Chong Ok Chang v. Eun Hee Chun

• Jurisdiction: Oregon
• Parties: CHONG OK CHANG, an individual, and Chong Ok Chang, as guardian ad litem for Meehyun Jennifer Chun and Eugene Dave Chun, Plaintiffs-Appellants, v. EUN HEE CHUN, an individual, and Sun Young Chun, an individual, Defendants-Respondents, and Ik Jung Chun, an individual, and Hyung Sun Chun, an individual, Defendants.
• Citation: 470 P.3d 410,305 Or. App. 144
• Docket Number: A165902
• Court: Oregon Court of Appeals
• Decision Date: 01 July 2020

305 Or.App. 144

470 P.3d 410

CHONG OK CHANG, an individual, and Chong Ok Chang, as guardian ad litem for Meehyun Jennifer Chun and Eugene Dave Chun, Plaintiffs-Appellants,

v.EUN HEE CHUN, an individual, and Sun Young Chun, an individual, Defendants-Respondents,andIk Jung Chun, an individual, and Hyung Sun Chun, an individual, Defendants.

A165902

Court of Appeals of Oregon.

Argued and submitted April 5, 2019.

July 1, 2020

George W. Kelly, Eugene, argued the cause and filed the briefs for appellants.

Paul R. Allen, Eugene, argued the cause for respondents.Also on the joint brief were Hutchinson Cox and John F. Kieran.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

LAGESEN, P. J.

Ik Jung Chun started a second family without telling or leaving his first one.He housed his second family in a rental home that he owned with his then-wife from his first family, defendantEun Hee Chun.For a time, he maintained both families without his first family finding out about the second one.Ik's deceit caught up with him.This led to two confrontations at the rental house between the members of his first family and the members of his second family.Those confrontations led the members of Ik's second family, plaintiffsChong Ok Chang(hereinafter referred to as Sophia), J, and E, to sue Eun and her daughter, defendantSun Young Chun, for trespass, assault, false imprisonment, and intentional infliction of emotional distress.

Before trial, the trial court dismissed E's claim for emotional distress under ORCP 46 B as a discovery sanction after his psychologist's office refused to provide his treatment records.Then, at trial, the court dismissed the trespass claims for failure to state a claim.The jury returned a verdict in Sophia's favor on her assault claim against Sun, awarding her $31 in damages, but otherwise rejected plaintiffs’ claims.Plaintiffs moved for a new trial on the ground that the jury poll reflected that the jury had not complied with the instructions explaining that the "same nine" jurors had to agree on the answers to the questions presented on the verdict form; the trial court denied that motion and subsequently awarded defendants their costs.Plaintiffs appealed.

On appeal, plaintiffs assign error to (1) the dismissal of E's claim for intentional infliction of emotional distress; (2) the dismissal of the trespass claims; (3) the denial of the new-trial motion; and (4) the award of costs to defendants.We conclude that the trial court erred by dismissing E's emotional-distress claim and the trespass claims but did not err in denying the motion for a new trial.Because our disposition requires the reversal of the judgment, including the award of costs, we need not reach the question of whether the court properly awarded costs.

I.STANDARDS OF REVIEW

The different assignments of error implicate three different standards of review.

We review for abuse of discretion a trial court's decision to strike a claim under ORCP 46 B. Pamplin v. Victoria , 123 Or. App. 388, 391, 859 P.2d 1185(1993), rev'd on other grounds , 319 Or. 429, 877 P.2d 1196(1994)(citingHahm v. Hills , 70 Or. App. 275, 279-80, 689 P.2d 995(1984) ).

We review the grant of a motion to dismiss for failure to state a claim under ORCP 21 A(8) for legal error.Rivas v. Board of Parole , 277 Or. App. 76, 78, 369 P.3d 1239(2016), rev. den. , 360 Or. 752, 388 P.3d 722(2017).In so doing, we accept as true the allegations in the complaint, and any reasonable inferences that can be drawn from those allegations, viewing them in the light most favorable to the nonmoving party.Id .

"Our standard of review of a trial court's denial of a motion for a new trial depends on the nature of the alleged error."Greenwood Products v. Greenwood Forest Products , 357 Or. 665, 678-79, 359 P.3d 219(2015).Here, the court's denial turned on an interpretation of law.That makes our review for legal error.Id . at 679, 359 P.3d 219.

II.FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs’ challenge to the dismissal of their trespass claims is the only one that implicates the underlying facts of the parties’ dispute.Therefore, in setting forth those facts, we focus on those relevant to the trespass claims.Because the trial court resolved those claims on defendants’ motion to dismiss for failure to state a claim, we draw the facts, in the main, from the complaint, though, for context, we draw some additional undisputed facts from the evidence presented at trial.The facts pertaining to plaintiffs’ other assignments of error are procedural and not disputed.

In 2001, Ik and Eun, with their children Sun and Hyung, moved from South Korea to Eugene, Oregon.Thereafter, they acquired multiple real properties in Oregon and Washington.One of those properties was a house in Vancouver, Washington, that Ik and Eun purchased to use as a rental.

During the same time period, Ik and Sophia had two children together, J and E.In 2013, Ik moved Sophia, J, and E to the United States, eventually housing them in the Vancouver rental house.J and E thought their parents were married.

In May 2014, Sophia and Ik entered into a written lease agreement for the Vancouver residence.The terms of the lease set rent at $100 per month; the rent was low because Ik was not otherwise paying child support.Eun was not a party to the lease agreement.When she learned that Ik had moved Sophia, J, and E into the home, she confronted Ik and told him that Sophia and her children were not allowed to live there.

In October 2014, Eun and Hyung drove to the Vancouver residence and confronted Sophia as she attempted to leave the home to pick up J from school.Eun blocked Sophia's car in the driveway with her vehicle.Eventually, Sophia left on foot to pick up her daughter.E, then 11 years old, had been watching the confrontation from a window inside the house.Eun and Hyung saw E in the window and yelled for him to open the door.E attempted to leave through the back door, but the women ordered him back in the house, questioned him, videotaped him, and took his house key.

Sophia, J, and E did not move out of the house.Half a year later or so, Eun returned to the Vancouver home, this time accompanied by Sun.Sophia and both children were home.Eun and Sun rang the doorbell, yelled, and kicked the door.They then unlocked the door using the key that Eun had taken from E, broke the chain lock that secured the door, and entered the house.Once inside, Eun dragged Sophia into a bedroom, pushed her onto a bed, struck her repeatedly, and prevented her from calling the police.

Following the two confrontations, Sophia, J, and E brought this action.Sophia alleged two claims for trespass to land, based on the two separate confrontations.Sophia and E also alleged individual claims for assault, and all three plaintiffs raised various claims for intentional infliction of emotional distress and false imprisonment.

Before trial, the court dismissed E's claim for intentional infliction of emotional distress.It did so under ORCP 46 B as a discovery sanction after E's counselors, Family Solutions, refused to turn over his psychological records.

Following the close of plaintiffs’ case, defendants moved to dismiss Sophia's trespass claims for failure to state a claim.Alternatively, defendants moved for a directed verdict on those claims.Defendants argued that the trespass claims did not state a claim because they did not sufficiently allege "actual and substantial damages" as required under Washington law, because the complaint alleged only noneconomic damages, which in their view could not, as a matter of law, constitute the type of damages needed to support a trespass claim.Defendants also argued that an additional basis for dismissal was that the complaint alleged that Sophia had a written lease agreement with IK Golf LLC, and there had been no evidence that IK Golf LLC owned the properties or was on the lease.Plaintiffs responded by requesting to amend and strike IK Golf LLC and replace it with Ik Chun to conform with the evidence.On the directed verdict motion, defendants argued that there was insufficient evidence that Sophia had the right to exclude others, contending that there was insufficient evidence that Sophia had a valid lease.The trial court granted the motion to dismiss the trespass claims and did not address the motion for a directed verdict.It ruled further that plaintiffs’ motion to conform was moot as a result of its decision to grant the motion to dismiss.

The jury found in Sophia's favor on her assault claim against Eun and awarded her noneconomic damages in the amount of $31.Plaintiffs subsequently moved for a new trial on the ground that the jury poll affirmatively demonstrated that the jury had not complied with the court's jury instruction that the "same nine" jurors were required to agree on the answers to each of the court's questions on the verdict form.The court denied the motion and, ultimately, awarded costs and disbursements to defendants.Plaintiffs appealed.

On appeal, plaintiffs challenge the dismissal of E's claim, the dismissal of the trespass claims, the denial of their new-trial motion, and the award of costs and disbursements.

Defendants respond that the challenged rulings are correct in all respects.

III.ANALYSIS

We address the plaintiffs’ assignments of error in turn, beginning with the challenge to the dismissal of E's intentional infliction of emotional-distress claim.

A.Dismissal of E's Intentional Infliction of Emotional-Distress Claim

The trial court dismissed E's claim for intentional infliction of emotional distress after Family Solutions, which provided counseling services to E, refused to turn over E's psychological records.Family Solutions refused to do so even though both E and his mother signed written authorizations allowing for the disclosure of the records.Family Solutions explained its decision in a letter to plaintiffs’ attorney:

"We are in receipt of your

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