Curry Properties, Inc. v. Coldiron

No. 15 January 14, 2026 477

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

CURRY PROPERTIES, INC.,

a Washington corporation,

Plaintiff-Appellant,

v.

Leonard COLDIRON

and Cynthia Diane Carey,

Defendants-Respondents.

Curry County Circuit Court

23CV15061; A186148

Cynthia Lynnae Beaman, Judge.

Argued and submitted December 5, 2025.

Larry Setchell argued the cause and filed the briefs for

appellant.

Sasha A. Petrova argued the cause for respondents. Also

on the brief was Tonkon Torp LLP.

Before Tookey, Presiding Judge, Kamins, Judge, and

Jacquot, Judge.

TOOKEY, P. J.

Affirmed.

478 Curry Properties, Inc. v. Coldiron

TOOKEY, P. J.

Plaintiff appeals from a supplemental judgment,

which awarded defendant $23,710 in attorney fees pursuant

to ORS 20.105(1) plus $370.79 in costs and was entered follow-

ing plaintiff’s voluntary dismissal of its underlying complaint

pursuant to ORCP 54 A(2).1 Plaintiff argues that the trial

court erred because plaintiff had an “objectively reasonable

basis for asserting the claim” for easement by prescription,

and therefore the trial court erred in awarding attorney fees

to defendant. See ORS 20.105(1) (allowing court to impose

attorney fees “upon a finding * * * that there was no objec-

tively reasonable basis for asserting the claim”). Defendant

argues that the trial court did not err in awarding attorney

fees because plaintiff’s claim was “entirely devoid of legal or

factual support,” in that there was “no evidence offered that,

if believed, would support a finding and a resulting judgment

for [plaintiff]” and that “there is no law * * * that supports

[plaintiff’s] claim to relief[.]” See Magno, LLC v. Bowden,

313 Or App 686, 695, 496 P3d 1049 (2021) (“In determining

whether [the plaintiff’s] action was entirely devoid of factual

or legal support, the question is whether any evidence, if

offered and believed, or any legal authority, would support

a finding and a resulting judgment for [the plaintiff].”). We

review for legal error. Id. at 691 (stating that “[w]e review for

errors of law a trial court’s conclusion that there was no objec-

tively reasonable basis for asserting a claim”). We affirm.

In April 2023, plaintiff filed a lawsuit in Curry

County Circuit Court, seeking to establish an easement

over an “existing road” that ran across defendant’s property.

Plaintiff’s complaint alleged three claims: (1) a claim for an

express easement, (2) a statutory claim for an easement by

necessity pursuant to ORS 376.150, and (3) a claim for a pre-

scriptive easement.2 Regarding the prescriptive easement,

the complaint alleged that, “[b]ut for the Existing Road,

1

Although plaintiff mentions both fees and costs on appeal, his argument, as

that of defendant, focuses on ORS 20.105(1), which addresses “reasonable attorney

fees.” We understand costs in this case to have been awarded pursuant to ORCP

68 B. Plaintiff does not meaningfully develop any argument that it was error to

award costs, and so we address only the award of attorney fees pursuant to ORS

20.105(1).

2

In its opinion, the trial court noted that the claims for express easement

and easement by necessity were abandoned by plaintiff. It nevertheless noted

Cite as 346 Or App 477 (2026) 479

[plaintiff’s property] would be landlocked” and that plaintiff

and their predecessors in interest had used the road in a

manner that was “continuously open, notorious, hostile, and

adverse to [defendants] and prior owners” for “more than 50

years.” See Hisey v. Patrick, 309 Or App 625, 633, 484 P3d

377 (2021) (describing that a prescriptive easement arises

where a party demonstrates “open, notorious, and adverse

use of another’s property for a continuous and uninterrupted

period of at least 10 years”). In its answer, defendant coun-

tered that plaintiff was not entitled to any easement, claim-

ing that plaintiff’s property was not landlocked and that “any

use of the existing road by [plaintiff’s] predecessor had been

done with express permission from [defendant’s] late father.”

After selling the property to a party who later

declined to substitute herself into the litigation, plain-

tiff first withdrew the claim for easement by necessity in

January 2024 and then voluntarily dismissed the entire

action pursuant to ORCP 54 A(2) on June 5, 2024. The trial

court entered a Stipulation and General Judgment and des-

ignated defendants as the prevailing party. See ORCP 54

A(3) (stating that, “[w]hen an action is dismissed under this

section, * * * the dismissed party shall be considered the

prevailing party”).

Defendants petitioned for attorney fees pursuant

to ORS 20.105(1), claiming that plaintiff had not and could

not prove the requisite adversity to establish an easement

by prescription, that plaintiff had “pursued a claim with-

out an objectively reasonable basis,” and therefore the trial

court was required to award reasonable fees to defendant.

See Lewis v. Worley, 318 Or App 127, 134, 507 P3d 814 (2022)

(determining that, because “petitioner ha[d] no objectively

reasonable basis * * * for bringing * * * claims[,] [r]espondent

was * * * entitled to an award of attorney fees under ORS

20.105(1)”). Defendant provided the trial court with witness

declarations and exhibits to those declarations in support

of its request, arguing that the trial court may consider

such evidence in order to determine the reasonableness of

plaintiff’s claim. See Andlovec v. Spoto, 326 Or App 525, 528,

that the claim for easement by necessity was “clearly devoid of any legal of factual

support.”

480 Curry Properties, Inc. v. Coldiron

532 P3d 531 (2023) (stating that “[a]ttorney fees under ORS

20.105 might also become appropriate when a party contin-

ues to litigate a claim or defense after it is clear that the

plaintiff’s legal position no longer has any arguable support

in the law as applied to the facts” (emphasis added and inter-

nal quotation marks omitted)). Plaintiff argued and contin-

ues to argue that those post-dismissal declarations were

“self-serving hearsay,” which “should not have been consid-

ered by the Trial Court.”3

In a letter opinion, the trial court determined that,

while “[t]here may be some instances where a factual deter-

mination may be required, * * * this court finds that it is not

necessary in this case” because, “[e]ven without the declara-

tions, the court finds that the claim for easement by neces-

sity was clearly devoid of any legal or factual support[.]” As

to the prescriptive easement claim, the trial court deter-

mined that plaintiff “filed this suit relying on a presumption

of adversity where there is a long term use without evidence

of permission, when it is actually the opposite in circum-

stances such as this.”

On appeal, plaintiff argues that the trial court erred,

in part, because it is entitled to a rebuttable presumption of

adversity “where, as here, the [p]laintiff claims more than

10 years of use of a road over Servient Property owned by

strangers.” See Langjahr v. Glorietta Bay, LLC, 340 Or App

594, 599, 571 P3d 1110 (2025) (stating that “open and noto-

rious use for the prescribed period gives rise to a rebutta-

ble presumption of adverse use” when “the person claiming

the easement by prescription is a stranger to the landowner”

(internal quotation marks omitted)). Defendant contends,

and the trial court determined, that the applicable law in

this case is the opposite of what plaintiff contends and that

plaintiff was required to affirmatively demonstrate adversity,

because “the nature of the land or the relationship between

the parties is such that the use of the owner’s property is

not likely to put the owner on notice of adverse nature of

use.” See Hisey, 309 Or App at 633-34; see also Langjahr, 340

3

Because the trial court did not rely on the declarations and exhibits in

making its ruling regarding attorney fees, and we affirm for the reasons provided

by the trial court, we need not and do not express any opinion on the admissibility

of the declarations and exhibits.

Cite as 346 Or App 477 (2026) 481

Or App at 601 (“[A]lthough plaintiffs and defendant did not

know each other personally, they were owners of neighboring

lots and not ‘strangers’ as that term is used in the case law.”);

Wels v. Hippe, 360 Or 569, 578-79, 385 P3d 1028 (2016),

adh’d to as modified on recons, 360 Or 807, 388 P3d 1103

(2017) (stating that “[u]se qualifies as ‘open and notorious’

if it provides the landowner with a reasonable opportunity

to learn of its existence and nature” and that the presump-

tion of adversity applies in cases where the person claiming

the easement is a stranger to the landowner because, “under

such circumstances, it makes sense to assume that obvious

use of the owner’s property is adverse to his or her rights”

(internal quotation marks omitted)).

Here, the trial court determined that plaintiff’s pre-

scriptive easement claim lacked “any objectively reasonable

basis,” in part because, “[h]ad [p]laintiff investigated further,

it would have been evident that the use of the Road was with

permission from [d]efendants.” Having reviewed the record

and the relevant law, we agree with defendant and conclude

that the trial court did not err. Under our case law, it was

permissible for the trial court to determine that plaintiff

was not entitled to a rebuttable presumption of adversity

and, instead, presume that use of the existing road by the

plaintiff’s predecessor in interest was permissive. That is

because plaintiff and defendant were “owners of neighbor-

ing lots and not ‘strangers’ as that term is used in the case

law.” Langjahr, 340 Or App at 601; see id. at 599 (stating

that “open and notorious use for the prescribed period gives

rise to a rebuttable presumption of adverse use” when “the

person claiming the easement by prescription is a stranger

to the landowner” but that “the presumption of adversity

does not apply when the use is in accordance with permis-

sion from the landowner, or when a claimant uses a road

that the landowner constructed or that is of unknown origin”

(internal quotation marks omitted)); Woods v. Hart, 254 Or

434, 436, 458 P2d 945 (1969) (stating that, “[w]here one uses

an existing way over another person’s land and nothing more

is shown, it is more reasonable to assume that the use [of

the road] was pursuant to a friendly arrangement between

neighbors rather than to assume that the user was making

an adverse claim”).

482 Curry Properties, Inc. v. Coldiron

Plaintiff argues that the question of whether to

award fees under ORS 20.105(1) is a question of law and that

the trial court must not weigh disputed facts in determin-

ing whether to award fees. See Williams v. Salem Women’s

Clinic, 245 Or App 476, 482, 263 P3d 1072 (2011) (stating

that “whether a claim lacks an objectively reasonable basis

is a legal question, and we review the trial court’s ruling

on that question for legal error”); see also Olson v. Howard,

237 Or App 256, 268-69, 239 P3d 510 (2010) (rejecting trial

court’s “no reasonable basis” determination, in part, because

the court had made the determination after it “weighed the

parties’ competing evidence”). Instead, plaintiff argues that

the trial court must look at the allegations in plaintiff’s com-

plaint to determine whether they are objectively reasonable.

See Williams, 245 Or App at 483-84 (determining that a

claim was not “entirely devoid” of support when plaintiff’s

allegations “provided some basis for [a] * * * breach of con-

tract claim”).

As noted above, the record reflects that the trial

court did not rely on defendant’s declarations or other evi-

dence when it awarded fees. The trial court’s letter opinion

states that “it is not necessary in this case to consider the

declarations in determining whether the claim lacks an[ ]

objectively reasonable basis” and that, “[e]ven without the

declarations,” the trial court found that plaintiff’s allega-

tions did not provide an objective reasonable basis for the

prescriptive easement claim.

In relevant part, ORS 20.105(1) states:

“In any civil action, suit or other proceeding in a circuit

court or in the regular division or the magistrate division

of the Oregon Tax Court, or in any civil appeal to or review

by the Court of Appeals or Supreme Court, the court shall

award reasonable attorney fees to a party against whom a

claim, defense or ground for appeal or review is asserted, if

that party is a prevailing party in the proceeding and to be

paid by the party asserting the claim, defense or ground,

upon a finding by the court that the party willfully disobeyed

a court order or that there was no objectively reasonable

basis for asserting the claim, defense or ground for appeal.”

Cite as 346 Or App 477 (2026) 483

ORS 20.105(1). Here, the trial court determined that defen-

dant was the prevailing party pursuant to ORCP 54 A(3)

and determined that plaintiff had “no objectively reasonable

basis” for asserting the prescriptive claim. Because plaintiff

was not a “stranger to the landowner” and was therefore

not entitled to a “rebuttable presumption of adversity,” and

because plaintiff failed to otherwise allege any adverse use

to support its claim for a prescriptive easement, we conclude

that the trial court did not err in awarding fees to defendant

as a prevailing party pursuant to ORS 20.105(1).

Affirmed.