and submitted November 3, 2015
Multnomah County Circuit Court 120606962; Henry C.
Breithaupt, Judge pro tempore. (General Judgment) Cheryl A.
Albrecht, Judge. (Supplemental Judgment)
H. Trinchero argued the cause for appellant-cross-respondent.
With him on the briefs were Gary I. Grenley and Garvey
Jonathan M. Radmacher argued the cause for
respondents-cross-appellants. With him on the brief was
McEwen Gisvold LLP.
Tookey, Presiding Judge, and Armstrong, Judge, and Hadlock,
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.
on appeal and cross-appeal.
Or.App. 722] ARMSTRONG, J.
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. 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
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.
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,
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. Plaintiff stopped work on the
renovations, which were near completion, in approximately
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.
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.
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 ...