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Neikes v. Ticor Title Company of Oregon

Court of Appeals of Oregon

May 16, 2018

James NEIKES, Plaintiff-Appellant Cross-Respondent,
v.
TICOR TITLE COMPANY OF OREGON, an Oregon domestic business corporation; and Fidelity National Title Group, Inc., a Delaware corporation, Defendants-Respondents Cross-Appellants.

          Argued and submitted November 3, 2015

          Multnomah County Circuit Court 120606962; Henry C. Breithaupt, Judge pro tempore. (General Judgment) Cheryl A. Albrecht, Judge. (Supplemental Judgment)

          Paul H. Trinchero argued the cause for appellant-cross-respondent. With him on the briefs were Gary I. Grenley and Garvey Schubert Barer.

          Jonathan M. Radmacher argued the cause for respondents-cross-appellants. With him on the brief was McEwen Gisvold LLP.

          Before Tookey, Presiding Judge, and Armstrong, Judge, and Hadlock, Judge. [*]

          [291 Or.App. 721] Case Summary: Plaintiff appeals from a general judgment dismissing on summary judgment his claims against defendants for fraud, breach of fiduciary duty, and violation of the Oregon Racketeering Influence and Corrupt Practices Act (ORICO). Among other things, plaintiff argues that defendants were not entitled to summary judgment because he raised a genuine issue of fact as to whether he suffered damages resulting from defendants' tortious conduct. Held: The trial court did not err. Plaintiff did not present evidence sufficient to raise a genuine issue of material fact as to whether he suffered damages because, for each category of damages alleged in the complaint, the evidence plaintiff produced relied on speculation to support the theory of damages. Also, plaintiff could not defeat summary judgment by producing evidence that supported only an unpleaded theory of damages.

         Affirmed on appeal and cross-appeal.

          [291 Or.App. 722] ARMSTRONG, J.

         Plaintiff appeals a general judgment dismissing on summary judgment his claims for fraud, breach of fiduciary duty, and violation of the Oregon Racketeering Influence and Corrupt Practices Act (ORICO) against defendants Ticor Title Company of Oregon and Fidelity National Title Group, Inc.[1] Defendants cross-appeal from a supplemental judgment that denied their request for attorney fees. We affirm on the cross-appeal without written discussion. On appeal, plaintiff raises five assignments of error to the trial court's grant of summary judgment to defendants. We summarily reject plaintiff's argument that the law of the case doctrine applied to prior rulings of the trial court so as to prevent the trial court from later granting defendants' motion for summary judgment. See, e.g., ILWU, Local 8 v. Port of Portland, 279 Or.App. 157, 164, 379 P.3d 1172, rev den, 360 Or. 422 (2016) (explaining that law of the case doctrine "gives preclusive effect only to the prior ruling or decision of an appellate court (as opposed to a trial court or administrative body)" (emphasis in original)). In addition, because we conclude that plaintiff did not present evidence sufficient to create a genuine issue of material fact that he suffered damages resulting from defendants' alleged tortious actions, we affirm.[2]

         On appeal from the trial court's grant of defendants' motion for summary judgment, we state the facts in the light most favorable to the nonmoving party, here plaintiff, and draw all reasonable inferences in plaintiff's favor. ORCP 47 C; Harper v. Mt. Hood Community College, 283 Or.App. 207, 208, 388 P.3d 1170 (2016). We limit our discussion of the facts to those that are relevant to the issue of damages in this case.

         Plaintiff sought to purchase real property in Astoria, Oregon, for long-term investment. In anticipation of that purchase, he obtained a preliminary title report from defendants. Defendants knowingly omitted mention in that [291 Or.App. 723] preliminary title report of a first-position trust deed filed on the property and held by Envoy Carob Tree, LLC.[3] Plaintiff completed the purchase of the property in March 2010, for which he paid $125, 000. With the purchase of the property, defendants issued to plaintiff a title insurance policy for the property in the amount of $125, 000 consistent with the preliminary title report, viz., the insurance provided coverage against any encumbrances or defects not listed as an exception, such as the Envoy trust deed. After purchasing the property, plaintiff began to renovate a building on the property into three rental units and spent approximately $110, 000 in labor and materials toward that effort.[4] Plaintiff stopped work on the renovations, which were near completion, in approximately November 2010.

         In July 2010, Envoy initiated nonjudicial foreclosure proceedings against the property, and plaintiff tendered a claim to defendants based on those proceedings. Defendants accepted the claim and retained Cleverly, an in-house lawyer with defendants, to represent plaintiff with respect to Envoy's claim. In October 2010, plaintiff filed a complaint against Envoy in Astoria (the Astoria case), seeking to stop the foreclosure and to quiet title in plaintiff. In May and November 2011, the trial court ruled that Envoy could proceed with the foreclosure and awarded to Envoy an enhanced prevailing party fee and attorney fees because plaintiff's claim against Envoy was made with "no objectively reasonable basis." However, a judgment was not immediately entered in the action. Envoy held the nonjudicial foreclosure sale of the property in January 2012, and purchased the property with a bid of $650, 000. After the sale, Envoy notified plaintiff that he needed to vacate the premises, which he did.

         Before obtaining a favorable ruling in the Astoria case, Envoy filed a lawsuit against defendants in Multnomah [291 Or.App. 724] County (the Multnomah County case) in February 2011, asserting claims against defendants for interfering with its trust deed and the foreclosure sale.

         In March 2012, just before trial in the Multnomah County case, defendants and Envoy agreed to a global settlement of both the Multnomah County case and the Astoria case. Plaintiff was not included in those discussions. With respect to the Astoria case, Envoy agreed to restore title to the property to plaintiff, free and clear of its trust deed. Cleverly attempted to contact plaintiff and plaintiffs privately retained attorney, Snow, about the settlement in the Astoria case, but neither responded. Plaintiff had decided by this point that he did not want the property back and was only interested in monetary damages. Ultimately, Cleverly signed, on behalf of ...


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