470 P.3d 410
Or. Ct. App.2020Background:
- Plaintiffs are members of Ik Jung Chun’s second family who lived in a Vancouver, Washington rental house under a written lease (rent $100/month); defendants are Ik’s first-wife Eun Hee Chun and their daughter Sun.
- Two confrontations occurred at the rental: one where Eun blocked a car and took a child’s key; a later entry where Eun and Sun used a key, broke a chain lock, entered, and assaulted Sophia.
- Plaintiffs sued for trespass, assault, false imprisonment, and intentional infliction of emotional distress (IIED).
- Pretrial, the court struck E’s IIED claim under ORCP 46 B as a discovery sanction after Family Solutions refused to produce E’s counseling records; at trial the court dismissed Sophia’s trespass claims under ORCP 21 A(8) for failure to state a claim.
- The jury awarded Sophia $31 on an assault claim and otherwise returned verdicts for defendants; plaintiffs’ motion for a new trial (alleging the jury did not follow an instruction requiring the same nine jurors to answer each verdict question) was denied and defendants were awarded costs.
- On appeal the court considered (1) the ORCP 46B dismissal of E’s IIED claim, (2) the dismissal of the trespass claims governed by Washington law, (3) denial of a new trial, and (4) costs.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Dismissal of E’s IIED claim under ORCP 46 B | Family Solutions’ refusal to produce records did not show E willfully disobeyed the court order | Letter from Family Solutions shows nonproduction and supports dismissal | Reversed — record lacked evidence that E willfully or voluntarily disobeyed the order; dismissal was an abuse of discretion |
| 2. Dismissal of Sophia’s trespass claims (Washington law) | Trespass is strict liability; noneconomic/emotional damages proximately caused by unpermitted entry suffice; complaint alleged entry and broken chain lock | Washington requires actual and substantial property damages to state a trespass claim (Shoblom); alternatively, Sophia lacked right to exclusive possession because of community property / sham lease | Reversed — persuasive Washington authority treats trespass as strict liability and allows emotional-distress damages proximately caused by intentional entry; genuine fact questions exist about lease validity and exclusive possession |
| 3. Denial of new trial based on jury poll / instruction becoming law of the case | Jury poll showed the jury did not follow the court’s instruction that the same nine jurors answer each verdict question; that instruction became law of the case, so failure requires reversal | Jury instructions do not become law of the case here; Kennedy v. Wheeler forecloses plaintiffs’ argument | Affirmed — instruction did not become law of the case; denial of new trial proper |
| 4. Award of costs and disbursements to defendants | Costs should be reversed because underlying dismissal(s) were erroneous | Costs were proper under judgment below | Reversed — because IIED and trespass dismissals reversed, the costs award must be reversed too |
Key Cases Cited
- Lang v. Rogue Valley Medical Center, 361 Or 487 (Or. 2017) (ORCP 46 B sanctions require willful or bad-faith noncompliance)
- Berschauer v. State Dept. of Gen. Admin., 1 Wash App 2d 1044 (Wash. Ct. App. 2017) (trespass is a strict-liability tort; emotional-distress damages recoverable if proximately caused by intentional trespass)
- Bradley v. Am. Smelting & Refining Co., 104 Wash 2d 677 (Wash. 1985) (airborne-pollutant trespass requires proof of actual and substantial property damages)
- Kennedy v. Wheeler, 356 Or 518 (Or. 2014) (jury-instruction-as-law-of-the-case argument rejected in similar context)
- Sander v. Wells, 71 Wash 2d 25 (Wash. 1976) (one spouse’s transfer of community property is voidable by nonparticipating spouse but may be barred by estoppel)