Neel v. Lee

                                       159

     Argued and submitted September 17, 2020, reversed and remanded
    December 8, 2021, petition for review denied May 19, 2022 (

)


                         Deborah NEEL,
                       Plaintiff-Appellant,
                                 v.
                           Dana LEE
                and Tammie Lee, husband and wife,
                      and Danielle K. Lee,
                     Defendants-Respondents.
                   Marion County Circuit Court
                      17CV43527; A170408
                                   

     Plaintiff appeals from a judgment dismissing her two claims—one for financial abuse of a vulnerable person and another for restitution due to unjust enrichment. The claims arose out of the plan of related family members to combine
resources to buy a residential property to live together. On appeal, plaintiff
assigns error to the trial court’s summary judgment rulings that defendants did
not take a vulnerable person’s money or property wrongfully and that no evidence
supported a claim of unjust enrichment. Held: Plaintiff presented a genuine issue
of material fact whether defendants wrongfully took plaintiff’s money or property
interest where circumstances could be found to support a finding that financial
abuse of a vulnerable person occurred through misrepresentation by nondisclosure. Plaintiff also presented a genuine issue of material fact whether a supposed
contract failed for lack of essential agreement among the parties, thereby leaving
defendants unjustly enriched and warranting restitution. Accordingly, the trial
court erred in dismissing plaintiff’s claim for financial abuse of a vulnerable
person and her claim for restitution due to unjust enrichment.
    Reversed and remanded.



    Courtland Geyer, Judge.
   Matthew J. Kalmanson argued the cause for appellant.
Also on the briefs was Hart Wagner LLP.
   Tricia M. Olson argued the cause for respondents. Also
on the brief was Heltzel Williams PC.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Brewer, Senior Judge.
    DeVORE, P. J.
    Reversed and remanded.
160                                                            Neel v. Lee

           DeVORE, P. J.

         Plaintiff Neel appeals from a judgment dismissing
her two claims—one for financial abuse of a vulnerable person and another for restitution due to unjust enrichment.
The claims arose out of the plan of related family members
to combine resources to buy a residential property to live
together. Plaintiff first assigns error to the trial court’s
summary judgment ruling that defendants did not take a
vulnerable person’s money or property wrongfully. See ORS
124.110(1)(a) (providing statutory claim for financial abuse
of a vulnerable person).1 Defendants contend that there was
no wrongful taking, because they made no misrepresentation and because plaintiff’s contribution to the purchase was
nothing but a gift. Plaintiff next assigns error to the trial
court’s summary judgment ruling that no evidence supports
a claim of unjust enrichment. Defendants contend that the
circumstances do not match any established pattern that
warrants restitution.

         We reject defendants’ arguments and conclude that
the summary judgment rulings were error. We first determine that plaintiff presented a genuine issue of material
fact whether defendants wrongfully took plaintiff’s money
or property interest when circumstances could be found to
impose upon defendants a duty to give notice and secure
plaintiff’s consent before taking plaintiff’s money and initiating a change to the purchase documents to remove
plaintiff from the transaction and title to the property. A
jury could find that misrepresentation by nondisclosure
was abuse of a vulnerable person under ORS 124.110(1)(a).
Next, we determine that plaintiff presented a genuine issue
of material fact whether plaintiff transferred to defendants $169,000 as part of an agreed plan to buy property
for a joint living arrangement, whether that plan failed for
lack of agreement about plaintiff’s interest, and whether

   1
     In relevant part, ORS 124.110(1)(a) provides that an action may be brought
under ORS 124.100 for financial abuse
   “[w]hen a person wrongfully takes or appropriates money or property of a
   vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable
   person.”
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that failure left defendants unjustly enriched, warranting restitution to plaintiff. Accordingly, we reverse and
remand.

                       I. BACKGROUND

         On review of rulings on motion for summary judgment, we review the record to determine if there are genuine
issues of material fact. Bayview Loan Servicing v. Chandler
& Newville, 

, 

, rev den, 

 (2018) (citing ORCP 47 C); Jones v. General Motors
Corp., 

, 

 (1997). We view the evidence and all reasonable inferences that may be drawn from
the evidence in the light most favorable to plaintiff, because
she is the party opposing the motion. 

A.    Facts

         Plaintiff Neel and defendant Dana Lee are sister
and brother, respectively. Defendants Dana Lee and Tammie
Lee are husband and wife. Defendant Danielle Lee is their
adult daughter. Plaintiff, who is single, discussed with her
brother moving from Tennessee to Oregon, to buy property
together, and to live with his family in a “family compound.”
Together, they made an earlier purchase offer, which was not
accepted, on another property, which would have involved
her “participation” of “around $80,000.” In her deposition,
plaintiff recalled her conversations with her brother:
         “First thing I remember is that we was always used in
     buying a property. His terminology always was a we, not
     his family would buy it and I would be invited to come and
     live there[,] but we would buy the property. That included
     me. So my initial involvement in all of this was to be a
     co-purchaser of the property[.]”

(Emphases added.) Dana Lee sent plaintiff several financial statements that plaintiff described “as to what he felt
our combined team could afford, not just his family but with
me included.” Plaintiff explained that defendants could not
afford the properties at which they were looking without her
“participation.” Her interest was to move to Oregon to live
with family in a “combined purchase … situation.”
162                                                              Neel v. Lee

         Plaintiff brought to defendants’ attention a State
Street property. Her understanding was, “We would make
an offer on the house and buy it.” Her intent was to be “an
owner of the State Street property,” appearing on its title. To
her, being on the title was “was what the money was for.” She
testified that she never would have entered into the transaction if she were not on the title. When the parties made
a purchase offer on the property, it was made with plaintiff’s and defendants’ names, each as a “buyer.” Plaintiff
and defendants each had engaged in a “Disclosed Limited
Agency Agreement for Buyers” with a real estate firm and its
licensee, Huhn. Accordingly, their purchase offer included a
“Final Agency Acknowledgement” that showed plaintiff as
well as defendants as “buyers.”
         Dana Lee told plaintiff that the bank required that
she be on the “mortgage,” meaning the loan, in order to be
on the title. In response to defendants’ motion for summary
judgment, plaintiff declared that her brother’s statement was
false, because she later learned that the lender had agreed
to allow her niece Danielle Lee to be on the title without
being on the mortgage debt.2 Plaintiff believed that defendants’ financial statement showed that they could carry the
debt with her cash participation and without further contribution from her. In response to her brother’s statement,
plaintiff told her brother that she was not willing to put “all
of this money” into the purchase and commit to a mortgage
debt when she did not expect to be working. In her deposition, plaintiff testified that her brother’s position allowed
“no wiggle room.” She testified:
        “From my position, I have absolutely no incentive to put
    money into a property that I do not have a name on the
    title in. It’s my money going into the property. I’m on the
    purchase offer. Therefore, the money that I’m putting into
    the purchase represents my portion of the purchase.”
Her assertion was, “[I]f I’m putting money in this property,
I’m on the deed but not the loan, make it happen.” Given
the written purchase offer, her understanding was that she
    2
      In his deposition, the loan officer confirmed that one party may be on the
loan while that party and another, who is not on the loan, may be on title to the
property.
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“would be on the deed and not the loan.” Plaintiff recognized
that her brother did not agree, and their conversations did
not “resolve[ ] anything.”
         In the transaction, Dana Lee had taken the initiative to coordinate for the buyers in working with the real
estate agent, Huhn, with the loan officer, Kirkevold, and
directly with the seller. Kirkevold explained that he “mainly”
took direction “the whole time” from Dana Lee because he
was the “main point of contact” and, although plaintiff was
to be on title, she was not on the loan. In his deposition,
Huhn explained that he thought of Dana and Tammie Lee
as his clients, not plaintiff.
        To make the initial purchase offer, plaintiff used
savings and borrowed against her Tennessee property to
send $130,000 to Dana Lee. To achieve a final sale agreement, plaintiff sent an additional $39,000 to him. Dana Lee
received the final portion of plaintiff’s money on August 5,
2016.
        On the same morning, Dana Lee contacted Kirkevold
to report that he had received the money and to instruct
that plaintiff and Danielle Lee should be removed from the
expected title. In turn, Kirkevold contacted Huhn to direct
an addendum to the purchase agreement to remove plaintiff
and Danielle Lee, because Dana Lee “wanted it like” that.3
        Plaintiff was aware that Danielle Lee was “coming
in and out of the picture because she was needed … and
then out because she wasn’t going to live in Oregon.” On
August 5, 2016, Huhn sent plaintiff an Addendum No. 10
that removed Danielle Lee as a purchaser. His cover email,
created through DocuSign, identified that the addendum
would extend the closing date and “remove Danielle.”
Danielle’s removal was not disputed, and plaintiff signed
and returned the change.
        Huhn then sent a revised Addendum No. 10 that
would have the effect of also removing plaintiff as a buyer
of the property. Huhn’s email said that Addendum No. 10
    3
      Kirkevold explained that the lender was involved in the transaction,
because it needs to know what is going on, and it gave such directions as a service
to the client.
164                                                               Neel v. Lee

“needed to be revised,” but, unlike the prior email that had
mentioned removing Danielle Lee, the cover-email did not
identify the addendum as removing plaintiff from the transaction.4 The revised Addendum No. 10 removed Danielle Lee
and plaintiff Neel as purchasers and directed that plaintiff
“be removed from the title and deed.”
         Plaintiff recounts that she received the second email
and revised Addendum No. 10 at about 10:00 p.m. after
she had gone to bed. She received the contract document
in DocuSign form, which prompted her to initial or sign at
the indicated place, skipping the intermediate text. Her personal computer was not functional, so she received the document “over [her] tiny little iPhone.” Plaintiff declared that
she mistakenly signed the addendum without realizing its
importance. She assumed that she had neglected to execute
Addendum No. 10 properly, so she “simply turned to the signature block and entered [her] initials using [her] cell phone
screen, in the dark, without putting on [her] glasses.”
        Plaintiff asserts that her brother Dana Lee,
Kirkevold, and Kuhn did not inform her that the revised
addendum would have any effect on her rights. She testified:
      “[N]obody said we’re taking your name off because you’re
   not on the property. Nobody ever said you shouldn’t be on
   the purchase offer because you won’t be on the [deed][.]”
She stressed, “I trusted my brother.” She added:
      “I assumed that my brother would work it out with me,
   that it was—there were something I didn’t know or some
   factor, that I wasn’t—I put total faith in him.”
She declared that, if she had been told that the change
would remove her from the sale agreement and the deed to
the property, she would not have signed it.

   4
     Without explaining the difference, the cover email stated:
        “I can’t wait for both of you to see the property in the flesh. I wanted to
   let you know that I sent out two versions of the ‘Addendum #10’. The first
   one, which you signed, needed to be revised. So the second one is the correct
   one. The second version should be in your email inbox, Danielle. I apologize
   for sending two of ‘em. Let me know if you have any questions. You two (and
   the other two!) have done so much work to make this happen! You have been
   amazing!”
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         In the course of the transaction, plaintiff signed
a document entitled “Verification of Gifted Funds,” referring to $169,000 and reciting, “I certify that the above referenced funds are being given as a gift and no repayment
is required.” The document originated with the lender.
Kirkevold, the loan officer, explained:
         “We don’t accept loans for down payments from family
     members; only gifts that don’t [sic] require to be paid back.
     It’s just part of the conventional guidelines.”

In her deposition, plaintiff testified that she understood she
had to sign the document so that the lender would provide
defendants a loan. In her declaration, she explained that
the gift statement was true in that she did not expect repayment of the money. She also declared that her intent had
been to leave her estate after her death, including interest
in the property, to Dana Lee or his heirs.5 Even so, she testified that her understanding was that she would be “part
owner of the compound.” She explained:
        “I was on the purchase offer. So I relied on my name
     being on the purchase offer meaning that I would also be
     on the deed. That was common. I mean, why would your
     name be—from my point of view, why would your name be
     on the purchase offer if it wasn’t also going to be on the
     deed? Why would I make a purchase and not complete it
     through being on the deed?”

She summarized, “That money was used to buy a property
that I was going to live in for the rest of my life.”
         The sale closed on August 11, 2016. In November,
plaintiff moved to Oregon and, for a time, lived on the property with defendants. After disagreements, plaintiff moved
off the property and learned that she had not been a buyer
in the transaction and that her name was not on the deed.
B.    Proceedings
        Plaintiff brought this action asserting two claims.
In a claim for financial abuse of a vulnerable person, she

   5
     Plaintiff also emailed her younger brother, Rick Lee, describing the
$169,000 as a gift with no expectation that it would be “fully returned.”
166                                                                 Neel v. Lee

alleged that she had been a buyer on a sale agreement
that included instructions that a deed would be prepared
to include her; that she relied on plans to combine her
cash contribution to the purchase; that defendant Dana
Lee instructed the loan officer, who then instructed the
real estate agent, to remove her from the transaction and
deed; that they did so without notice to her; and that defendants’ conduct constituted abuse of a vulnerable person contrary to the Elderly Persons and Persons with Disabilities
Abuse Prevention Act, ORS 124.100 to 124.140. She sought
damages or a constructive trust for amounts traceable
to her contribution to the purchase of the property. In
the alternative, plaintiff asserted a claim for rescission
of her transaction and restitution on the basis of unjust
enrichment corresponding to her contribution and added
damages.
         Defendants moved for summary judgment dismissing the claims. They argued that there was no evidence that
they took money or property from plaintiff wrongfully; that
defendant Dana Lee never agreed that plaintiff would be on
the deed; that plaintiff made a “gift” for which she did not
expect to be repaid; and that Dana Lee removed her name
from the transaction because that was her wish.6 They
argued that a restitution claim failed because there was no
written contract between the parties to be rescinded and
because plaintiff’s money was a gift.
         The trial court responded on the first claim that
it found no evidence that defendants had taken money or
property by means of deceit or misrepresentation. The court
next found no evidence to support the restitution claim,
initially because there was no written contract and, after
inviting a motion to reconsider, because there was no misrepresentation that “induced” or caused a transfer or loss
of property. The court entered an order of summary judgment for defendants, denied plaintiff’s motion for reconsideration, and entered judgment dismissing plaintiff’s
claims.

    6
      They argued that plaintiff really did not want to be on the deed out of fear of
repercussions to her employment, because Dana and Tammie’s son (not a defendant) was a medical marijuana grower. She denied that was true.
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                 II. ELDER FINANCIAL ABUSE
A.    Framing the Claim
         On appeal, plaintiff contends that the trial court
erred in determining that there was no evidence from which
a jury could determine that defendants took money or property wrongfully. She argues that defendants knew that
plaintiff was on the sale agreement as a buyer, they knew
that she was providing $169,000 toward the purchase price
with the intent that her name would appear on the deed,
and that, after receipt of her money, without notice to her
and without her knowledge, Dana Lee took the initiative
unilaterally to cause her to be removed from the transaction
and title to the property. She contends that her electronic
signature on the revised Addendum No. 10 was a mistake—
the last part of a set of circumstances constituting elder
financial abuse under ORS 124.110(1)(a).
         Defendants respond as before. In relevant part,
they argue that Dana Lee had said that plaintiff could not
be on the title without being on the mortgage debt, that he
made no misrepresentation, that plaintiff signed revised
Addendum No. 10 that removed her from the transaction,
that plaintiff signed a bank document indicating that her
money was a gift, and that, as a matter of law, defendants
did not take anything wrongfully. Therefore, they conclude,
the trial court did not err in dismissing the elder abuse
claim without trial.
         We approach the dispute by reviewing the elements
of a statutory claim of financial abuse of a vulnerable person. At the relevant time, plaintiff Neel was a “vulnerable
person” because she was an “elderly person” within the
meaning of ORS 124.100.7 Plaintiff was age 68 at the time
of the transaction. In part, ORS 124.100(2) provides:
        “A vulnerable person who suffers injury, damage or
     death by reason of physical abuse or financial abuse may
     bring an action against any person who has caused the
     physical or financial abuse or who has permitted another
     person to engage in physical or financial abuse.”

    7
      A “vulnerable person” includes an elderly person, ORS 124.100(1)(e), and an
“elderly person” means a person 65 years of age or older, ORS 124.100(1)(a).
168                                                   Neel v. Lee

More particularly, ORS 124.110(1) specifies:
      “An action may be brought under ORS 124.100 for financial abuse in the following circumstances:
      “(a) When a person wrongfully takes or appropriates
   money or property of a vulnerable person, without regard
   to whether the person taking or appropriating the money or
   property has a fiduciary relationship with the vulnerable
   person.”
       Several terms of the statute become pivotal. In
Church v. Woods, 

, 

 (2003) we
addressed those terms. We summarized the claim, stating:
      “A statutory claim for financial abuse has four elements:
   there must be (1) a taking or appropriation (2) of money or
   property (3) that belongs to an elderly or incapacitated person, and (4) the taking must be wrongful.”
We recognized that the term “take” has its ordinary meaning: “ ‘to transfer into one’s own keeping [or to] enter into
or arrange for possession, ownership, or use of’ ” money or
property. 

 (quoting Webster’s Third New Int’l Dictionary
2330 (unabridged ed 1993)). The trial court had held that
there was no “taking” or “appropriation” when the grandniece of an incapacitated Elden Church prompted him to
execute a deed to property granting her co-ownership with
a right of survivorship. We determined, however, that the
transfer diminished his interest in the property so as to constitute a “taking” within the meaning of the statute. 

         Next, we observed that the term “wrongful” had
an ordinary meaning and a well-understood legal meaning
in the law of torts, as illustrated in the tort of interference
with contractual interests. 

 at 118 (citing Empire Fire &
Marine Ins. v. Fremont Indemnity, 

, 

 (1988)). In that context, conduct could be “wrongful” by
reason of improper means or improper motives. 

 Improper
means may be wrongful by reason of statutory or common
law and includes, for example, violence, threats, intimidation, deceit, misrepresentation, bribery, unfounded litigation, defamation and disparaging falsehood. 

 We considered those examples of “wrongfulness” to be sensible in the
context of ORS 124.110(1)(a).
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          The grandniece argued that Elden Church did not
trust the plaintiff, his guardian and later personal representative, and that she, the grandniece, was only carrying
out Elden Church’s wishes. The plaintiff argued, much to the
contrary, that Elden Church did not want the grandniece
to have his property when he died. The plaintiff pointed to
the haste and secrecy with which the grandniece had acted
in facilitating the transfers. We identified a credibility contest over the intent of Elden Church, reversed dismissal of
the elder abuse claim, and remanded for the trial court to
address the factual issue of wrongfulness. Id. at 119.
         This case, like Church, begins with a question
whether there was at least some evidence of a “taking” of
money or “appropriation” of property. The answer to that
question is complicated by another question—whether
plaintiff made an unrestricted gift of money—or instead
made a transfer—a purported gift—that was conditioned
on a contract expectancy to be in title to the property with
defendants. Finally, we face the question whether there was
some evidence that defendants’ conduct could be found to be
“wrongful” in one way or another in taking plaintiff’s money
or a property interest in the transaction. We address those
issues in turn.
B.   Taking or Appropriation?
         Setting aside for the moment the question of a gift,
we recognize that plaintiff did offer evidence, in at least one
way, of a “taking,” as explained by Church. Given the plain
meaning of the word “take,” there was evidence that defendants did “enter into or arrange for possession, ownership,
or use” of $169,000 elicited from plaintiff. It is undisputed
that plaintiff transferred to defendants $169,000.
         There was also evidence that defendants “appropriated” plaintiff’s “property,” which existed in the form of a contract to purchase a home, when Dana Lee unilaterally took
the initiative to direct that plaintiff’s name be removed from
the purchase agreement and title to the property. To understand those terms, “appropriate” and “property,” we refer
to their definition in similar statutes. At ORS 164.005(1),
the Criminal Code provides that “appropriate” means to
170                                                  Neel v. Lee

“[e]xercise control over property of another … permanently
or for so extended a period or under such circumstances as to
acquire the major portion of the economic value or benefit of
such property” or “dispose of the property of another for the
benefit of oneself or a third person.” See State v. Browning,

, 

 (2016), rev den, 361 or 311
(2017) (comparing terms of criminal mistreatment and elder
abuse statute as related or similar statutes). The Criminal
Code also defines “property” so as to include the intangible
property at issue here. It provides:
   “ ‘Property’ means any article, substance or thing of value,
   including, but not limited to, money, tangible and intangible personal property, real property, choses-in-action, evidence of debt or of contract.”
ORS 164.005(5) (emphases added).
          At the time plaintiff transferred her money to defendants, plaintiff still appeared on both the agency agreements
and the purchase agreement as a “buyer” along with defendants. By its terms, the purchase agreement meant that
plaintiff had a contract expectancy in the purchase of the
property, which would lead to becoming a joint owner in title
to the property. The law recognizes a contract expectancy as
property no less than any other tangible or intangible property. See, e.g., Uptown Heights Associates v. Seafirst Corp.,

, 

 (1995) (“Uptown’s complaint
can be read to allege, further, that Bank told WRC that a
loan would be forthcoming if WRC were to remove Uptown
as its joint venturer and that Bank’s purpose in telling that
to WRC was to injure Uptown’s economic relations with
WRC.”).
         On that evidence, the admitted act of Dana Lee in
unilaterally initiating the removal of plaintiff from the purchase agreement was no less a “taking” or an “appropriation” of property than the act of the grandniece in Church
causing herself to be added as co-owner with a survivor
interest in the property of a vulnerable person. See Church,

. There, the act of the grandniece diminished the great uncle’s interest in property. Here, the act of
Dana Lee completely eliminated plaintiff’s contract interest in the purchase agreement and deed to the property.
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As a consequence, we determine that plaintiff offered at
least some evidence of a taking or appropriation of both the
“money” and “the property” of a vulnerable person.
C. A Simple Gift or Conditioned Transfer?
         Defendants admit receiving plaintiff’s money but
argue that plaintiff “gave those funds freely” as a gift without condition or restriction.8 Logically, a jury could find that
persuasive evidence of a gift, freely given, could rebut an
allegation of a taking.9 Cf. Church, 

 (considering defendant’s contention that the vulnerable person
had capacity to give her his property interest offered to
rebut wrongfulness). Defendants rely on the “Verification
of Gifted Funds,” which plaintiff signed, certifying that
the “funds are being given as a gift and no repayment is
required.” Defendants also rely on an email that plaintiff
sent another brother in which she wrote, “I am currently
giving in excess of $169K with no expectation that it will
be fully returned.” She continued, “I give it gladly because
it has shown me a very happy Dana and family.” The trial
court found that evidence dispositive when concluding that
there simply was no “taking” for purposes of the claim of
financial abuse.
         We recognize, on the other hand, that there was
evidence less conclusive or contrary. The gift acknowledgement was a bank form provided to plaintiff by Dana Lee,
who coordinated the transaction. Plaintiff explained that
the “gift” statement was true insofar as she did not expect
repayment of the money. The loan officer’s explanation can
be understood to say that the bank does not accept down
payments from family members that need to be paid back.
Presumably, that meant that added loans would have

     8
       As for initiating a change in plaintiff’s property interest, defendants assert
that they understood that plaintiff did not want to appear on title to the property,
among other reasons, because their plan included growing medical marijuana
on the property. As noted, plaintiff testified that that statement of her intent
was not true. On appeal, defendants do not argue that their understanding was
beyond factual dispute, given the summary judgment standard.
     9
       The parties assume that the gift issue is relevant to both elements, “taking” and “wrongfulness.” Without deciding, we treat the gift question that way,
because the parties have done so and a distinction in approach, if any, is immaterial in this case.
172                                                                 Neel v. Lee

affected the borrowers’ creditworthiness. That did not necessarily mean that there could not be other purchasers on
the property who provided necessary cash for the purchase
with expectation of ownership and no expectation of repayment. The loan officer testified that one person could be on
the mortgage loan, while another person could be on the
title to the property.10

          It is undisputed that plaintiff was a “buyer” along
with defendants on the purchase contract that instructed
her name was to be on the deed. Plaintiff discussed with
her brother Dana Lee buying property together to live in a
“family compound.” Her intent was to be “an owner of the
State Street property,” appearing on its title, because that
was what “the money was for.” Although plaintiff recognized
that Dana Lee believed that the bank required plaintiff to
be on the mortgage debt in order to be on the title, plaintiff insisted that, if she was putting money into the property, then she must be on the deed. Taken together, plaintiff
offered evidence that her money, regardless how it may be
characterized, did come with the condition that it was an
integral part of a written purchase agreement on which she
already appeared as “buyer” and would appear in title as an
owner. Plaintiff offered some evidence that her money was
not “freely” given. There was some evidence that, whether
deemed a “gift” or not, her money came with one or more significant restrictions that the money be used for the property
purchase, that plaintiff would be a participant in an agreement for a joint living arrangement, that plaintiff would be
in title to the property, or all of those things.

        As a consequence, we recognize that plaintiff provided at least some evidence that created a genuine issue
of material fact about the nature of plaintiff’s transfer to
defendants of $169,000. Generally, the principles that determine whether a transaction is a “gift” do not turn on use of
the word “gift” but instead involve an examination of the
circumstances of the transaction. Ordinarily, the party
who would establish the existence of a gift would bear the

     10
        Plaintiff stresses that, for a time, defendant Danielle Lee, the adult daughter, was on the contract to be in title without being on the mortgage debt.
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burden of proof. See Ireland v. Flanagan, 

, 

 (1981) (citing Carpenter v. Carpenter, 

, 

 (1936)); see also OEC 305 (“A
party has the burden of persuasion as to each fact the existence or nonexistence of which the law declares essential to
the claim for relief or defense the party is asserting.”).11 We
have described the proof required:
    “[A]n inter vivos gift transfers the interest in the subject
    property unconditionally, at the time of delivery of the
    gift. … It requires delivery, a donative intent, a present
    vesting of unlimited rights in the gift in the donee, and
    acceptance.”
Bessett v. Huson, 

, 

 (2002)
(citing Kesterson v. Cronan, 

, 

, rev den, 

 (1991)) (emphases added). In this
case, the evidence raises factual questions about plaintiff’s
donative intent and whether the transfer was unconditional,
leaving defendants with unlimited rights to the money.
         In a different setting—that of marital property
divisions—we routinely observe that, like credibility, the
determination whether something is a gift is a matter
reserved to the factfinder. See Schwindt and Schwindt, 

, 

, rev den, 

 (2018)
(evidence sufficient to support factfinder’s rejection of gift
characterization despite gift tax returns); Schlitter and
Schlitter, 

, 

 (2003) (loan
versus gift). It follows that defendants’ “gift defense” presents questions for a factfinder about plaintiff’s donative
intent and whether the transfer was unconditional, leaving
defendants with unlimited rights to use her money as they
wish.
       Those questions may not necessarily be resolved
with a conclusion that the transfer was entirely gift or

    11
       Indeed, we have stated, “The general rule is, rather, that a party seeking
to establish the existence of a gift must prove its existence by clear and convincing evidence.” Ireland, 

. Here, we are not asked to consider that standard of proof. Nor are we asked whether “gift” is an affirmative
defense to “taking” in a claim of elder financial abuse. See ORCP 19 B (matters
of avoidance are affirmative defenses). Here, on review of summary judgment for
defendants, our determination simply turns on a genuine issue of material fact.
See ORCP 

                                                               Neel v. Lee

not-gift. Reflecting the reality of a human affairs, the
Restatement (Second) of Contracts recognizes that, outside
of commercial transactions, transactions among people
may involve both contract and gift. Restatement (Second) of
Contracts § 71 comment c (1981).12 The Restatement offers
an illustration in which one person offers to buy another’s
book for $10, while both know its value is only $5. The transaction is both bargain and gift. Id., illus. 6. To recognize
that a transaction may be both part gift and part contract
may accord with plaintiff’s expressed intent to be at least in
formal title to the property, whatever else that might mean
as to what interest she retains. The prospect of a transfer
that is part gift and part bargain may accord with plaintiff’s email to her other brother that her giving $169,000 had
no expectation “that it will be fully returned.” (Emphasis
added.) Thus, a fact question remains even if some aspect of
plaintiff’s transfer is found to be gift.
         In addition, the answer to the “gift” questions may
not be simple, because the answer may require a consideration of the living arrangement that the parties planned to
achieve with that transfer. All parties described a plan that
plaintiff would provide a large sum of money for the down
payment, making the purchase possible, and the result
would be what Dana Lee had termed a “family compound”
in which they lived together, taking advantage of its separate buildings. In his deposition, Dana Lee agreed that the
thought was that plaintiff would contribute money toward
the acquisition of the family compound and, in exchange for
that, there would be a place for her to live and to have a support system at least up to the point where she needed more
care. The evidence permits a jury to find that the parties
contemplated a substantial financial interrelationship in a
common home.
   12
      In a comment on consideration, Restatement § 71 comment c advises:
       “c. Mixture of bargain and gift. In most commercial bargains there is a
   rough equivalence between the value promised and the value received as
   consideration. But the social functions of bargains include the provision of
   opportunity for free individual action and exercise of judgment and the fixing
   of values by private action, either generally or for purposes of the particular
   transaction. … Even where both parties know that a transaction is in part
   a bargain and in part a gift, the element of bargain may nevertheless furnish
   consideration for the entire transaction.”
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         In other cases, we have described similar relationships as domestic partnerships. For example, in Ireland, two
women contributed to the purchase of a home, intending
both to be in title, but they learned at closing that only the
defendant’s name was on the contract. 

.
Some evidence indicated that the plaintiff may have acquiesced to allow the defendant to have a tax shelter. Whatever
the explanation, only the defendant appeared in title. The
trial court found that the intent of the parties was “similar
to the relationship of husband and wife” but that the contributions of the plaintiff were a gift.
         On appeal, we rejected the “gift” characterization,
because it had not been pleaded or argued. 

. We
found that the parties intended a joint ownership of the
house, and we reversed the judgment with directions for a
division of pooled assets as a domestic partnership. 

; see also Branam and Beaver, 

, 

 (2009) (domestic partnership where respondent
insisted being on title and parties had not contemplated
what would happen if they separated); cf. Unterkircher v.
Unterkircher, 

, 

 (1948) (where
one pays for property but takes title in the name of another,
there arises a resulting trust in favor of one whose money
paid for it).
          As to the “gift” questions here, a jury could find
from the evidence, including the purchase contract showing plaintiff as a “buyer,” that plaintiff intended a transfer
of $169,000 for a down payment that would result in her
co-ownership shown in title to the property. A jury could
also find that plaintiff intended that, regardless of the state
of title, the money would result in tacit co-ownership or a
right of occupancy in the premises more or less akin to a
domestic partnership.13 In either case, those determinations
could influence the jury’s determination whether plaintiff’s
transfer of money was truly an unqualified gift of money or,
because the transfer was restricted or conditioned, plaintiff’s
transfer of money was not a gift. In other words, defendants’

   13
      The parties lived together for a period of time. Plaintiff alleged that she
“was told that she was not welcome and that she must move off the Property.”
Defendants argue that plaintiff left willingly for other personal reasons.
176                                                Neel v. Lee

evidence did not establish, as a matter of law, that, by reason of gift, there was no taking or appropriation of plaintiff’s
money or property interest.
D. Wrongful?
         Plaintiff alleged that defendants wrongfully took
her money when, knowing that she was shown as purchaser
of the property and expected to be placed in title and when,
without notice to her, they initiated a change that caused
her to be removed from the purchase contract and title to
the property. Plaintiff argues that a jury could find that
defendants’ conduct, half-truths, omissions, and misrepresentations were wrongful when taking the money and property for themselves and leaving plaintiff without a place to
live.
         Defendants respond that there was no evidence that
they made a misrepresentation upon which plaintiff relied.
They argue that there was no evidence that they were “secretive” in causing plaintiff to be removed from the purchase
transaction, because they had told plaintiff beforehand that
they believed the lender required her to be on the mortgage
debt in order to be in title. Accepting some of that view, the
trial court found that there was no evidence that a taking
was accomplished by means of deceit or misrepresentation.
        As noted at the outset, ORS 124.110(1)(a) renders
someone liable for “wrongfully” taking or appropriating
the money or property of a vulnerable person. In Church,
we observed that the term “wrongful” has a familiar legal
meaning in torts, as is illustrated by the tort of interference with contractual relations, where “wrongful” involves
wrongful means or motives. 

. Among others, wrongful means include misrepresentation. 

         In tort law, a misrepresentation can be based on
either an affirmative misrepresentation or, in some circumstances, active concealment or nondisclosure. Ogan v.
Ellison, 

, 

 (1984); Gregory v. Novak,

, 

 (1993). Silence or concealment of facts may constitute misrepresentation, particularly
when there is a duty to speak. Pollock v. D. R. Horton, Inc.
- Portland, 

, 

 (2003) (citing
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Whitlatch v. Bertagnolli, 

, 

(1980)). Typically, a duty to speak or disclose exists when
there is a special relationship between the plaintiff and the
defendant. Gardner v. First Escrow Corp., 

, 

, rev den, 

 (1985).
         That need not always be the case where unique circumstances impose a relationship of trust. We found such
a relationship in Felonenko v. Siomka, 

,

 (1981), aff’d, 

, 

 (1982),
where the plaintiff uncle and the defendant niece were both
from Ukraine, she was a recipient of his deed, and he relied
on her to translate. The plaintiff had said that he needed
to fix his will, but a friend told him how she had handled a
similar problem with a deed. The plaintiff and the defendant
went to an escrow company, where the plaintiff executed a
deed to the defendant niece, reserving a life estate to himself. Later, he sued to rescind the transaction, claiming a
misrepresentation in her failure to disclose that the deed
was not a will. Id. at 334. In relevant part, we explained
that the circumstances imposed a duty of disclosure:
      “Here, plaintiff relied on defendant to translate those
   parts of the escrow officers’ conversations which he did
   not understand. That reliance, together with the fact
   that defendant was to be the grantee in the deed, created
   a confidential relationship between plaintiff and defendant. Because of that relationship, defendant had a duty
   to explain those aspects of the transaction that she had
   reason to believe plaintiff did not understand.”
Id. at 335. We concluded, however, that the plaintiff had
actual knowledge that he was signing a deed, because
escrow officers had explained it to him, and because he read
and understood the word “deed.” Id.
         In Caldwell v. Pop’s Homes, Inc., 

, 

 (1981), circumstances imposed a duty
to disclose. The defendant’s nondisclosure was a violation
of the provision of the Unlawful Trade Practices Act, ORS
646.608(1), which prohibited representations that goods
have qualities that they lack. The plaintiff had purchased a
mobile home on site, and the consignment-sales agent had
failed to disclose that the mobile home park was being sold,
178                                                     Neel v. Lee

requiring eventual removal of the mobile home. There had
been no fiduciary or special relationship.
         The sense of those cases may be reflected in the
latter portion of section 551 of the Restatement (Second) of
Torts (1977), which provides:
       “(1) One who fails to disclose to another a fact that
   he knows may justifiably induce the other to act or refrain
   from acting in a business transaction is subject to the same
   liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but
   only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
      “(2) One party to a business transaction is under a
   duty to exercise reasonable care to disclose to the other
   before the transaction is consummated,
      “(a) matters known to him that the other is entitled
   to know because of a fiduciary or other similar relation of
   trust and confidence between them; and
      “(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the
   facts from being misleading; and
      “…
      “(e) facts basic to the transaction, if he knows that the
   other is about to enter into it under a mistake as to them, and
   that the other, because of the relationship between them, the
   customs of the trade or other objective circumstances, would
   reasonably expect a disclosure of those facts.”
(Emphases added). The final language of section 551 is
appropriate in light of the final language of ORS 124.110
(1)(a). Under that statute, a person may be liable for financial abuse
   “[w]hen a person wrongfully takes or appropriates money or
   property of a vulnerable person, without regard to whether
   the person taking or appropriating the money or property
   has a fiduciary relationship with the vulnerable person.”
(Emphases added.) The emphasized language declares that
wrongful conduct is not limited to those with a fiduciary relationship. Although that language would not impose a duty of
disclosure where it does not exist in fact, that language does
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make important the review of the facts themselves that do
impose a duty of disclosure.
          Here, defendant Dana Lee took the initiative to
serve as the coordinator on behalf of the several purchasers
of the property, communicating with the loan officer
Kirkevold, the real estate agent Huhn, and directly with the
seller. Kirkevold confirmed that he “mainly” took direction
“the whole time” from Dana Lee. Huhn considered Dana
and Tammie Lee his clients, not plaintiff. Huhn disregarded
plaintiff, despite the agency agreement showing plaintiff as
a client and buyer, who had an equal right to give directions involving her interest. Dana Lee was local; plaintiff
was largely away in Tennessee. She relied on him, saying,
“I trusted my brother.” As the buyers’ coordinator and recipient of plaintiff’s money, a jury could find that Dana Lee had
assumed a role and undertaken a duty to disclose material
changes that would disadvantage plaintiff in the transaction that, at the time, still reflected her contractual right to
purchase the property and come into title. See Felonenko,

 (circumstances imposing duty to disclose);
Caldwell, 

 (same). The jury could also
find that defendants, immediately upon receipt of the last
portion of plaintiff’s money, initiated a contract change,
that they knew was contrary to her wishes, to remove her
from the transaction and title and that they did so without
any consultation or actual notice to her, thus making more
likely her alleged mistake in executing a revised electronic
document.14
        As a result, a jury could find on those facts, which
are construed here in the light most favorable to plaintiff,
that defendants acted wrongfully.15 Accordingly, the trial

    14
       In evaluating that alleged mistake, the jury could consider the haste and
hour of the revised Addendum 10 and the failure of the cover email that accompanied it to call out removal of plaintiff like the original Addendum 10 had called
out the removal of Danielle Lee. See Church, 

 (consideration
of haste in circumstances).
    15
       Earlier, we recognized the potential that facts could be found to show an
“appropriation” of plaintiff’s property interest in the purchase contract. We did
so because plaintiff complains about the unauthorized initiation of a change in
the purchase agreement. We do not go on to address the prospect that an appropriation of that property interest could be “wrongful” due simply to conversion,
see Becker v. Pacific Forest Industries, Inc., 

, 

180                                                               Neel v. Lee

court erred in granting summary judgment for defendants
on plaintiff’s claim of financial abuse of a vulnerable person
under ORS 124.110(1)(a).
                   III.   UNJUST ENRICHMENT
        As her second assignment of error, plaintiff contends
that the trial court erred in dismissing her alternate claim
for unjust enrichment on defendants’ motion for summary
judgment and plaintiff’s motion for reconsideration. Our
review of that assignment is governed by the way in which
the claim was pleaded and argued below and on appeal.
         In her complaint, plaintiff alleged that the parties planned to jointly buy property to live together; that
in those discussions plaintiff made known that her name
would be on the property together with defendants’; and
that her name appeared on the agency and sale agreements
as “buyer.” In her second claim, plaintiff added that, if the
court determined that the parties “did not have a ‘meeting
of the minds’ and no enforceable agreement between them
was established,” then the court should find that defendants have been unjustly enriched. Plaintiff alleged that
the “transaction should be rescinded, and the Court should
award her restitution” in the amount of $169,000 and damages of $17,250. Apparently referring to the plan for a joint
living arrangement, she titled her claim one of “Rescission:
Restitution.”
          Defendants moved for summary judgment to dismiss the claim because, among other arguments, there was
no written contract between the buyers to be rescinded, and
because there should be no liability for a gift voluntarily
given. At the hearing on the motion, the court indicated it
would grant the motion on the claim, as it later explained,
because “a claim for [r]escission necessarily required a ‘contract’.” However, the court invited a motion for reconsideration, in light of plaintiff’s suggestion that she had authority
to offer.
         Plaintiff moved for reconsideration, citing cases with
failed contracts, Hlookoff v. Wayne L. Johnson Investments,
(2009) (factors of conversion), because conversion has not been presented below or
argued on appeal as a matter of wrongfulness.
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, 

 (1970), and L. Q. Development v.
Mallory, 

, 

 (1989), and a more
recent case reviewing unjust enrichment, Larisa’s Home
Care, LLC v. Nichols-Shields, 

, 

(2017). Plaintiff argued that, if the court found there was
no “meeting of minds” and “neither party was at fault,” then
defendants have been unjustly enriched. (Emphasis in
original.)
          On reconsideration, the trial court deemed plaintiff’s cases with failed contracts to be inapt, because the
parties had no written contract between themselves to
rescind. As for plaintiff’s reference to Larisa’s Home Care,
LLC, the trial court noted that plaintiff did not identify,
in terms of that decision, which one of many scenarios for
unjust enrichment might provide a basis for a claim of
unjust enrichment. See 362 Or at 128 (citing Restatement
(Third) of Restitution §§ 5-48 (2011)). On its own initiative,
the trial court addressed the scenario involving restitution
for a “transfer induced by fraud or material misrepresentation.” See Restatement § 13 (where, due to misrepresentation, the transferee is liable in restitution as necessary to
avoid unjust enrichment). Emphasizing causation, the trial
court concluded that plaintiff had offered no evidence that
any misrepresentation “induced the transfer” of plaintiff’s
money. (Emphasis in original.)
         On appeal, plaintiff does not challenge the trial
court’s ruling that there was no evidence that any misrepresentation caused the transfer. On the second claim, plaintiff
contends, “There is no need to prove fraud.” Because plaintiff does not raise that prospect on appeal, we do not consider misrepresentation as a justification for unjust enrichment. See Summerfield v. OLCC, 

, 

 (2018) (issue abandoned on appeal), aff’d, 

, 

 (2020); see also Ailes v. Portland Meadows,
Inc., 

, 

 (1991) (issue not raised
in opening brief).
         On appeal, plaintiff relies instead on Hlookoff and
L. Q. Development as authority for her alternative claim of
restitution or unjust enrichment in situations in which parties acted in reliance on their belief that they had a contract
182                                                                Neel v. Lee

that, ultimately, they did not have.16 Those cases do point to
a rationale that could support a restitution claim on these
facts. The first case is of minimal but elemental assistance;
the second more helpful, pointing to a prior version of the
Restatement of Restitution.
          In Hlookoff, the plaintiff held a buyer’s interest in a
sale contract on a motel. 

. The plaintiff agreed
to sell that interest to the defendant. 

. Although
they entered into a written contract, they were mistaken
as to how prior liens were to be paid and by whom. 

. The plaintiff refused to transfer the property, then sued
to rescind the agreement. 

. The trial court determined that the evidence provided no basis to find fraud or
negligent misrepresentation and determined that “[t]here
was no meeting of the minds in any sense, no agreement in
intention.” 

. Absent essential agreement, the trial
court rescinded the transaction. 

 On appeal, the court
determined that the parties were mistaken in their expression of assent to the contract, neither party was at fault, and
rescission was warranted. 

.
         In L. Q. Development, the plaintiff’s assignors were
purchasers of 50 acres for $250,000. 

. The
sale contract provided that the parties would enter into contract addenda upon payments of $25,000 and receive parcel deeds of five acres. The purchasers made payments of
$248,814 in principal, interest, and taxes, but no contract
addenda were executed and no parcel deeds were delivered.

 The purchasers’ assignor sued the personal representative of the seller’s estate, seeking rescission of the contract
and return of moneys paid. 

. The trial court determined that, due to the failure to have agreed, no contract
existed between the parties; judgment for restitution was
entered. 

. On appeal, we determined:

    16
       On appeal, plaintiff also argues that unjust enrichment is warranted
due to a transfer induced by an invalidating mistake, Restatement (Third) of
Restitution § 5 (2011), or other particular matters of mistake in a contract, McKay
v. Horseshoe Lake Hop Harv., 

, 

 (1971); Stirewalt
v. Chilcott, 

, 

 (1963), which do not appear to be of the
nature of the cases cited to the trial court. As such, those arguments were not
preserved. See Ailes, 

 (waiver argument not made in trial court was not
preserved).
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      “The court did not err when it ordered defendant to
   make restitution. Even though the parties may not have
   made an enforceable contract, if one of them has been
   unjustly enriched at the other’s expense, the former has a
   ‘quasi-contractual’ duty to make restitution.”
Id. at 125. We explained, “ ‘There are many cases in which
a plaintiff is entitled to restitution even though no contract whatever has been made ….’ ” Id. (quoting 5 Corbin
on Contracts, § 1104 (1964) (emphasis in L. Q. Development
omitted)). We recounted that the purchasers and the plaintiff had made payments that the parties believed were
required, but, due to a failure to agree on essential terms,
the contract was “null and void.” Id. at 126. We turned to
Restatement of Restitution:
       “ ‘A person is entitled to recover money which he has
   paid another pursuant to the terms of a supposed contract
   with or offer from the other which, because of the payor’s
   mistake of fact as to the existence of consent, of consideration or of a required formality, he erroneously believed to
   exist, if he does not get the expected exchange.’ ”
L. Q. Development, 

 (quoting Restatement
of Restitution § 15 (1937)). Citing a later section of the
Restatement, we indicated that the amount that the plaintiff should receive is the amount of money the other had
received. Id. (citing Restatement of Restitution § 150)).
         As noted, plaintiff also cited the recent opinion of
the Oregon Supreme Court in Larisa’s Home Care. The opinion directed that “courts should determine whether any particular enrichment is unjust by examining whether the case
type matches already recognized forms of unjust enrichment.” 362 Or at 128. Reflecting back to Hlookoff and L. Q.
Development, we recognize that they are a “case type” that
provide restitution for unjust enrichment where supposed
contracts fail for lack of essential agreement.
         To be sure, the reference in L. Q. Development to the
original Restatement section 15 is dated. Today, that section,
which was entitled “Mistaken Belief in Existence of Contract
with Payee,” is carried forward in other, contemporary sections of the current Restatement. See Restatement (Third) of
Restitution, Parallel Table (2011) (cross-referencing original
184                                                                Neel v. Lee

section 15 with current sections 6 and 34). For example, one
contemporary section advises, in relevant part:
       “Payment of money resulting from a mistake as to the
    existence or extent of the payor’s obligation to an intended
    recipient gives the payor a claim in restitution against the
    recipient to the extent the payment was not due.”
Restatement (Third) of Restitution § 6(2) (Discussion Draft,
2000). Another section now advises, in relevant part:
        “A person who renders performance under a contract
    that is subject to avoidance by reason of mistake or supervening change of circumstances has a claim in restitution
    to recover the performance or its value, as necessary to prevent unjust enrichment.”
Restatement (Third) of Restitution § 34(1) (2011). Those provisions may fairly be considered, given plaintiff’s reliance
on L. Q. Development and its reliance on the Restatement.17
Taken together, plaintiff’s citations, their references, and
the principles involved do point to a cognizable claim of restitution for unjust enrichment.
        Construed in the light most favorable to plaintiff
as the nonmoving party, a jury could find from the evidence
that the parties had an unwritten and attempted agreement to pool resources to purchase property jointly for purposes of living together in a family compound.18 It was a
plan that may resemble, in some ways, an agreement for a
     17
        One other Restatement section warrants mention, given the allegations of
plaintiff’s complaint about a plan for a joint living arrangement. Restatement
(Third) of Restitution section 28 (2011) advises:
          “(1) If two persons have formerly lived together in a relationship resembling marriage, and if one of them owns a specific asset to which the other
     has made substantial, uncompensated contributions in the form of property
     or services, the person making such contributions has a claim in restitution
     against the owner as necessary to prevent unjust enrichment upon the dissolution of the relationship.
          “(2) The role of subsection (1) may be displaced, modified, or supplemented by local domestic relations law.”
     18
        Although defendants argue that an unwritten agreement would violate
the statute of frauds, citing ORS 41.580 (agreement relating to an interest in
property), plaintiff’s part performance, by providing $169,000 of the property’s
purchase price makes the defense ineffective. See Brice v. Hrdlicka, 

, 

 (2009) (co-tenant satisfied part-performance exception
to statute of frauds).
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domestic partnership. See Ireland, 

 (domestic partnership). As in L. Q. Development and Hlookoff, the
parties failed to achieve a contract, because they ultimately
failed to agree whether plaintiff would be a purchaser who
would be in title or would hold a less formal interest in the
property in some form of common living arrangement. As
such, the record would permit a determination that the parties’ agreement to pool resources failed for lack of essential
agreement. Further, because the evidence would permit a
finding that that agreement failed, the record could support a conclusion that plaintiff was entitled to restitution to
the extent that a jury finds that defendants were unjustly
enriched.
                    IV. CONCLUSION
         The trial court erred in dismissing plaintiff’s claim
for financial abuse of a vulnerable person and her claim for
restitution due to unjust enrichment. Each claim asserts a
legal basis for recovery, presents disputed questions of fact,
and cannot be resolved as a matter of law on summary judgment. The claims require a jury’s determination.
        Reversed and remanded.