262
Argued and submitted June 18, 2020, affirmed July 14, 2021
Lowell E. PATTON,
individually and as Trustee,
Plaintiff-Counterclaim Defendant-Appellant,
and
PATTON OREGON PROPERTIES, LLC,
Counterclaim Defendant-Appellant,
v.
William C. COX,
Defendant-Counterclaimant-Respondent.
Multnomah County Circuit Court
17CV17589; A169460
495 P3d 711
Appellant Patton hired respondent Cox, a land use lawyer, to help him
develop some property for the purpose of selling it. They agreed that Cox’s compensation would be contingent on the development and sale of the property. After
12 years of work, but before the property sold, Cox requested $2 million in compensation and Patton refused to pay him. Cox sued Patton, asserting claims for
unjust enrichment and quantum meruit. At trial, Patton argued that a “benefit
conferred” is an element of quantum meruit, that the jury should be so instructed,
and that the jury should be required to answer on its special verdict form whether
Cox had conferred a benefit to Patton. The trial court disagreed but included a
“benefit conferred” element on the unjust enrichment claim. The jury returned a
$1,560,000 verdict in favor of Cox on the quantum meruit claim. Patton appealed,
renewing his arguments below. Held: Assuming that the trial court erred, any
error in omitting a “benefit conferred” element from the jury instructions and
verdict form was harmless. Patton’s theory of his case conceded that Cox had
conferred some benefit, and the jury found on Cox’s unjust enrichment claim that
Cox had conferred a benefit. The trial court’s omission of an explicit requirement
that the jury find a benefit conferred on the quantum meruit claim was therefore
harmless.
Affirmed.
Thomas M. Ryan, Judge.
Timothy R. Volpert argued the cause for appellants. Also
on the briefs was Tim Volpert PC.
Erica R. Tatoian argued the cause for respondent. Also
on the brief were James E. Mountain, Jr., and Harrang
Long Gary Rudnick P.C.
Cite as 313 Or App 262 (2021) 263
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Affirmed.
264 Patton v. Cox
LAGESEN, P. J.
Appellants Lowell Patton and Patton Oregon
Properties, LLC (collectively, Patton), hired respondent Cox,
a land use lawyer, to help him develop some property for
the purpose of selling it. They agreed that Cox’s compensation would be contingent on the development and sale of
the property. After 12 years of work, but before the property
sold, Cox requested $2 million in compensation and Patton
refused to pay him. Cox sued Patton, asserting claims for
unjust enrichment and quantum meruit. At Cox’s jury trial,
Patton argued that a “benefit conferred” is an element of
quantum meruit, that the jury should be so instructed, and
that the jury should be required to answer on its special
verdict form whether Cox had conferred a benefit to Patton.
The trial court disagreed that the jury should be instructed
that “benefit conferred” was an element of quantum meruit,
but, on the unjust enrichment claim, the court did include a
“benefit conferred” element. The jury returned a $1,560,000
verdict in favor of Cox on the quantum meruit claim. It
rejected the unjust enrichment claim, but only after answering “yes” to the question on the verdict form as to whether
Cox had “confer[red] the benefit of his services” to Patton.
On appeal, Patton assigns error to the trial court’s
omission of a “benefit conferred” element from the jury
instructions on the quantum meruit claim and the portion
of the verdict form addressing that claim. We conclude that,
because Patton’s theory of the case at trial presupposed that
Cox’s legal services conferred a benefit, any error—assuming
without deciding that there was error—is harmless. We
therefore affirm.
FACTS
This case, as noted, turns on a harmless-error
analysis. Assessing whether an alleged instructional error
is harmless “requires us to conduct a review of the whole
record to assess the likelihood that the error permitted
the jury to reach an incorrect result.” Purdy v. Deere and
Company, 281 Or App 407, 430,
386 P3d 2 (2016), rev den,
361 Or 100 (2017). In so doing, we evaluate the instructions given as a whole, the evidence presented at the trial,
Cite as
313 Or App 262 (2021) 265
and the parties’ theories of the case as presented at trial.
Id. Because of this “whole record” review requirement, we
describe in some detail the parties’ dispute and how they
tried this case.
Patton owns 225 acres of real property located
near Happy Valley, Oregon. In 2005, he hired Cox to help
him develop the property for sale. Patton previously had
employed Cox’s services for development of other properties, always paying Cox by the hour. But this time, they
entered into a contingency fee agreement. They did so to
offset Patton’s costs, given the lengthy effort and high outof-pocket expense that they anticipated would be required
to obtain permits and government approvals to develop this
particular property. The agreement provided that Cox would
be paid once there was a master plan in place and the property was zoned and sold. Based on the value of the property,
Patton projected that the amount that Cox would be paid for
his work would end up being around $3.3 million, but, under
the terms of the agreement, the exact amount would depend
on what the property sold for.
Over the next 12 years, Cox worked to develop the
property, putting in an average of 15 hours per week. He
worked with a team of experts to develop a concept for a
master plan for the property, but the city in which the property was located at that time, Damascus, did not approve
the plan. After it became clear to Cox that Damascus would
not allow Patton to develop the property, Cox worked to
de-annex the property and move it to a different city—a process that required lobbying the legislature and representing
Patton in appellate litigation. Cox succeeded, and the property eventually ended up in the City of Happy Valley’s care.
At that point, in Cox’s view, he had “gotten all the
road blocks out of the way, and [the property] was ready to
be developable” within Happy Valley. In the spring of 2017,
he and Patton agreed that he had completed his work on
the property. Cox asked Patton to pay him $2 million for his
legal services benefitting the property over the course of the
12 years, and Patton refused. Unable to resolve the dispute
without litigation, Patton sued to have the fee agreement
declared void, and Cox counterclaimed for, among other
266 Patton v. Cox
things, unjust enrichment and quantum meruit, seeking
payment for his work on the property.
The case proceeded to a bifurcated trial. In the first
part of the trial, where Patton sought a declaratory judgment voiding the fee agreement, the court found that the
agreement “was void when signed and remains so.”1 The
second part of the bifurcated trial was a jury trial on Cox’s
counterclaims.2
From the outset of the jury trial, both parties recognized that Cox’s work resulted in a benefit to Patton in
terms of advancing his objective of selling the property as
developable land. The parties had different understandings, however, of Cox’s legal theory of recovery and how that
recovery should be measured. Cox framed the method of calculating his recovery as the value of his work. That is, the
hours Cox expended on the project multiplied by his hourly
fee:
“Mr. Cox will tell you he charged a below market rate
for his services at $250.00 an hour in that timeframe, and
just work as a land use lawyer, and providing development
consultant services. He will tell you that he worked 9,000
hours over all those years helping Mr. Patton. In the spring
of 2017 Mr. Cox asked Mr. Patton to pay him two million
for his services. Mr. Patton refused. Mr. Cox is here asking you to recognize the value of his work over 12 years to
Mr. Patton’s benefit.”
Patton, on the other hand, framed the method of calculating
Cox’s recovery as a measurement of the benefit conferred on
the property. That is, how much Cox’s efforts increased the
dollar value of the property. Addressing the jury, Patton’s
counsel explained:
“So your task will be, to step back and look at what you
believe Mr. Cox did. What he has proved for you that he has
done, and then to determine how much did that benefit the
property. Now we’re not claiming that—and Mr. Patton’s
1
The question of whether the trial court properly voided Cox’s fee agreement
is not before this court.
2
The court ruled that its ruling voiding the fee agreement could not come
into evidence during the second part of the bifurcated trial but that evidence of
the agreement itself could.
Cite as 313 Or App 262 (2021) 267
not here saying that Mr. Cox didn’t do work, and that there
wasn’t some benefit to the property, we’re not claiming
that. Be we are claiming that we are two million dollars,
the lawsuit[’]s for four million dollars, we’re claiming that
there wasn’t that sort of a benefit conferred to the property.”
Patton testified at trial that, in his view, Cox did not help
very much but still conceded that Cox (1) worked to de-annex
the property from Damascus and (2) represented Patton’s
interests in the property at the legislature and in litigation.
The parties’ differing understandings of how to calculate recovery fueled a related disagreement over whether
a “benefit conferred” was an element of quantum meruit
recovery, and, if so, how that should be conveyed in the jury
instructions and special verdict form. In discussing the
quantum meruit instruction’s third element, Patton’s counsel
explained, “[T]hat bracket says, ‘Mr. Patton requested that
the work be performed.’ I think what needs to be added—
and actually received a benefit from the work performed. So
there, I think, has to be a reference to work having been performed.” (Emphasis added.) In response, the court suggested
the following revision during the following exchange:
“What if it said, ‘Number 1, Mr. Patton requested that the
work be performed. Number 2, Mr. Patton benefitted from
the work,’ then, ‘Number 3, Mr. Cox expected,’ and so forth?
“[PATTON’S COUNSEL:] I think that would work.
“THE COURT: What’s your position on that?
“…
“[COX’S COUNSEL:] … [T]he problem I’m having is
there’s two separate theories. Unjust enrichment talks in
terms of benefit. Quantum meruit only talks in terms of
work performed and payment. It doesn’t conflate benefit.
That’s not part of a quantum meruit claim. That’s not an
element.”
After the parties’ lawyers and the court reviewed the applicable case law, all were in agreement that the unjust enrichment claim required proof of a benefit. As for the quantum
meruit claim, the court concluded that, to the extent it
included an element of a benefit, the last sentence of the proposed instruction adequately addressed that element:
268 Patton v. Cox
“It seems to me … that the last sentence of the proposed instruction really incorporates what [Hazelwood
Water Dist. v. First Union Management, 78 Or App 226,
715
P2d 498 (1986),] was talking about. Hazelwood says the
measure of quantum meruit is the reasonable value of the
benefit to the recipient. The last sentence of our proposed
instruction says, ‘If you find that Mr. Cox has proved these
elements, then Mr. Cox is entitled to the reasonable value
of the services he rendered.’ ”
Disagreeing, Patton, through counsel, made his record:
“I said this before to be a conflation, but that the damages
issue for both quantum and unjust enrichment requires a
benefit to be conferred.
“…
“… And again, this gets to kind of the conflation idea,
I think under the—under restitution for both of these theories, but it—the rule reads that the nature of restitution for
a benefit conferred on another is the value of the benefit to
the recipient and not the expense to the party who confers
it.”
He also requested that the jury be instructed, “If you find
that [Cox] conferred no benefit on [Patton], then [Cox] is
not entitled to recover on his claims of quantum meruit or
unjust enrichment.” And Patton’s proposed special verdict
form included the question, “Did [Cox] confer a benefit to
[Patton] as alleged?” The court did not include that wording
in the instructions or form.
Instead, as ultimately issued to the jury, the quantum meruit section of the special verdict form posed the
following five questions: (1) “Did Mr. Cox establish that
Mr. Patton requested that Mr. Cox provide services to assist
him in developing the Carver Property?”; (2) “Did Mr. Cox
establish that he expected Mr. Patton to pay him for the
services to assist him in developing the Carver Property?”;
(3) “Did Mr. Cox establish that Mr. Patton knew or should
have known that Mr. Cox expected to be paid for his work to
assist in developing the Carver property?”; (4) “Did Mr. Cox
perform work?”; (5) “What is the reasonable value of the
work that Mr. Cox did for Mr. Patton?” On Cox’s unjust
enrichment claim, consistent with the parties’ agreement
Cite as 313 Or App 262 (2021) 269
on the elements of that claim, the court instructed the jury,
“In order to prevail on this claim, Mr. Cox must show that
Mr. Patton was enriched by, or benefitted from Mr. Cox’s
services, and that it would be unjust for Mr. Patton to
retain the benefit.” In keeping with those instructions,
the unjust enrichment portion of the verdict form asked,
(1) “Did Mr. Cox confer the benefit of his services to Mr. Patton
to assist in developing the Carver property?” and (2) “Was
Mr. Patton unjustly enriched by the services of Mr. Cox?”
During closing argument, Patton argued, in line
with the theory of the case expressed in his opening statement, that Cox had conferred a benefit but that it was only a
small one: “Now there’s no doubt, but that Mr. Cox had some
involvement in the appeal process that came down, and the
result eventually a de-annexation of Mr. Patton’s property,
no doubt about that. And that there’s some benefit conferred
by that.” Patton also allowed that Cox “played some role” in
getting “the property into Happy Valley,” then argued, “is it
more likely that it can get done in Happy Valley? Probably.
But that by itself isn’t a result of what Mr. Cox has done. It’s
as much a result of what Mr. Patton has done ….” Patton
went on to summarize his theory, “We’re not suggesting that
Mr. Cox didn’t do anything and that there isn’t some value to
it. We never suggested that. What we are suggesting is that
when he came and demanded $2 million, that’s too much.”
Patton therefore floated to the jury a figure that, in his view,
was more in line with the benefit that Cox conferred:
“So what does Mr. Patton think about that? We think
that a number 25,000 for benefit may be reasonable, even
though there’s no proof on it. The key question in this case,
ladies and gentlemen, from Mr. Patton’s standpoint, is the
reasonable value of services. … And that’s the second
question. That’s the quantum meruit question.”
Patton ultimately concluded:
“I’ll repeat. We’re not standing here and we’re not saying that Mr. Cox was not entitled to anything. I want you
to be clear about that. But he does have the burden of proof.
He does have the preponderance to establish the view, the
value of the benefit that’s been given to this property, it’s
not there, and that he gave to the property, that’s not there,
and the reasonable value of his services. And simply by
270 Patton v. Cox
having himself and his wife testify to this subject to the
quality of that proof, you should consider it.
“So what is the bottom line? It’s up to you to decide the
reasonable value of his services. We suggest maybe $50,000
to that. Granted, he did a lot of time, put in a lot of time,
but we really—remember, it’s his burden of proof, and so
it’s really kind of a guessing game in terms of how accurate
his information is. So we are proposing that that would be
a reasonable way to do it.”
On the quantum meruit claim, the jury found that
“the reasonable value of the work that Mr. Cox did for
Mr. Patton” was $1,560,000. The jury did not find for Cox
on the unjust enrichment claim, but it did answer “Yes” on
the verdict form to the unjust enrichment question, “Did
Mr. Cox confer the benefit of his services to Mr. Patton to
assist in developing the Carver property?” The court entered
judgment in favor of Cox.
Patton appeals, contesting in four assignments of
error the trial court’s refusal to require that, in order to
uphold a restitution award under quantum meruit, the jury
explicitly find that Cox conferred a benefit to Patton. Patton
argues that a “benefit conferred” is an element of quantum
meruit and that, therefore, the court legally erred in the
following ways: (1) by entering a judgment in favor of Cox
absent a jury finding that Patton benefitted from Cox’s services; (2) by leaving off of the special verdict form the question whether Patton benefitted from Cox’s services; (3) by
refusing to use a proposed verdict form that included the
question of whether Patton benefitted from Cox’s services;
and (4) by refusing to instruct the jury that Cox could not
recover in quantum meruit unless Cox’s work benefitted
Patton. Cox responds that a benefit conferred is not an element of a quantum meruit claim when that claim, as here, is
based on an implied-in-fact contract, and that, in any event,
any error in omitting “benefit conferred” from the jury
instructions and verdict form was harmless.
ANALYSIS
We start by clarifying what is and is not at issue on
appeal. The parties’ arguments below, and to some extent
on appeal, addressed two distinct but related concepts that,
Cite as 313 Or App 262 (2021) 271
because of their connection, could generate confusion about
what we are, and are not, called upon to decide. The first
concept is one that Patton advanced at trial and advances
again on appeal: that “benefit conferred” is an element of
quantum meruit. The second concept is one that Patton
advanced (at times) at trial but does not advance on appeal:
that restitution in a quantum meruit claim should be calculated by measuring the monetary benefit that the respondent
received from the claimant’s services, rather than the value
of the services provided. At some points in the trial, Patton
appeared to be using his conception of the proper method
of calculating restitution—the increased-value-to-property
method—as support for his contention that the jury needed
to find a “benefit conferred” element. But, on appeal, Patton
does not argue that the jury was improperly instructed on
how to calculate Cox’s restitution;3 he just argues that the
jury needed to explicitly find that Patton had received a benefit from Cox’s work, framing a “benefit conferred” element
as a “prerequisite to [Cox’s] entitlement to recover in quantum meruit.” Having clarified Patton’s contention on appeal,
we conclude that, assuming without deciding that the trial
court erred in the manner Patton alleges, any error in omitting a “benefit conferred” element from the jury instructions
and verdict form was harmless.
On review of whether a trial court’s error in omitting an element from jury instructions or a verdict form is
harmless, “We must affirm despite trial court error if there
is little likelihood that the error affected the verdict.” State
v. Parkerson, 310 Or App 271, 278,
484 P3d 356 (2021). “To
make that determination, the court considers the instructions as a whole and in the context of the evidence and
record at trial, including the parties’ theories of the case
with respect to the various charges and defenses at issue.”
Id. (internal quotation marks omitted).
Here, Patton conceded to the jury that Cox had
conferred a benefit to him by de-annexing the property
from Damascus into Happy Valley. In Patton’s opening
3
The trial court instructed the jury that, if Cox prevailed on his quantum
meruit claim, he was “entitled to the reasonable value of the services he rendered.” Patton does not assign error to that instruction.
272 Patton v. Cox
statement, Patton’s counsel explained that “Patton’s not
here saying that Mr. Cox didn’t do work, and that there
wasn’t some benefit to the property, we’re not claiming that.”
Indeed, Patton himself testified at trial that Cox worked to
de-annex the property out of Damascus and represented
Patton’s interests in the property at the legislature and
in litigation. Later, in Patton’s closing argument, Patton’s
counsel reiterated several times that Patton was not contesting that Cox had conferred a benefit. He argued, for
example, “Now there’s no doubt, but that Mr. Cox had some
involvement in the appeal process that came down, and the
result eventually a de-annexation of Mr. Patton’s property,
no doubt about that. And that there’s some benefit conferred
by that.” As Patton framed his case for the jury, whether Cox
conferred a benefit was never a disputed issue. Instead, the
issue, as indicated by Patton’s arguments, was how much
of a benefit was conferred: “So what does Mr. Patton think
about that? We think that a number 25,000 for benefit may
be reasonable, even though there’s no proof on it.” 4
That the jury would have found that Cox’s services
resulted in a “benefit conferred” had it been asked to is
confirmed by its findings on the unjust enrichment claim.
Although the jury ultimately did not find that Cox had
proved all the elements of unjust enrichment, it did find that
Cox had “confer[red] the benefit of his services.” Specifically,
on the portion of the verdict form addressing the unjust
enrichment claim, the jury answered “Yes” to the question,
“Did Mr. Cox confer the benefit of his services to Mr. Patton
to assist in developing the Carver property?” Given that
finding, if asked on the verdict form whether Cox conferred
a benefit, the jury in all likelihood would have answered
“Yes.”
In that regard, this case resembles State v. Kerne,
289 Or App 345,
410 P3d 369 (2017), rev den,
363 Or 119
(2018), in which we concluded that the trial court’s error in
not instructing the jury on the element of an offense was
4
Patton’s reference to a lack of proof refers to his argument that Cox did not
bring in evidence of the value of the property before and after Cox did work on it.
Patton argued, “I suggest there is no evidence of how much Mr. Patton benefitted
or his property benefitted from what Mr. Cox did. How did the value go up, how
did it change? We haven’t heard that.”
Cite as 313 Or App 262 (2021) 273
harmless under the circumstances of that case. There, the
defendant was charged with 10 counts of first-degree rape
and 10 counts of coercion, all arising out of the same conduct. Id. at 346. The trial court erroneously omitted from its
instructions the “knowing” element of first-degree rape, and
the defendant assigned error to that omission on appeal.
Id. at 348-49. We concluded that, because the jury found
that the defendant knowingly coerced the victim into having sex with him on the coercion counts, the jury necessarily would have found the “knowing” element for the first-degree rape counts had it been properly instructed, given
that all counts were based on the same conduct. Id. at
350-51. Consequently, the court’s error had little likelihood
of affecting the verdict, and we affirmed. See also Parkerson,
310 Or App at 279-80 (omission of element of crime from
jury instruction was harmless because, given the evidence
at trial and the jury’s finding of other elements, the jury
necessarily found the omitted element); State v. Waldbillig,
282 Or App 84, 93-94,
386 P3d 51 (2016), rev den,
361 Or
350 (2017) (instructional errors harmless where there was
no evidentiary basis for not finding the omitted element).
The same is true here. The quantum meruit claim
and the unjust enrichment claim were based on the same
conduct, like the criminal counts at issue in Kerne. Because
the jury found that Cox conferred a benefit in the context
of the unjust enrichment claim, it necessarily would have
found the same had it been instructed to do so in the context
of the quantum meruit claim—especially given Patton’s concessions in argument and testimony that Cox’s services conferred a benefit, and that the dispute was about the degree
of benefit.
In short, Patton’s argument and the evidence told
the jury that Cox had conferred a benefit, and how to value
that benefit, and the jury found a benefit with respect to the
unjust enrichment claim. Under those circumstances, if the
jury had been instructed that it needed to find a “benefit
conferred” with regard to the quantum meruit claim, and
then asked to signal that finding on the verdict form, there
is little likelihood that it would not have made the necessary
finding. The trial court’s omission of an explicit requirement
274 Patton v. Cox
that the jury find Cox conferred a benefit to Patton was
therefore harmless.
Affirmed.
