Neel v. Lee

• Decision Date: 08 December 2021
• Docket Number: A170408
• Citation: 316 Or.App. 159,504 P.3d 26
• Parties: Deborah NEEL, Plaintiff-Appellant, v. Dana LEE and Tammie Lee, husband and wife, and Danielle K. Lee, Defendants-Respondents.
• Court: Oregon Court of Appeals

316 Or.App. 159

504 P.3d 26

Deborah NEEL, Plaintiff-Appellant,

v.Dana LEE and Tammie Lee, husband and wife, and Danielle K. Lee, Defendants-Respondents.

A170408

Court of Appeals of Oregon.

Argued and submitted September 17, 2020.

December 8, 2021

Matthew J. Kalmanson, Portland, argued the cause for appellant. Also on the briefs was Hart Wagner LLP.

Tricia M. Olson, Salem, argued the cause for respondents. Also on the brief was Heltzel Williams PC.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Brewer, Senior Judge.

DeVORE, P. J.

Plaintiff Neel appeals from a judgment dismissing her two claims—one for financial abuse of a vulnerable person and another for restitution due to unjust enrichment. The claims arose out of the plan of related family members to combine resources to buy a residential property to live together. Plaintiff first assigns error to the trial court's summary judgment ruling that defendants did not take a vulnerable person's money or property wrongfully. See ORS 124.110(1)(a) (providing statutory claim for financial abuse of a vulnerable person).¹ Defendants contend that there was no wrongful taking, because they made no misrepresentation and because plaintiff's contribution to the purchase was nothing but a gift. Plaintiff next assigns error to the trial court's summary judgment ruling that no evidence supports a claim of unjust enrichment. Defendants contend that the circumstances do not match any established pattern that warrants restitution.

We reject defendants’ arguments and conclude that the summary judgment rulings were error. We first determine that plaintiff presented a genuine issue of material fact whether defendants wrongfully took plaintiff's money or property interest when circumstances could be found to impose upon defendants a duty to give notice and secure plaintiff's consent before taking plaintiff's money and initiating a change to the purchase documents to remove plaintiff from the transaction and title to the property. A jury could find that misrepresentation by nondisclosure was abuse of a vulnerable person under ORS 124.110(1)(a). Next, we determine that plaintiff presented a genuine issue of material fact whether plaintiff transferred to defendants $169,000 as part of an agreed plan to buy property for a joint living arrangement, whether that plan failed for lack of agreement about plaintiff's interest, and whether that failure left defendants unjustly enriched, warranting restitution to plaintiff. Accordingly, we reverse and remand.

I. BACKGROUND

On review of rulings on motion for summary judgment, we review the record to determine if there are genuine issues of material fact. Bayview Loan Servicing v. Chandler & Newville , 292 Or. App. 562, 569, 426 P.3d 153, rev. den. , 364 Or. 209, 432 P.3d 1101 (2018) (citing ORCP 47 C); Jones v. General Motors Corp. , 325 Or. 404, 420, 939 P.2d 608 (1997). We view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to plaintiff, because she is the party opposing the motion. Id.

A. Facts

Plaintiff Neel and defendant Dana Lee are sister and brother, respectively. Defendants Dana Lee and Tammie Lee are husband and wife. Defendant Danielle Lee is their adult daughter. Plaintiff, who is single, discussed with her brother moving from Tennessee to Oregon, to buy property together, and to live with his family in a "family compound." Together, they made an earlier purchase offer, which was not accepted, on another property, which would have involved her "participation" of "around $80,000." In her deposition, plaintiff recalled her conversations with her brother:

"First thing I remember is that we was always used in buying a property. His terminology always was a we , not his family would buy it and I would be invited to come and live there[,] but we would buy the property. That included me. So my initial involvement in all of this was to be a co-purchaser of the property[.]"

(Emphases added.) Dana Lee sent plaintiff several financial statements that plaintiff described "as to what he felt our combined team could afford, not just his family but with me included." Plaintiff explained that defendants could not afford the properties at which they were looking without her "participation." Her interest was to move to Oregon to live with family in a "combined purchase *** situation."

Plaintiff brought to defendants’ attention a State Street property. Her understanding was, "We would make an offer on the house and buy it." Her intent was to be "an owner of the State Street property," appearing on its title. To her, being on the title was "was what the money was for." She testified that she never would have entered into the transaction if she were not on the title. When the parties made a purchase offer on the property, it was made with plaintiff's and defendants’ names, each as a "buyer." Plaintiff and defendants each had engaged in a "Disclosed Limited Agency Agreement for Buyers" with a real estate firm and its licensee, Huhn. Accordingly, their purchase offer included a "Final Agency Acknowledgement" that showed plaintiff as well as defendants as "buyers."

Dana Lee told plaintiff that the bank required that she be on the "mortgage," meaning the loan, in order to be on the title. In response to defendants’ motion for summary judgment, plaintiff declared that her brother's statement was false, because she later learned that the lender had agreed to allow her niece Danielle Lee to be on the title without being on the mortgage debt.² Plaintiff believed that defendants’ financial statement showed that they could carry the debt with her cash participation and without further contribution from her. In response to her brother's statement, plaintiff told her brother that she was not willing to put "all of this money" into the purchase and commit to a mortgage debt when she did not expect to be working. In her deposition, plaintiff testified that her brother's position allowed "no wiggle room." She testified:

"From my position, I have absolutely no incentive to put money into a property that I do not have a name on the title in. It's my money going into the property. I'm on the purchase offer. Therefore, the money that I'm putting into the purchase represents my portion of the purchase."

Her assertion was, "[I]f I'm putting money in this property, I'm on the deed but not the loan, make it happen." Given the written purchase offer, her understanding was that she "would be on the deed and not the loan." Plaintiff recognized that her brother did not agree, and their conversations did not "resolve[ ] anything."

In the transaction, Dana Lee had taken the initiative to coordinate for the buyers in working with the real estate agent, Huhn, with the loan officer, Kirkevold, and directly with the seller. Kirkevold explained that he "mainly" took direction "the whole time" from Dana Lee because he was the "main point of contact" and, although plaintiff was to be on title, she was not on the loan. In his deposition, Huhn explained that he thought of Dana and Tammie Lee as his clients, not plaintiff.

To make the initial purchase offer, plaintiff used savings and borrowed against her Tennessee property to send $130,000 to Dana Lee. To achieve a final sale agreement, plaintiff sent an additional $39,000 to him. Dana Lee received the final portion of plaintiff's money on August 5, 2016.

On the same morning, Dana Lee contacted Kirkevold to report that he had received the money and to instruct that plaintiff and Danielle Lee should be removed from the expected title. In turn, Kirkevold contacted Huhn to direct an addendum to the purchase agreement to remove plaintiff and Danielle Lee, because Dana Lee "wanted it like" that.³

Plaintiff was aware that Danielle Lee was "coming in and out of the picture because she was needed *** and then out because she wasn't going to live in Oregon." On August 5, 2016, Huhn sent plaintiff an Addendum No. 10 that removed Danielle Lee as a purchaser. His cover email, created through DocuSign, identified that the addendum would extend the closing date and "remove Danielle." Danielle's removal was not disputed, and plaintiff signed and returned the change.

Huhn then sent a revised Addendum No. 10 that would have the effect of also removing plaintiff as a buyer of the property. Huhn's email said that Addendum No. 10 "needed to be revised," but, unlike the prior email that had mentioned removing Danielle Lee, the cover-email did not identify the addendum as removing plaintiff from the transaction.⁴ The revised Addendum No. 10 removed Danielle Lee and plaintiff Neel as purchasers and directed that plaintiff "be removed from the title and deed."

Plaintiff recounts that she received the second email and revised Addendum No. 10 at about 10:00 p.m. after she had gone to bed. She received the contract document in DocuSign form, which prompted her to initial or sign at the indicated place, skipping the intermediate text. Her personal computer was not functional, so she received the document "over [her] tiny little iPhone." Plaintiff declared that she mistakenly signed the addendum without realizing its importance. She assumed that she had neglected to execute Addendum No. 10 properly, so she "simply turned to the signature block and entered [her] initials using [her] cell phone screen, in the dark, without putting on [her] glasses."

Plaintiff asserts that her brother Dana Lee, Kirkevold, and Kuhn did not inform her that the revised addendum would have any effect on her rights. She testified:

"[N]obody said we're taking your name off because you're not on the property. Nobody ever said you shouldn't be on the purchase offer because you won't be on the [deed][.]"

She stressed, "I trusted my brother." She added:

"I assumed that my brother would work it out with me, that it was—there were something I didn't know or some factor, that I wasn't—I put total faith in him."

She declared that, if she had been told...