Martucci v. Hilton ( 2023 )

87
This is a nonprecedential memorandum opinion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 April 19, affirmed May 17, petition for review denied
October 5, 2023 (371 Or 476)
Richard W. MARTUCCI,
individually and as Co-Trustee of
the Martucci Family Trust UAD June 26, 2019;
and Donald P. McWhorter, as Co-Trustee of
the Martucci Family Trust UAD June 26, 2019,
Plaintiffs-Appellants,
v.
Mike HILTON;
Matt Ropp; and
RH Holdings, LLC,
an Oregon limited liability company,
Defendants-Respondents.
Jackson County Circuit Court
20CV17567; A176183
Benjamin M. Bloom, Judge.
Clark E. Rasche argued the cause for appellants. Also on
the briefs was Watkinson Laird Rubenstein, P.C.
David A. Jacobs argued the cause for respondents. Also
on the brief was Luvaas Cobb.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
88 Martucci v. Hilton
EGAN, J.
Plaintiffs appeal a judgment entered after a bench
trial, assigning error to the trial court’s ruling denying
them relief on their claim for boundary by agreement.
Specifically, plaintiffs argue that the trial court erred when
it determined that the parties’ predecessors did not reach
an agreement concerning the boundary between their
respective properties due to “mutual uncertainty or dispute,”
as required for the doctrine of boundary by agreement to
apply.
Plaintiffs request de novo review; however, this is
not an exceptional case, and we therefore do not exercise our
discretion to conduct de novo review.1 ORAP 5.40(8)(c) (de novo
review limited to “exceptional cases”). Accordingly, we
review “the court’s legal conclusions for errors of law, being
bound by its factual findings so long as there is evidence in
the record to support them.” Ramos v. Potkowski, 322 Or App
686, 692, 521 P3d 840 (2022).
“In Oregon, boundary-by-agreement is a common-
law doctrine with three elements.” Id. at 692. But “[j]
uxtaposed against those seemingly simple elements are
limitations that qualify their meaning.” Id. Important here
is the first element: “[T]here must be an initial uncertainty
or dispute as to the ‘true’ location of the boundary.” Agrons
v. Strong, 250 Or App 641, 648, 282 P3d 925 (2012). That
requirement “prevent[s] the agreement from falling within
the Statute of Frauds or violating other real property
conveyancing requirements, for it establishes that the
parties are resolving a dispute by mutually fixing an
unknown boundary rather than by making a conveyance
of land.” Id. (internal quotation marks omitted; emphasis
added).
1
In requesting de novo review, plaintiffs rely on Gibbons v. Lettow, 180
Or App 37, 42 P3d 925 (2002). In Gibbons, review of a judgment concerning a
boundary by agreement claim was de novo because, at the time, ORS 19.415
required de novo review in equitable proceedings. ORS 19.415 (2001), amended
by Or Laws 2003, ch 576, § 88; Or Laws 2005, ch 568, § 27; Or Laws 2009, ch 231,
§ 2 (“Upon an appeal from a judgment in an equitable proceeding, the Court
of Appeals shall try the cause anew upon the record.”). However, ORS 19.415
was amended in 2009 to provide the Court of Appeals with discretion to review
equitable actions de novo. Or Laws 2009, ch 231, § 2.
Nonprecedential Memo Op: 326 Or App 87 (2023) 89
We have observed that “[o]ne indication that the
parties continued to rely on the boundary described in
a deed or plat as their true boundary is their subsequent
reference to the deed or plat as establishing the boundary.”
Ramos, 322 Or App at 693; see also Markovich v. Chambers,
122 Or App 503, 505, 857 P2d 906 (1993) (concluding that
the plaintiff’s use of a 1981 survey in a lot-line adjustment
request “negate[d] uncertainty over the true boundary”).
In this case, evidence in the record supported the
trial court’s finding that the parties’ predecessors were
certain as to the true boundary between their properties;
the true boundary was not in dispute. Specifically, plaintiffs’
predecessor had previously commissioned a survey of his
property; the parties’ agreement contemplated an “acre for
acre” exchange of property; that “acre for acre” exchange of
property was made with reference to surveyed lines; and the
letter from defendants’ predecessor to plaintiffs’ predecessor
regarding the property transaction between them reflected
that property was going to be conveyed, stating “[defendants’
predecessor] has marked trees with blue paint * * * within
that portion of the lot line adjustment area, which is to become
your property.” (Emphasis added.) That evidence allowed the
trial court to find that the land transaction contemplated
by plaintiffs’ predecessor and defendants’ predecessor was
a land conveyance subject to the statute of frauds, and the
parties were not “resolving a dispute by mutually fixing an
unknown boundary.” Agrons, 250 Or App at 648 (emphasis
added; internal quotation marks omitted).
To be sure, plaintiffs’ predecessor raised an adverse
possession claim at one point. But whatever that claim
was based on, the trial court was permitted to find that, in
negotiating the “acre for acre” land conveyance that forms
the basis for plaintiffs’ boundary by agreement claim, the
parties’ predecessors continued to rely on the “true” boundary
as described in the deeds. Consequently, we affirm.
Affirmed.