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Schmidt v. Noonkester

Court of Appeals of Oregon

July 26, 2017

Linda SCHMIDT and Frank Schmidt Plaintiffs-Appellants, Cross-Respondents,
v.
Elnora NOONKESTER, Defendant-Respondent, Cross-Appellant.

          Argued and submitted June 6, 2016

         Douglas County Circuit Court 12CV1502CC.

          Christopher W. Peterman argued the cause for appellants-cross-respondents. With him on the briefs was Christopher W. Peterman Attorney at Law, P.C.

          Dan G. McKinney argued the cause for respondent-cross-appellant. With him on the brief was DC Law.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge. [*]

          [287 Or.App. 49] Case Summary:

         Plaintiffs sued defendant for breach of contract, declaratory relief, and fraud. Defendant counterclaimed for financial elder abuse, ORS 124.100, ORS 124.110, alleging, among other things, that plaintiffs' litigation against her was unfounded. Plaintiffs moved for a directed verdict on the counterclaim but the trial court allowed the counterclaim to go to the jury on the theory that plaintiff's fraud claim-which, by that time, had been dismissed on defendant's motion for summary judgment-constituted unfounded litigation, and could serve as the predicate for an elder abuse claim. The jury found for defendant on her elder abuse counterclaim; the trial court then found for plaintiffs on their contract claim and awarded declaratory relief. On appeal, plaintiffs assign error to the trial court's failure to grant their motion for a directed verdict, arguing that defendant's counterclaim fails as a matter of law because defendant failed to demonstrate any “tak[ing]” of defendant's money or property as required by ORS 124.110(1) (a). Defendant cross-appeals the judgment in favor of plaintiffs on the breach-of contract and declaratory relief claims. Held: The trial court erred by denying plaintiffs' motion for a directed verdict and submitting defendant's counterclaim to the jury. Assuming that a claim for elder abuse may be based on the prosecution of unfounded litigation, and assuming that plaintiffs' fraud claim was “unfounded, ” plaintiffs were entitled to a judgment on defendant's counterclaim as a matter of law because defendant failed to present any evidence from which a jury could find that there had been a “taking” of her money or property. The alleged damages incurred by defendant-the time, effort, stress, and expense incurred in defending against plaintiffs' fraud claim-do not involve a transfer of defendant's money or property into plaintiffs' “own keeping.”

         On appeal, reversed as to financial elder abuse counterclaim; otherwise affirmed. On appeal, reversed as to financial elder abuse counterclaim; otherwise affirmed. Affirmed on cross-appeal.

          [287 Or.App. 50]

          GARRETT, J.

         Plaintiffs sued defendant for breach of contract, declaratory relief, and fraud. Defendant counterclaimed for financial elder abuse, ORS 124.100, ORS 124.110, [1] alleging, among other things, that plaintiffs' litigation against her was unfounded. Plaintiffs moved to dismiss and for a directed verdict on the elder abuse counterclaim but the trial court allowed the counterclaim to go to the jury, which found for defendant. The trial court then found for plaintiffs on their contract claim and awarded declaratory relief. On appeal, plaintiffs assign error to the trial court's failure to dismiss the elder abuse counterclaim, and, alternatively, to the trial court's failure to grant their motion for a directed verdict. Plaintiffs argue that defendant's counterclaim fails as a matter of law because, even assuming that unfounded litigation can serve as a predicate for an elder abuse claim, defendant failed to demonstrate any "tak[ing]" of defendant's money or property as required by ORS 124.110(1)(a). We agree with plaintiffs. Accordingly, we reverse the judgment as to defendant's counterclaim and otherwise affirm.

         Defendant cross-appeals the judgment in favor of plaintiffs on the breach-of-contract and declaratory relief claims. We reject defendant's arguments without written discussion.

         The facts pertinent to our resolution are not in dispute. At the relevant time, plaintiffs lived on property adjacent to a parcel owned by defendant and her son. Part of defendant's property was accessed via an easement over plaintiffs' property. Defendant was in her mid-seventies.

         Plaintiffs hired defendant's son, a licensed contractor, to perform work on their home. Dissatisfied with the results of the work, they brought a construction-defect action against the son. That litigation led to negotiations that culminated in a settlement agreement whereby (1) the son would pay plaintiffs $6, 000 and (2) both he and defendant would [287 Or.App. 51] release their interests in the easement over plaintiffs' property. After a conversation with her son, defendant signed the settlement agreement. However, although the son later formally released his interest in the easement, defendant refused to, claiming that she had only signed the agreement to approve it "as to form, " never intending to agree to release her interest in the easement. Plaintiffs brought this action against her, alleging claims for breach of contract, declaratory relief, and, significant to this appeal, fraud.

         Defendant counterclaimed for financial elder abuse under ORS 124.100. That statute provides, as relevant here, that a "vulnerable person, " defined as someone who is 65 years of age or older, "who suffers injury, damage or death by reason of physical abuse or financial abuse may bring an action against any person who has caused the physical or ...


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