Burgdorf v. Weston

• Decision Date: 11 December 2013
• Docket Number: A147599.,083428E2
• Citation: 316 P.3d 303,259 Or.App. 755
• Parties: Donna BURGDORF, Plaintiff–Appellant, v. Brian K. WESTON, Defendant–Respondent.
• Court: Oregon Court of Appeals

259 Or.App. 755
316 P.3d 303

Donna BURGDORF, Plaintiff–Appellant,
v.
Brian K. WESTON, Defendant–Respondent.

083428E2; A147599.

Court of Appeals of Oregon.

Argued and submitted Sept. 28, 2012.
December Dec. 11, 2013.

[316 P.3d 305]

Darrel R. Jarvis argued the cause for appellant. With him on the briefs was Huycke, O'Connor, Jarvis, Dreyer, Davis & Glatte, LLP.

Richard B. Thierolf, Jr., Medford, argued the cause for respondent. With him on the brief was Jacobson, Theirolf & Dickey, P.C.

Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.

DUNCAN, J.

This civil case arises out of an ownership dispute concerning a piece of real property, which plaintiff and defendant each assert that they own, and exchanges of money between the parties. Plaintiff appeals from a limited judgment entered by the trial court after the court granted defendant's motion for summary judgment on plaintiff's claims for declaratory relief, fraud, and unjust enrichment and granted defendant's motion for partial summary judgment quieting title to the real property in defendant. Plaintiff argues that the trial court erred in granting summary judgment because there are genuine issues of material fact with respect to each of plaintiff's claims. For the reasons that follow, we agree, and, therefore, reverse and remand.

Because this case comes to us on summary judgment, we review the record in the light most favorable to the nonmoving party—in this case, plaintiff—to determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997).

Plaintiff and defendant were involved in a long-term romantic relationship. Defendant continually promised plaintiff that he would move from Utah to live with her in Oregon. Plaintiff advanced sums of money to defendant, purchased goods for him, and paid for certain living expenses for him and his son. According to plaintiff, those amounts totaled $212,357.84.

In 2004, plaintiff purchased a piece of real property, including land and a mobile home, in Jacksonville, Oregon. Although defendant did not contribute funds to the purchase of the property, the deed listed both defendant and plaintiff, “not as tenants in common but with rights of survivorship.” Until this action commenced, plaintiff made all mortgage, insurance, tax, and maintenance payments on the property. Plaintiff also lived on the property. On February 10, 2006, plaintiff conveyed her one-half interest in the property to defendant for no consideration so that defendant could take out a loan against the property. Defendant then used the property as collateral to obtain a loan of $96,000.00, of which he gave plaintiff $26,276.00. According to plaintiff, she and defendant orally agreed that, once defendant had obtained the loan, he would reconvey plaintiff's one-half interest to her. Defendant did not reconvey plaintiff's original one-half interest and now seeks to sell the property.

[316 P.3d 306]

Plaintiff filed a complaint on July 24, 2008, seeking declaratory relief. Plaintiff filed an amended complaint on March 18, 2009, alleging claims for declaratory judgment, fraud, and unjust enrichment. With respect to her first claim, plaintiff seeks a declaration from the court that plaintiff owns the property in fee simple absolute and that defendant has no right, title, or interest in the property. Plaintiff also asks the court to order defendant to execute a properly prepared warranty deed transferring the property to plaintiff. In addition, plaintiff asks the court to order defendant to “pay all monetary encumbrances against the property into clear title as of the date of the transfer to the defendant.” With respect to her claim for fraud, plaintiff seeks damages in the amount of $212,357.84 and one-half of the value of the land and home. In the alternative, plaintiff seeks to recover those same damages under her claim for unjust enrichment.

Defendant filed an answer denying the majority of plaintiff's allegations, including the existence of the 2006 oral contract. Defendant asserted numerous affirmative defenses, including the statute of frauds. Defendant also alleged counterclaims for ejectment and, if the court awarded the property to plaintiff, unjust enrichment.

On February 22, 2010, defendant filed a motion for summary judgment on all three of plaintiff's claims. Plaintiff filed a response opposing defendant's motion for summary judgment. Plaintiff attached an affidavit by herself, an affidavit by defendant's sister, and exhibits showing that plaintiff had paid for property-related expenses such as the mortgage, taxes, and insurance. Following a hearing, the trial court issued an order granting defendant's motion for summary judgment.

The trial court granted summary judgment to defendant on all three of plaintiff's claims. The court granted summary judgment to defendant on the declaratory judgment claim because it concluded that plaintiff had failed to plead the elements of an enforceable contract, and that, even if she had pleaded those elements, the claim was nonetheless barred by the statute of frauds. ORS 41.580(1)(d) (oral agreements made upon consideration of marriage, other than a mutual promise to marry, are not enforceable); ORS 41.580(1)(e), ORS 93.020 (oral agreements for the sale of real property, or any interest therein, are not enforceable). The court held that plaintiff could not rely on the doctrine of partial performance to avoid the application of the statute of frauds. Under the doctrine of partial performance, if the party asserting the doctrine can show, by a preponderance of the evidence, the existence of an agreement that is clear and unambiguous in its terms, that the partial performance unequivocally and exclusively refers to the agreement, and that there are equitable grounds for enforcing the agreement, then a court may enforce an oral agreement concerning the sale or transfer of an interest in land. Mukai Living Trust v. Lopez, 199 Or.App. 341, 345, 111 P.3d 1150 (2005). The trial court first held that plaintiff had not pleaded an oral contract associated with the transfer of property with the requisite clarity, certainty, and absence of ambiguity. The trial court further held that plaintiff could not satisfy the third requirement for partial performance, equitable entitlement to rely on the doctrine, because the 2006 events she relied on to establish her declaratory judgment claim were undertaken to defraud a bank, in that her transfer to defendant was to enable him to use the property, as if it were entirely his own, to secure a loan.¹

With respect to plaintiff's claim for fraud, the court held that, to the extent that that claim rested on the 2004 purchase of the property, which plaintiff alleged she would not have bought if not for defendant's representation that he was going to move to Oregon with her, it was barred by the two-

[316 P.3d 307]

year statute of limitations. The court held that defendant's alleged promise was not actionable as a promise to marry or a promise to cohabitate because Oregon does not recognize the former, and only rarely recognizes the latter, as a cause of action. The court also held that the alleged promise was not enforceable because it was oral and that the doctrine of partial performance did not apply for the same reasons as with respect to the declaratory judgment claim. To the extent that plaintiff's fraud claim rested on the 2006 events, the court held that the 2006 deed transferring title to defendant and plaintiff's 2006 letter to the bank negated the elements of a fraud claim.

The court dismissed plaintiff's claim for unjust enrichment because plaintiff testified in her deposition that she did not loan money to defendant. If plaintiff gave defendant the money as a gift, concluded the court, then there was no claim for unjust enrichment. In addition, the court held that, under Holdner v. Holdner, 176 Or.App. 111, 125, 29 P.3d 1199 (2001), rev. den.,334 Or. 288, 49 P.3d 797 (2002), plaintiff's evidence regarding the oral agreement with defendant and her 2006 letter to the bank was the kind of inconsistent evidence that is insufficient to make out an equitable claim for unjust enrichment. Finally, the court declined to exercise its equitable powers to award relief for unjust enrichment in light of what it viewed as plaintiff's fraud on the bank.

Defendant filed a motion for partial summary judgment on June 29, 2010, seeking to quiet title to the property in his name. Defendant argued that, in granting his initial motion for summary judgment, the trial court had “necessarily determined that plaintiff has no claim to [the property] or the mobile home located thereon.” The court granted defendant's motion for partial summary judgment on August 10. The court entered a limited judgment on December 20, 2010, and plaintiff timely appealed.

On appeal, plaintiff raises four assignments of error.² The gravamen of plaintiff's arguments is that the trial court erred in granting summary judgment for defendant because there are genuine issues of material fact regarding each of plaintiff's claims. A genuine issue of material fact exists if, viewing the record in the light most favorable to the party opposing summary judgment, an objectively reasonable juror could return a verdict for that party on the matter that is the subject of the motion for summary judgment. ORCP 47 C. Therefore, in this case, we review each claim, viewing the evidence in the light most favorable to plaintiff, to determine whether defendant demonstrated that he is entitled to judgment as a matter of law. Aylett v. Universal Frozen Foods Co., 124 Or.App. 146, 148, 861 P.2d 375 (1993).

We begin with plaintiff's claim for declaratory relief, which is premised on an alleged 2006 oral agreement between plaintiff and defendant regarding the real property....