No. 1102 December 24, 2025 5
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Glen CARTER,
individually and as Personal Representative of the
Estate of Connie Marie Carter,
Petitioner-Respondent,
v.
Jeffery George SMITH,
individually and as Trustee of the
George and Sharon Smith Living Trust under
agreement dated February 20, 2017,
Respondent-Appellant.
Union County Circuit Court
23CV08390; A184191
Wes Williams, Judge.
Argued and submitted September 22, 2025.
Bradley T. Crittenden argued the cause for appellant.
Also on the briefs was Chenoweth Law Group, PC.
George W. Kelly argued the cause and filed the brief for
respondent.
Before Aoyagi, Presiding Judge, Kamins, Judge, and
Pagán, Judge.
AOYAGI, P. J.
Affirmed.
6 Carter v. Smith
AOYAGI, P. J.
Jeffery Smith, the trustee and a beneficiary of the
George and Sharon Smith Living Trust, appeals a judgment
that, among other things, divides the trust’s real property
between himself and Glen Carter (Carter), the personal
representative and sole beneficiary of the estate of Connie
Carter, who was the other beneficiary of the trust. Smith
contends that the trial court erred in partitioning the trust’s
real property under ORS 105.205 because the trust was the
sole owner of the property and ORS 105.205 allows partition only when real property is owned by multiple owners as
tenants in common. As explained below, we conclude that,
notwithstanding the court’s use of the term “partition” in
its findings regarding the property division, it ordered the
division under the Uniform Trust Code (UTC), ORS 130.001
to 130.910, as a remedy for multiple breaches of trust by
Smith. Smith also appeals a supplemental judgment awarding Carter attorney fees, contending that the court plainly
erred in entering it because Carter did not plead a statutory entitlement to fees. We conclude that any error was not
plain. Accordingly, we affirm the general and supplemental
judgments.
FACTS
The relevant facts are procedural. Carter filed a complaint seeking a declaratory judgment and partition of trust
property under ORS 105.205. The caption of the complaint
read, “CLAIM: DECLARATORY RELIEF, PARTITION,
ATTORNEY FEES, COSTS, AND DISBURSEMENTS.”
The complaint alleged, among other things, that a trust
existed and was governed by the trust instrument attached
to the complaint; that the trust owned certain real property; that the trust instrument provided for equal division
of trust assets between the two beneficiaries, Smith and
Connie Carter; that Carter was the administrator and sole
beneficiary of Connie Carter’s estate; that Carter and Smith
were unable to agree on an equitable division of the trust
assets; and that Carter was “therefore entitled to distribution of one-half of the ownership interests to be distributed
from” the trust.
Cite as 346 Or App 5 (2025) 7
Smith moved for summary judgment, asserting
that, because the trust’s real property was not owned by “two
or more parties,” partition was inappropriate. He further
asserted in the supporting memorandum that he had made
a proposal to buy Carter’s half of the trust’s real property
for approximately $180,000, that Carter had not responded,
and that therefore there was “presently no genuine issue of
material fact regarding the final trust asset distribution
that requires court intervention to resolve.”
Carter opposed the summary judgment motion. He
asked the court to “determine the methodology [for dividing the trust’s real property] so that the George and Sharon
Smith Living Trust is distributed equally between” Carter
and Smith. In an attached declaration, Carter listed a variety of actions by Smith and asserted that they violated various provisions of the UTC.
At the summary judgment hearing, Carter suggested that the pleaded claims should be understood to
encompass the parties’ whole trust dispute, reiterating that
Smith’s actions violated the UTC. Smith pointed out that
those things were “not really teed up in the complaint” and
again argued that because the trust, rather than multiple
individuals, still owned the real property, “the partition
aspect of this is a down the road problem.” The trial court
denied the motion for summary judgment.
At the start of trial, Smith acknowledged that, ultimately, the parties “should not own any property together”
but asserted that, “procedurally, I still maintain that a partition is premature, because you can’t partition something
that’s not owned by two people yet and so that’s largely …
our objections to the petition.” Smith did not contend that
the court should not address the trust dispute more broadly.
At trial, without objection from Smith, Carter
presented evidence regarding all aspects of the trust dispute, including breaches of trust by Smith and a request
to remove Smith as trustee. In response, Smith presented
evidence regarding his management of the trust, including
documentation of income and expenses of the trust, and of
8 Carter v. Smith
his offer to Carter to buy Carter’s share of the real property,
which he contended was a proposed distribution of the trust.
In closing argument, Carter asserted that the dispute was within the court’s jurisdiction as a dispute regarding a trust:
“This proceeding, obviously, is a matter within the jurisdiction of the Court, there’s no question about that. There’s no
question about the Court’s authority to supervise as to the
scope necessary for trust administrations.”
Carter read aloud ORS 130.625(1), which provides that “the
settlor, a cotrustee or a beneficiary may request that a court
remove a trustee, or a trustee may be removed by a court on
its own motion”; argued that the court should remove Smith;
and concluded by stating that “[i]t’s almost as if there has
been no compliance provided whatsoever under the provisions of ORS Chapter 130.”
In his closing, Smith noted that trustee removal
was outside the scope of the complaint but recognized the
court’s power to consider it: “[T]he complaint only asks for
the partition; it doesn’t ask for the removal of the trustee.
So, you know I do understand the Court on its own motion
can do that.” He then argued against removal of the trustee.
As for partition, Smith reiterated his view that it was inappropriate because the trust still owned the property, but he
also acknowledged that “the Court can order the distribution because we are here in front of the Court.” He suggested
that the court could solve the parties’ problem without partition by simply dividing the property:
“I don’t really see the need for a whole partition action
because the Court could just cut in front of that because the
property is still in the trust. It’s not co-owned by Mr. Carter
and Mr. Smith at the moment where you have two co-owners
who can’t agree on how to manage the property. So, you
know, we can really cut in front of the partition action by
ordering X and Y to X, and Y and A to Z. Or, you know,
whatever the Court fashions.”
In response, the court asked what Smith’s proposed division
would be, and Smith stated that he would like something
similar to his offer to Carter, i.e., Smith taking ownership
Cite as 346 Or App 5 (2025) 9
of all the real property and paying Carter approximately
$180,000.
The court issued a written judgment containing
detailed findings and conclusions. It found that the trust
owned five parcels of real property and that “[a]n equitable
partition of the properties can be had without great prejudice to the owners of the property.” The court determined
that Smith had breached his duties as trustee in seven
ways, setting out each relevant provision of the UTC and
describing Smith’s conduct that violated each provision. The
court then stated that, as “[t]he remedy for these violations,”
it was awarding two of the five parcels, totaling around 194
acres, to Carter, and the other three parcels, totaling around
216 acres, to Smith. The court further ordered, “After partitioning the parcels identified above, the properties shall
be appraised by an appraiser agreed to by both parties”
and, because the court anticipated that the land awarded to
Smith was worth more than that awarded to Carter, “there
will be an equalizing judgment awarded to [Carter from
Smith].” The court also removed Smith as the trustee, and it
awarded attorney fees to Carter.
PARTITION
On appeal, Smith renews his argument that the
trial court could not order partition under ORS 105.205
when the trust was sole owner of the property. However, he
does not challenge division of the property as a “remedy” for
UTC violations.1
We agree with Smith that partition under ORS
105.205 was unavailable in these circumstances. See ORS
105.205 (partition is available when “several persons hold
real property as tenants in common” (emphases added)).
However, notwithstanding imprecision in the judgment and
some confusion among the parties and the court as to the
1
At oral argument on appeal, Smith asserted for the first time that no mechanism exists other than partition under ORS 105.205 by which the court could
distribute the trust’s real property between the two beneficiaries and order an
equalizing money judgment. We perceive that to have been intended as an argument for why we should understand the court to have ordered partition under
ORS 105.205. However, to the extent that it was intended as a substantive argument that the court erred if it ordered that as a trust remedy, it comes too late to
be considered.
10 Carter v. Smith
relationship between partition and the court’s powers under
the UTC, our understanding, given all of the circumstances,
is that what the court actually did was to take jurisdiction
over a trust dispute and resolve that dispute. As Smith
proposed in his closing argument, the court “cut in front of
the partition action” and simply resolved the trust dispute,
albeit not in the way that Smith would have preferred. The
court awarded two parcels to Carter and three parcels to
Smith, with an equalizing judgment, as “the remedy” for
Smith’s breaches of trust.
We reach that conclusion notwithstanding the court’s
finding that “[a]n equitable partition of the properties can be
had without great prejudice to the owners of the property,”
which is a prerequisite to partition under ORS 105.205, and
its statement that an equalizing judgment would be entered
“[a]fter partitioning the parcels.” Although those two statements would be consistent with a choice to grant partition
under ORS 105.205, the court also specifically stated that
its division of the property was “the remedy for these violations,” where “these violations” were seven specific breaches
of trust by Smith. And it did not order the procedure contemplated by the partition statutes. See ORS 105.245 (requiring
the court, upon determining that partition is appropriate,
to “enter a judgment requiring a partition according to the
respective rights of the parties” and “appoint three referees to partition the property”); ORS 105.255 (requiring the
referees to divide the property, allot the portions thereof,
and issue a report); ORS 105.260 (providing for the court
to confirm or set aside the report and, if necessary, appoint
new referees). Rather, it simply distributed the five parcels
between the two beneficiaries and retained jurisdiction to
enter a money judgment after an appraisal. In our view, the
court ultimately resolved a trust dispute, in line with what
had been litigated, despite the inapt use of the term “partition.”2 See generally ORS 130.800(2)(j) (allowing the court to
order any appropriate relief to remedy a breach of trust).
2
Smith points to case law that, he asserts, shows that it is possible to partition real property without dividing any individual parcels. Kittredge v. O’Keefe,
217 Or App 599, 602-04,
177 P3d 28 (2008). That may be true; we express no opinion on that question. Our conclusion is simply that, under these particular circumstances, the court ordered a trust remedy, not partition under ORS 105.205.
Further, to the extent that Smith contended at oral argument that the money
Cite as
346 Or App 5 (2025) 11
ATTORNEY FEES
We turn to the supplemental judgment. The trial
court awarded attorney fees to Carter under ORS 130.815,
which provides, “In a judicial proceeding involving the validity or administration of a trust, the court may award costs
and expenses and reasonable attorney’s fees to any party,
to be paid by another party or from the trust.” On appeal,
Smith contends that the court plainly erred in awarding fees
to Carter, because Carter did not plead them as required by
ORCP 68 C(2)(a). ORCP 68 C(2)(a) provides that “[a] party
seeking attorney fees shall allege the facts, statute, or rule
that provides a basis for the award of fees in a pleading filed
by that party” and that “[n]o attorney fees shall be awarded
unless a right to recover fees is alleged as provided in this
paragraph ….” Smith did not object on that basis in the
trial court, so the claim of error is unpreserved, and Smith
requests plain-error review.
“Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 331 Or 335,
341,
15 P3d 22 (2000). However, we have discretion to correct “plain” errors. ORAP 5.45(1). An error is “plain” when
it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record
without having to choose among competing inferences. State
v. Vanornum,
354 Or 614, 629,
317 P3d 889 (2013).
Smith relies on Wedemeyer v. Nike Ihm, Inc., 319 Or
App 781,
513 P3d 610 (2022), to argue that it was plain error
to award fees here. Carter counters that there is no plain
error under Moyer v. Columbia State Bank,
315 Or App 728,
503 P3d 472 (2021). As explained below, we conclude that
any error is not plain under current law.
As context for Wedemeyer and Moyer, we begin with
Mulier v. Johnson, 332 Or 344, 351,
29 P3d 1104 (2001),
in which the Supreme Court addressed the relationship
judgment aspect of the court’s distribution is not a trust remedy, he has not cited,
and we have not found, any Oregon case law to support the proposition that, when
ordering distribution of real property belonging to a trust in accordance with the
trust instrument’s distribution instructions, a court cannot provide for a money
judgment as well as distributing the real property between the beneficiaries. As
noted, Smith does not challenge the substance of the court’s trust remedy; he
asserts only that it was not appropriate under ORS 105.205.
12 Carter v. Smith
between ORCP 68 C’s pleading requirement for attorney fees
and ORCP 12 B’s prejudice rule regarding errors or defects in
pleadings. The plaintiff in Mulier filed a complaint alleging
three claims, and, in response, the defendant filed a motion
for summary judgment in lieu of an answer.
Id. at 346-47.
The motion did not assert any right to attorney fees; however, the accompanying memorandum asserted a right to fees
on the third claim.
Id. at 347. The trial court granted summary judgment for the defendant on all three claims, and
it awarded fees on the third claim.
Id. We affirmed the fee
award, treating the failure to allege a right to fees in the
motion as immaterial given the concurrently filed memorandum “and the lack of any possible prejudice to plaintiff.”
Id.
at 348. In doing so, we relied on ORCP 12 B, which provides,
“The court shall, in every stage of an action, disregard any
error or defect in the pleadings or proceedings which does not
affect the substantial rights of the adverse party.” See Mulier,
332 Or at 348-49 (discussing our reliance on ORCP 12 B).
The plaintiff sought review, arguing that relying
on ORCP 12 B to excuse compliance with ORCP 68 C(2)(b)
“effectively ‘swallows’ the requirement in ORCP 68 C that the
right to attorney fees be alleged in a pleading or in a motion
seeking judgment or dismissal.” Id. at 348. The Supreme
Court reversed. As a matter of statutory construction, it
concluded that ORCP 12 B does not apply where a party
has not alleged any right to fees in the pleading, because
a complete absence is not an “error” or “defect” within the
meaning of ORCP 12 B.
Id. at 350. The court explained:
“The words ‘error’ and ‘defect’ in ORCP 12 B reflect the legislature’s intent that a party must attempt to comply with
the mandatory requirements of the rules of civil procedure if
that party is to benefit from the provisions of ORCP 12 B.
A complete failure to allege the right to attorney fees in
a motion under ORCP 68 C(2)(b) does not demonstrate an
attempt to comply with the requirements of that rule. See
Hawkins v. City of La Grande, 315 Or 57, 63-64,
843 P2d
400 (1992) (ORCP 12 B not a basis for disregarding complete failure to plead affirmative defense as required by
rules of civil procedure).”
(Emphases added.) Because the defendant had not pleaded
a right to fees at all, it was error to award fees. Id. at 351. It
Cite as 346 Or App 5 (2025) 13
was irrelevant that fees were requested in the accompanying memorandum, as that was not a pleading, and it neither
cured the failure to allege a right to fees in the motion nor
“transform[ed] that failure into an attempt to comply with
the rules of civil procedure for purposes of ORCP 12 B.”
Id.
Under Mulier, it is clear that a court cannot award
attorney fees to a party who has completely failed to allege
a right to fees in their pleading. See Guzek v. Fhuere, 342 Or
App 682,
577 P3d 1175 (2025) (describing Mulier as making “a
distinction between a ‘complete failure’ to comply” with a procedural rule and “an imperfect attempt” to do so, as relevant
to “whether a party can avail themselves of ORCP 12 B”).
In Bridgestar Capital Corp. v. Nguyen, 290 Or App
204, 210,
415 P3d 1095 (2018), we acknowledged that some
of our prior case law was inconsistent with Mulier and clarified our understanding of the law after Mulier as follows:
“We take this opportunity to clarify that, after Mulier
…, a party’s complete failure to comply with the textual
requirements of ORCP 68 C(2) cannot be excused by the fact
that the opposing party’s pleadings, or the circumstances
as a whole, would have alerted the opposing party of the
prevailing party’s intention to seek attorney fees. Nor can
complete failure to comply be excused by the fact that the
opposing party was not prejudiced by the failure. ‘A complete failure to allege the right to attorney fees [as required
by ORCP 68 C(2)] does not demonstrate an attempt to comply with the requirements of that rule’ and, consequently,
cannot be excused by ORCP 12 B. Mulier …,
332 Or at
350.”
(Brackets in Bridgestar Capital Corp.) Thus, the first question
must be whether a party “alleged, or at least attempted to
allege, the right to recover attorney fees in [their] pleadings
in one of the ways required by ORCP 68 C(2)(a)”—because
“[i]f [they] did not, ORCP 12 B cannot excuse the omission.”
Id. at 208. We reversed the fee award in Bridgestar Capital
Corp. on that basis. Id. at 211. Similarly, in Wedemeyer,
319
Or App at 783, we held that it was plain error to award
attorney fees to a party who had made no attempt to comply
with the requirements of ORCP 68 C(2)(a), including never
alleging a right to fees in any pleading.
14 Carter v. Smith
What is less clear is how much of an “attempt” at
pleading attorney fees is enough to trigger the application
of ORCP 12 B. In Bruce v. Cascade Collections, Inc., we held
that the plaintiff had done enough under Mulier to trigger
ORCP 12 B, where he “allege[d] the facts supporting a fee
entitlement under the [Fair Credit Reporting Act] and then
included [an] express request for fees in the prayer [in his
complaint], but not in the claim itself,” which we viewed as
a manifest, albeit imperfect, “attempt to comply with ORCP
68 C(2)(b).” 199 Or App 59, 66-67,
110 P3d 587, rev den,
339
Or 66 (2005). Because ORCP 12 B applied, we proceeded to
the prejudice test described as follows:
“[T]he threshold inquiry is whether the pleading adequately
alleged the facts that provide the basis for the fee entitlement. Once that prerequisite is satisfied (as it was here),
the question becomes one of notice—and, in that regard, it
makes no difference … whether the defendant was fairly
alerted by the allegations of the first claim for relief or by
the content of the prayer describing the relief sought for
that claim.”
Id. (internal quotation marks omitted).
More recently, in Moyer, we affirmed an award of
attorney fees under ORS 130.815 to the plaintiff in a trust
action where he had pleaded a right to fees under the trust
instrument but not ORS 130.815. 315 Or App at 748. We
reasoned that “it is not necessary under the rule to allege
a specific statutory basis for attorney fees” as long as the
allegations in the pleading “include all facts that must be
proved to meet the statutory criteria for an award.”
Id. We
stated that the pleading requirement in ORCP 68 C “is satisfied when: (1) the facts alleged in a party’s pleadings provide the basis for such an award; (2) the parties in the case
have fairly been alerted that attorney fees would be sought;
and (3) no prejudice would result.”
Id. We concluded that the
complaint in Moyer satisfied that standard.
Id. at 749-50.
This case is distinguishable from Wedemeyer (and
other cases in that line) because Carter did not completely
fail to allege a right to attorney fees in his pleading. He
included “attorney fees” as part of his “claim” in the caption
of his complaint. That may not be much, but it is more than
Cite as 346 Or App 5 (2025) 15
the parties in Mulier and Wedemeyer did, and it is arguably
comparable to including fees in the prayer as occurred in
Bruce. It is therefore not obvious and is reasonably in dispute whether Carter sufficiently attempted to comply with
ORCP 68 C(2)(b) to trigger ORCP 12 B. We cannot say under
existing case law that the trial court plainly erred in applying ORCP 12 B in these circumstances. Further, if ORCP
12 B does apply, the trial court did not plainly err in concluding that the Moyer standard was satisfied, such that
fees could be awarded. It is reasonably disputable whether
the complaint adequately alleged the facts providing a basis
for fee entitlement, whether the inclusion of attorney fees in
the caption fairly alerted Smith that fees would be sought,
and whether Smith was prejudiced. Because any error is not
“plain,” we reject the second assignment of error.
Affirmed.
