and submitted August 29, 2017
Washington County Circuit Court C150800CV; Eric Butterfeld,
Richard L. Grant argued the cause for appellant.
on the briefs was Richard L. Grant, P.C. Jeremy R. James
argued the cause and fled the brief for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
Summary: Plaintiff appeals following an award of summary
judgment in favor of defendant on her claims for quiet title
and breach of contract and raises three assignments of error.
First, plaintiff asserts that the trial court abused its
discretion in denying her leave to amend her complaint. Next,
plaintiff argues that the trial court erred in granting
summary judgment for defendant. Finally, plaintiff contends
that the trial court abused its discretion in denying her
motion to compel discovery of defendant's bank records.
Held: The trial did not abuse its discretion in
denying plaintiff leave to amend her complaint. Further, the
trial court did not err in awarding summary judgment in
defendant's favor. Plaintiff failed to produce evidence
that she had an interest superior to defendant's in the
property at issue for purposes of the quiet title claim, and
also failed to produce evidence that an enforceable oral
agreement existed between herself and defendant. Finally,
plaintiff did not expressly seek an order compelling
disclosure of defendant's bank records, and any error in
not compelling such disclosure was harmless.
Or.App. 461] DEHOOG, P. J.
appeals an award of summary judgment in favor of defendant on
her claims for quiet title and breach of contract and raises
three assignments of error. First, plaintiff asserts that the
trial court abused its discretion in denying her leave to
amend her complaint, which she requested after defendant had
filed her motion for summary judgment. Next, plaintiff argues
that the trial court erred in granting defendant summary
judgment as to the claims raised in the original complaint.
Finally, plaintiff contends that the trial court abused its
discretion in denying her motion to compel discovery of
defendant's bank records. As to that last matter, we note
that, although plaintiff sought to postpone the
summary-judgment proceedings so that she could obtain certain
bank records, she did not expressly seek an order compelling
their disclosure; in any event, we conclude that any error in
not compelling their disclosure was harmless. Accordingly, we
reject plaintiffs third assignment of error without further
discussion. As to plaintiffs first two assignments of
error, we conclude that the trial court did not err in either
instance; that is, the court did not abuse its discretion in
denying plaintiffs motion for leave to amend her complaint,
nor did it err in granting defendant's summary-judgment
motion. We therefore affirm.
this appeal arises, in part, from an award of summary
judgment to defendant, we review the record in the light most
favorable to plaintiff, the nonmoving party, to determine
whether there are any genuine issues of material fact and
whether defendant is entitled to judgment as a matter of law.
Burgdorfv. Weston, 259 Or.App. 755, 756, 316 P.3d
[299 Or.App. 462] 303 (2013), rev den, 355 Or. 380
(2014); ORCP 47 C. As the party opposing summary judgment,
plaintiff "has the burden of producing evidence on any
issue raised in the motion as to which [she] would have the
burden of persuasion at trial." Two Two v. Fujitec
America, Inc., 355 Or. 319, 324, 325 P.3d 707 (2014)
(internal quotation marks omitted).
focus of plaintiffs case against defendant was a residential
property that plaintiff had purchased in May 2007 for
$365,000. In June 2008, plaintiff transferred that property
to defendant, who at the time was married to plaintiffs son
and was therefore plaintiffs daughter-in-law. Plaintiff
transferred the property to defendant by means of a bargain
and sale deed reflecting a sales price of $410,000; that deed
was recorded in July 2008. In November 2011, defendant and
plaintiffs son divorced, and the general judgment dissolving
their marriage awarded defendant sole ownership of the
not alleged in the original complaint, plaintiff asserted in
a declaration opposing summary judgment that, before the
transfer took place, she and defendant had agreed that
defendant would hold the property in trust for her.
Plaintiffs declaration further states (as more or less
is alleged in her complaint) that the parties'
agreement was that, following the transfer of title,
plaintiff would-in some unspecified way-assist defendant in
taking out a loan that would be secured by a mortgage on the
property and in an amount that was unknown because the
property had not yet been appraised. Plaintiff further
asserted that defendant in fact obtained a loan from
"Country Wide," and that the net proceeds of the
loan in the amount of $257,500 were deposited in a checking
account on which plaintiff was a signatory, but which
belonged to her brother, Hoffman. According to plaintiff, the
parties also agreed that she would make all of the mortgage
payments, pay the property taxes, and maintain and insure the
home. Plaintiffs declaration-but not her complaint-further
asserts that she paid defendant $5,000 for qualifying for the
Or.App. 463] Plaintiff used the funds in her brother's
account to pay off her own obligations; none of the funds
were ever used by Hoffman. However, before defendant
refinanced the home, plaintiff had drawn up a trust deed in
the amount of $360,000, naming defendant as grantor and
Hoffman as beneficiary. That trust deed was reconveyed when
the $257,500 in loan proceeds were deposited in Hoffman's
account. Following the transfer and until May 2015, plaintiff
continued to treat the property as her own. She leased the
home to tenants from May 2007 through December 2010;
personally lived there from February 2011 to February 2013;
and, from May 2013 on, again rented the home to tenants.
Ultimately, although plaintiff offered to pay off the balance
of defendant's loan, it is undisputed that defendant did
not transfer the property back to plaintiff.
result of that series of events, plaintiff filed a complaint
in February 2015 seeking to quiet title to the property and
asserting a breach of contract claim against defendant. In
late June 2015, approximately two months after filing an
answer, defendant moved for summary judgment as to both of
the claims in the original complaint. At the time, trial was
scheduled to take place in December 2015. In late July 2015,
plaintiff moved for leave to amend her complaint, but did not
contend that her proposed amendments would cure any
deficiencies that defendant had identified in her
summary-judgment motion. Furthermore, although plaintiff did,
at the same time, file a "Motion in Opposition to
Defendant's Motion for Summary Judgment," that
filing also failed to address the substance of
defendant's summary-judgment arguments. Rather,
plaintiffs response argued that the trial court should deny
summary judgment due to defendant's alleged withholding
of bank records that plaintiff had requested in
discovery-records that plaintiff contended were essential to
an effective summary-judgment [299 Or.App. 464] response.
Plaintiff alternatively requested a continuance of the
summary-judgment proceedings so that she could obtain those
records. The trial court heard both motions- plaintiffs
motion for leave to amend and defendant's motion for
summary judgment-on September 14, 2015. Ultimately, the court
denied plaintiffs motion to amend, rejected both of her
responses to defendant's motion, and awarded summary
judgment to defendant. After the trial court entered a
judgment dismissing both of plaintiffs claims with prejudice,
plaintiff initiated this appeal.
ease of discussion we begin with plaintiffs second assignment
of error, in which she contends that the trial court erred in
granting defendant's motion for summary
judgment. Plaintiffs complaint purported to state
two claims. In her first claim for relief, plaintiff sought
to quiet title to the property she had deeded to defendant.
In relevant part, the complaint alleged:
"On or about May 24, 2007, [plaintiff] purchased real
property with a common address of 16785 S.W. Upper Boones
Ferry Road, Durham, Washington County, Oregon 97224 ('the
property'), for the price of $365,000, and she was placed
on the title as the fee simple owner. * * *
"Thereafter, [plaintiff] made improvements to the home,
which included a new roof, new carpeting, flooring and
appliances, and rented the property to tenants.
"Defendant claims some interest adverse to plaintiffs in
the real property described above, but defendant's claim
is without merit and defendant has no estate, title, claim or
interest in the real property or any portion there of
turn, plaintiffs breach of contract claim asserted, in
[299 Or.App. 465] "7.
"In June, 2008, *** [t]o assist [plaintiff] by obtaining
a mortgage, [defendant] entered into an agreement with
[plaintiff] under which the property would be transferred
into [defendant's] name solely for purpose of helping
[plaintiff] consolidate debt and pay off [her] creditors. As
part of the agreement, [defendant] agreed to then take out a
mortgage, and the funds were to be paid to [plaintiff] for
purposes of paying off [her] debt.
"In conformance with [that] agreement * * *, on June 7,
2008, [plaintiff] transferred the property to [defendant] by
means of a Bargain and Sale Deed. At the time, the property
in question was free and clear of any liens or encumbrances,
and [plaintiff] was the fee simple owner. The deed was
recorded on July 7, 2008.
"Thereafter, [defendant] applied for and obtained a loan
with Country Wide [sic] in the total amount of
$262,500. The property was ...