintiff's pecan trees were to be considered damages to property rather than damages to crops. In Short, a crop duster was performing an aerial spraying of an herbicide for Jones which drifted onto the plaintiff's property causing "a toxic effect upon certain pecan-bearing trees located" on the plaintiff's property. Id. ¶ 2. The plaintiff claimed "40 acres of his land had been so damaged reducing the value of the land by $300 per acre to a value after injury of $150 per acre." Id. In the petition, the plaintiff argued "his pecan trees were damaged in such a manner that the trees' ability to produce pecans was permanently damaged." Id. ¶ 6. The Court found:

Annual crops referred to in 2 O.S. 1971 § 3-82 (d) when applied to the production of pecans would refer to damage to one yearly crop without harm to the trees producing that crop. Harm to the trees constitutes damage to the real property itself.... The Federal Supreme Court has spoken on the issue, stating standing timber is a constituent element of the land itself.... Annual crops represent a separate, if not distinct, classification of plant material.

Id. (citations omitted). The Oklahoma Supreme Court further explained: "To hold the provisions of 2 O.S. § 3-82 (d) applies to instances where trees are permanently injured would be to ignore the historically well established dichotomy between timber and annual crops; between real property and personal property. This we refuse to do." Id. ¶ 8. The Court concluded that 2 O.S. § 3-82 (d) did not apply to damages to real property which has "timber growing thereon." Id. However, the Supreme Court found a separate basis existed to recover for damage to realty pursuant to 23 O.S. § 72. Id. ¶ 9.

         ¶10 In determining how to calculate damages pursuant to 23 O.S. § 72, the Court found the challenged jury instruction based on this statute to ...

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