Day v. Day, A161842

• Citation: 450 P.3d 1,299 Or.App. 460
• Decision Date: 18 September 2019
• Docket Number: A161842
• Parties: Renee DAY, Plaintiff-Appellant, v. Margaret DAY, aka Marguerite Gregoire, Defendant-Respondent.
• Court: Court of Appeals of Oregon

299 Or.App. 460
450 P.3d 1

Renee DAY, Plaintiff-Appellant,
v.
Margaret DAY, aka Marguerite Gregoire, Defendant-Respondent.

A161842

Court of Appeals of Oregon.

Argued and submitted August 29, 2017.
September 18, 2019

Richard L. Grant, Portland, 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.

299 Or.App. 461

Plaintiff appeals an award of summary judgment in favor of defendant on her

450 P.3d 3

claims for quiet title and breach of contract and raises three assignments of error. First, plaintiff asserts that the trial court abused its discretion in denying 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 granting 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 postpone 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 harmless. 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 discretion 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 matter of law.

299 Or.App. 462

Burgdorf v. Weston , 259 Or. App. 755, 756, 316 P.3d 303 (2013), rev den , 355 Or. 380, 328 P.3d 696 (2014) ; ORCP 47 C. As the party opposing summary judgment, plaintiff "has the burden 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 P.3d 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 judgment 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 deposited in a checking account on which plaintiff was a signatory, but which belonged to her brother, Hoffman.² According to plaintiff, the parties also agreed that she would make all of the

450 P.3d 4

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.

299 Or.App. 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 beneficiary. 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 continued 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 defendant’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 property and asserting a breach of contract claim against defendant. 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 complaint, 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 plaintiff had requested in discovery—records that plaintiff contended were essential to an effective summary-judgment

299 Or.App. 464

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 judgment dismissing both of plaintiff’s claims with prejudice, plaintiff initiated this appeal.

For ease of discussion we begin with plaintiff’s second assignment of error, in which she contends that the trial court erred in granting defendant’s motion for summary 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.

450 P.3d 5

"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:

299 Or.App. 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 [plaintiff] 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 property in question was free and clear of any liens or encumbrances, 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

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