No. 179 March 20, 2024 539
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Thomas Joseph WILSON, Jr.,
Plaintiff-Respondent,
v.
Dillan John MACK,
Defendant-Appellant.
Josephine County Circuit Court
20CV14888; A179603
Brandon S. Thueson, Judge.
Argued and submitted August 23, 2023.
Jason Weber argued the cause for appellant. Also on the
brief were Margaret Huntington and O’Connor Weber LLC.
Eric Fournier argued the cause for respondent. Also on
the brief was Davis, Freudenberg, Day, Driver & Fournier.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
PAGÁN, J.
Affirmed.
540 Wilson v. Mack
PAGÁN, J.
This appeal concerns a dispute over a parcel of real
property and the enforceability of a settlement agreement
resolving the dispute. Defendant appeals from a general
judgment transferring the real property to plaintiff, and a
supplemental judgment dismissing the case. We conclude
that defendant did not preserve the argument he raises on
appeal. We further conclude that the trial court did not commit plain error, and additionally, that this is a situation in
which we would not exercise our discretion to exercise plain
error review. We therefore affirm.
FACTUAL BACKGROUND
In November 2019, plaintiff signed a deed transferring a particular piece of real property to defendant. Several
months later, plaintiff filed an action against defendant,
seeking deed recission, declaratory judgment of the ownership of the property, and ejection, alleging that defendant
had improperly obtained plaintiff’s signature on the deed.1
In September 2021, on the day the trial was set to
begin, the parties notified the court that a settlement had
been reached. Counsel for plaintiff laid out the terms of the
settlement, which involved defendant signing a deed to the
property over to plaintiff, and in exchange plaintiff would
dismiss the lawsuit, including the additional claim for conversion of the vehicles, and would pay defendant $17,500.
Plaintiff was present at the hearing and agreed to the terms
on the record.2 Defendant’s attorney, Cauble, affirmed that
the terms of settlement laid out by plaintiff’s counsel were
accurate and that defendant’s sister, Lisa Mack, had defendant’s power of attorney and would be handling defendant’s
affairs with respect to receipt of the payment from plaintiff.
The attorneys agreed to prepare the necessary documents
for the property transfer and the court set a status check for
30 days to follow up on whether the matter was complete.
1
The complaint contained details regarding allegations of appropriation
of additional property, including multiple vehicles, and other criminal acts by
defendant, and pleaded a claim for conversion of the vehicles. That claim is not at
issue in this appeal.
2
Defendant was incarcerated in Idaho at the time and was unable to participate in the proceeding.
Cite as 331 Or App 539 (2024) 541
In December 2021, defendant’s counsel filed a
motion for extension of time to file the proposed judgment of
dismissal, indicating that there had been logistical problems
with arranging for defendant to sign the deed in the presence of a notary, given his continued incarceration. Cauble
stated that he and Lisa Mack had encountered problems
navigating the out-of-state prison system remotely during
the pandemic, but affirmed that “there is no question as to
whether the party agrees with the settlement, it’s merely a
matter of obtaining completed documents.”
In April 2022 the matter still had not been resolved,
and the court sent a notice of intent to dismiss. On May 13,
2022, plaintiff filed a motion to keep the case open, indicating that the parties were still attempting to obtain the
appropriate signed documents and that defendant’s ongoing
incarceration continued to pose a barrier. The court granted
the motion.
On May 27, 2022, plaintiff filed a motion to enforce
the settlement agreement. Counsel for plaintiff indicated
that it had come to his attention that defendant had no
intention of signing the deed. Plaintiff requested that the
court issue a judgment in plaintiff’s favor ordering defendant to sign the deed, or to consider issuing a warranty deed
declaring plaintiff to be the owner of the property.
A hearing was held on plaintiff’s motion on August 24,
2022. Defendant appeared pro se via video link from prison.3
Defendant asserted that his sister did not have power of
attorney on his behalf, maintained he never agreed to the
settlement deal, and stated that he wanted to go to trial.
Counsel for plaintiff framed the issue as the court having
“to believe [defendant] is a liar or Mr. Cauble is a liar” with
respect to Cauble’s authority to settle the claim on his client’s
behalf. At the conclusion of the hearing, the court agreed
that its choice was whether “to believe Mr. Cauble did his job
or believe that he, in some manner, railroaded [defendant].”
3
Earlier that month Cauble had filed a motion to withdraw as defendant’s
counsel, citing an irreparable breakdown in the attorney-client relationship, and
indicated that all further notices and correspondence should be sent to defendant, listing his prison address and a “care of” address with Lisa Mack. The
motion to withdraw was granted.
542 Wilson v. Mack
The court concluded that Cauble had done nothing outside
of his obligations as an attorney and ruled that the settlement agreement would be enforced. The court issued a general judgment transferring the property from defendant to
plaintiff and dismissing the action. Defendant appeals from
that judgment.
ANALYSIS
Defendant argues on appeal that the trial court
erred by ratifying and enforcing the settlement agreement
because it violated the statute of frauds and therefore should
have been unenforceable. He maintains that this issue was
preserved by his assertions at the August 2022 hearing that
he never agreed to the settlement terms, never authorized
his attorney to enter into a settlement, and never granted
his sister his power of attorney. Alternatively, defendant
requests plain error review, asserting that the purposes of
preservation were met and that the law is clear that transfers of real property, or authorizations for an agent to do so,
must be in writing. Plaintiff argues in response that the
statute of frauds issue is not preserved and does not qualify for plain error review. Regardless, plaintiff asserts that
the trial court correctly ratified and enforced the settlement
agreement between the parties.
We conclude that defendant did not preserve the
issue he now raises on appeal. We further conclude that it
does not qualify for plain error review, nor is this a case in
which we would exercise our discretion to review.
“No matter claimed as error will be considered on
appeal unless the claim of error was preserved in the lower
court[.]” ORAP 5.45(1). The policy reasons favoring preservation are prudential in nature: It “gives a trial court the
chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already
made, which in turn may obviate the need for an appeal”;
it also “ensures fairness to an opposing party,” and “fosters
full development of the record[.]” Peeples v. Lampert, 345 Or
209, 219-20,
191 P3d 637 (2008).
At the August 2022 hearing, the parties did not
raise and the court did not address the question of whether
Cite as 331 Or App 539 (2024) 543
the settlement agreement was enforceable under the statute of frauds.4 While defendant maintained that he had not
agreed to the settlement terms or authorized Cauble or his
sister to settle on his behalf, those issues were presented
as factual questions that the parties disagreed on, not as
a legal argument regarding the enforceability of the agreement. The trial court understood its role at the moment to
be one of fact finding:
“[The Court]: I do agree with [plaintiff’s counsel] that
my choice is to believe that Mr. Cauble did his job or believe
that he, in some manner, railroaded [defendant]. And I
can’t reach that conclusion that Mr. Cauble has done anything outside of his, I guess, obligations as an attorney.
“…
“… I am forced to decide did Mr. Cauble do his job or
not, and the information in front of this Court is I’m going
to trust Mr. Cauble’s representations when he indicated on
the record that there was a settlement of these matters. He
laid out—the settlement was laid out.”
Because we conclude that defendant did not preserve the
issue, we turn to plain error.
An unpreserved error is reviewable as plain error
when (1) the error is one of law; (2) the legal point is obvious,
meaning it is not reasonably in dispute; and (3) to “reach the
error, we need not go outside the record or choose between
competing inferences to find it.” State v. Nickerson, 272 Or App
155, 156,
354 P3d 758 (2015) (internal quotation marks omitted). If, based on those predicates, we conclude that the error
is plain, we must then decide whether to exercise our discretion to correct it.
Id. In deciding whether to exercise our
discretion, we consider, among other things, “the competing
interests of the parties; the nature of the case; the gravity of
the error; the ends of justice in the particular case; how the
error came to the court’s attention” and, finally, “whether the
polices behind the general rule requiring preservation of error
have been served in the case in another way.” Ailes v. Portland
Meadows, Inc.,
312 Or 376, 382 n 6,
823 P2d 956 (1991).
4
We recognize that defendant would not be required to use the words “statute of frauds” in order to preserve the issue, particularly given his status as a
pro se party.
544 Wilson v. Mack
The issue defendant raises is one of law, and therefore satisfies the first plain error criterion. Whether the
statute of frauds impacts the enforceability of a settlement
agreement entered into on the record before the court but
not reduced to writing is a question of law. However, we conclude that the other two criteria are not met.
The legal point raised here is not obvious and is reasonably in dispute. It is certainly well established that, pursuant to the statute of frauds, a conveyance of an interest
in real property must be in writing to be enforceable. ORS
41.580.5 However, it is also well established that a settlement agreement, when placed on the record and assented
to by both parties, is a binding contract. Kleiner v. Randall,
58 Or App 126, 130-31,
647 P2d 956 (1982) (rejecting party’s
contention that he could withdraw his consent to the stipulated settlement prior to the entry of judgment, and concluding “[t]o the contrary, by agreeing to the stipulation the
parties entered into a binding contract”) (citing Schmidt v.
Oregon Mining Co.,
28 Or 9,
40 P 406 (1895)). Such a contract
“cannot be set aside except on grounds adequate to justify
the rescission of a contract.”
Id. at 131.
In a memorandum of additional authorities, defendant points to Donahue v. Nagel, 319 Or App 275,
510 P3d 927
(2022) as dispositive authority in this matter. However, the
facts of Donahue differ from the facts here, such that it does
not control the outcome. In Donahue, a dispute between the
parties was taken to mediation, where the parties reached
a settlement that included the conveyance of an easement.
Id. at 277. The general outline of the agreement was memorialized by the mediator in an email to the parties, with
5
ORS 41.580(1) states, in part:
“In the following cases the agreement is void unless it, or some note or
memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by the lawfully authorized agent of the
party; evidence, therefore, of the agreement shall not be received other than
the writing, or secondary evidence of its contents in the cases prescribed by
law:
“…
“(e) An agreement for the leasing for a longer period than one year, or for
the sale of real property, or of any interest therein.
“(f) An agreement concerning real property made by an agent of the
party sought to be charged unless the authority of the agent is in writing.”
Cite as 331 Or App 539 (2024) 545
the understanding that the attorneys would draft the settlement agreement and the easement documents.
Id. The
parties were unable to come to an agreement on the final
language of the settlement agreement document, and eventually a complaint was filed in circuit court. Id. at 278. The
defendants sought enforcement of the settlement agreement
terms, while the plaintiffs argued that the settlement agreement was unenforceable because, among other arguments,
the easement provision had not been subscribed to by plaintiffs, and was therefore void under the statute of frauds.
Id. at 278-79. We concluded that, although the parties had
entered into a contract through their mediation agreement,
“the provision of the settlement agreement relating to the
creation of an easement was within the statute of frauds
and …, because it was not subscribed to by the plaintiffs,
as the party to be obligated, it was void.” Id. at 277.
The matter currently before us differs from Donahue.
Here, the settlement agreement terms were stated on the
record before the trial judge, with both sides indicating their
agreement to the terms. Whether such circumstances satisfy the statute of frauds was not resolved in Donahue. We
have been unable to find any controlling authority that settles the issue of whether a settlement agreement assented to
on the record in open court satisfies the statute of frauds.6
6
The issue of whether a settlement agreement made orally before a judge
satisfies the statute of frauds divides courts across the country. See, e.g., Gibson
v. Arnold, 288 F3d 1242, 1245 (10th Cir 2002) (holding that, under Oklahoma
law, oral settlement agreement reached at settlement conference before a United
States magistrate judge was enforceable under the judicial admission exception to the statute of frauds); Szymkowski v. Szymkowski, 104 Ill App 3d 630,
634,
432 NE2d 1209, 1212 (1982) (“When the trial court assents to a settlement,
thereby rendering the sale one pursuant to order of the court, the trial court
has impliedly made a determination as to the parties’ consent and their attorneys’ authority. The safeguards of the Statute of Frauds are fully met when a
settlement is reached in open court in the presence of the parties.”); Fuchs v.
Fuchs,
409 NYS 2d 414, 415,
65 AD2d 595, 596 (NY App Div 1978) (enforcing
a settlement agreement entered into in open court but not executed in writing
thereafter, holding that “the transcript of the proceedings serves to establish
the terms of the settlement and avoid conflicting claims as to what the parties
intended,” and agreeing that the statute of frauds was inapplicable in those circumstances); Powell v. City of Newton, 200 NC App 342, 345,
684 SE2d 55, 58
(2009), aff’d 364 NC 562,
703 SE2d 723 (2010) (concluding that an oral settlement
agreement being placed on the record and agreed to in open court was sufficient
to satisfy the statute of frauds); but see Meyer v. Lipe,
14 SW 3d 117, 119-20 (Mo
Ct App 2000) (concluding that the statute of frauds barred enforcement of an oral
settlement agreement reached in front of the trial judge).
546 Wilson v. Mack
Based on the current state of Oregon law, we conclude that
the trial court did not plainly err in enforcing the oral settlement agreement.
We further conclude that this is a situation where
we would have to choose between competing inferences in
order to reach the error alleged. Defendant maintains that
the trial court erred by enforcing the settlement agreement
because only Cauble indicated assent to the terms and
Cauble did not have written authority to enter into the settlement agreement, either from defendant himself or from a
duly appointed attorney in fact. However, the record is not
clear as to whether the trial court concluded that such a
writing was not necessary or whether the court implicitly
concluded that such a writing existed and was simply not
entered into the record. Because the lack of clarity in the
record would require us to choose between competing inferences, the error is not plain.
The lack of clarity in the record also persuades us
that, even if any error were plain, this would not be a case
in which we would exercise our discretion to review it. Most
significantly, had the issue of the enforceability of the agreement under the statute of frauds been raised, the record
could have developed differently, including via testimony or
affidavits from Cauble and Lisa Mack or the production of
any written authorizations surrounding Cauble’s representation of defendant.
Affirmed.
