Grandmontagne v. Hogan, A174226

CourtCourt of Appeals of Oregon
Writing for the CourtAOYAGI, J.
Citation321 Or.App. 837
PartiesLeo GRANDMONTAGNE, Plaintiff-Appellant, v. Carolyn Jean HOGAN, Personal Representative of the Estate of Walter B. Hogan, Defendant-Respondent.
Docket NumberA174226
Decision Date21 September 2022

321 Or.App. 837

Leo GRANDMONTAGNE, Plaintiff-Appellant,

Carolyn Jean HOGAN, Personal Representative of the Estate of Walter B. Hogan, Defendant-Respondent.


Court of Appeals of Oregon

September 21, 2022

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted July 26, 2022.

Coos County Circuit Court 19CV35235 Brett A. Pruess, Judge.

Manuel C. Hernandez argued the cause for appellant. Also on the briefs was Hernandez and Associates, LLC.

Casey S. Murdock argued the cause for respondent. Also on the brief were Tracy M. McGovern and Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.



[321 Or.App. 838] AOYAGI, J.

Plaintiff Leo Grandmontagne brought this action against defendant, alleging that defendant had committed legal malpractice and deceit in connection with representing Grandmontagne in a quiet-title action.[1] The trial court granted summary judgment for defendant on both claims. It concluded that Grandmontagne could not prevail on either claim because, by application of the doctrine of issue preclusion, Grandmontagne could not prove causation or damages. Grandmontagne appeals, challenging the grant of summary judgment. He argues that the trial court erred in its application of the doctrine of issue preclusion. We affirm.


This case has an extensive factual and procedural history, such that even a brief summary of the facts is lengthy. Given the particular posture of this case, however, we are inclined to be clear with the parties about the facts on which we rely and the legal arguments that we are addressing. We therefore summarize the basic facts before explaining our analysis. In doing so, we view the record in the light most favorable to the nonmoving party, Grandmontagne. ORCP 47 C. We consider only the evidence in the summary judgment record; our task is fundamentally to determine whether the trial court erred in ruling as it did, and the trial court's ruling was based on the materials in the summary judgment record. See U.S. Bank National Association v. Vettrus, 285 Or.App. 629, 637-38, 397 P.3d 68 (2017) (stating, on review of a summary judgment ruling, that we cannot "consider new potential evidence for the first time on appeal").

In 1985, Gordon Hayes purchased Tax Lot (TL) 200, a 117-acre parcel in Coos County. Hayes also owned TL 101, which was adjacent to and immediately east of TL 200.


[321 Or.App. 839] Shortly after buying TL 200, Hayes built a road on TL 200, which the parties call the "northern access road."

In 1988, Hayes conveyed an undivided one-half interest in TL 200 to Grandmontagne, who was his cousin and business partner. At the time, Grandmontagne owned TL 201 and TL 202, which were adjacent to and immediately south of TL 200.

Grandmontagne and Hayes's relationship became strained. In 1992, Grandmontagne filed an action against Hayes-Grandmontagne v. Hayes, Case No. 92CV0914-in which Grandmontagne asserted various claims regarding TL 200, and Hayes asserted counterclaims. The parties stipulated to a partition of TL 200, but they disagreed on how to divide it. At trial, as relevant here, there was testimony that Hayes used the northern access road and that Grandmontagne did not. In its 1993 judgment, the partition court rejected both parties' suggested means of division and instead took an approach that would minimize ongoing "entanglement." It divided TL 200 into "equal halves, north and south." Grandmontagne became the owner of the southern half of TL 200, which kept the number TL 200. Hayes became the owner of the northern half of TL 200, which was renumbered TL 101, and existing TL 101 was renumbered TL 102. That method of division meant that Hayes would own most of the northern access road. As for the small portion of the road that passed through Grandmontagne's newly divided property, the court gave Hayes an easement to continue his existing uses of the road, and it ordered Hayes to install gates at each end of the easement. Grandmontagne was not given any rights on Hayes' property. Eventually, after much delay, a boundary line adjustment was recorded, which was later corrected to fix an accidental reversal of the two property descriptions.

The following excerpt from a map in the summary judgment record shows the locations of the various lots. After partition, Hayes owned the northern half of original TL 200 (hash-marked; renumbered TL 101) and TL 101 (solid white; renumbered TL 102), and Grandmontagne owned the southern half of original TL 200, TL 201, and TL 202 (all solid grey):


[321 Or.App. 840] (Image Omitted)


[321 Or.App. 841] After the 1993 partition, Grandmontagne used the northern access road on TL 101, despite Hayes's efforts to stop him. Hayes put locks on the gates at each end of the easement, which Grandmontagne would cut or shoot off. Hayes called the sheriffs office, which declined to get involved in what it considered a civil dispute.

In 2015, Hayes died, and his sister Sharon Brickey inherited TL 101 and TL 102. In June 2017, Brickey filed a quiet-title action against Grandmontagne. Brickey v. Grandmontagne, Case No. 17CV26463. Without getting into details that are not relevant to the issues on appeal, suffice it to say that, viewing the summary judgment record in the light most favorable to Grandmontagne, Grandmontagne retained defendant to represent him in the quiet-title action, and defendant negligently or intentionally failed to do so, including failing to appear. In October 2017, the trial court entered a default order and judgment in the quiet-title action, including finding that Grandmontagne did not have an easement to use the northern access road and ordering that he had no right to use the northern access road.

In March 2018, Grandmontagne cut the locks off Brickey's gates and used the northern access road. He was subsequently arrested and charged with second-degree criminal mischief and second-degree criminal trespass in State v. Grandmontagne, Case No. 18CR19433. Grandmontagne's defense theory was that he was unaware of the default judgment in the quiet-title action and that he reasonably believed that he had the right to use the northern access road and to damage Brickey's locks to gain access. The criminal court was reluctant to allow Grandmontagne to litigate the easement issue in the criminal trial, taking the view that any easement claim should have been litigated in the quiet-title action. However, the criminal court ultimately ruled that, if Grandmontagne moved to overturn the default judgment in the quiet-title action, based on his not knowing about the default judgment, then Grandmontagne could present evidence in the criminal trial that he did not know about the default judgment.

Less than a week later, on September 13, 2018, Grandmontagne moved to set aside the default judgment


[321 Or.App. 842] in the quiet-title action, asserting that he had not known about the default judgment. While that motion was pending, the criminal case proceeded to trial. Evidence of Grandmontagne's personal knowledge of the default judgment was admitted during the criminal trial, and the jury was asked to make a finding on that issue. Grandmontagne was convicted on both counts on September 18,2018. The jury specifically found that Grandmontagne was "aware[] that he did not have the right to enter or remain on [Brickey's] premises" and "knew the court had taken away his right to use the access road"; that Grandmontagne "intentionally damaged" Brickey's gate locks; and that Grandmontagne "had no right, nor reasonable ground to believe that he had such a right, to damage the property." Grandmontagne appealed the judgment of conviction, and we affirmed in State v. Grandmontagne, 304 Or.App. 724, 473 P.3d 151 (2020).

A month after the criminal trial, in late October 2018, the quiet-title court denied Grandmontagne's motion to set aside the default judgment. The court cited multiple considerations for the denial, including that Grandmontagne did not act with reasonable diligence in moving to set aside, that Grandmontagne's failure to appear was not excusable under the circumstances, and that Grandmontagne likely could not prevail on his easement claims on the merits. Grandmontagne did not pursue an appeal.

In August 2019, Grandmontagne filed this action against defendant. The operative complaint alleges two claims: (1) a claim for legal malpractice, based on defendant having failed to appear in the quiet-title action on Grandmontagne's behalf and having failed to adequately communicate with Grandmontagne at key points, including failing to notify...

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