Landauer v. Landauer
| Decision Date | 02 July 2008 |
| Docket Number | C044434CV.,A133214. |
| Citation | 221 Or. App. 19,188 P.3d 406 |
| Parties | Kenneth LANDAUER, an individual, as conservator and guardian of Harry Landauer and Gertrude Landauer, Plaintiff-Appellant, v. Larry S. LANDAUER, an individual; Marilyn Landauer, an individual; FLN, LLC, an Oregon limited liability company; Randall L. Duncan, an individual; and Duncan Honn, P.C., an inactive domestic professional corporation, Defendants-Respondents. |
| Court | Oregon Court of Appeals |
Wendy Margolis, Portland, argued the cause for respondents Randall L. Duncan and Duncan Honn P.C. With her on the brief were Thomas W. Brown and Cosgrave Vergeer Kester LLP.
Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SCHUMAN, Judge.
This case involves the adjudication of claims for civil damages for alleged elder abuse1 and professional malpractice brought by plaintiff, as conservator and guardian on behalf of his parents, Henry and Gertrude, against his brother, Larry; Larry's wife, Marilyn; their limited liability corporation, FLN; and their attorney and the attorney's law firm.2 At the close of plaintiff's evidence, the trial court granted defendant attorneys' motion for a directed verdict under ORCP 60 on plaintiff's elder abuse and professional malpractice claims against them on the ground that the governing statutes of limitation had expired. The remaining elder abuse claim against Larry, Marilyn, and FLN was allowed to go to the jury, which found for defendants, also on statute of limitations grounds. Plaintiff appeals and raises five assignments of error. We affirm.
Plaintiff's claims arise out of a 1996 transaction between Henry and Gertrude and Larry, Marilyn, and FLN, a transaction handled by the defendant attorneys. In 1947, Henry and Gertrude bought an 80-acre farm on which they raised five children, including Kenneth and Larry. At some point in time, Henry operated a nursery on the farm. After Henry retired in 1974, Larry operated the nursery, leasing the land from his parents. In January 1996, Henry and Gertrude sold the farm to Larry, Marilyn, and FLN. In December 2004, plaintiff brought this action alleging that defendants had acted in concert to exercise undue influence over Henry and Gertrude in a manner that induced them to sell the farm for less than its fair market value under terms that they did not comprehend and that were inconsistent with their estate planning objectives.
On appeal, plaintiff makes the following claims of error: (1) the trial court erred in excluding evidence that was relevant to when Henry or Gertrude discovered the alleged wrongdoings of defendants; (2) the trial court erred in excluding the testimony of witness Amy Stanek, Henry and Gertrude's granddaughter, relevant to when Henry or Gertrude discovered the alleged wrongdoing of defendants; (3) the trial court erred in excluding the testimony of a court-appointed visitor and her reports of a conversation that she had with Henry and Gertrude in 2004; (4) the trial court erred when it granted a directed verdict for defendant attorneys on plaintiff's professional malpractice claim; and (5) the trial court erred when it granted a directed verdict in favor of defendant attorneys on plaintiff's elder abuse claim.
In light of our case load and resources, our policy is to publish written opinions and discuss assignments of error in detail only when they benefit the bench, bar, and public as well as the parties. We have reviewed all of plaintiff's assignments of error and elect not to discuss the claims of error raised in his second, third, fourth, and fifth assignments of error because they were either not adequately preserved in the trial court, as required by ORAP 5.45, or because plaintiff is unable to demonstrate, as required by ORS 19.415(2), that any error resulting from the trial court's rulings substantially affected his rights.3
We turn our attention to the first assignment of error. Initially, we observe that the first assignment of error challenges multiple rulings involving multiple offers of proof. That format does not comply with ORAP 5.45(3)'s requirement that "[e]ach assignment of error shall identify precisely the legal, procedural, factual, or other ruling that is being challenged." (Emphasis added.) The grouping of a trial court's rulings under a single assignment of error hinders the evaluation of each individual ruling on its merits and is a practice that should not be followed.4 Nonetheless, we have evaluated each ruling under the first assignment as a separate ruling and conclude, for the reasons expressed above as to second, third, fourth, and fifth assignments, that they do not warrant discussion. Consequently, there is only one ruling made by the trial court that we discuss under the first assignment, as more fully explained below.5
Part of plaintiff's theory at trial was that Henry and Gertrude had unknowingly been induced to enter into an arrangement that deprived all of their children of an equal share of their estate upon their death as the result of a new will and trust agreement executed in 1996. During the trial, plaintiff offered testimony from Henry that he did not discover until 2004 that the 1996 transaction included the execution of a new will that created a life estate interest for Henry and Gertrude in the property, that the debt owed by Larry, Marilyn, and FLN for the property would be forgiven when he and Gertrude died, and, because they retained a life estate, the purchase price of the property had been reduced by approximately $145,000. Accordingly, under plaintiff's theory, the statutes of limitations under ORS 124.130 and ORS 12.110(1) did not begin to run until the time of Henry's discovery of those facts in 2004.6 The trial court sustained defendants' objection to the offer of proof, and plaintiff assigns, in part, that ruling as error under his first assignment.
We agree with plaintiff that Henry's testimony was relevant to when he claimed he discovered the alleged elder abuse and professional malpractice and to the issue of when the statutes of limitation began to run. OEC 401. Indeed, with regard to plaintiff's elder abuse claim, the jury expressly found that the seven-year limitation period in ORS 124.130 expired before plaintiff filed this action in December 2004. But, as a general rule, the exclusion of evidence will not constitute reversible error if the jury has been given substantially the same information as was contained in the offer of proof. See, e.g., Osborne v. Bessonette/Medford Mtrs., 265 Or. 224, 229, 508 P.2d 185 (1973); Sneath v. Physicians and Surgeons Hospital, 247 Or. 593, 599, 431 P.2d 835 (1967).
In the offer of proof made during trial, plaintiff asserted that Henry would testify to four matters. First, Henry would testify that he discovered for the first time in 2004 that he had executed a new will as part of the 1996 transaction. However, earlier in the trial, Henry had been asked the following questions and gave the following answers:
Thus, the offer of proof that Henry would testify that he first discovered in 2004 that he had a new will is cumulative of his earlier testimony that he had "[j]ust lately" learned he had executed a new will.
Second, plaintiff in his offer of proof represented that Henry would testify that he first discovered in 2004 that the transaction included a trust that he and Gertrude created. However, earlier in the trial, Henry testified:
Thus, Henry testified initially that he had no recollection of establishing a trust in 1996. His proffered testimony that he first discovered in 2004 that he had created a trust would merely have been additional evidence that he was unaware of that fact.7
Third, plaintiff, in his offer of proof, represented that Henry would testify that he learned for the first time in 2004 that any remaining debt from the sale of the property would be forgiven when he and Gertrude died. However, earlier in the trial, Henry testified:
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