ULRICH W. YOUNG, Plaintiff/Appellant,
BOB SPENCER, Defendant/Appellee.
Mandate Issued: 11/14/2017
FROM THE DISTRICT COURT OF LINCOLN COUNTY, OKLAHOMA HONORABLE
CYNTHIA FERRELL ASHWOOD, TRIAL JUDGE
S. Dawson, MILLER DOLLARHIDE, P.C., Oklahoma City, Oklahoma,
J. Hodgens, JAMES J. HODGENS, P.C., Stroud, Oklahoma, for
P. WISEMAN, JUDGE
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.
AND PROCEDURAL BACKGROUND
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
[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."
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."
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.
Plaintiff appeals both orders.
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.
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.
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
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.
to 2 O.S.2011 § 16-2 (9),  "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
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.
In determining how to calculate damages pursuant to 23 O.S.
§ 72, the Court found the challenged jury instruction
based on this statute to ...