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Tyler v. Whetzel

Court of Appeals of Oregon

December 18, 2019

Monique TYLER, on behalf of Audrey B. Butler, a vulnerable person, and Monique Tyler, in her personal capacity, Plaintiff-Appellant,
v.
Stanley W. WHETZEL, Jr., an individual; John K. Gordinier, an individual;and Mary Ellen Page Farr, an individual, Defendants-Respondents.

          Argued and submitted January 31, 2019

          Multnomah County Circuit Court 14CV16589; Gregory F. Silver, Judge.

          Andrew T. Reilly argued the cause for appellant. Also on the briefs was Stillwater Law Group LLC.

          Wendy M. Margolis argued the cause for respondents. Also on the joint answering brief were Cosgrave Vergeer Kester LLP, Deanna Wray, Vickie M. Smith, and Bodyfelt Mount LLP, and George S. Pitcher and Lewis Brosbois Bisgaard & Smith LLP.

          Before Powers, Presiding Judge, and Egan, Chief Judge, and Brewer, Senior Judge. [*]

         [301 Or.App.App. 505] Case Summary:

         Plaintiff, as the trustee of her mother's revocable trust, filed an action against defendants for financial abuse of a vulnerable person, under ORS 124.100(3)(d), on behalf of her mother. The trial court dismissed the claims. Shortly thereafter, plaintiff's mother passed away. A few weeks later, plaintiff filed a notice of appeal. Over a year later, defendants moved to dismiss the appeal on the ground that, after plaintiff's mother's death, plaintiff lacked authority to initiate or pursue an appeal on her mother's behalf. On appeal, plaintiff argues that, as trustee, she is the proper party to this action, not her deceased mother. Held: Upon plaintiff's mother's death, her financial abuse claims survived to the personal representative of her estate under ORS 115.305. Once the claims survived to the estate, plaintiff, as trustee of her mother's estate, was no longer the real party in interest to pursue the claims. Because plaintiff filed the notice of appeal after her mother's death, when she was no longer the real party in interest to pursue the claims, and because a personal representative for her mother's estate was not substituted on appeal within the time permitted by ORCP 34 B, plaintiff's appeal from the judgment dismissing the financial abuse claims was dismissed.

         [301 Or.App. 506] BREWER, S. J.

         This case presents the question whether a trustee of a vulnerable person's revocable trust is the real party in interest to continue an action under ORS 124.100 (2013)[1]for financial abuse of the vulnerable person after the vulnerable person's death. For the reasons discussed below, we conclude that, upon the vulnerable person's death, a financial abuse claim survives to the personal representative of the vulnerable person's estate. At that time, the trustee no longer is the real party in interest to pursue such a claim. Because the trustee in this action filed the notice of appeal after the vulnerable person's death, when the trustee no longer was the real party in interest to pursue the claims, and a personal representative for the vulnerable person's estate was not substituted on appeal within the time permitted by ORCP 34 B, we dismiss the trustee's appeal from the judgment dismissing the financial abuse claims.[2]

         In the years before this action was filed, Audrey Butler and her assets had been the subject of multiple court proceedings, including a guardianship proceeding brought by Butler's daughter, plaintiff Monique Tyler, in Kentucky and an elder abuse claim against Tyler and Tyler's husband in Oregon. This action was filed by Tyler in October 2014, when Butler was 96 years old, against three attorneys who had been involved in the previous proceedings. The complaint identified the plaintiffs in this action as "Monique Tyler, on behalf of Audrey B. Butler, a vulnerable person; and Monique Tyler, in her personal capacity," and alleged that Tyler is "the trustee of the Audrey B. Butler Revocable Trust U/A/D 6/1/2012." On Butler's behalf, the complaint alleged claims for financial abuse of a vulnerable person under ORS 124.100[3] and civil conspiracy against all three defendants. The financial abuse claims specifically alleged that defendants "wrongfully obtained money from Butler" and "caused Butler to suffer" economic and noneconomic [301 Or.App. 507] damages. On Tyler's behalf, the complaint alleged claims against all three defendants for intentional interference with prospective inheritance, intentional infliction of emotional distress, and civil conspiracy.

         All three defendants filed special motions to strike under ORS 31.150, arguing that the claims against them were based on their participation in the Kentucky and Oregon proceedings.[4] After briefing and multiple hearings, Tyler conceded the motions on the claims for intentional interference with prospective inheritance, intentional infliction of emotional distress, and civil conspiracy, and the court granted defendants' motions to strike the financial abuse claims. After entering a general judgment dismissing the complaint in its entirety without prejudice, the trial court entered supplemental judgments awarding to each defendant attorney fees and costs pursuant to ORS 31.152(3).

         Butler died on February 7, 2016, shortly after entry of the general judgment. A few weeks later, Tyler filed a notice of appeal from the general judgment, identifying the appellants as "Monique Tyler, on behalf of Audrey B. Butler, a vulnerable person; and Monique Tyler, in her personal capacity." On August 11, 2016, Tyler filed an amended notice of appeal from the supplemental judgments, identifying the same appellants. In her opening brief, Tyler assigned error to (1) the dismissal of the financial abuse claims, and (2) the amount of attorney fees awarded under ORS 31.152.[5]

         Over a year after Tyler filed the notice of appeal, defendants filed a joint motion to dismiss the appeal on the ground that Tyler lacked authority to initiate or pursue an appeal on Butler's behalf. Defendants argued that, although Tyler presumably had authority as Butler's trustee under ORS 124.100(3)(d) to bring financial abuse claims on Butler's behalf while Butler was living, upon Butler's death, those [301 Or.App. 508] claims survived to the personal representative of her estate, ORS 115.305, and only the personal representative had authority to pursue those claims on appeal. ORS 124.100 (3Xc). Because no personal representative was substituted and the one-year period for substitution under ORCP 34 B(1)[6] and ORAP 8.05(1)[7] had expired, defendants argued that Tyler was not authorized to pursue the appeal.

         The Appellate Commissioner concluded that Tyler lacked authority to pursue the financial abuse claims brought on behalf of Butler, determining that, after Butler died, those claims survived to her estate. According to the commissioner, Tyler then lost authority to pursue the appeal as to any claims brought on Butler's behalf. The Appellate Commissioner concluded, however, that Tyler could proceed with respect to her second assignment of error pertaining to the supplemental judgments, insofar as they awarded attorney fees for defendants' effort to secure dismissal of Tyler's personal claims.

         On Tyler's motion for reconsideration, this court adhered to the Appellate Commissioner's determination that, in light of Butler's death, Tyler lacked authority to pursue the financial abuse claims that are the subject of Tyler's first assignment of error. However, the court ...


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