Day v. Day

460
Argued and submitted August 29, 2017, affirmed September 18, 2019
Renee DAY,
Plaintiff-Appellant,
v.
Margaret DAY,
aka Marguerite Gregoire,
Defendant-Respondent.
Washington County Circuit Court
C150800CV; A161842
450 P3d 1
Plaintiff appeals following an award of summary judgment in favor of defen-
dant on her claims for quiet title and breach of contract and raises three assign-
ments of error. First, plaintiff asserts that the trial court abused its discretion in
denying her leave to amend her complaint. Next, plaintiff argues that the trial
court erred in granting summary judgment for defendant. Finally, plaintiff con-
tends that the trial court abused its discretion in denying her motion to compel
discovery of defendant’s bank records. Held: The trial did not abuse its discretion
in denying plaintiff leave to amend her complaint. Further, the trial court did not
err in awarding summary judgment in defendant’s favor. Plaintiff failed to pro-
duce evidence that she had an interest superior to defendant’s in the property at
issue for purposes of the quiet title claim, and also failed to produce evidence that
an enforceable oral agreement existed between herself and defendant. Finally,
plaintiff did not expressly seek an order compelling disclosure of defendant’s
bank records, and any error in not compelling such disclosure was harmless.
Affirmed.
Eric Butterfield, Judge.
Richard L. Grant argued the cause for appellant. Also on
the briefs was Richard L. Grant, P.C.
Jeremy R. James argued the cause and filed the brief for
respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
DEHOOG, P. J.
Affirmed.
Cite as 299 Or App 460 (2019) 461
DEHOOG, P. J.
Plaintiff appeals an award of summary judgment in
favor of defendant on her claims for quiet title and breach of
contract and raises three assignments of error. First, plain-
tiff asserts that the trial court abused its discretion in deny-
ing her leave to amend her complaint, which she requested
after defendant had filed her motion for summary judgment.
Next, plaintiff argues that the trial court erred in grant-
ing defendant summary judgment as to the claims raised
in the original complaint. Finally, plaintiff contends that
the trial court abused its discretion in denying her motion
to compel discovery of defendant’s bank records. As to that
last matter, we note that, although plaintiff sought to post-
pone the summary-judgment proceedings so that she could
obtain certain bank records, she did not expressly seek an
order compelling their disclosure; in any event, we conclude
that any error in not compelling their disclosure was harm-
less. Accordingly, we reject plaintiff’s third assignment of
error without further discussion.1 As to plaintiff’s first two
assignments of error, we conclude that the trial court did not
err in either instance; that is, the court did not abuse its dis-
cretion in denying plaintiff’s motion for leave to amend her
complaint, nor did it err in granting defendant’s summary-
judgment motion. We therefore affirm.
Because this appeal arises, in part, from an award
of summary judgment to defendant, we review the record in
the light most favorable to plaintiff, the nonmoving party, to
determine whether there are any genuine issues of material
fact and whether defendant is entitled to judgment as a mat-
ter of law. Burgdorf v. Weston, 259 Or App 755, 756, 316 P3d
1
Plaintiff’s argument under her third assignment of error also passingly
mentions defendant’s tax returns. Unlike defendant’s bank records, plaintiff did
file a motion to compel discovery of her tax returns, which the trial court denied.
However, the relevant preservation section of plaintiff’s brief cites only her argu-
ment about the bank records, which, as noted, was that the court should postpone
summary-judgment proceedings. To the extent that plaintiff sought to appeal the
denial of her motion to compel discovery of defendant’s tax returns, we conclude
that she has not sufficiently assigned error to that ruling and reject it on that
basis. See ORAP 5.45(3) (requiring appellant to “identify precisely the * * * ruling
that is being challenged”); ORAP 5.45(4)(a) (“The court may decline to consider
any assignment of error that requires the court to search the record to find the
error or to determine if the error properly was raised and preserved.”).
462 Day v. Day
303 (2013), rev den, 355 Or 380 (2014); ORCP 47 C. As the
party opposing summary judgment, plaintiff “has the bur-
den of producing evidence on any issue raised in the motion
as to which [she] would have the burden of persuasion at
trial.” Two Two v. Fujitec America, Inc., 355 Or 319, 324, 325
P3d 707 (2014) (internal quotation marks omitted).
The focus of plaintiff’s case against defendant
was a residential property that plaintiff had purchased in
May 2007 for $365,000. In June 2008, plaintiff transferred
that property to defendant, who at the time was married
to plaintiff’s son and was therefore plaintiff’s daughter-
in-law. Plaintiff transferred the property to defendant by
means of a bargain and sale deed reflecting a sales price of
$410,000; that deed was recorded in July 2008. In November
2011, defendant and plaintiff’s son divorced, and the general
judgment dissolving their marriage awarded defendant sole
ownership of the property.
Although not alleged in the original complaint,
plaintiff asserted in a declaration opposing summary judg-
ment that, before the transfer took place, she and defendant
had agreed that defendant would hold the property in trust
for her. Plaintiff’s declaration further states (as more or less
is alleged in her complaint) that the parties’ agreement was
that, following the transfer of title, plaintiff would—in some
unspecified way—assist defendant in taking out a loan that
would be secured by a mortgage on the property and in an
amount that was unknown because the property had not yet
been appraised. Plaintiff further asserted that defendant in
fact obtained a loan from “Country Wide,” and that the net
proceeds of the loan in the amount of $257,500 were depos-
ited in a checking account on which plaintiff was a signa-
tory, but which belonged to her brother, Hoffman.2 According
to plaintiff, the parties also agreed that she would make
all of the mortgage payments, pay the property taxes, and
maintain and insure the home. Plaintiff’s declaration—but
not her complaint—further asserts that she paid defendant
$5,000 for qualifying for the Countrywide loan.
2
Plaintiff’s original complaint makes no reference to Hoffman or his interest
in the account; it merely alleges that the proceeds of defendant’s loan were depos-
ited into plaintiff’s bank account.
Cite as 299 Or App 460 (2019) 463
Plaintiff used the funds in her brother’s account
to pay off her own obligations; none of the funds were ever
used by Hoffman. However, before defendant refinanced the
home, plaintiff had drawn up a trust deed in the amount of
$360,000, naming defendant as grantor and Hoffman as ben-
eficiary. That trust deed was reconveyed when the $257,500
in loan proceeds were deposited in Hoffman’s account.
Following the transfer and until May 2015, plaintiff contin-
ued to treat the property as her own. She leased the home to
tenants from May 2007 through December 2010; personally
lived there from February 2011 to February 2013; and, from
May 2013 on, again rented the home to tenants. Ultimately,
although plaintiff offered to pay off the balance of defen-
dant’s loan, it is undisputed that defendant did not transfer
the property back to plaintiff.
As a result of that series of events, plaintiff filed a
complaint in February 2015 seeking to quiet title to the prop-
erty and asserting a breach of contract claim against defen-
dant. In late June 2015, approximately two months after
filing an answer, defendant moved for summary judgment
as to both of the claims in the original complaint. At the
time, trial was scheduled to take place in December 2015. In
late July 2015, plaintiff moved for leave to amend her com-
plaint, but did not contend that her proposed amendments
would cure any deficiencies that defendant had identified
in her summary-judgment motion. Furthermore, although
plaintiff did, at the same time, file a “Motion in Opposition
to Defendant’s Motion for Summary Judgment,” that filing
also failed to address the substance of defendant’s summary-
judgment arguments.3 Rather, plaintiff’s response argued
that the trial court should deny summary judgment due to
defendant’s alleged withholding of bank records that plain-
tiff had requested in discovery—records that plaintiff con-
tended were essential to an effective summary-judgment
3
Although plaintiff’s written response did not contend that the record on file
raised issues of material fact precluding summary judgment or that defendant
was not entitled to prevail as a matter of law, see ORCP 47 (setting forth grounds
on which court may award summary judgment), she did submit a declaration
that provided many of the facts that we have set out in this opinion. We do not,
however, consider facts stricken from the summary judgment record by the trial
court, a ruling that, as defendant points out, plaintiff has not assigned error to.
See 299 Or App at 466-67.
464 Day v. Day
response. Plaintiff alternatively requested a continuance
of the summary-judgment proceedings so that she could
obtain those records. The trial court heard both motions—
plaintiff’s motion for leave to amend and defendant’s motion
for summary judgment—on September 14, 2015. Ultimately,
the court denied plaintiff’s motion to amend, rejected both of
her responses to defendant’s motion, and awarded summary
judgment to defendant. After the trial court entered a judg-
ment dismissing both of plaintiff’s claims with prejudice,
plaintiff initiated this appeal.
For ease of discussion we begin with plaintiff’s sec-
ond assignment of error, in which she contends that the
trial court erred in granting defendant’s motion for sum-
mary judgment.4 Plaintiff’s complaint purported to state
two claims. In her first claim for relief, plaintiff sought to
quiet title to the property she had deeded to defendant. In
relevant part, the complaint alleged:
“3.
“On or about May 24, 2007, [plaintiff] purchased real
property with a common address of 16785 S.W. Upper
Boones Ferry Road, Durham, Washington County, Oregon
97224 (‘the property’), for the price of $365,000, and she
was placed on the title as the fee simple owner. * * *
“4.
“Thereafter, [plaintiff] made improvements to the home,
which included a new roof, new carpeting, flooring and
appliances, and rented the property to tenants.
“5.
“Defendant claims some interest adverse to plaintiff’s
in the real property described above, but defendant’s claim
is without merit and defendant has no estate, title, claim or
interest in the real property or any portion there of [sic].”
In turn, plaintiff’s breach of contract claim asserted,
in relevant part:
4
As noted, plaintiff’s first assignment of error contends that the trial court
erred in denying her motion for leave to amend her complaint, which she filed
while defendant’s summary judgment motion was pending. We discuss below the
extent to which, if at all, plaintiff’s proposed amendments to her complaint would
have affected the merits of defendant’s summary-judgment argument.
Cite as 299 Or App 460 (2019) 465
“7.
“In June, 2008, * * * [t]o assist [plaintiff] by obtaining
a mortgage, [defendant] entered into an agreement with
[plaintiff] under which the property would be transferred
into [defendant’s] name solely for purpose of helping [plain-
tiff] consolidate debt and pay off [her] creditors. As part
of the agreement, [defendant] agreed to then take out a
mortgage, and the funds were to be paid to [plaintiff] for
purposes of paying off [her] debt.
“8.
“In conformance with [that] agreement * * *, on June 7,
2008, [plaintiff] transferred the property to [defendant] by
means of a Bargain and Sale Deed. At the time, the prop-
erty in question was free and clear of any liens or encum-
brances, and [plaintiff] was the fee simple owner. The deed
was recorded on July 7, 2008.
“9.
“Thereafter, [defendant] applied for and obtained a loan
with Country Wide [sic] in the total amount of $262,500.
The property was used as collateral for the loan.
“10.
“The [Countrywide] loan closed on December 24, 2008,
and [defendant] authorized the entire net proceeds in the
amount of $257,000 * * * to be released to [plaintiff], who
then deposited all the proceeds into [her] bank account
with Chase Bank on December 24, 2008.
“11.
“Thereafter, [plaintiff] commenced making each pay-
ment and has made every payment on the [Countrywide]
loan, together with payments of all real property taxes,
property insurance, and all maintenance expenses related
to the property.
“* * * * *
“13.
“On February 12, 2013, [defendant] came to see [plain-
tiff] * * * while [plaintiff] was living in [the property, where
she] had been residing * * * since January, 2011.
“* * * * *
466 Day v. Day
“15.
“When [defendant] came to see [plaintiff], they dis-
cussed [defendant] transferring the property back into
[plaintiff’s] name, and [defendant] agreed to transfer the
property.
“* * * * *
“17.
“[Sometime after] February 13, 2013, * * * all of [plain-
tiff’s] personal belongings were moved out of the house on
the property. Thereafter, starting in May of 2013, the house
was rented to Cameron and Christine Simones as tenants.
Since renting the house in May of 2013, the Simones[es]
have paid $1,750.00 in rent every month to [plaintiff].
“* * * * *
“20.
“Plaintiff offered to pay off the loan in defendant’s name
in October, 2014. Since such time, defendant has refused
to allow the payoff of the loan and transfer the property
back into plaintiff’s name. Despite plaintiff’s offer and
defendant’s prior agreement that she would transfer the
property back into [plaintiff’s] name, [defendant] has now
refused to do so.
“* * * * *
“22.
“[Plaintiff] has performed all conditions precedent
required of her under the terms of her agreement with
[defendant] and is hereby ready, willing, and able to pay off
the existing loan.”
In addition to those allegations, the complaint
alleged that plaintiff’s monthly loan payments had been in
the amount of $1,960.04. As relief, plaintiff sought, in rele-
vant part, a determination of any claims defendant might
have to the property, a declaration that plaintiff is the fee
simple owner of the property, and an award of her costs
and disbursements. Plaintiff’s original complaint neither
alleged nor sought damages for defendant’s alleged breach
of contract.
Before turning to the merits of plaintiff’s second
assignment of error, we must address two preliminary matters.
Cite as 299 Or App 460 (2019) 467
First, on appeal, the parties dispute what evidence is in
the summary-judgment record. At the summary-judgment
hearing, defendant moved to strike certain portions of the
declaration that plaintiff submitted in opposition to sum-
mary judgment, as well as those of her attorney and her
brother, Hoffman. The trial court granted those motions, in
part, striking portions of each declaration. Plaintiff acknowl-
edges, as defendant points out, that she did not expressly
challenge those decisions in her opening brief. She contends,
however, that because she assigned error to the “trial court’s
entire grant of summary judgment” she “necessarily” also
challenged the trial court’s “decision to ignore (by striking),”
the evidence that plaintiff submitted. Plaintiff’s argument
is unavailing. The rules of appellate procedure do not allow
for such sweeping assignments of error. See ORAP 5.45(3)
(“Each assignment of error must identify precisely the legal,
procedural, factual, or other ruling that is being challenged.”
(Emphasis added.)). Moreover, even if plaintiff’s assign-
ments of error did encompass a challenge to the trial court’s
evidentiary rulings, she advanced no argument in her open-
ing brief as to how those rulings were erroneous; indeed,
even on reply she merely asserts that she assigned error to
the rulings, not that under applicable law they were, in fact,
erroneous. Accordingly, we reject any suggestion by plaintiff
that the stricken portions of the declarations are part of the
summary-judgment record, and we disregard plaintiff’s ref-
erences to them on appeal.
The second preliminary matter relates to preserva-
tion. In her response brief, defendant says that plaintiff pre-
served her second assignment of error “in opposing defen-
dant’s motion for summary judgment.” As we note above,
however, although it is true that plaintiff filed a respon-
sive memorandum and declaration, she did not address the
legal merits of defendant’s summary-judgment arguments.
Notably, the argument that the parties focus on in this
appeal is one that plaintiff made in a reply brief filed in sup-
port of her motion to amend the complaint, not in response to
defendant’s summary-judgment motion; moreover, at defen-
dant’s request, the trial court expressly excluded that reply
from the summary-judgment record. As a result, it is not
clear to us that plaintiff did, in fact, preserve the arguments
468 Day v. Day
she advances in support of her second assignment of error.
However, because we ultimately conclude that the trial court
did not err in granting defendant’s summary-judgment
motion, we need not conclusively answer that question.
Proceeding, then, with the merits of plaintiff’s second
assignment, we first consider plaintiff’s quiet-title claim.
Defendant argues, as she did in the trial court, that sum-
mary judgment was warranted because plaintiff could not
prove an essential element of that claim. As defendant cor-
rectly observes, to prevail on a quiet-title claim, plaintiff
was required to prove (1) that she had a substantial interest
in, or claim to, the disputed property; and (2) that her title
was superior to that of defendant. Coussens v. Stevens, 200
Or App 165, 171, 113 P3d 952 (2005), rev den, 340 Or 18(2006). Here, defendant argues, plaintiff could not show that
she had any ownership interest at all, much less an inter-
est superior to the interest defendant had acquired from her
through the bargain and sale deed.
We agree with defendant that the trial court prop-
erly granted summary judgment on plaintiff’s quiet-title
claim. It is undisputed that plaintiff transferred title to the
property at issue to defendant and that defendant did not
reconvey title to her. Moreover, despite defendant’s argu-
ment on summary judgment that plaintiff’s evidence was
lacking,5 plaintiff neither pointed to evidence in the record
showing that she had a superior interest in the property, nor
contended that she was not required to make that showing.
Likewise, on appeal, plaintiff does not contend that the evi-
dence gives rise to a genuine issue of material fact or that
defendant is wrong as a matter of law; instead, on reply,
plaintiff argues for the first time that possession of a deed is
not dispositive in a quiet-title action when, as here, the deed
is held in trust. But even assuming that we can consider
that argument, despite plaintiff having raised it for the
first time in her reply brief, we reject it. As noted, plaintiff
did not allege in the original complaint that defendant had
held the deed in trust. Thus, plaintiff’s argument that the
5
Defendant did not contend in the trial court that plaintiff’s complaint failed
to state a quiet title claim, notwithstanding the absence of any allegation that
plaintiff had a substantial interest or claim to the property or that her title was
superior to defendant’s.
Cite as 299 Or App 460 (2019) 469
quiet-title action could proceed is dependent upon the alle-
gations of her proposed amended complaint. And because,
as we explain below, we reject plaintiff’s contention that the
trial court abused its discretion in denying her request to
amend the complaint, any argument dependent upon that
amendment also fails.
We reach the same conclusion as to the trial court’s
grant of summary judgment on plaintiff’s breach of contract
claim. In her summary-judgment motion, defendant argued
to the trial court that, as a matter of law, plaintiff would
be unable to prevail on that claim. According to defendant,
plaintiff would be unable to present admissible evidence
of the purported oral agreements on which she sought to
base her contract claim. And, even if plaintiff could pro-
duce admissible evidence, her contract claim would still
be legally deficient. That, defendant argued, was because
(a) the alleged oral agreements lacked various essential
terms, such as the time of performance and the amount
to be paid to plaintiff; (b) the terms alleged were insuffi-
ciently definite to be enforceable; (c) there was no allegation
or evidence of consideration for the alleged agreements; and
(d) under the applicable statute of frauds, ORS 93.020(1),6 an
oral agreement that defendant would reconvey the property
to plaintiff would be void.
As with her quiet title claim, plaintiff did not
address the merits of defendant’s summary-judgment argu-
ment regarding her contract claim. Rather, she asserted
that she could not fairly respond to defendant’s argument
without defendant’s bank records, which defendant had
refused to provide. Accordingly, plaintiff contended, unless
the court agreed to simply deny defendant’s motion due to
her unwillingness to comply with her discovery obligations,
the trial court should continue the summary-judgment pro-
ceedings to enable plaintiff to acquire the requested records.
On appeal, however, plaintiff’s argument has changed. Now
she argues that, although it was undisputed that she had
signed a bargain and sale deed conveying title to the prop-
erty to defendant, the summary-judgment record discloses
a factual dispute as to whether, as defendant contends, that
6
The text of ORS 93.020(1) is set out below. 299 Or App at 470.
470 Day v. Day
transfer reflected an outright sale, or, instead, as plaintiff
sees things, resulted in the property being held in trust in
defendant’s name, to be transferred back to plaintiff upon
completion of the parties’ agreement. Plaintiff further
asserts that, by relying on evidence that the parties partly
performed the alleged contract, she can establish that a
contract existed, notwithstanding the statute of frauds. In
response, defendant reprises her argument that summary
judgment was warranted because plaintiff failed to present
admissible evidence of a valid written agreement, without
which, defendant contends, the evidence cannot give rise to
a triable issue of fact. Defendant also reprises various other
arguments in support of the trial court’s ruling. Relatedly,
defendant argues that plaintiff misconstrues the summary
judgment record on appeal.
Central to both parties’ arguments on appeal is the
application of the statute of frauds. Plaintiff’s theory is that
an oral agreement accompanied—or, perhaps, followed—the
written bargain and sale deed that she had used to trans-
fer ownership of the property to defendant. In making that
argument, plaintiff does not dispute that, typically, the stat-
ute of frauds precludes parties from relying on oral agree-
ments to establish long-term interests in real property. As
relevant here, the applicable statute of frauds states:
“No estate or interest in real property, other than a
lease for [a] term not exceeding one year, nor any trust
or power concerning such property, can be created, trans-
ferred or declared otherwise than by operation of law or by
a conveyance or other instrument in writing, subscribed by
the party creating, transferring or declaring it, or by the
lawful agent of the party under written authority, and exe-
cuted with such formalities as are required by law.”
ORS 93.020(1). Moreover, plaintiff does not contend that the
oral agreement she seeks to rely on somehow complies with
the requirements of that statute. Instead, citing Burgdorf,
259 Or App at 758, plaintiff argues that the doctrine of
partial performance renders defendant’s oral agreement
enforceable notwithstanding the statute of frauds. For the
reasons that follow, we conclude that plaintiff’s reliance on
that doctrine is misplaced.
Cite as 299 Or App 460 (2019) 471
Under the doctrine of partial performance, a court
may enforce an oral agreement concerning the sale or trans-
fer of an interest in land if the party asserting the doctrine
shows, by a preponderance of the evidence, (1) “the existence
of an agreement that is clear and unambiguous in its terms”;
(2) “that the partial performance unequivocally and exclu-
sively refers to the agreement”; and (3) “that there are equi-
table grounds for enforcing the agreement.” Id. at 758 (citing
Mukai Living Trust Dated Dec. 8, 1997 v. Lopez, 199 Or App
341, 345, 111 P3d 1150 (2005)). As the Supreme Court has
held under Oregon’s more general statute of frauds, ORS
41.580, “[t]he specific performance of a [parol] contract for
the conveyance of real estate will not be enforced under any
circumstances unless the terms of the contract are shown
by full, complete, and satisfactory proof to have been so
precise that neither party could reasonably misunderstand
them.” Eugene Pioneer Cemetery Ass’n v. Spencer Butte Lodge
No. 9, 228 Or 13, 43, 363 P2d 1083 (1961) (noting that even
the pleadings were ambiguous as to the precise terms of the
agreement); see also Mukai Living Trust, 199 Or App at 345(affirming summary judgment where nothing in the record
amounted to evidence from which a rational juror could find
that the parties entered into an agreement with precise
terms that neither party could reasonably misunderstand
or that plaintiff’s alleged acts of partial performance could
be explained only by the existence of a contract creating a
trust).
Here, noting that Burgdorf, the case on which plain-
tiff principally relies, involved a request for declaratory
relief, defendant contends that the partial-performance doc-
trine does not apply to legal actions like plaintiff’s breach
of contract claim. Defendant further argues, among other
things, that, even if the doctrine theoretically could apply in
this case, plaintiff’s evidence fails to satisfy at least two of
the doctrine’s three elements. That is, even when viewed in
the light most favorable to plaintiff, the summary-judgment
record cannot support a finding that the parties entered into
an agreement that is “clear and unambiguous in its terms,”
nor can it support a finding of partial performance that
“unequivocally and exclusively” referred to such an agree-
ment. We agree with defendant that plaintiff’s evidence is
472 Day v. Day
insufficient to raise a genuine issue of fact as to either of
those required elements of her partial-performance the-
ory. Thus, even assuming, without deciding, that a partial-
performance theory could apply to plaintiff’s contract claim,
we conclude that the trial court did not err in awarding
defendant summary judgment as to that claim.7
A review of the summary-judgment record demon-
strates how plaintiff’s evidence was lacking. In conjunction
with her motion for summary judgment, defendant filed a
declaration in which she stated that she had purchased the
property from plaintiff for $410,000 and that
“I never made any agreement with plaintiff that my pur-
chase of the Property was in any way related to plaintiff’s
ability to consolidate debt or pay off creditors. I did not pur-
chase the Property because I wanted to help plaintiff, and
I never had any intention of transferring the Property back
into plaintiff’s name at any point. I did not enter into an
agreement, oral or written, with plaintiff to transfer the
Property back to plaintiff or to allow plaintiff to pay off any
of my debt.”
In response to defendant’s motion, plaintiff submitted two
declarations, one from her attorney, Richard Grant, and one
from plaintiff herself. Other than stating that plaintiff had
rented the property to three sets of tenants after transfer-
ring it to defendant, Grant’s declaration focused on plain-
tiff’s request for production and the relevance of defendant’s
bank records, rather than the existence of, or performance
under, the alleged contract. Plaintiff’s declaration, on the
other hand, provided, in relevant part:
“4. One year after purchasing the home, I entered
into discussion with my then daughter-in-law, [defendant],
with regard to having her qualify for a loan for purposes
of obtaining funds to pay off obligations with regard to
the initial purchase of the property in May, 2007. It was
agreed prior to the time of my transferring property to her
7
Because we uphold the trial court’s ruling on that basis, we need not con-
sider defendant’s additional contentions on appeal, including that the complaint
did not sufficiently allege the elements of plaintiff’s partial performance theory,
that the complaint did not sufficiently state a claim for breach of contract—
whether oral or written—or that there are not equitable grounds to enforce the
alleged oral agreement.
Cite as 299 Or App 460 (2019) 473
that I would assist [defendant] with obtaining a new loan
with a mortgage against the property in an undetermined
amount. We did not know what the property would appraise
for, nor the amount she would be able to qualify for.
“5. It was agreed between [defendant] and myself that
she would hold the property in trust for me in her name
and that I would make all of the mortgage payments, real
property taxes, as well as maintaining and insuring the
home. At approximately the time she applied for the loan, I
paid [defendant] $5,000 for qualifying for the refinance on
the property.
“6. At the same time that I drew up the Bargain and
Sale Deed to [defendant], I also drew up a Trust Deed in
the amount of $360,000 naming the beneficiary as Gregory
Hoffman, who is my brother. The Trust Deed in favor of
Gregory Hoffman was placed on the property to enable
[defendant’s] refinance to be a ‘no cash out’ loan.
“7. On June 7, 2008, I personally prepared the Deed of
Trust and Bargain and Sale Deed to [defendant]. * * *
“8. Thereafter, [defendant] proceeded with applying
for a loan through Country Wide. This loan took several
months and recorded December 24, 2008, securing the loan
in the amount of $262,500. All closing costs for the loan
were deducted from the proceeds, and a check in the net
amount of $257,500 was issued by the lender and deposited
into the Chase Bank account of Gregory Hoffman.
“* * * * *
“10. I was a signatory on the account in Gregory
Hoffman’s name. All of the proceeds deposited into that
account from the loan through Country Wide by [defen-
dant] were used by me for purposes of paying off amounts
owed from the original purchase of the property together
with payment of other bills. None of the funds deposited
into that account were ever used by Gregory Hoffman.
“11. The Trust Deed in the amount of $360,000 in
favor of Gregory Hoffman was reconveyed through escrow
by payment of the loan proceeds in the amount of $257,500.
During her deposition, [defendant] had no explanation as
to where the approximately $103,000 difference in amount
went or what was the cause of this difference between the
amounts.
474 Day v. Day
“12. From May of 2007 through March, 2015, I per-
sonally maintained complete control over every aspect of
the property. I leased the property to tenants from May,
2007 through September 2010. Thereafter, from February
2011 through February 13, 2013, I personally resided at the
property as my residence.”
That declaration—the only evidence of the agree-
ment that plaintiff submitted in opposition to summary
judgment—is insufficient to satisfy the partial-performance
doctrine. We begin with the requirement that the agree-
ment be “clear and unambiguous in its terms.” Burgdorf,
259 Or App at 758. Although the complaint is less than clear
as to what the alleged agreement was, we take plaintiff’s
argument to be that the parties had agreed that plaintiff
would transfer the property into defendant’s name, for the
sole purpose of acquiring loan funds for plaintiff, and that
defendant would convey the property back to plaintiff once
the loan had been repaid. Even before considering plaintiff’s
declaration, we note that the complaint contains no allega-
tion that defendant promised to transfer the property back to
plaintiff as part of the alleged agreement—it simply alleges
an agreement to transfer title for financing purposes and
various actions that plaintiff subsequently took in regard to
the property.8 See Eugene Pioneer Cemetery Ass’n, 228 Or at
43 (similarly observing that the pleadings themselves were
ambiguous as to the terms of any agreement).
Moreover, to the extent that the alleged purpose of
the initial transfer suggests an expectation on plaintiff’s
part that the property would eventually be returned to her,
nothing in her declaration makes that point at all, much
less unambiguously so. True, plaintiff asserts an agreement
that defendant “would hold the property in trust for [plain-
tiff] in [defendant’s] name,” but she provides no information
regarding the terms of the alleged trust, such as whether
defendant was required to reconvey the property to plaintiff
upon plaintiff’s satisfaction of some condition—such as pay-
ing off the loan—or upon defendant’s failure to satisfy some
8
As set out above, 299 Or App at 465-66, the complaint did allege that
defendant agreed in February 2013 to transfer the property. However, plaintiff
advances no argument suggesting that the alleged February 2013 agreement is
the agreement that her partial performance rendered enforceable.
Cite as 299 Or App 460 (2019) 475
condition—such as paying the ostensible deficiency between
the loan proceeds and the $410,000 sales price—or upon any
other condition; indeed, like the complaint itself, plaintiff’s
declaration never states that plaintiff’s transfer of the prop-
erty was premised on defendant’s agreement to transfer it
back. Without evidence that the parties necessarily antici-
pated that defendant would return the property to plaintiff,
plaintiff cannot contend that the parties had a clear, unam-
biguous agreement that she would do so. Cf. Burgdorf, 259
Or App at 762 (statement in the plaintiff’s declaration that
her “agreement to sign the property over to [defendant] was
based on his agreement to put me back on title after the loan
closed” was sufficient to raise jury question as to whether
alleged oral agreement had been clear and unambiguous
(bracketed material in original)). Stated differently, nothing
in the record could support a jury finding that defendant
could only have understood that she was required to convey
the property back to plaintiff regardless of plaintiff’s acqui-
sition of the loan proceeds, the reconveyance of the Hoffman
trust deed, or anything else. See Mukai Living Trust, 199 Or
App at 345 (affirming summary judgment where nothing
in the record amounted to evidence from which a rational
juror could find that the parties entered into an agreement
with precise terms that neither party could reasonably
misunderstand).
Furthermore, even if we were to conclude that
plaintiff’s evidence could satisfy the “clear and unambig-
uous” prong of the partial-performance doctrine, we could
not reach the same conclusion regarding the second require-
ment, that plaintiff’s alleged partial performance of the
parties’ agreement “unequivocally and exclusively” refer to
such an agreement. Burgdorf, 259 Or App at 762. One plau-
sible understanding of plaintiff’s evidence is that she gave
her daughter-in-law title to her property, in return for which
plaintiff received $257,500, representing a debt that defen-
dant—not plaintiff—owed Countrywide. Plaintiff then made
payments on behalf of defendant, including the mortgage,
property taxes, maintenance, and insurance, but she
also lived in the home during much of that time; further-
more, according to plaintiff’s declaration, when she rented
the property out to others, their rental payments went to
476 Day v. Day
defendant, not to her. As a result, plaintiff’s routine pay-
ment of defendant’s property-related expenses was not
unlike a familiar rental arrangement, where a tenant pays
a monthly rental amount that enables the homeowner to
pay the mortgage and the upkeep of the rental property.
And, although the available evidence suggests that plaintiff
may not have held defendant—who at the time remained a
member of her family—to the full sales price of $410,000 (or
even the $360,000 that the Hoffman trust deed secured),
the evidence was that the sales price was negotiated without
knowledge of the home’s likely appraisal value.9 To be sure,
under those circumstances, the conduct that plaintiff char-
acterizes as partial performance of the parties’ alleged oral
agreement could, in fact, have been just that. Significantly,
however, it could also have been conduct in accordance with
a more-or-less arm’s length sale of the property to plaintiff’s
daughter-in-law—that is, it is not “unequivocally and exclu-
sively” referable to an agreement of the sort plaintiff sug-
gests. See Mukai Living Trust, 199 Or App at 345 (require-
ment that alleged partial performance “unequivocally and
exclusively” refer to agreement means that conduct can
only be explained by the existence of an oral agreement).
And while we are cognizant that it is the factfinder’s role
to determine whether the evidence satisfies the “unequiv-
ocal and exclusive” prong of the partial performance doc-
trine, we conclude that no rational factfinder could make
that finding on the summary-judgment record in this case.
Accordingly, the trial court did not err in awarding sum-
mary judgment in defendant’s favor on plaintiff’s contract
claim.
Returning to plaintiff’s first assignment of error,
plaintiff contends that the trial court abused its discre-
tion in denying her leave to amend her complaint. Plaintiff
sought to amend her complaint to include: (1) new defendants
9
Although neither party argues the point, we take judicial notice that the
transfer from plaintiff to defendant took place just before the nationwide eco-
nomic downturn and corresponding reduction in home prices. OEC 201(b). Given
those circumstances, together with the family relationship, a rational factfinder
could find that plaintiff did not intend to hold defendant to the negotiated sales
price, which far exceeded the loan defendant was able to acquire based, presum-
ably, on the home’s appraised value.
Cite as 299 Or App 460 (2019) 477
(“Jane Does 1, 2, and 3 and all others”);10 (2) three new
claims (unjust enrichment, ejectment, fraud); (3) new fac-
tual allegations; and (4) new forms of relief (either monetary
damages in the amount of $300,000 or the imposition of a
constructive trust). The original complaint was five pages,
whereas the amended complaint was 11.
Amendment of pleadings is governed by ORCP 23 A,
which provides, in relevant part,
“A pleading may be amended by a party once as a matter
of course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading is
permitted, the party may so amend it at any time within
20 days after it is served. Otherwise a party may amend
the pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given when
justice so requires.”
We review the court’s allowance or denial of leave to amend
for abuse of discretion. Engelcke v. Stoehsler, 273 Or 937,
944, 544 P2d 582 (1975). Four considerations bear on the
appropriateness of the court’s exercise of discretion:
“(1) the nature of the proposed amendments and their
relationship to the existing pleadings; (2) the prejudice, if
any, to the opposing party; (3) the timing of the proposed
amendments and related docketing concerns; and (4) the
colorable merit of the proposed amendments.”
Ramsey v. Thompson, 162 Or App 139, 145, 986 P2d 54 (1999),
rev den, 329 Or 589 (2000). In this case, plaintiff acknowl-
edges that all four Ramsey factors are potentially relevant,
but notes that defendant’s objection to her motion for leave to
amend raised only two of the factors: prejudice to defendant
and the colorable merit of plaintiff’s proposed amendments.
Furthermore, because, in plaintiff’s view, defendant’s preju-
dice argument is foreclosed by our case law, and, on appeal,
defendant presents only a limited challenge to the merits of
her proposed amendments, plaintiff argues that three of the
four Ramsey factors either support the proposed amendment
10
According to plaintiff’s proposed amended complaint, the new “Doe” defen-
dants were tenants with whom defendant had entered into a residential lease
agreement in violation of plaintiff’s possessory rights in the property.
478 Day v. Day
or are neutral.11 And, citing Caldeen Const., LLC v. Kemp,
248 Or App 82, 89, 273 P3d 174 (2012), plaintiff contends
that “[w]hen at least three of the Ramsey considerations
favor allowing a party to amend, it is an abuse of discretion
to deny the motion to amend.”
As an initial matter, we do not read Caldeen Const.,
LLC as establishing the bright-line rule that plaintiff sug-
gests. In Caldeen Const., LLC, we concluded that, after con-
sidering all four Ramsey factors, the trial court had abused
its discretion in denying the plaintiff’s motion to amend.
Id. at 90. It is true that in that case, three factors favored
allowing amendment and the fourth factor was neutral,
given that the record in that case was insufficient for us
to assess whether the proposed amendments had colorable
merit. We did not, however, mechanically count the Ramsey
factors as plaintiff suggests, nor have we done so in any case
since Caldeen Const., LLC. That said, we proceed to consider
all four factors to determine whether the trial court abused
its discretion in denying plaintiff’s motion under ORCP
23 A.
We begin with the first Ramsey factor, the nature
of the proposed amendments and their relationship to the
existing pleadings. Plaintiff argues that this factor weighs
in her favor because, although the proposed amendments
included three additional theories of recovery, all three
claims arose under the same facts as her existing claims.
Additionally, the ejectment claim did not arise until defen-
dant chose to interfere with plaintiff’s tenants and took
over control of the property, which did not occur until after
plaintiff had filed the original complaint. Moreover, plain-
tiff argues, with the exception of the ejectment claim, any
“change” to the complaint was merely a change in the form
of her allegations, and not a change to the underlying char-
acter of her claims. And, in that regard, the “new” facts that
plaintiff proposed to add to the complaint did not expand
the existing allegations; rather, she contends, they simply
lent clarity to the allegations that were already there.
11
Plaintiff notes that defendant does not argue that the timing of the pro-
posed amendments or related docketing concerns weighed against plaintiff’s
request.
Cite as 299 Or App 460 (2019) 479
In response, defendant disputes plaintiff’s conten-
tion that the three new claims and three new defendants
would not have substantially altered the nature of plaintiff’s
case. As noted, plaintiff’s proposed amendments would have
added new facts, three new claims—unjust enrichment,
fraud, and ejectment—and, for the first time, an allegation of
damages with an alternative request that the court impose
a constructive trust. According to defendant, allowing the
damages allegation and the related request for a construc-
tive trust alone would have imposed new risks on defendant
and would have required additional investigation, discovery,
and evidence to defend. And rather than merely clarifying
the existing factual allegations, defendant argues, the facts
that plaintiff proposed to add—including facts related to
plaintiff’s post-transfer interactions with defendant, her
various tenants, the substantial capital improvements that
she had made to the property, and the role of her brother,
Hoffman—greatly expanded the scope of plaintiff’s case.
Under the circumstances of this case, it was not unreason-
able for the trial court to view this factor as weighing against
plaintiff’s request.
Each of plaintiff’s new claims would have required
her to prove materially different elements—with correspond-
ingly different evidence—than the claims in the existing
complaint. For example, to establish her unjust enrich-
ment claim, plaintiff would have had to prove, among other
things, that it would be unjust to allow defendant to retain a
benefit that plaintiff had conferred without requiring defen-
dant to pay for it. Cron v. Zimmer, 255 Or App 114, 130, 296
P3d 567 (2013). And, as defendant observed as part of her
statute of frauds argument, neither the existing complaint
nor the supporting declaration contended that the equi-
ties weighed in favor of granting plaintiff relief. Plaintiff’s
proposed fraud and ejectment claims would similarly
have injected new issues into the case. See Conzelmann v.
N.W.P. & D. Prod. Co., 190 Or 332, 350, 225 P2d 757 (1950)
(elements of fraud include, among others, proof of a false
representation and the plaintiff’s reasonable reliance on the
representation); ORS 105.005 (ejectment action requires a
present right to possession of property); Eggen v. Wetterborg,
193 Or 145, 151, 237 P2d 970 (1951) (same).
480 Day v. Day
Moreover, this is not a case like Ramsey, where the
plaintiff’s proposed amendments were proffered to cure
deficiencies that the defendant had identified in a motion
to strike. 162 Or App at 147; see also Jensen v. Duboff, 253
Or App 517, 524, 291 P3d 738 (2012) (stating, in case where
amended complaint alleged same three claims against same
four parties, but, in an attempt to cure defects, provided more
precise facts and supporting exhibits, that “[l]eave to amend
is more freely given where the plaintiff does not introduce
new claims but simply strengthens existing ones”); Caldeen
Const., LLC, 248 Or App at 89 (trial court abused its discre-
tion in denying leave to amend complaint where proposed
amendments would not have introduced new claims into
case, were proffered in response to defendant’s first respon-
sive pleading, and would have clarified plaintiffs’ allegations
of causation). Indeed, in this case, plaintiff expressly stated
at the hearing on her proposed amendments that they were
not being proffered in an effort to address perceived defi-
ciencies in the existing complaint. As a result, this is not a
case in which a party who has successfully challenged the
sufficiency of a complaint later seeks to obstruct a good faith
effort to correct that pleading’s identified defects.
The prejudice and timing factors require rela-
tively little discussion. As plaintiff points out in her brief-
ing, the focus of defendant’s prejudice argument is that she
would face further exposure and have to prepare additional
defenses if plaintiff were allowed to amend the complaint. We
have explained, however, that those general consequences
that tend to accompany any amendment are not prejudice
of a sort that weighs against allowing an amendment under
ORCP 23 A. See Jensen, 253 Or App at 524 (fact that defen-
dant will have to continue defending an action “does not con-
stitute prejudice; rather, it is a generic assertion common to
every defendant opposing a plaintiff’s motion to amend”);
Safeport, Inc. v. Equipment Roundup & Mgf, Inc., 184 Or
App 690, 700, 60 P3d 1076 (2002), rev den, 335 Or 255 (2003)
(where opposing party does not identify particular prejudice
if amendment were allowed, a vague claim of prejudice is not
well taken). And, relevant to both the prejudice and timing
factors, defendant did not argue that she would be unable to
prepare the necessary defenses in the time remaining before
Cite as 299 Or App 460 (2019) 481
trial, nor was there any indication that the proposed amend-
ments would necessitate postponing the existing trial date
in a manner that would be prejudicial to defendant or inter-
fere with the trial court’s management of its own docket.
Thus, even accepting that the proposed amendments would
require defendant to prepare a defense against a more com-
plex case in a relatively short time, the second and third
factors add little if any weight to defendant’s position.
Turning, finally, to the fourth Ramsey factor, we con-
clude that the colorable merit of plaintiff’s new allegations—
or, more accurately, the relative lack thereof—weighs
against the requested amendment. That is, to the extent
that defendant’s failure to argue the merits of some of the
proposed amendments on appeal suggests defendant’s view
that they do have merit, we do not necessarily share that
view. We do not suggest that the proposed amendments
regarding fraud, ejectment, and unjust enrichment did not,
as alleged, state claims, and, for purposes of discussion,
we assume that those allegations were sufficient to do so.
However, the trial court was not required to limit its assess-
ment of the colorable merit of those claims to the bare alle-
gations of the proposed amended complaint. Rather, it was
permitted to consider them in light of the existing case,
including defendant’s challenge to the original complaint.
Central to that challenge was the absence of any allegation
or evidence that, at the time that plaintiff transferred the
property to her, defendant had agreed to someday restore
plaintiff’s title, whether upon plaintiff’s satisfaction of a con-
dition or upon defendant’s failure to fulfill a requirement of
her own. That absence persisted throughout the summary-
judgment proceedings, even though defendant put plaintiff
on notice through her motion and plaintiff had an opportu-
nity to address it through the declaration she submitted in
response. Thus, in evaluating the colorable merit of plain-
tiff’s new claims, the trial court was entitled to conclude that
plaintiff would likely be unable to produce that evidence.
Moreover, because each of plaintiff’s proposed new claims
as alleged would likewise have required plaintiff to prove
that defendant had acquired title by promising to restore
the property to plaintiff’s name, the court was entitled to
conclude that she was unlikely to be unable to prove those
482 Day v. Day
claims as well.12 As a result, the court reasonably could have
concluded that plaintiff’s proposed amendments lacked col-
orable merit. Accordingly, the fourth Ramsey factor weighs
heavily against plaintiff in this case.
Considering all four factors, we conclude that the
trial court did not abuse its discretion in denying plaintiff’s
request for leave to amend her complaint. Although there
was little if any indication that the amendments would have
prejudiced defendant or affected the trial court’s manage-
ment of its docket, plaintiff’s proposed amendments would
have substantially altered the nature of the action and,
given the procedural history of the case, the court could have
reasonably concluded that plaintiff would likely be unable to
prove her new claims and that the proposed amendments
therefore lacked colorable merit. Although it may not have
been a foregone conclusion that plaintiff would be unable to
produce the evidence needed to sustain her new claims, and,
given the other factors, another court may reasonably have
concluded that the Ramsey factors tipped in favor of allow-
ing the proposed amendments, we cannot conclude that it
was an abuse of discretion for the trial court in this case
to have viewed those factors as weighing against plaintiff’s
request. As a result, it was reasonable for the court to deny
plaintiff’s request based on that view of the Ramsey factors,
and, accordingly, the trial court did not abuse its discretion
in denying plaintiff leave to amend.
Affirmed.
12
As noted, 299 Or App at 474 n 8, even though the original complaint alleged
that defendant had agreed in February 2013 to transfer the property, plaintiff
has not argued that that agreement is the basis of her contract claim. Similarly,
we do not understand the proposed amendments to the complaint or plaintiff’s
arguments regarding them to suggest that defendant’s conduct or statements in
2013 and 2014, five or six years after plaintiff transferred the property to defen-
dant, could serve as an independent basis for any of her claims, old or new.