Argued and submitted on June 26, 2012.
Josephine County Circuit Court 09CV0809 Lindi L. Baker, Judge.
Staci L. Palin argued the cause for appellant. With her on the briefs was Hornecker, Cowling, Hassen & Heysell, LLP.
James R. Dole argued the cause for respondent. With him on the brief was Dole, Sorenson, Ransom & Ferguson, LLP.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
ORTEGA, P. J.
Plaintiff brought several claims against defendant, a nonprofit corporation that operates Wilderville Cemetery, relating to defendant's burial of her late husband, and now appeals the trial court's award of summary judgment to defendant. Plaintiff and her husband, Donald (collectively, the Hamlins), had purchased a plot in defendant's cemetery, and the lawsuit involves claims regarding Donald's burial in a spot different from the spot plaintiff requested, which she believed was in the plot they had purchased but which defendant represented was outside the boundaries of that plot. In the context of communications about plaintiff's concerns regarding Donald's burial, defendant deeded a gravesite in an adjacent plot to plaintiff's son; part of the lawsuit involves the implications of that transfer.
Plaintiff sued defendant on a number of theories related to Donald's burial, seeking equitable relief and damages. Defendant moved for summary judgment, which the trial court granted after determining that there was no genuine issue of material fact as to whether defendant's conveyance of a gravesite to plaintiff's son constituted an accord and satisfaction of the parties' dispute. The trial court also ruled that no genuine issue of material fact existed as to whether the cemetery was operating within its statutory and legal authority in this case by managing the placement of gravesites within a plot. The trial court dismissed all of plaintiff's claims, and plaintiff appeals. On appeal, we conclude that there was a genuine issue of material fact as to whether the conveyance of the gravesite to plaintiff's son functioned as an accord and satisfaction. In addition, we conclude that the trial court's ruling that the cemetery was acting within its statutory and legal authority in this case was not a proper basis for summary judgment. Accordingly, we reverse and remand.
Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. ORCP 47 C. There is no genuine issue of material fact if, based on the summary judgment record, "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. To determine whether a genuine issue of material fact exists in this case, we review the summary judgment record in the light most favorable to plaintiff--the nonmoving party--and draw all reasonable inferences in her favor. Jones v. General Motors Corp., 325 Or 404, 420, 939 P.2d 608 (1997). We state the facts consistently with that standard.
In Wilderville Cemetery, ordinary cemetery plots contain 12 four-by-eight foot gravesites, organized in two rows of six gravesites. The gravesites within each plot are generally labeled with the letters A through L. Gravesites A through F are located in the "top row, " and gravesites G through L are in the "bottom row." In 1976, plaintiff and Donald purchased a single gravesite in plot 124 for burying the cremated remains of their son, Dennis. There is no record of that purchase, but Dennis's remains were buried in a small wooden box somewhere on the border of what are now considered gravesites B and C in plot 124. The next year, the Hamlins purchased the "upper half" of plot 124 for $200. In 1994, the Hamlins purchased the remainder of plot 124 for $300 to ensure that their family members could be buried together. The Hamlins received a cemetery deed from defendant that reflected that they were deeded the "entire plot." Based on representations by defendant that a standard plot contains 12 gravesites and discussions between plaintiff and defendant's representatives in the past, the Hamlins understood plot 124 to encompass 12 standard gravesites.
In 2006, plaintiff's son, Terry, purchased gravesites J, K, and L in plot 123, which borders plot 124 on its "left side." Terry and Donald placed a brick border around plot 124 in the summer of 2007. Shortly thereafter, defendant's president, Grant, contacted Terry to inform him that there was a problem with the brick border in the "lower right" portion of plot 124 (bordering plot 125), but Grant did not otherwise complain about the border around the rest of the plot. Donald died in November 2007, and on the day before his funeral, Terry marked a burial site in plot 124 immediately inside the brick border shared with plot 123. That evening, Grant informed Terry that she had moved the burial site for Donald closer to plot 125 (away from the border with plot 123) because the location marked by Terry was outside the boundaries of plot 124 and was in a location designated by defendant as a walkway between plots 123 and 124. Terry met with Grant and other members of defendant's board on the morning of Donald's funeral. Grant agreed to move Donald's burial site closer to the border with plot 123, but still not to the location that Terry had originally designated. Plaintiff was upset because she believed that the spot marked by Grant would not allow her to be buried next to Donald because there was limited space between the gravesite and the location of Dennis's remains. The family held the funeral later that day, and Donald was buried in the spot that Grant had designated.
Underlying the dispute over the location of Donald's burial site was a general disagreement about the physical parameters of plot 124. Defendant contended that plot 124 contained nine gravesites, and that the Hamlins' payments for plot 124 reflected that they had only purchased nine gravesites. According to defendant, when plaintiff and Donald purchased the "top row" of plot 124 in 1977 for $200, the standard price per gravesite was $40. In 1994, when the Hamlins purchased the "bottom half" of plot 124 for $300, the standard price per gravesite was $75. Accordingly, the amounts paid by the Hamlins indicated that they purchased nine gravesites (five in 1977 and four in 1994). Defendant also asserted that even if the cemetery's map did not depict a pathway between plots 123 and 124, one had always been allowed in that location. Therefore, in defendant's view, plot 124 had always contained nine gravesites. Plaintiff, noting that the cemetery's map never designated a pathway between the plots, and relying on her understanding that she and Donald had purchased 12 gravesites in plot 124, believed that the location that Terry had originally chosen for Donald's burial was within the boundaries of plot 124.
Several months after Donald was buried, plaintiff attended defendant's board meeting. At the close of that meeting, she asked Grant for a copy of the cemetery map. When she saw that the map did not depict a pathway between plots 123 and 124, plaintiff began to cry, and told Grant that she was upset with how Donald's burial was handled. According to plaintiff, Grant asked how she could make it better, to which plaintiff replied that defendant could move Donald's casket to the spot that Terry had originally designated. At that point, Grant pulled out a "cemetery card" and had plaintiff write her name next to Donald's burial spot and told her that there would sufficient room for her gravesite, which made plaintiff feel better. Grant refused to move Donald's casket, but asked plaintiff "several times" if she could "gift" plaintiff a gravesite in plot 123. Plaintiff said, "No, " but when she "saw that the conversation was going nowhere, " she threw her arms in the air and stated, "Deed that to Terry." Shortly thereafter, Terry received a cemetery deed from defendant conveying gravesite 123F to him "in trade for 124E." Defendant's internal records have a notation on the cemetery card for plot 123 that indicates that gravesite 123F was a "gift."
Plaintiff later filed this action, bringing claims for (1) breach of contract, (2) intentional infliction of emotional distress (IIED), (3) negligence, (4) violation of ORS 97.360, (5) negligent misrepresentation, (6) breach of fiduciary duty, and (7) breach of warranty. With the exception of $100, 000 sought as damages for the intentional infliction of emotional distress claim, plaintiff sought "equitable relief requiring defendant to move [Donald's] ...