503 P.3d 472
Or. Ct. App.2021Background
- Thomas P. Moyer created a revocable trust in 2007; he resigned as trustee in 2010 and First Republic Trust Company (FRTC) succeeded as trustee.
- Family members litigated a proposed conservatorship (2012); that dispute was resolved by appointing Columbia State Bank (CSB) as a special fiduciary and entering a stipulated limited judgment that authorized CSB to pursue estate‑planning/gifting (with limits) and authorized FRTC to make distributions to CSB for that purpose.
- During negotiations and afterwards, counsel exchanged letters and emails describing possible tax‑minimizing proposals (mirror trusts, transfers of voting interests, disclaimers, etc.); FRTC implemented some transfers (nonvoting shares) but declined to transfer voting shares or other proposals it believed conflicted with Moyer’s expressed intentions.
- Plaintiffs (two children and four grandchildren) sued FRTC after Moyer’s death alleging breach of an implied‑in‑fact contract and negligence for failing to implement the tax‑saving transfers plaintiffs sought.
- The trial court granted summary judgment to FRTC on the contract and negligence claims. FRTC sought attorney fees under ORS 130.815; the trial court denied fees on pleading‑defect grounds.
- The Court of Appeals affirmed the grant of summary judgment (no factual basis for an implied‑in‑fact contract), reversed the denial of attorney fees, and remanded for reconsideration of fees under ORS 130.815.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by treating FRTC’s reply as a new summary‑judgment motion and deciding contract issues without plaintiffs’ written response | Court prematurely decided the contract issue; plaintiffs lacked the required opportunity to respond | FRTC argued the court properly deemed the reply a new motion and plaintiffs were given 20 days (and did not file a response) | Not preserved or invited error; court did not err in treating reply as a new motion and ruling after plaintiffs failed to timely respond |
| Whether the summary‑judgment record created a genuine issue of fact that an implied‑in‑fact contract existed obligating FRTC to develop and implement tax‑minimizing transfers | Moyer (plaintiffs) argued the settlement negotiations, letters, and the stipulated judgment collectively show mutual assent to develop and implement estate‑tax strategies (including specific transfers) | FRTC argued the communications were exploratory, reserved decisionmaking to trustee(s), and show no mutual assent to be bound to specific transfers | Affirmed for FRTC: the documents, even viewed together, did not permit a reasonable factfinder to infer mutual assent to a binding promise to implement the specific tax‑minimizing transfers |
| Whether FRTC sufficiently pleaded entitlement to attorney fees under ORS 130.815 (ORCP 68 C(2)(a) pleading requirement) | Plaintiffs argued FRTC’s pleadings were too vague and cited only the trust as fee source, so they lacked fair notice FRTC would seek fees under ORS 130.815 | FRTC argued its answer and affirmative defenses alleged facts showing the suit involved trust validity/administration and therefore put plaintiffs on notice of a statutory fee claim | Reversed: pleadings alleged facts satisfying ORS 130.815 and gave fair notice that fees would be sought; trial court erred in denying the fee petition on pleading‑defect grounds |
Key Cases Cited
- Two Two v. Fujitec America, Inc., 355 Or 319, 325 P.3d 707 (2014) (opposing party bears burden on summary judgment to produce evidence on issues it would have to prove at trial)
- Ken Hood Construction v. Pacific Coast Construction, 201 Or App 568, 120 P.3d 6 (2005) (contract existence is a question of law requiring mutual assent)
- Rose v. Wollenberg, 36 Or 154, 59 P.190 (1899) (distinguishing express and implied‑in‑fact contracts; both require offer/acceptance or equivalents)
- Mindful Insights, LLC v. VerifyValid, LLC, 301 Or App 256, 454 P.3d 787 (2019) (implied‑in‑fact contracts still require mutual agreement and intent)
- Yoshida’s, Inc. v. Dunn Carney Allen Higgins & Tongue, 272 Or App 436, 356 P.3d 121 (2015) (an implied‑in‑fact contract claim survives summary judgment only if record permits a reasonable factfinder to infer agreement)
- Rymer v. Zwingli, 240 Or App 687, 247 P.3d 1246 (2011) (review of denial of statutory attorney fees is for legal error)
- Page and Page, 103 Or App 431, 797 P.2d 408 (1990) (pleading facts that provide a basis for fee award can satisfy notice requirements even without citing the precise statute)
- Al‑Ani v. Wafeek, 300 Or App 710, 455 P.3d 1006 (2019) (pleading an incorrect statutory basis for fees does not bar an award under the correct statute where facts satisfy its elements)