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Ventana Partners, LLC v. Lanoue Dev., LLC

Court of Appeals of Oregon

November 19, 2014

VENTANA PARTNERS, LLC, fka Montara Partners, LLC, and STUDIO 1235, LLC, an Oregon limited liability company, Plaintiffs-Appellants,
v.
LANOUE DEVELOPMENT, LLC, an Oregon limited liability company; CHICAGO TITLE INSURANCE COMPANY OF OREGON, an Oregon corporation; HARPER HOUF PETERSON RIGHELLIS, INC., an Oregon corporation; LODESTAR SURVEYING, INC., an Oregon corporation, fka G & L Land Surveying, Inc., an Oregon corporation; LAWYERS TITLE INSURANCE CORPORATION, dba Land America Lawyers Title Insurance Corporation, fka Oregon Title Insurance Company, a Nebraska corporation; STOEL RIVES, LLP, an Oregon Limited Liability Partnership; HOWARD M. FEUERSTEIN, an individual, and RENE G. GONZALEZ, an individual, Defendants-Respondents

Argued and submitted October 17, 2013,

 Multnomah County Circuit Court No.080507701. Christopher J. Marshall, Judge.

Gordon T. Carey, Jr., argued the cause and filed the briefs for appellants.

Jonathan M. Radmacher argued the cause for respondents Chicago Title Insurance Company of Oregon and Lawyers Title Insurance Corporation. With him on the brief was McEwen Gisvold LLP.

Michael T. Garone argued the cause for respondent Harper Houf Peterson Righellis, Inc. With him on the brief were William J. Ohle and Schwabe, Williamson & Wyatt, P. C.

Graham M. Sweitzer argued the cause for respondents Stoel Rives, LLP, Howard M. Feuerstein, and Rene G. Gonzalez. With him on the brief were Stephen C. Voorhees and Kilmer, Voorhees & Laurick, P. C.

No appearance for respondents LaNoue Development, LLC, and Lodestar Surveying, Inc.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Senior Judge.[*]

OPINION

Page 108

[267 Or.App. 17] DUNCAN, P. J.

Plaintiffs purchased a piece of real property, which we refer to as Lot 1, from LaNoue Development, LLC (LaNoue),[1] intending to build condominiums on it and sell them.[2] The Oregon Real Estate Agency (OREA) and Multnomah County surveyor delayed plaintiffs' condominium sales by withholding approval of their certificate of condominium, and, ultimately, plaintiffs' project failed. Plaintiffs contended that problems with their title to Lot 1 caused the failure of the project, and they sought to recover their losses from defendants, who are surveyors, title companies, and attorneys involved in the creation and sale of Lot 1. Plaintiffs originally asserted claims against LaNoue as well; however, plaintiffs and LaNoue settled and LaNoue assigned its claims against defendants to plaintiffs. Plaintiffs then asserted those assigned claims as well as their own direct claims against defendants. The trial court granted all defendants' motions for summary judgment on all of plaintiffs' claims and entered a general judgment of dismissal. Plaintiffs appeal. For the reasons explained below, we affirm in part, reverse in part, and remand.

I. FACTS

On appeal of a grant of summary judgment, we review the facts in the light most favorable to the nonmoving party to determine whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). We set out the facts in accordance with that standard.

In 1998, LaNoue retained defendant Howard Feuerstein, an attorney at defendant Stoel Rives, LLP, to prepare the governing documents for a planned community [267 Or.App. 18] in Portland known as Montara Estates.[3] Feuerstein prepared the Declaration of Protective Covenants, Conditions, Restrictions and Easements for Montara (declaration), which identified LaNoue as the declarant. See ORS 94.550(9) (defining " declarant" as " any person who creates a planned community under ORS 94.550 to 94.785" ).

LaNoue intended to develop Montara in three phases. The declaration identified " common areas" in all three phases of the development and provided that the townhouse

Page 109

lot owners would have easements in the common areas. It also provided that, after certain conditions were met, LaNoue would transfer ownership of the common areas to the homeowners association for the community, the Montara Owners Association (MOA). The declaration also contained two provisions relating to the MOA's ability to convey the common areas. Section 3.4(c) of the declaration provided

" The Association shall not by act or omission seek to abandon, partition, subdivide, encumber, sell or transfer the Common Areas owned directly or indirectly by the Association for the benefit of the Lots unless the holders of at least eighty percent (80%) of the Class A Association voting rights [(the lot owners)] and the [declarant] have given their ...

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