Argued and Submitted: October 23, 2012.
Multnomah County Circuit Court. 091116244. Edward J. Jones, Judge.
Iris K. Tilley argued the cause for appellant. With her on the opening brief were Brenda K. Baumgart and Barran Liebman LLP. With her on the reply brief was Barran Liebman LLP.
George W. Kelly argued the cause and filed the brief for respondent Kathy Gomes.
Bruce L. Campbell and Miller Nash LLP filed the brief for respondent American Century Investment Services, Inc.
Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge.
[261 Or.App. 420] WOLLHEIM, P. J.
Plaintiff, the personal representative of the estate of Timothy Freed, brought this action to recover the proceeds of an individual retirement account (IRA) created by Freed and held by defendant American Century Investments (American). After American advised plaintiff that it would pay the IRA proceeds to defendant Gomes, Freed's former domestic partner who was designated as the beneficiary of the IRA at the time of Freed's death, plaintiff, as the administrator of Freed's estate, brought this action for declaratory relief, money had and received, conversion, and breach of the convenant of good faith. Plaintiff appeals from a judgment determining that Gomes is entitled to the IRA proceeds and dismissing her claims under ORCP 21 A(8), for failure to state a claim. We conclude that the trial court did not err in determining that Gomes is entitled to the IRA proceeds. We also conclude, however, that the proper disposition of the claim for declaratory relief is not dismissal, but the issuance of a judgment declaring that Gomes is entitled to the proceeds of the IRA. We therefore vacate that portion of the judgment dismissing the claim for declaratory relief and remand for entry of judgment declaring that Gomes is entitled to the IRA proceeds and otherwise affirm.
The issues involved in this case are exclusively legal. In reviewing the trial court's ruling under ORCP 21 A(8), we assume the truth of all allegations of the complaint and give plaintiff, as the nonmoving party, the benefit of all favorable inferences. Mitchell v. The Timbers, 163 Or.App. 312, 317, 987 P.2d 1236 (1999). The court considered the IRA agreement, which was attached to the complaint as an exhibit.
Freed and Gomes were domestic partners beginning in the 1980s. In 1992, Freed established an IRA through American. There are two provisions of the IRA agreement that bear on this case. Article VIII(2)(a) provided:
" At any time and from time to time the Depositor shall have the right to designate one or more beneficiaries to whom distribution of the balance of the Custodial Account shall be made in the event of the Depositor's death * * *. Any such beneficiary designation may be revoked at any [261 Or.App. 421] time, and shall be automatically revoked upon receipt by the Custodian of a subsequent beneficiary designation in a valid form bearing a later execution date."
On the IRA application form, Freed designated Gomes as ...