Tyler v. Whetzel ( 2019 )

504
Argued and submitted January 31; appeal of general judgment and supplemen-
tal judgments for attorney fees against plaintiff Monique Tyler, on behalf of
Audrey B. Butler, dismissed, supplemental judgments for attorney fees against
plaintiff Monique Tyler in her personal capacity affirmed December 18, 2019
Monique TYLER,
on behalf of Audrey B. Butler, a vulnerable person,
and Monique Tyler, in her personal capacity,
Plaintiff-Appellant,
v.
Stanley W. WHETZEL, Jr.,
an individual;
John K. Gordinier, an individual; and
Mary Ellen Page Farr, an individual,
Defendants-Respondents.
Multnomah County Circuit Court
14CV16589; A161519
457 P3d 338
Plaintiff, as the trustee of her mother’s revocable trust, filed an action against
defendants for financial abuse of a vulnerable person, under ORS 124.100(3)(d),
on behalf of her mother. The trial court dismissed the claims. Shortly there-
after, plaintiff’s mother passed away. A few weeks later, plaintiff filed a notice of
appeal. Over a year later, defendants moved to dismiss the appeal on the ground
that, after plaintiff’s mother’s death, plaintiff lacked authority to initiate or pur-
sue an appeal on her mother’s behalf. On appeal, plaintiff argues that, as trustee,
she is the proper party to this action, not her deceased mother. Held: Upon plain-
tiff’s mother’s death, her financial abuse claims survived to the personal rep-
resentative of her estate under ORS 115.305. Once the claims survived to the
estate, plaintiff, as trustee of her mother’s estate, was no longer the real party
in interest to pursue the claims. Because plaintiff filed the notice of appeal after
her mother’s death, when she was no longer the real party in interest to pursue
the claims, and because a personal representative for her mother’s estate was not
substituted on appeal within the time permitted by ORCP 34 B, plaintiff’s appeal
from the judgment dismissing the financial abuse claims was dismissed.
Appeal of general judgment and supplemental judgments for attorney fees
against plaintiff Monique Tyler, on behalf of Audrey B. Butler, dismissed; sup-
plemental judgments for attorney fees against plaintiff Monique Tyler in her per-
sonal capacity affirmed.
Gregory F. Silver, Judge.
Andrew T. Reilly argued the cause for appellant. Also on
the briefs was Stillwater Law Group LLC.
Cite as 301 Or App 504 (2019) 505
Wendy M. Margolis argued the cause for respondents.
Also on the joint answering brief were Cosgrave Vergeer
Kester LLP, Deanna Wray, Vickie M. Smith, and Bodyfelt
Mount LLP, and George S. Pitcher and Lewis Brosbois
Bisgaard & Smith LLP.
Before Powers, Presiding Judge, and Egan, Chief Judge,
and Brewer, Senior Judge.*
BREWER, S. J.
Appeal of general judgment and supplemental judgments
for attorney fees against plaintiff Monique Tyler, on behalf
of Audrey B. Butler, dismissed; supplemental judgments for
attorney fees against plaintiff Monique Tyler in her per-
sonal capacity affirmed.
______________
* Egan, C. J., vice Hadlock, J. pro tempore.
506 Tyler v. Whetzel
BREWER, S. J.
This case presents the question whether a trustee
of a vulnerable person’s revocable trust is the real party in
interest to continue an action under ORS 124.100 (2013)1
for financial abuse of the vulnerable person after the vul-
nerable person’s death. For the reasons discussed below, we
conclude that, upon the vulnerable person’s death, a finan-
cial abuse claim survives to the personal representative of
the vulnerable person’s estate. At that time, the trustee no
longer is the real party in interest to pursue such a claim.
Because the trustee in this action filed the notice of appeal
after the vulnerable person’s death, when the trustee no lon-
ger was the real party in interest to pursue the claims, and
a personal representative for the vulnerable person’s estate
was not substituted on appeal within the time permitted by
ORCP 34 B, we dismiss the trustee’s appeal from the judg-
ment dismissing the financial abuse claims.2
In the years before this action was filed, Audrey
Butler and her assets had been the subject of multiple court
proceedings, including a guardianship proceeding brought
by Butler’s daughter, plaintiff Monique Tyler, in Kentucky
and an elder abuse claim against Tyler and Tyler’s husband
in Oregon. This action was filed by Tyler in October 2014,
when Butler was 96 years old, against three attorneys who
had been involved in the previous proceedings. The com-
plaint identified the plaintiffs in this action as “Monique
Tyler, on behalf of Audrey B. Butler, a vulnerable person;
and Monique Tyler, in her personal capacity,” and alleged
that Tyler is “the trustee of the Audrey B. Butler Revocable
Trust U/A/D 6/1/2012.” On Butler’s behalf, the complaint
alleged claims for financial abuse of a vulnerable person
under ORS 124.1003 and civil conspiracy against all three
defendants. The financial abuse claims specifically alleged
that defendants “wrongfully obtained money from Butler”
and “caused Butler to suffer” economic and noneconomic
1
ORS 124.100 was amended by Oregon Laws 2015, chapter 568, sections 2
and 5. All references to ORS 124.100 in this opinion refer to the 2013 version.
2
As to the trustee’s appeal of the supplemental judgment awarding attorney
fees on the trustee’s personal claims, we affirm without discussion.
3
A “vulnerable person” is a person who is elderly, financially incapable, inca-
pacitated, or, in certain circumstances, has a disability. ORS 124.100(1)(e).
Cite as 301 Or App 504 (2019) 507
damages. On Tyler’s behalf, the complaint alleged claims
against all three defendants for intentional interference
with prospective inheritance, intentional infliction of emo-
tional distress, and civil conspiracy.
All three defendants filed special motions to strike
under ORS 31.150, arguing that the claims against them
were based on their participation in the Kentucky and
Oregon proceedings.4 After briefing and multiple hearings,
Tyler conceded the motions on the claims for intentional
interference with prospective inheritance, intentional inflic-
tion of emotional distress, and civil conspiracy, and the court
granted defendants’ motions to strike the financial abuse
claims. After entering a general judgment dismissing the
complaint in its entirety without prejudice, the trial court
entered supplemental judgments awarding to each defen-
dant attorney fees and costs pursuant to ORS 31.152(3).
Butler died on February 7, 2016, shortly after entry
of the general judgment. A few weeks later, Tyler filed a
notice of appeal from the general judgment, identifying the
appellants as “Monique Tyler, on behalf of Audrey B. Butler,
a vulnerable person; and Monique Tyler, in her personal
capacity.” On August 11, 2016, Tyler filed an amended notice
of appeal from the supplemental judgments, identifying the
same appellants. In her opening brief, Tyler assigned error
to (1) the dismissal of the financial abuse claims, and (2) the
amount of attorney fees awarded under ORS 31.152.5
Over a year after Tyler filed the notice of appeal,
defendants filed a joint motion to dismiss the appeal on the
ground that Tyler lacked authority to initiate or pursue an
appeal on Butler’s behalf. Defendants argued that, although
Tyler presumably had authority as Butler’s trustee under
ORS 124.100(3)(d) to bring financial abuse claims on Butler’s
behalf while Butler was living, upon Butler’s death, those
4
Under ORS 31.150, a defendant may make a special motion to strike against
a claim in a civil action if the claim arises out of an “oral statement made, or writ-
ten statement or other document submitted, in a * * * judicial proceeding.”
5
Accordingly, the dismissal of Tyler’s personal claims for intentional inter-
ference with prospective inheritance, intentional infliction of emotional distress,
and civil conspiracy is not at issue on appeal. The supplemental judgment award-
ing attorney fees with respect to those claims, however, is at issue on appeal. As
noted, we affirm the supplemental judgment without discussion.
508 Tyler v. Whetzel
claims survived to the personal representative of her estate,
ORS 115.305, and only the personal representative had
authority to pursue those claims on appeal. ORS 124.100
(3)(c). Because no personal representative was substituted
and the one-year period for substitution under ORCP 34
B(1)6 and ORAP 8.05(1)7 had expired, defendants argued
that Tyler was not authorized to pursue the appeal.
The Appellate Commissioner concluded that Tyler
lacked authority to pursue the financial abuse claims
brought on behalf of Butler, determining that, after Butler
died, those claims survived to her estate. According to the
commissioner, Tyler then lost authority to pursue the appeal
as to any claims brought on Butler’s behalf. The Appellate
Commissioner concluded, however, that Tyler could proceed
with respect to her second assignment of error pertaining to
the supplemental judgments, insofar as they awarded attor-
ney fees for defendants’ effort to secure dismissal of Tyler’s
personal claims.
On Tyler’s motion for reconsideration, this court
adhered to the Appellate Commissioner’s determination
that, in light of Butler’s death, Tyler lacked authority to
pursue the financial abuse claims that are the subject of
Tyler’s first assignment of error. However, the court granted
Tyler leave to renew her motion for reconsideration before
the merits panel.
In her amended opening brief, Tyler argues that, as
trustee of Butler’s revocable trust, she was expressly autho-
rized under ORS 124.100(3)(d) to bring an action as a party
plaintiff for financial abuse of a vulnerable trustor when the
trustor is deceased. She also asserts that ORS 130.725(24)
vests in trustees the power to prosecute any action neces-
sary to protect trust property without regard to whether the
trustor is alive. And, as the proper party to any such action,
Tyler argues that a personal representative need not be
6
ORCP 34 B provides, in part:
“In case of the death of a party, the court shall, on motion, allow the
action to be continued:
“B(1) By such party’s personal representative or successors in interest at
any time within one year after such party’s death[.]”
7
ORAP 8.05(1) adopts ORCP 34 in appellate proceedings.
Cite as 301 Or App 504 (2019) 509
substituted in place of the trustee if the trustor dies while
the action is pending. In Tyler’s view, the survival statute,
ORS 115.305, does not apply because a financial abuse claim
under ORS 124.100(3)(d) is not brought by the deceased trus-
tor. Finally, Tyler asserts that, even if a trustee’s claim for
financial abuse no longer may be prosecuted on the death of
the trustor, the one-year time limitation in ORCP 34 does
not apply because no “party” has died.
In response, defendants acknowledge that ORS
124.100(3)(d) authorized Tyler, as trustee, to bring the finan-
cial abuse claims on Butler’s behalf during Butler’s lifetime.
Defendants assert, however, that ORS 124.100(3)(d) did not
confer any substantive rights on Tyler as a trustee nor did
that statute convert Butler’s financial abuse claim into trust
property. Accordingly, defendants assert that, when Butler
died, the financial abuse claims survived to her estate and
that, although ORS 124.100(3)(c) confers standing on the
personal representative of an estate to pursue claims, Tyler
is not the personal representative, nor has a personal rep-
resentative been substituted for Tyler. In defendants’ view,
because the appeal of the dismissal of the financial abuse
claims was not initiated or continued by the real party in
interest, this court should dismiss the appeal.
As framed by the parties, we must first deter-
mine whether the financial abuse claims inured to Tyler,
as trustee, or to Butler, as the vulnerable person. Once
we have made that determination, we must determine the
effect of Butler’s death on Tyler’s authority to pursue the
claim. As explained below, we agree with defendants that
the financial abuse claims belonged to Butler and that, on
her death, those claims survived to her personal represen-
tative. Accordingly, Tyler is not the real party in interest to
pursue the claims on appeal.
To determine whether the financial abuse claims
belonged to Tyler as trustee or to Butler as the vulnerable
person, we begin with the text of the statute on which the
financial abuse claim was based. See State v. Gaines, 346
Or 160, 171, 206 P3d 1042 (2009) (to determine legislative
intent, the court first examines the text and context of a
statute). That statute, ORS 124.100, provides, in part:
510 Tyler v. Whetzel
“(2) A vulnerable person who suffers injury, damage
or death by reason of physical abuse or financial abuse may
bring an action against any person who has caused the
physical or financial abuse or who has permitted another
person to engage in physical or financial abuse. * * *
“* * * * *
“(3) An action may be brought under this section only
by:
“(a) A vulnerable person;
“(b) A guardian, conservator or attorney-in-fact for a
vulnerable person;
“(c) A personal representative for the estate of a dece-
dent who was a vulnerable person at the time the cause of
action arose; or
“(d) A trustee for a trust on behalf of the trustor or the
spouse of the trustor who is a vulnerable person.”
Subsection (2) authorizes a vulnerable person who has suffered
abuse to bring the action for financial abuse. Subsection (3)
sets out the classes of persons who have standing to bring
a financial abuse claim under ORS 124.100(2). As relevant
here, a trustee may bring an action on behalf of the vulnera-
ble person. ORS 124.100(3)(d).
As the text of ORS 124.100 makes clear, a finan-
cial abuse claim belongs to the vulnerable person. That
is, it is the vulnerable person who has suffered abuse who
may bring the claim. ORS 124.100(2). Other persons autho-
rized to file an action—whether a guardian, conservator, or
attorney-in-fact, personal representative, or a trustee—are
representatives who do so on behalf of the vulnerable per-
son. In sum, the financial abuse claims at issue here were
personal to the vulnerable person and did not belong to the
trust or the trustee.8
8
Nothing in the legislative history of ORS 124.100 suggests that a claim
for financial abuse belongs to the trust or to the trustee. The addition of trust-
ees to the list of persons with standing to pursue financial abuse claims was
intended to fill a gap in the law and thereby bolster the protection of elderly per-
sons. Specifically, the legislature recognized that, although a trustee often is ide-
ally situated to recognize abuse of a vulnerable person due to the close fiduciary
relationship with the trustor, a trustee may not also be a “guardian, conservator
Cite as 301 Or App 504 (2019) 511
The complaint in this case is consistent with that
understanding, in alleging that defendants “wrongfully
obtained money from Butler” and “caused Butler to suffer”
economic and noneconomic damages. Following the text of
the statute, the complaint alleged that Butler, the vulner-
able person, suffered the harm. Pursuant to the statute,
Tyler, as trustee, brought the financial abuse claims on
behalf of the vulnerable person. Tyler did not allege harm
to the trust nor did she assert the claims on behalf of the
trust.9
Having determined that a claim for financial abuse
is personal to the vulnerable person, we next consider what
effect the vulnerable person’s death had on the trustee’s
standing to pursue the claim in this case. The answer is
straightforward. Under ORS 115.305, “[a]ll causes of action
or suit, by one person against another, survive to the per-
sonal representative of the former and against the personal
representative of the latter.” Accordingly, on Butler’s death,
the financial abuse claims survived to the personal repre-
sentative of her estate. At that time, Tyler, as trustee of
Butler’s revocable trust, no longer had authority to pursue
the financial abuse claims on Butler’s behalf.
We reject Tyler’s argument that a trustee may
bring an action for financial abuse regardless of whether the
trustor is alive or deceased. The controlling statute provides
that a trustee may bring a financial abuse claim “on behalf
of the trustor or the spouse of the trustor who is a vulnerable
person.” ORS 124.100(3)(d) (emphasis added). In contrast, a
personal representative may pursue a financial abuse claim
for “the estate of a decedent who was a vulnerable person”
when the claim arose. ORS 124.100(3)(c) (emphasis added).
Although subsection (d) applies where a vulnerable person
or attorney-in-fact.” A trustee without such a relationship would be required
to initiate a guardianship or conservatorship proceeding solely to pursue the
financial abuse claim, which would be an inefficient use of judicial resources.
The amendment to ORS 124.100 was intended to allow an additional trusted
fiduciary to bring a financial abuse claim on behalf of a vulnerable person. See
Exhibit G, House Committee on Judiciary, Subcommittee on Civil Law, HB 2291,
January 31, 2005 (accompanying statement of Ryan E. Gibb).
9
The trust document is not included in the record. Thus, whether and to
what extent the trust might have benefitted from successful prosecution of the
financial abuse claims is unknown.
512 Tyler v. Whetzel
who is living suffers alleged abuse, subsection (c) applies
where the vulnerable person is no longer living but was a
vulnerable person when the alleged abuse occurred. We
assume that the legislature’s use of different verb tenses
was intentional. See Martin v. City of Albany, 320 Or 175,
181, 880 P2d 926 (1994) (“The use of a particular verb tense
in a statute can be a significant indicator of the legislature’s
intention.”). In short, as the text of the statute makes clear,
a trustee is authorized to initiate or maintain a financial
abuse claim on behalf of the trustor only if the trustor is a
vulnerable person who is living.
Tyler further contends that she has standing to
pursue this appeal because Butler was never the real party
in interest in this case. In support of that argument, Tyler
observes that, under ORCP 26 A, the trustee of an express
trust can maintain an action as the real party in inter-
est. In Tyler’s view, ORS 124.100(3)(d) vests authority in a
trustee of an express trust to bring and maintain an action
for financial abuse of the trustor. Additionally, she argues
that because ORCP 34 B requires substitution only upon the
death of a party, no substitution was required in this case
because Tyler, not Butler, is the party in this action.
Tyler is correct that, at the time this action was
filed, she was the real party in interest. As this court has
explained, two classes of persons may be regarded as the
“real party in interest” under ORCP 26 A.10 The first class
encompasses persons who will be “benefited or injured by
the judgment in the case,” and the second class consists of
persons who are “statutorily authorized to bring an action.”
Association of Unit Owners v. Dunning, 187 Or App 595, 607,
69 P3d 788 (2003). Tyler was authorized by ORS 124.100
(3)(d) to bring this action on behalf of Butler.11 Accordingly,
10
ORCP 26 A provides, in part:
“Every action shall be prosecuted in the name of the real party in inter-
est. An executor, administrator, guardian, conservator, bailee, trustee of an
express trust, a party with whom or in whose name a contract has been made
for the benefit of another, or a party authorized by statute may sue in that
party’s own name without joining the party for whose benefit the action is
brought[.]”
11
Tyler is incorrect that the part of ORCP 26 A that authorizes the trustee
of an express trust to bring and maintain an action as the real party in interest
applies in this case. That part of ORCP 26 A provides that a trustee of an express
Cite as 301 Or App 504 (2019) 513
Tyler was the real party in interest and could bring the
action for the benefit of Butler. See ORCP 26 A. However,
as we have concluded, on Butler’s death, the financial abuse
claims survived to the personal representative of her estate.
See ORS 115.305. After Butler died, Tyler therefore no lon-
ger was the real party in interest to pursue those claims. See
ORCP 26 A; see also Concienne v. Asante, 299 Or App 490,
498, 450 P3d 533 (2019) (“ ‘Parties have standing to assert
only their own legal rights and cannot rest their claims
upon the legal rights of third parties.’ It follows that a party
who is not the ‘real party in interest’ to a claim necessarily
lacks standing to seek resolution of the claim in our courts.”
(Citation omitted.)).
It is true that ORCP 34 A provides that “[n]o action
shall abate by the death * * * of a party * * * if the claim sur-
vives or continues.” (Emphasis added.) It also is true that
Oregon Rule of Appellate Procedure 8.05(1) provides that
“Oregon Rule of Civil Procedure (ORCP) 34, relating to
substitution of parties in civil cases, is adopted.” However,
the issue before us is not one of nonabatement but, rather,
whether, in light of Butler’s intervening death, Tyler had
authority to prosecute an appeal from the judgment dis-
missing the financial abuse claims. Assuming arguendo
that—in the absence of the appointment of a personal repre-
sentative for Butler’s estate before the time for filing a notice
of appeal had expired—Tyler was authorized to file a notice
of appeal from the judgment dismissing the financial abuse
claims, the fact remains that no personal representative was
substituted within the time prescribed under ORCP 34 B(1)
to continue the action on appeal. Accordingly, we dismiss
Tyler’s appeal from the judgment dismissing the financial
abuse claims.
Appeal of general judgment and supplemental judg-
ments for attorney fees against plaintiff Monique Tyler, on
behalf of Audrey B. Butler, dismissed; supplemental judg-
ments for attorney fees against plaintiff Monique Tyler in
her personal capacity affirmed.
trust may bring and maintain an action as the real party in interest on behalf
of the trust, not the trustor. See ORS 130.725(24) (a trustee may “[p]rosecute or
defend an action, claim or judicial proceeding * * * to protect trust property and
the trustee in the performance of the trustee’s duties”).