Evans v. City of Warrenton

• Decision Date: 29 December 2016
• Docket Number: A158819
• Citation: 388 P.3d 1167,283 Or.App. 256
• Parties: Maryann EVANS, Plaintiff-Appellant, v. CITY of Warrenton and Ralph H. Pickering, Defendants, and FIDELITY NATIONAL TITLE INSURANCE COMPANY, Defendant-Respondent.
• Court: Oregon Court of Appeals

283 Or.App. 256

388 P.3d 1167

Maryann EVANS, Plaintiff-Appellant,

v.CITY of Warrenton and Ralph H. Pickering, Defendants,andFIDELITY NATIONAL TITLE INSURANCE COMPANY, Defendant-Respondent.

A158819

Court of Appeals of Oregon.

Submitted March 21, 2016.

December 29, 2016

Robert J. Sullivan and Robert J. Sullivan, P.C., filed the briefs for appellant.

Janis G. White and Fidelity National Law Group filed the brief for respondent.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.

LAGESEN, J.

Plaintiff appeals a general judgment in favor of defendant Fidelity National Title Company on plaintiff's claims against defendant for breach of defendant's duty as an escrow agent, and for breach of a title insurance contract between the parties.¹ Plaintiff alleges that, when defendant provided escrow services to plaintiff in connection with a real estate transaction, defendant breached the applicable standard of care by failing to discover and disclose to plaintiff that the City of Warrenton had the right to maintain a waterline across plaintiff's property. Plaintiff also alleges that defendant's handling of other matters related to the city's waterline breached the parties' title insurance contract. The trial court granted summary judgment to defendant on the ground that defendant had established that plaintiff did not own the land on which the city's waterline is located and, for that reason, plaintiff's claims against defendant failed as a matter of law.² We conclude that there are factual disputes as to whether plaintiff owns the property on which the waterline is located and, accordingly, reverse.

We review a trial court's grant of summary judgment to determine whether there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. That standard is satisfied if, viewing the relevant facts and all reasonable inferences in the light most favorable to the nonmoving party—here, plaintiff—"no objectively reasonable juror could return a verdict for [plaintiff] on the matter that is the subject of the motion for summary judgment." Id. ; Robinson v. Lamb's Wilsonville Thriftway , 332 Or. 453, 455, 31 P.3d 421 (2001).

Consistent with our standard of review, we state the facts in the light most favorable to plaintiff, the nonmoving party. In 2008, plaintiff purchased vacant land in Warrenton, Oregon. The property consists of four parcels, known as Parcels 1 through 4, together with 30 feet of an adjacent abandoned railroad right of way. Before purchasing the land, plaintiff walked the property with the seller, who showed her that it included 30 feet of the abandoned railroad right of way located along the western boundary of two of the parcels.

Defendant prepared the preliminary title report for the transaction. That title report described the property as consisting of Parcels 1 through 4, "TOGETHER WITH: The East 30 feet of the abandoned railroad right of way that abuts the West line of Parcels One and Three." The title report did not disclose that the city's waterline was located on the abandoned railroad right of way.

Defendant later prepared the deed for the property. As did the preliminary title report, the deed reflects that the property conveyed to plaintiff consists of Parcels 1 through 4, and a portion of the abandoned railroad right of way. However, the deed describes the location of the abandoned railroad right of way differently from the preliminary title report. The reference to "Parcels One and Three" has been crossed off, and a reference to "Two and Five" typed into its place: "TOGETHER WITH: The East 30 feet of the abandoned railroad right of way that abuts the West line of Parcels XXXXXXXXXXXXX Two and Five." The record does not disclose the reason for the change. It is undisputed that plaintiff's property does not contain a Parcel 5, and that there is no abandoned railroad right of way abutting the western boundary of Parcel 2.

Sometime after purchasing the property, plaintiff discovered that the city had an "18 inch ductile iron water line running north and south * * * within the abandoned railroad right of way within a couple of feet" of the western boundary of plaintiff's other parcels. Plaintiff walked the property with the city's public works foreman, who showed her where the waterline was located—on the abandoned railroad right of way abutting Parcels 1 and 3, within 30 feet of the western boundaries of those parcels.

Plaintiff subsequently sued defendant in connection with its failure to discover and disclose the waterline located on the abandoned railroad right of way. As noted, the trial court granted summary judgment to defendant based upon its determination that it was undisputed that plaintiff did not own the property on which the waterline was located, given the deed's description of the property conveyed to plaintiff from Pickering. The court concluded that, because plaintiff did not own the property, her claims against defendant failed as a matter of law under our decision in Kraft v. Estate of John Ronald Cooper, Sr. , 263 Or.App. 420, 330 P.3d 639 (2014). Plaintiff appeals. She contends that the trial court erred in granting...