144
Argued and submitted April 5, 2019, reversed and remanded July 1, 2020
Chong Ok CHANG,
an individual, and
Chong Ok Chang, as guardian ad litem for
Meehyun Jennifer Chun and Eugene Dave Chun,
Plaintiffs-Appellants,
v.
Eun Hee CHUN,
an individual, and
Sun Young Chun, an individual,
Defendants-Respondents,
and
Ik Jung CHUN,
an individual, and
Hyung Sun Chun, an individual,
Defendants.
Lane County Circuit Court
16CV20052; A165902
470 P3d 410
In this tort action, plaintiffs appeal a general judgment and money award.
In the first assignment of error, one plaintiff argues that the trial court erred in
its dismissal of her claim for intentional infliction of emotional distress (IIED),
because there was insufficient evidence to support a finding that she willfully violated the trial court’s order. In the second assignment of error, another plaintiff
contends that the trial court erred in concluding that Washington law required
her to allege economic damages resulting from the property damage to state a
claim for trespass. In response, defendants argue that allegations of noneconomic
damages are insufficient. In the alternative, defendants contend that no reasonable factfinder could find that the plaintiff had a right to the exclusive possession
of the property or that the lease was not a sham. In a third assignment of error,
plaintiffs contend that the trial court erred in denying their motion for a new
trial, arguing, in relevant part, that “the jury instruction became the law of the
case.” Finally, plaintiffs assign error to the award of costs and disbursements to
defendants. Held: (1) The trial court erred in dismissing the IIED claim, because
there was insufficient evidence to find that plaintiff acted willfully. (2) The trial
court erred in dismissing the trespass claims. Under Washington law, trespass
is a strict liability tort and, therefore, a plaintiff can claim noneconomic damages that are proximately caused by the trespass. Furthermore, a reasonable
factfinder could find that defendant did not repudiate the lease agreement and
that the lease agreement was not a sham. (3) Denial of the motion for a new
trial was proper because the jury instruction did not become the law of the case.
(4) Because the trial court erred in dismissing the IIED and trespass claims,
reversal of the awards of costs and disbursements is required.
Reversed and remanded.
Cite as 305 Or App 144 (2020) 145
Karrie K. McIntyre, Judge.
George W. Kelly argued the cause and filed the briefs for
appellants.
Paul R. Allen argued the cause for respondents. Also on
the joint brief were Hutchinson Cox and John F. Kieran.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded.
146 Chang v. Chun
LAGESEN, P. J.
Ik Jung Chun started a second family without telling or leaving his first one. He housed his second family in a
rental home that he owned with his then-wife from his first
family, defendant Eun Hee Chun. For a time, he maintained
both families without his first family finding out about the
second one. Ik’s deceit caught up with him. This led to two
confrontations at the rental house between the members of
his first family and the members of his second family. Those
confrontations led the members of Ik’s second family, plaintiffs Chong Ok Chang (hereinafter referred to as Sophia),
J, and E, to sue Eun and her daughter, defendant Sun Young
Chun, for trespass, assault, false imprisonment, and intentional infliction of emotional distress.
Before trial, the trial court dismissed E’s claim for
emotional distress under ORCP 46 B as a discovery sanction
after his psychologist’s office refused to provide his treatment records. Then, at trial, the court dismissed the trespass claims for failure to state a claim. The jury returned a
verdict in Sophia’s favor on her assault claim against Sun,
awarding her $31 in damages, but otherwise rejected plaintiffs’ claims. Plaintiffs moved for a new trial on the ground
that the jury poll reflected that the jury had not complied
with the instructions explaining that the “same nine” jurors
had to agree on the answers to the questions presented on
the verdict form; the trial court denied that motion and
subsequently awarded defendants their costs. Plaintiffs
appealed.
On appeal, plaintiffs assign error to (1) the dismissal of E’s claim for intentional infliction of emotional
distress; (2) the dismissal of the trespass claims; (3) the
denial of the new-trial motion; and (4) the award of costs
to defendants. We conclude that the trial court erred by
dismissing E’s emotional-distress claim and the trespass claims but did not err in denying the motion for a
new trial. Because our disposition requires the reversal of
the judgment, including the award of costs, we need not
reach the question of whether the court properly awarded
costs.
Cite as 305 Or App 144 (2020) 147
I. STANDARDS OF REVIEW
The different assignments of error implicate three
different standards of review.
We review for abuse of discretion a trial court’s decision to strike a claim under ORCP 46 B. Pamplin v. Victoria,
123 Or App 388, 391,
859 P2d 1185 (1993), rev’d on other
grounds,
319 Or 429,
877 P2d 1196 (1994) (citing Hahm v.
Hills,
70 Or App 275, 279-80,
689 P2d 995 (1984)).
We review the grant of a motion to dismiss for failure to state a claim under ORCP 21 A(8) for legal error. Rivas
v. Board of Parole, 277 Or App 76, 78,
369 P3d 1239 (2016),
rev den,
360 Or 752 (2017). In so doing, we accept as true the
allegations in the complaint, and any reasonable inferences
that can be drawn from those allegations, viewing them in
the light most favorable to the nonmoving party.
Id.
“Our standard of review of a trial court’s denial of a
motion for a new trial depends on the nature of the alleged
error.” Greenwood Products v. Greenwood Forest Products,
357 Or 665, 678-79,
359 P3d 219 (2015). Here, the court’s
denial turned on an interpretation of law. That makes our
review for legal error.
Id. at 679.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs’ challenge to the dismissal of their trespass claims is the only one that implicates the underlying
facts of the parties’ dispute. Therefore, in setting forth those
facts, we focus on those relevant to the trespass claims.
Because the trial court resolved those claims on defendants’
motion to dismiss for failure to state a claim, we draw the
facts, in the main, from the complaint, though, for context,
we draw some additional undisputed facts from the evidence
presented at trial. The facts pertaining to plaintiffs’ other
assignments of error are procedural and not disputed.
In 2001, Ik and Eun, with their children Sun
and Hyung, moved from South Korea to Eugene, Oregon.
Thereafter, they acquired multiple real properties in Oregon
and Washington. One of those properties was a house in
Vancouver, Washington, that Ik and Eun purchased to use
as a rental.
148 Chang v. Chun
During the same time period, Ik and Sophia had
two children together, J and E. In 2013, Ik moved Sophia, J,
and E to the United States, eventually housing them in the
Vancouver rental house. J and E thought their parents were
married.
In May 2014, Sophia and Ik entered into a written
lease agreement for the Vancouver residence. The terms
of the lease set rent at $100 per month; the rent was low
because Ik was not otherwise paying child support. Eun
was not a party to the lease agreement. When she learned
that Ik had moved Sophia, J, and E into the home, she confronted Ik and told him that Sophia and her children were
not allowed to live there.
In October 2014, Eun and Hyung drove to the
Vancouver residence and confronted Sophia as she attempted
to leave the home to pick up J from school. Eun blocked
Sophia’s car in the driveway with her vehicle. Eventually,
Sophia left on foot to pick up her daughter. E, then 11 years
old, had been watching the confrontation from a window
inside the house. Eun and Hyung saw E in the window and
yelled for him to open the door. E attempted to leave through
the back door, but the women ordered him back in the
house, questioned him, videotaped him, and took his house
key.
Sophia, J, and E did not move out of the house. Half
a year later or so, Eun returned to the Vancouver home, this
time accompanied by Sun. Sophia and both children were
home. Eun and Sun rang the doorbell, yelled, and kicked
the door. They then unlocked the door using the key that
Eun had taken from E, broke the chain lock that secured
the door, and entered the house. Once inside, Eun dragged
Sophia into a bedroom, pushed her onto a bed, struck her
repeatedly, and prevented her from calling the police.
Following the two confrontations, Sophia, J, and E
brought this action. Sophia alleged two claims for trespass
to land, based on the two separate confrontations. Sophia
and E also alleged individual claims for assault, and all
three plaintiffs raised various claims for intentional infliction of emotional distress and false imprisonment.
Cite as 305 Or App 144 (2020) 149
Before trial, the court dismissed E’s claim for intentional infliction of emotional distress. It did so under ORCP
46 B as a discovery sanction after E’s counselors, Family
Solutions, refused to turn over his psychological records.
Following the close of plaintiffs’ case, defendants
moved to dismiss Sophia’s trespass claims for failure to state
a claim. Alternatively, defendants moved for a directed verdict on those claims. Defendants argued that the trespass
claims did not state a claim because they did not sufficiently
allege “actual and substantial damages” as required under
Washington law, because the complaint alleged only noneconomic damages, which in their view could not, as a matter
of law, constitute the type of damages needed to support a
trespass claim. Defendants also argued that an additional
basis for dismissal was that the complaint alleged that
Sophia had a written lease agreement with IK Golf LLC,
and there had been no evidence that IK Golf LLC owned
the properties or was on the lease. Plaintiffs responded by
requesting to amend and strike IK Golf LLC and replace it
with Ik Chun to conform with the evidence. On the directed
verdict motion, defendants argued that there was insufficient evidence that Sophia had the right to exclude others,
contending that there was insufficient evidence that Sophia
had a valid lease. The trial court granted the motion to dismiss the trespass claims and did not address the motion for
a directed verdict. It ruled further that plaintiffs’ motion
to conform was moot as a result of its decision to grant the
motion to dismiss.
The jury found in Sophia’s favor on her assault claim
against Eun and awarded her noneconomic damages in the
amount of $31. Plaintiffs subsequently moved for a new trial
on the ground that the jury poll affirmatively demonstrated
that the jury had not complied with the court’s jury instruction that the “same nine” jurors were required to agree on
the answers to each of the court’s questions on the verdict
form. The court denied the motion and, ultimately, awarded
costs and disbursements to defendants. Plaintiffs appealed.
On appeal, plaintiffs challenge the dismissal of E’s
claim, the dismissal of the trespass claims, the denial of their
new-trial motion, and the award of costs and disbursements.
150 Chang v. Chun
Defendants respond that the challenged rulings are correct
in all respects.
III. ANALYSIS
We address the plaintiffs’ assignments of error in
turn, beginning with the challenge to the dismissal of E’s
intentional infliction of emotional-distress claim.
A. Dismissal of E’s Intentional Infliction of Emotional-Distress Claim
The trial court dismissed E’s claim for intentional
infliction of emotional distress after Family Solutions, which
provided counseling services to E, refused to turn over E’s
psychological records. Family Solutions refused to do so even
though both E and his mother signed written authorizations
allowing for the disclosure of the records. Family Solutions
explained its decision in a letter to plaintiffs’ attorney:
“We are in receipt of your request for records for our client, [E]. Family Solutions has a responsibility to safeguard
the privacy of our client as outlined in [Revised Code of
Washington (RCW)] 70.02 and RCW 71.34. At this time, we
are unable to provide you with these records as our client
has not freely authorized their disclosure.”
Based only on that letter, the court found that E was “willfully disobeying” a court order regarding the production of
the documents, and that dismissal was the appropriate remedy for the contempt. Explaining its reasoning, the court
stated:
“The parties were first before the Court, actually, in Case
No. 15DR10690, a domestic relations matter that was
pending between Ik Jung Chun and Eun Hee Chun and
Ms. Chang was a joined party to that proceeding.
“In Case No. 15DR10690, Ms. Chang was joined on
March 24th, 2016 and the parties proceeded throughout
the summer as the cases were relatively tracking together.
The motion to consolidate was denied by the Court so that
the domestic relations case would move forward prior to
this tort case.
“On June 24, 2016, this case was filed and the 15DR10690
case was still tracking. The—this case as well as that case
Cite as 305 Or App 144 (2020) 151
had multiple, overlapping parties and intertwined legal
issues.
“In Case No. 15DR10690 on September 9 of 2016, the
Court granted an order compelling Ms. Chang to produce
the psychological and counseling records for [E].
“So that was the first order of the Court to provide those
psychological records. Further, on October 7, 2016, there
was an order that required Ms. Chang to deliver the documents not later than 12:00 p.m. on October 14, 2016.
“I draw this to the parties’ attention and for the Court
record that Ms. Eun Hee Chun has been trying to obtain
the documents for a significant and lengthy period of time.
“A protective order was requested in this case separately on January 31st, 2017 and a request for out-of-state
commission in order to get Mr. Hunter, who was the psychological counselor at Family Solutions.
“Both were signed by this Court on February 21st, 2017.
This matter was previously set for trial on April 25th, 2017.
And the Court postponed the case on February 27th and
set new discovery and deadlines and included motion to
compel deadlines.
“The motion to compel was heard on May 8th. And,
again, the motion to compel was granted and directed
Ms. Chang to provide the documents. The documents from
Family Solutions have not been delivered in their entirety
to the defendants in this matter.
“And we have received information by way of exhibits
filed on the motions that, despite the diligent efforts on
behalf of counsel, that I find that the records are within
the custody and control of the plaintiff.
“I find that, based on the exhibit submitted by Family
Solutions as a letter specifically from that entity, that the
plaintiff, [E], is willfully disobeying the order of the Court.
“And although prejudice need not be shown in order to
grant sanctions, there is significant prejudice in this case
as we are literally on the eve of the second trial setting
and defendant does not have the information in order to
prepare a sufficient defense and/or impeach or undermine
plaintiffs’ case.
152 Chang v. Chun
“I find that there are no lesser sanctions that would be
appropriate in this matter given this is the second trial
setting and the significant length of time that the parties have been attempting to obtain the information. So
motion to strike will be granted. However, we’ll go through
the amended second complaint and I will hear from the
parties.”
On appeal, E argues that there is insufficient evidence to support a finding that he willfully violated the trial
court’s order. In particular, he contends that the letter from
Family Solutions on which the court relied is not sufficient
to support a finding that E was willfully disobeying the
court’s order regarding disclosure of his counseling records.
We agree.
To dismiss E’s claim for intentional emotional distress under ORCP 46 as a sanction for a violation of a court
order,1 the court was required to find that his failure to
comply with the court order was “willful, in bad faith, or
reflect[ed] a similar degree of fault.” Lang v. Rogue Valley
Medical Center, 361 Or 487, 501,
395 P3d 563 (2017). Here,
the trial court determined that E acted willfully, so the
issue is whether the evidence before the court is sufficient to
support that determination.
A party’s noncompliance with a court order is willful when it is voluntary, that is, a choice by the party not
to comply. State v. Graham, 251 Or App 217, 220,
284 P3d
515 (2012). Thus, a party willfully disobeys a court order
when, with knowledge of the order and its requirements, the
party voluntarily engages in conduct that violates the order.
Alternatively, a party willfully violates a court order when a
party knows about the order, chooses to ignore it, and then
engages in conduct that violates it. Dept. of Rev. v. Carpet
Warehouse,
296 Or 400, 407,
676 P2d 299 (1984) (“A party
cannot ignore a court order and then claim that the act of
ignoring it was not willful.”); Pamplin v. Victoria,
138 Or
App 563, 566-67,
909 P2d 1245 (1996) (trial court’s finding
that party “ignored” discovery requests and court order was
equivalent of a finding of willfulness because it reflected a
1
ORCP 46 B(2) authorizes a court to impose sanctions against a party who
“fails to obey an order to provide or permit discovery.”
Cite as 305 Or App 144 (2020) 153
determination that the party “chose to take no notice” of the
discovery request and the court’s order).
The trial court based its determination that E acted
willfully on Family Solution’s representation in its letter
that “our client has not freely authorized [the] disclosure” of
his records. But what does that representation tell us about
E’s conduct? Nothing. The letter says nothing about what—
if anything—E did to cause Family Solutions to reach that
conclusion. Without facts about what, if anything, E did, it
is equally possible that Family Solutions based its determination that E had not “freely” authorized the disclosure
of his records on its own subjective assessment that E was
not acting voluntarily when he signed the release authorizing the disclosure of his records. On that point, the letter’s
reference to Family Solutions’ perceived obligations under
Washington law to protect E’s privacy tends to suggest that
Family Solutions was basing its decision on its perceived
legal obligation, rather than on E’s conduct, particularly
given that it is undisputed that E signed the release authorizing the disclosure of his counseling records. In all events,
this record discloses too little about what, if anything, E did
to allow for the conclusion that the failure to produce the
documents as required was the product of E’s own willful
conduct.
Arguing for a different conclusion, defendants rely
on Stronach v. Ellingsen, 108 Or App 37,
814 P2d 175, rev den,
312 Or 151 (1991). They characterize Stronach as a “nearly
identical” case, noting that there we upheld the trial court’s
ORCP 46 B dismissal of the plaintiff’s personal injury claim
for failure to produce medical records that were in the plaintiff’s doctor’s possession, even after the court had granted a
motion to compel those records. But Stronach did not involve
the same question presented here: whether the record was
sufficient to support a finding that the plaintiff willfully
disobeyed one of the court’s discovery orders. It therefore
provides no guidance on whether the record in this case is
sufficient to support the trial court’s factual finding that E
acted willfully.
Because the trial court’s finding that E acted willfully is not supported by the evidence, the court abused its
154 Chang v. Chun
discretion by dismissing E’s claim for intentional infliction
of emotional distress, and the judgment must be reversed
insofar as it dismissed that claim. Plaintiffs also contend
that the error in dismissing E’s claim requires reversal
of the judgment in defendants’ favor on the emotional-distress claims brought by J and Sophia. Plaintiffs point out
that the trial court restricted them from introducing any
evidence about what E’s distress was and how his distress
affected their own distress, something they contend could
have led the jury to reach a different result on their claims.
But plaintiffs do not assign error to any evidentiary ruling
in that regard, and they did not put forth an offer of proof
of what evidence they would have offered absent the court’s
restriction. As a result, we are unable to determine whether
or not any error in limiting the evidence of E’s emotional distress was harmless, which means that J and Sophia are not
entitled to reversal of the judgment on their claims. State
v. Krieger, 291 Or App 450, 457,
422 P3d 300, rev den,
363
Or 599 (2018) (explaining that offer of proof is required to
permit Court of Appeals to determine whether exclusion of
evidence is harmless or not).
B. Trespass Claims
The next issue is whether the trial court erred
in dismissing the trespass claims. The parties agree that
Washington law governs those claims. As noted, defendants
moved to dismiss those claims for failure to state a claim
on the ground that those claims did not state a claim for
trespass under Washington law because Sophia alleged only
noneconomic damages and did not seek to recover economic
damages for damages to the property. Defendants alternatively moved for a directed verdict on the ground that the evidence was insufficient to support a finding that defendants’
conduct in breaking into the house constituted “ ‘an invasion
of property affecting an interest in exclusive possession,’ ” as
Sophia was required to establish to prevail on her trespass
claim under Washington law. Grundy v. Brack Family Tr.,
151 Wash App 557, 567, 213 P3d 619 (2009) (quoting Wallace
v. Lewis County, 134 Wash App 1, 15,
137 P3d 101 (2006)).
The trial court granted the motion to dismiss and did not
reach the motion for a directed verdict.
Cite as
305 Or App 144 (2020) 155
On appeal, Sophia contends that the trial court
erred in concluding that the Washington law of trespass
required her to allege economic damages resulting from the
damage to the property in order to state a claim for trespass.
Alternatively, Sophia argues that she sufficiently alleged
damage to the property by alleging in the complaint that
defendants broke the chain lock on her door. In response,
defendants argue, as they did below, that a trespass claim
under Washington law requires proof of “actual and substantial damages” to property, and that allegations of noneconomic damages are insufficient to establish the damages
necessary to establish a trespass claim. In support of this
argument, they rely, as they did below, on a 2011 unpublished opinion from Division 1 of the Washington Court of
Appeals, Shoblom v. Pickler, 161 Wash App 1040, 2011 WL
1843526 at *2, rev den, 172 Wash 2d 1025 (2011), in which
the court concluded that, to recover emotional-distress damages on a trespass claim, a plaintiff had to prove damages to
property first. Defendants argue in the alternative that they
were entitled to a directed verdict on the trespass claims
because the evidence was insufficient to support a finding
that Sophia had an interest in the exclusive possession of
the Vancouver property.
We start with the question of whether Sophia failed
to sufficiently allege a trespass claim because the damages that she alleged ensued from defendants’ intentional
and uninvited entrance onto her property were for emotional distress and not for property damage. Here, no party
disputes that Washington law governs Sophia’s trespass
claims. When confronted with a question about the substantive law of another state, we first look to whether the state’s
appellate courts have answered the question at hand. King
v. King, 295 Or App 176, 189,
434 P3d 502 (2018), rev den,
364 Or 849 (2019). If they have not, our goal is “to ascertain
how the court of that state would apply its law” through an
examination of the principles of decision-making identified
in the state’s case law. Id. at 189 (using statutory interpretation to ascertain how a state, other than Oregon, would
apply its law); CACV of Colorado v. Stevens,
248 Or App 624,
629-30,
274 P3d 859 (2012) (using rules of substantive law to
resolve a procedural issue, which the other state’s case law
156 Chang v. Chun
did not directly resolve). In other words, when applying the
substantive law of Washington, we must put ourselves in
the shoes of Washington judges.
Here, our review of Washington appellate decisions has uncovered no published, precedential opinion on
the issue before us. Different divisions of the Washington
Court of Appeals have addressed the question at hand, however, in unpublished decisions, taking what appears to be
divergent approaches.2 In Shoblom, the 2011 unpublished
decision by Division One on which defendants rely, the court
concluded that allegations of noneconomic damages, standing alone, were insufficient to allege a claim for trespass; in
Division One’s view, to state a claim for trespass, a party
was required to allege actual and substantial damages to
property. Allegations of emotional distress, without “actual
and substantial damages,” do not suffice. Shoblom, 161
Wash App 1040, 2011 WL 1843526 at *2-3.
By contrast, in Berschauer v. State Dept. of Gen.
Admin., 1 Wash App 2d 1044, 2017 WL 6343652 (2017), a
case involving a trespass by survey technicians who placed
a stake on the plaintiff’s property, Division Three of the
Washington Court of Appeals concluded that trespass is a
strict-liability tort for which a person is liable if the person
intentionally enters another’s land. 1 Wash App 2d 1044,
2017 WL 6343652 at *6-8 (quoting Restatement (Second) of
Torts, § 158 (1965)). If that trespass—that intentional entry
onto another’s property—causes the person in possession of
the property to suffer emotional distress, then that person
2
Our review of Washington appellate case law on the elements of trespass
revealed some conflicting perspectives on those elements. Many of the conflicts
appear to stem from how to read the Washington Supreme Court’s decision in
Bradley v. Am. Smelting & Refining Co., 104 Wash 2d 677, 709 P2d 782 (1985).
As we understand Bradley—an understanding we think is consistent with the
understanding expressed by Division Three of the Washington Court of Appeals
in Berschauer v. State Dept. of Gen. Admin., 1 Wash App 2d 1044,
2017 WL
6343652 at *7-8 (2017)—it stands for the proposition that, to prove a claim for
trespass based on airborne pollutants, a plaintiff must establish “actual and substantial damages” to property. Bradley, 104 Wash 2d at 692,
709 P2d at 791. We
do not read Bradley to have imposed such a requirement for a claim for trespass
based on another’s entry onto land possessed by another. On that point, Bradley
itself appears to identify the Restatement’s strict-liability formulation of the tort
as the correct one. Id. at 683-86,
709 P2d at 785-87 (quoting Restatement (Second)
of Torts, § 158 (1965)).
Cite as
305 Or App 144 (2020) 157
may recover emotional-distress damages. Id. at *7 (noting
that the “[s]ample (not pattern) jury instructions set forth
in the Washington Practice Series assume that damages for
emotional distress proximately caused by an intentional
trespass are recoverable”).
We are persuaded that the decision by Division Three
of the Washington Court of Appeals in Berschauer reflects
the correct state of Washington law as to whether allegations like those made by Sophia—that defendants intentionally entered her property without permission, thereby
causing her to suffer emotional distress—state a claim for
trespass. Although that opinion is unpublished, Washington
General Rule 14.1(a) provides that “unpublished opinions of
the Court of Appeals filed on or after March 1, 2013, may be
cited as nonbinding authorities, if identified as such by the
citing party, and may be accorded such persuasive value as
the court deems appropriate.” Under that rule, it is appropriate for us to look to Berschauer for its persuasive value
because it was decided after March 1, 2013. By contrast,
the rule does not authorize consideration of Shoblom for any
purpose. But, setting aside the operation of General Rule
14.1, the analysis in Berschauer is more thorough than that
in Shoblom, and, for that reason, we are persuaded that
Berschauer correctly reflects the substance of Washington
law. Because, under Berschauer, Sophia’s allegations sufficiently allege a claim for trespass, the trial court erred in
granting defendants’ motion to dismiss for failure to state a
claim.
Alternatively, defendants argue that we should
affirm the trial court’s dismissal of the trespass claims on
the ground that they were entitled to a directed verdict on
those claims. Defendants contend that no reasonable factfinder could find that Sophia had a right to the exclusive possession of the Vancouver property because (1) Washington
is a community property state, which, in defendants’ view,
made any transfer of possession of the property from Ik to
Sophia essentially a nullity; and (2) in defendants’ view, no
reasonable factfinder could find that the lease between Ik
and Sophia was anything but a sham, given how low the
monthly rent was.
158 Chang v. Chun
Although the trial court granted defendants’ motion
to dismiss and did not reach their motion for a directed verdict, we consider defendants’ contentions. That is because, if
defendants are correct that they were entitled to a directed
verdict because the evidence was insufficient to permit the
jury to find in Sophia’s favor, then the trial court would have
been obligated to direct a verdict for defendants on those
claims anyway.
To determine whether defendants were entitled to
a directed verdict on the trespass claims, we view “the evidence, and all reasonable inferences therefrom, in the light
most favorable to the nonmoving party (in this case, plaintiff), and review to determine whether any reasonable factfinder could find in favor of the nonmoving party.” Yoshida’s
Inc. v. Dunn Carney Allen Higgins & Tongue, 272 Or App
436, 443,
356 P3d 121 (2015), rev den,
358 Or 794 (2016). A
directed verdict is appropriate only if the moving party is
entitled to judgment as a matter of law. Trees v. Ordonez,
354 Or 197, 205-06,
311 P3d 848 (2013).
Noting that Washington is a community property
state, defendants first contend that all reasonable factfinders would have to find that the lease between Ik and
Sophia was not a valid lease because Eun was not party
to it, as generally required by RCW 26.16.030(6) (generally requiring participation and consent of both spouses to
convey an interest in property). Although defendants are
correct to read RCW 26.16.030(6) to generally require the
participation of both spouses in the transfer of property,
that does not mean a transfer of an interest in property
by one spouse, in violation of the statute, is void as a matter of law. Instead, when one spouse acts alone to transfer community property, the transaction is voidable at the
election of the nonparticipating spouse. Sander v. Wells, 71
Wash 2d 25, 28-29, 426 P2d 481, 484 (1976). Furthermore,
a nonparticipating spouse may be estopped to void a contract when a nonparticipating spouse, among other things,
has sufficient information to be reasonably informed of the
improper transaction and fails to act. Id. at 29,
426 P2d
at 484.
Cite as
305 Or App 144 (2020) 159
Here, the evidence would allow a reasonable factfinder to find that Eun did not repudiate the lease agreement. Although Eun testified that she protested to her
husband that she did not want plaintiffs in the house, she
admitted that she took no action to evict them or any other
legal action to remove them from the premises, despite her
awareness that they were living there. That more than half
a year passed between Eun’s first visit to the Vancouver
house to confront Sophia and her second visit, during which
time she took no steps to have them removed from the
premises, would also tend to support a finding that Eun did
not repudiate the lease. Accordingly, defendants would not
have been entitled to a directed verdict on the theory that
Ik’s unilateral transfer of the property rendered the lease
invalid because the jury could have permissibly found that
Eun did not repudiate the lease.
Defendants’ other theory as to why they were entitled to a directed verdict is that, in their view, all reasonable
factfinders would have to find that the lease between Ik and
Sophia was a sham because of the low monthly rent. We
disagree. This record allows for competing determinations
as to whether the lease was a sham and does not require a
finding either way. A reasonable factfinder could find, based
on the form of the lease and Sophia’s testimony about why
the rent was low (because Ik was not paying her any child
support), that the lease was a valid, bargained-for exchange.
A reasonable factfinder could also find otherwise. The evidence gave rise to a jury question over the validity of the
lease and, relatedly, Sophia’s right to exclusive possession.
Accordingly, defendants would not have been entitled to a
directed verdict on the trespass claims had the trial court
reached that motion, and we cannot affirm the trial court’s
dismissal of the trespass claims on that basis.
For the foregoing reasons, the trial court erred in
dismissing the trespass claim and the judgment must be
reversed for that reason. Although plaintiffs argue that the
erroneous dismissal of the trespass claims requires reversal
of the judgment as to their other claims, we do not see any
likelihood that the dismissal affected the jury’s verdict on
the other claims.
160 Chang v. Chun
C. Motion for a New Trial
Next, plaintiffs contend that the trial court erred
in denying their motion for a new trial. Plaintiffs contend
that (1) the trial court instructed the jury that the same
nine jurors had to agree on the answer to each of the questions on the verdict form; (2) the jury poll shows that the
jury did not fully comply with that instruction; and (3) the
jury instruction became the law of the case, even if it might
have been wrong, such that the jury’s failure to adhere to it
requires reversal. Defendants respond that the jury instructions did not become the law of the case and were susceptible
to multiple interpretations, making the jury’s verdict constitutionally sound. Defendants contend that the Supreme
Court’s decision in Kennedy v. Wheeler, 356 Or 518,
341 P3d
728 (2014), which rejected a virtually identical argument,
defeats plaintiffs’ argument. Defendants are correct about
Kennedy, and we reject plaintiffs’ third assignment of error
for that reason.
D. Costs and Disbursements
Finally, plaintiffs assign error to the award of costs
and disbursements to defendants. Our conclusion that we
must reverse the dismissal of E’s claim for intentional infliction of emotional distress and of Sophia’s trespass claims
and remand for further proceedings on those claims means
we must also reverse the award of costs and disbursements.
ORS 20.220 (providing for reversal of judgment of costs upon
reversal of judgment on which costs are based).
Reversed and remanded.
