Cron v. Zimmer

• Jurisdiction: Oregon
• Parties: Gary B. CRON, Geri L. Everson, Sandee Leitheiser, and Shane Hale, Plaintiffs–Appellants, v. Shawnita ZIMMER, Defendant–Respondent.
• Citation: 296 P.3d 567,255 Or.App. 114
• Docket Number: 160814132,A142540.
• Court: Oregon Court of Appeals
• Decision Date: 06 February 2013

255 Or.App. 114

296 P.3d 567

Gary B. CRON, Geri L. Everson, Sandee Leitheiser, and Shane Hale, Plaintiffs–Appellants,

v.Shawnita ZIMMER, Defendant–Respondent.

160814132; A142540.

Court of Appeals of Oregon.

Submitted April 6, 2012.

Decided Feb. 6, 2013.

Geri L. Everson filed the brief pro se.Gary B. Cron, Sandee Leitheiser, and Shane Hale joined the brief pro se.

George W. Kelly filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

Plaintiffs appeal from a general judgment dismissing their interference with economic relations, conversion, and unjust enrichment claims.Plaintiffs assign error to the trial court's grant of defendant's motion for summary judgment.Because we conclude that plaintiffs demonstrated sufficient evidence for a trial on their interference with economic relations, conversion, and unjust enrichment claims, we reverse and remand.

We state the facts in the light most favorable to the nonmoving party, plaintiffs in this case, to determine whether there are any genuine issues of material fact and whether defendant 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).Plaintiffs and defendant are siblings.Their mother, Conlin–Hutton, owned mineral rights to real property located in North Dakota.She intended to give the mineral rights to her five children in equal shares, but she died intestate in January 2006.Defendant was appointed the personal representative of her estate.Conlin–Hutton's husband, Hutton, inherited all of her estate, including the mineral rights in North Dakota.In May 2006, shortly after receiving the mineral rights, Hutton conveyed the rights to defendant for $1 and “other good and valuable consideration.”Approximately two years later, plaintiffs Cron and Everson called Hutton and told him that the mineral rights that he had conveyed to defendant were worth $30,000.After speaking to Cron and Everson, Hutton signed an affidavit in March 2008 that Everson prepared.Hutton's affidavit stated that he had conveyed the mineral rights to defendant so she could set up a trust to benefit all of the siblings:

“I, Harold Hutton, signed over the mineral rights of Betty Ann Conlin–Hutton to [defendant] with the intent that these mineral rights were to go to all five of [Conlin–Hutton]'s children.They were given to [defendant] to administer until the estate was settled and a trust could be established because she was living right across the street from me which allowed expedition of the transfer.The intent was clear[ ] and always that all five of the children would get an equal portion of any and all of the mineral rights.”

Shortly thereafter, plaintiffs filed three claims against defendant for her refusal to account to plaintiffs for their share of the proceeds derived from the mineral rights: (1) interference with economic relations; (2) conversion; and (3) unjust enrichment.Specifically, plaintiffs alleged in their complaint that: “6.

“It was the intention of Harold Hutton at the time he deeded the Mineral Rights to Defendant, that Defendant place the mineral rights into a trust which would own the mineral rights, receive any revenue generated by them, and distribute the proceeds in equal shares to each of Betty Ann Conlin–Hutton's five children.

“7.

“Prior to the transfer from Harold Hutton to Defendant, Defendant was aware of Harold Hutton's intention that the trust be created.Prior to the transfer, Defendant promised Harold Huttonshe would create such a trust if Harold Hutton deeded the Mineral rights to her.

“8.

“Defendant's promise induced Harold Hutton to deed the Mineral Rights to her.

“9.

“Defendant has failed and repeatedly refused to create the trust Betty Ann Conlin–Hutton and Harold Hutton intended.”

For all three claims, plaintiffs sought 80 percent of the revenue that defendant derived from the minerals on the property.They alleged that defendant had already received approximately $15,000 from the mineral rights.With respect to the unjust enrichment claim, plaintiffs also sought an accounting and injunctive relief compelling defendant to place the mineral rights into a trust, with the trustee to be selected by the court, so that future proceeds will be distributed in equal shares to the five siblings.¹

After depositions, defendant moved for summary judgment on all three of plaintiffs' claims.In essence, defendant argued that there was no issue of material fact concerning Hutton's intent to convey the mineral rights to defendant outright.Despite plaintiffs' allegations and Hutton's March 2008 affidavit, defendant asserted that plaintiffs did not provide evidence that Hutton intended that defendant set up a trust to distribute the revenues from the mineral rights associated with the property to all of the siblings.Without that intent, defendant reasoned, plaintiffs could not establish that defendant interfered with an economic relationship between Hutton and plaintiffs, converted plaintiffs' chattel, and was unjustly enriched.Thus, defendant concluded that, as a matter of law, she was entitled to summary judgment in her favor.

To support her motion, defendant presented excerpts of Hutton's deposition contradicting plaintiffs' allegations, as well as an August 2008 affidavit by Hutton in which he disavowed his sworn statements in his March 2008 affidavit.During Hutton's deposition, he said that he did not want the mineral rights because the rights generated approximately $60 per quarter and were not worth his time to manage.He conveyed the rights to defendant because she had been so helpful to him in his day-to-day life.Hutton said that all the allegations in plaintiffs' complaint concerning his intent to convey the mineral rights were false.He also disavowed the affidavit that Everson prepared and Hutton had signed, saying that he was coerced into signing it.

Plaintiffs responded by arguing that Hutton's initial sworn statements in his first affidavit produced an issue of material fact concerning his intent.In support of their allegations, plaintiffs submitted Hutton's affidavit, as well as excerpts from plaintiffs' depositions, about conversations that they had had with defendant and Hutton shortly after Conlin–Hutton's funeral concerning Hutton's intent to convey the mineral rights.Plaintiff Everson stated that the defendant and Hutton had told her that Hutton conveyed the mineral rights to defendant“for the purpose of [defendant] taking control on our behalf, for all five of us children.”Everson also testified that, based on the conversations she had with defendant, defendant knew that their mother wanted the mineral rights to be divided equally among all the children.Everson explained that defendant had told her that the reason Hutton did not simply convey the mineral rights to all five children was because a North Dakota attorney advised defendant to put one person on the deed and to let that person set up a trust to distribute the proceeds from the mineral rights.Thus, plaintiffs argued, Hutton transferred the mineral rights with the understanding that defendant would set up a trust, but defendant did not set up the trust or distribute any money derived from the property.

The trial court granted defendant's motion for summary judgment and this appeal followed.Plaintiffs appeared pro se and moved in this court for a determination as to whether Oregon courts have subject matter jurisdiction given that the mineral rights relate to real property located in North Dakota.²The Appellate Commissioner, and the Motions Department, considered the motion but concluded that Oregon courts have jurisdiction over all of plaintiffs' claims and that the appeal can continue in this forum.

On appeal, plaintiffs raise three assignments of error.First, plaintiffs raise an unpreserved assignment of error in which they contend that the trial court failed to consider intestate succession law under ORS 112.025;we reject it without discussion.Second, plaintiffs argue that the trial court erred in granting defendant's motion for summary judgment.Finally, plaintiffs reassert that the Oregon courts lack jurisdiction to adjudicate matters of real estate outside of Oregon.Before discussing the trial court's summary judgment ruling, we first address plaintiffs' challenge to the jurisdiction of Oregon courts to adjudicate the case because the minerals at issue are located on property in North Dakota.

Oregon courts are precluded from exercising subject matter jurisdiction over recovery of real property located outside the state.Claude v. Claude,191 Or. 308, 335, 228 P.2d 776,on reh'g,191 Or. 308, 230 P.2d 211(1951).The general rule is codified in ORS 14.030, which provides, “When the court has jurisdiction of the parties, it may exercise it in respect to any cause of action or suit wherever arising, except for the specific recovery of real property situated without this state, or for an injury thereto.”(Emphasis added.)In Oregon and North Dakota, all interests in mineral rights are real property.SeeORS 517.080 (“All mining claims, whether quartz or placer, are real estate.The owner of the possessory right thereto has a legal estate therein * * *.”);Schulz v. Hauck,312 N.W.2d 360, 361(N.D.1981)(holding that mineral interests are real property).Claims for personal property, such as money damages, are transitory in nature, and ORS 14.030 does not prohibit the exercise of jurisdiction.Novich v. McClean,172 Or.App. 241, 245, 18 P.3d 424,rev den,332 Or. 137, 27 P.3d 1043(2001).

In this case, plaintiffs primarily seek money damages.The exception to subject matter jurisdiction in ORS 14.030 for “the specific recovery of real property situated without the state” does not apply to plaintiffs' claims for interference with economic relations and conversion, in which they seek only money damages.Nor does it...