Eastside Bend, LLC v. Calaveras II, LLC ( 2022 )

313
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted May 23, affirmed December 14, 2022
EASTSIDE BEND, LLC,
an Oregon limited liability company,
Plaintiff-Appellant,
v.
CALAVERAS II, LLC,
an Oregon limited liability company;
Cottages at Village Park, LLC,
an Oregon limited liability company;
Scholls Development, LLC,
an Oregon limited liability company;
Saiid Behboodi and Bahram Behboodi, individuals;
and B&B Realty Investors, LLC,
an Oregon limited liability company,
Defendants-Respondents.
CALAVERAS II, LLC,
an Oregon limited liability company et al.,
Counterclaim-Plaintiffs,
v.
EASTSIDE BEND, LLC,
an Oregon limited liability company et al.,
Counterclaim-Defendants.
Deschutes County Circuit Court
20CV01839; A175754
Beth M. Bagley, Judge. (Limited Judgment)
Walter Randolph Miller, Jr., Judge. (Order)
Martin E. Hansen argued the cause for appellant. Also
on the briefs was Francis Hansen & Martin LLP.
Michael W. Peterkin argued the cause for respondents.
Also on the brief were Janet M. Schroer, Peterkin Burgess
and Hart Wagner LLP.
314 Eastside Bend, LLC v. Calaveras II, LLC
Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
HELLMAN J.
Affirmed.
Nonprecedential Memo Op: 323 Or App 313 (2022) 315
HELLMAN, J.
Plaintiff appeals from a limited judgment entered
after the trial court granted defendants’ ORCP 54 B(2)
motion to dismiss plaintiff’s claim for injunctive relief.1
Plaintiff argues that the trial court erred when it concluded
that plaintiff failed to show irreparable harm from defen-
dants’ continued construction in The Cottages, a residential
development in Bend. Defendants respond that there was
no legal error in granting the motion to dismiss, given the
factual record as found by the trial court. For the reasons
explained below, we agree with defendants. Accordingly, we
affirm.
Because a lengthy description of the underlying facts
would not benefit the bench, the bar, or the public, we confine
our recitation of the facts to those required to explain our
analysis. Plaintiff owned 76 lots in The Cottages. Plaintiff
sold defendants 53 of those lots and retained ownership
of the remaining 23 lots. All of the lots are subject to The
Cottages Covenants, Conditions and Restrictions (CCRs).
The CCRs create an Architectural Review Committee
(ARC), the purpose of which is “to enforce the architectural
standards of the community and to approve or disapprove
plans for improvements proposed on the Lots.” At the time
of this litigation, Gary Miller (Miller), who created the CCRs
on behalf of plaintiff, was the sole member of the ARC. The
CCRs stipulate that prior to construction, lot owners “shall
first submit to the ARC a complete set of plans and specifi-
cations for the proposed improvements.” Defendants began
to build in The Cottages without submitting plans to the
ARC and plaintiff subsequently notified defendants of the
1
ORCP 54 B(2) reads:
“After the plaintiff in an action tried by the court without a jury has
completed the presentation of plaintiff’s evidence, the defendant, without
waiving the right to offer evidence in the event the motion is not granted,
may move for a judgment of dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. The court as trier
of the facts may then determine them and render judgment of dismissal
against the plaintiff or may decline to render any judgment until the close
of all the evidence. If the court renders judgment of dismissal with preju-
dice against the plaintiff, the court shall make findings as provided in
Rule 62.”
316 Eastside Bend, LLC v. Calaveras II, LLC
alleged breach of the CCRs.2 Defendants eventually submit-
ted plans to the ARC but those plans were deemed insuf-
ficient by the ARC. Plaintiff then filed in the circuit court
seeking to enjoin defendants from further construction.
At the bench trial, plaintiff introduced evidence,
primarily in the form of Miller’s testimony, to support a
prima facie case for an injunction. At the close of plaintiff’s
case, defendants moved to dismiss the case under ORCP 54
B(2), arguing that plaintiff had failed to prove that it would
suffer irreparable harm if an injunction was not granted.
The trial court agreed with defendants, finding that:
“The testimony and evidence presented on plaintiff’s
claim for injunctive relieve does not, by clear and convinc-
ing evidence, establish any irreparable harm. Mr. Hansen
asked plaintiff specifically that question, and about the
harm or potential harm and, frankly, the answer was
rather thin and did not provide the Court with any basis by
which it could find irreparable harm by clear and convinc-
ing evidence.”
The trial court granted defendants’ motion and entered a
limited judgment without money award in favor of defen-
dants. This appeal followed.
On appeal, plaintiff argues that the trial court’s dis-
missal was in error because the evidence “did in fact, establish
each of the elements of its claim for injunctive relief by clear
and convincing evidence.” In effect, plaintiff is asking us to
reweigh the evidence under de novo review. When, as here,
a plaintiff’s claim is equitable in nature, ORS 19.415(3)(b)
authorizes us to exercise our discretion to review a trial
court’s ruling de novo. However, we exercise de novo review
sparingly and only in exceptional circumstances. ORAP
5.40(8)(c). Those circumstances do not exist here.
Accordingly, we follow our well-established stan-
dards and “review the trial court’s legal conclusions for
errors of law and its factual findings to determine whether
2
The parties dispute whether defendants were, in fact, required to submit
plans to the ARC. Defendants argue that because they purchased building plans
from plaintiff their buildings were, in effect, preapproved by the ARC. Plaintiff
maintains that defendants were required to submit plans to the ARC. That dis-
pute is not at issue in this appeal.
Nonprecedential Memo Op: 323 Or App 313 (2022) 317
the findings are supported by any evidence in the record.”
Vukanovich v. Kine, 302 Or App 264, 274, 461 P3d 223,
rev den, 366 Or 827 (2020). We are bound by a trial court’s
findings of fact if there is evidence in the record to support
them. Ramos v. Potkowski, 322 Or App 686, 521 P3d 840
(2022).
Whether a plaintiff failed to make a prima facie
case for injunctive relief is a legal conclusion that we review
for errors of law. See Cargal and Long-Cargal, 306 Or App
526, 531-32, 475 P3d 438 (2020) (citing Clark and Clark,
171 Or App 205, 210, 14 P3d 667 (2000)). Here, we under-
stand plaintiff to argue that the trial court committed legal
error because the record establishes irreparable harm. But
accepting the facts as found by the trial court, there was no
legal error in granting the ORCP 54 B(2) motion. One of the
requirements for an injunction is that the plaintiff demon-
strate irreparable harm by clear and convincing evidence.
Howe v. Greenleaf, 260 Or App 692, 712, 320 P3d 641 (2014)
(quoting Eagles Five, LLC v. Lawton, 250 Or App 413, 422,
280 P3d 1017 (2012)). But the trial court found that plain-
tiff’s evidence “did not provide the Court with any basis by
which it could find irreparable harm by clear and convinc-
ing evidence.”
That finding is supported by the record. On direct
examination, Miller was asked to describe the harm that
would occur if building was allowed to proceed without ARC
review and approval. Miller responded by stating only that,
because defendants had not submitted plans to the ARC, he
had no guarantee that defendants were complying with the
ARC standards, particularly with regard to the type of mate-
rials used in construction, the paint colors being used, and
landscape design. Use of unauthorized construction materi-
als, paint colors, and landscape designs are things that by
their nature can be fixed or altered with money. Miller did
not provide any testimony that there was anything about
this case that made that proposition untrue, such that there
was irreparable harm caused by defendants.
Plaintiff further challenges the trial court’s rul-
ing because the trial court failed to make factual findings
or credibility determinations in its ruling and because,
318 Eastside Bend, LLC v. Calaveras II, LLC
according to plaintiff, the trial court relied on evidence that
was not in the record to grant the motion. We reject both
arguments.
Plaintiff never asked for special findings under
ORCP 62 A, so the trial court was not required to make
any. See Stewart v. Division of State Lands, 237 Or App 86,
95, 239 P3d 263 (2010), rev den, 350 Or 530 (2011), cert den,
565 US 1114 (2012) (concluding that when a party fails to
demand special findings under ORCP 62, ORCP 54 B(2)
does not, standing alone, require the trial court to make
special findings). Further, the trial court’s ruling was not
based on extra-record evidence. Instead, the trial court
explicitly relied on Miller’s testimony regarding the nature
of the harm, as stated above, when it granted the motion.
In sum, on this record, the trial court did not com-
mit legal error when it granted the ORCP 54 B(2) motion.
Affirmed.