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Portland Oregon Attorney | Ronn Elzinga

http://www.Elzinga-Law.com | Portland Oregon Attorney committed to serving you. Ronn Elzinga handles everything from auto accidents & medical malpractice to business litigation & bankruptcy. Call (503) 222-2033 for a free 30 minute consultation (a $200 value)

Portland Oregon Auto Accident Attorney

http://www.Elzinga-Law.com | Portland Oregon Attorneys committed to serving you. Elzinga Law is a full-service firm that handles everything from auto accidents & medical malpractice to business litigation & bankruptcy. Call 503-222-2033 for a free 30 minute consultation (A $200 value).

Trial in Fossil

If you’ve never been to Fossil, Oregon (the county seat of Wheeler County (of the county’s 1,500 population, 400 live in Fossil)), you should know two things: There is only one restaurant open for dinner (which actually makes a pretty mean Rubin Sandwich) but there’s no hotel, so you have to get a room 20 miles north in Condon, Oregon (the seat of Gilliam County (with a population of nearly 800, Condon is by far the largest town in Gilliam County (it’s well known that the two towns, Condon and Fossil,  don’t get along very well but the reasons why were never clearly explained to me.))  Named “Condon” after “Nathaniel Condon” who platted the town in return for naming rights, it was originally founded as “Summit Springs” (there’s a spring under the town that basically keeps “Carl’s Machines & Pumps” in business year around) it has a great hotel (not surprisingly named “Hotel Condon” (which has not one but two of Al’s sub-pumps going 24/7 in it’s basement)) but no place to get dinner (I was told that Jason at the “Cowboy-Up Café” might re-open at 5 for an hour or two, but you can’t really count on him, and the “Twist and Shake Burger Barn” closes at 2.)

(Footnote #1: Condon residents just can’t get enough of the Twist and Shake Burger Barn’s corn dogs.  I had the Twist and Shake Burger Barn Classic Burger – surprisingly good, though a tad spendy at $7.95 – but during my lunch, I’ll bet corn dogs outsold burgers by a ratio 3 to 1.  I’m not kidding. You can ask my wife. (She came along to “experience” Condon – which turned out to be a 10 minute stroll down the three blocks of Main Street and back to the hotel where she spent the rest of the day while I was in trial, drinking vodka, watching decorating shows, and napping.) 

(Aside: If you book a room at the Hotel Condon and you arrive after 7 pm, Rod the manager (a great guy) will tape a note to the hotel door (which is locked at 7 pm) which tells you the combination to the key lock box next to the door so you can get your hotel key and your room key.  Also, if you park on Main Street after 7 pm your’s will be the only car parked on Main Street.  I know this because when I called Rod from just outside of Cascade Locks to tell him I’d be in a little later than I had planned, he told me that I’d be the only car parked on Main Street when I arrived.  He was exactly right.  At the time I thought it was some kind of inside joke Rod was telling me and, at that time, sitting by the side of I-84 in my heater-core-blown-up vehicle, I was not in a joking mood.  Turns out it wasn’t a joke at all.)

CASE FACTS: 

1946 Step dad and mother buy a big ranch in Wheeler County (present day value is one million for the land alone.)

1981 Step dad and mother of my client deed their ranch to step dad, mother, and step son, 1/3^rd each with right of survivorship and record it the same day.  They don’t tell son or anyone else. 

2002 Mom dies.  Step dad and step son have falling out over step dad’s grieving style.  (When wife has a massive stroke, step dad doesn’t visit wife in Bend’s Saint Charles Hospital but, instead drives into Redmond and buys pig feed (I didn’t know there was such a thing as pig feed.)  When asked why, step dad said, “I said my good-byes when she stroked on the kitchen floor.” When step son called to ask what he should do with mom’s now dead body, step dad said, “Do what you should” and hung up.  Step dad apparently chose not to attend her funeral either. “I don’t think I knew about it,” he testified and then blamed his step son for not telling him.)

2004 Step dad sues to quiet title to ranch.  Step dad claims 1) he never intended to pass along a present interest to step son, it was “just a probate avoidance device” (a term I’m sure his attorney made him repeat 100 times before his deposition because, in my limited experience, ranchers in Wheeler county don’t say things like “probate avoidance device”) and 2) he claimed he never signed the deed in the first place and was not sure who did but was absolutely sure “that ain’t mine there on that paper.” (See what I mean? People who say things like “when she stroked on the kitchen floor” and “that ain’t mine there on that paper” don’t typically say “probate avoidance device.”)

2004 Step dad wills the million dollar ranch to step-son’s life-long best friend who recently has become step dad’s best beer drinking buddy right after step son and step dad had their falling out.  (Step dad also willed a Smith Barney account of $400K to step-son’s best friend. Nice.)

2005 Step dad dies.  Step son’s Now X-Best Friend continues the case on behalf of himself and dead step dad’s estate.  Both sides file summary judgment motions.  Step son loses both the $400K Smith Barney account and the million dollar ranch to Now X-best Friend.  Judge Smith out of a neighboring county (Wheeler County doesn’t have a judge – so Judge Smith acts as a circuit riding Circuit Court judge (just like in those old westerns), setting up shop in Wheeler when needed) ruled that, under the law of gifts analysis, step dad never “delivered” the gift and step son never “accepted” the gift and that there were no facts that could change that.  Also, he ruled the Smith Barney account goes to Now X-Best Friend.

2006 Step son appeals.

2007 Appellate court agrees with the circuit riding Judge Smith on the S.B. account but overrules the circuit riding Judge Smith on the ranch saying a deed means to do what it says it does when it’s signed and recorded, that the act of recording is an offer, and acceptance is assumed unless rejected.  Case is sent back to circuit riding Judge Smith.

2009 Step son’s attorney dies.  Step son hires me.  (I met step son at his “office” (which was really his garage that he had turned into a shrine to NASCAR racing. I’m not a big fan of NASCAR.  I much prefer horse racing to car racing, but I have learned to apply what I love about horse racing (“The Fastest Two Minutes In Sports!” (also one of my wife’s pet nicknames for me)) to NASCAR by just watching the last 10 or so laps of a race.  That’s when it starts getting kind of crazy out there on the track.)

2010 First thing I do is request a jury trial, realizing my chances with the circuit riding Judge Smith (who already ruled against step son in summary judgment) weren’t real good.  Denied.

2011 Trial in Wheeler County Court House.  (It’s a beautiful, historic building – so unlike the rest of Fossil, Oregon.  You’d think that a place called Fossil, Oregon, would be a charming little bucolic town that time forgot.  But you’d be wrong.  It much more resembles some kind of hell hole.) 

Trial lasted one day. 

X-Best Friend’s attorney is Steve Johnson out of Hermiston.  Steve seemed like a really nice guy.  But Steve’s theory of his case turns out to be that the findings of the Court of Appeals were for summary judgment purposes only and, for some reason never really fully explained, didn’t really apply to us in trial (something to do with a “different standard” at trial which he claimed was a “preponderance of the evidence” – which it wasn’t (Property 101: you have to defeat a deed clear on its face with clear and convincing evidence of the maker’s intent at the time of signing being different than what the deed says.)  And stranger still, I presented the court with probably 10 cases all saying the trial court’s standard was clear and convincing evidence, but the circuit riding Judge Smith never did rule what the standard was – saying only that, whatever the standard was, under a clear and convincing standard or a preponderance standard his finding would be the same.  I think it odd a judge wouldn’t know the correct standard to apply.  Especially once said judge was given by me 10 cases saying it was a clear and convincing standard and opposing council gave the court this: “Judge, I’m pretty sure it’s a preponderance standard.”)  

Steve Johnson told me he’d take the whole morning and I could have the afternoon, so I scheduled my telephone witnesses accordingly (Fossil is what some would call a “Three-Hour-Away-Town.” Thus the need for telephone witnesses.  Unfortunately, I didn’t have phone coverage in Fossil.) 

Also unfortunate for me, at 10:30 in the a.m., Steve rested.  I knew “Ah, Judge, can we break til 1:30?” wasn’t going to fly, so I started tap dancing.  I called my client (who was not a good witness (and had previously tried his darndest to lose the case by saying things in his deposition about step dad like, “That was all his ranch and he’d never think for a second to give any interest in it to anyone else til he was dead” and “I never expected anything but my mom’s ½ interest after they were both dead.”  Like I said, not helpful.)) who also has a habit of answering questions like, “Would you explain to the court why you thought/said/did that?” with one to three words.  I figured Steve’s cross exam would last a couple of hours.  (I figured wrong.)

At 11 a.m. I’m calling my next witness (except I don’t have any until 1:30 pm.)  I quickly took a scan of the audience (I use the word “audience” with a certain amount of license since there were only two people besides X Best Friend’s witnesses watching, the only daughter of X Best Friend who stands to inherit the ranch from him if he wins (who also just happened to work in the Wheeler County Court House (footnote #2: “ouch!”)) and an elderly woman who had told me just before the trial started that she had been step dad’s next door neighbor until he died and was now interested in finding out who was going to be her next, next door neighbor (she made it clear to me she didn’t like X-Best Friend and was pulling for step son.)  So I called her to the stand. 

She was delightful.  She told a few stories about step dad and wife, said lots of good stuff that was pretty much all hearsay, but she painted a picture of X-Best Friend as committing almost elder abuse against step dad by getting him drunk every night.  This was something I had not heard. 

So I called X-Best Friend to the stand. 

Q:  Mr. X Best Friend, is it true that you and step dad drank booze together?

A:  That’s a lie.  I never drank booze with step dad.

Q:  You heard step dad’s next door neighbor testify that you drank booze with step dad every night.

A:  Like I said, that’s a lie.  I never once drank booze.  I just drank beer.

Q: Would it be fair to call you “step dad’s drinking buddy?”

A:  I wouldn’t say that’s true at all.

Q: Would it be fair to say you drank with your buddy, step dad, pretty much every night?

A:  Yep.

(By the way, there’s a risk in asking questions like that last one.  It would be easy to slip it in with a condescending tone.  I’ve worked hard at being uber sincere in my tone since I am, by nature, what some might call a “smart ass.”  So I work on that straight as an arrow tone.  No smurks, no smiles.  No “Oh, I see the difference” with a wink type responses.  No one likes a lawyer who acts smarter than them.  Not judges, not jurors, and especially not hard working rancher/farmer types.  I’ve seen a number of lawyers cross DME docs with that smug tone.  I think it’s a fairly common mistake. That’s all I have to say about that.)

(Actually, I have one more thing to say. And I’m not making this up either.  After the trial I went out to X-Best Friend in his truck and shook his hand. No kidding, but he invited me up to the ranch for a drink.  I thought that awfully nice of him.  It told me that I had succeeded in being sincere and fair in my direct and cross examinations.  (Which reminds me, that’s another thing about small towns…everyone waves at you.  Cars drive by and the driver waves.  They really do.  Awfully nice people.)

Well, that got me to an early lunch break.

At 1:30 pm I called a document examiner expert. She presented well.  She seemed to know her stuff.  She said it was step dad’s signature on the deed. 

Better yet I had the notary testify (now in Minnesota.)  He wasn’t just the notary of the deed on that day in May of 1981, he was also the owner of the only title insurance company in Wheeler County, a fairly new attorney, and the newly appointed Wheeler County D.A.  He didn’t actually remember the event, but he was pretty strong in saying he had never ever notarized a document without the signers being presently in front of him and them knowing what they were signing, that as the owner of the only title insurance company in Wheeler County he had a vested interest in making sure deeds were stable, thus insurable, that as one of only a couple of attorneys in Wheeler County, he was pretty darn sure he had prepared the deed for step dad and wife, and as the newly appointed DA, he was pretty sure that he didn’t commit the crime of falsely notarizing a deed.

Circuit riding Judge Smith found for step son. 

I suspect there will be an appeal because of the value of the property and because X-Best Friend has been living on the ranch since step dad died in 2005 and because he’s got enough cash from step dad’s account to afford it.  But I think circuit riding Judge Smith wrote a very strong/correct findings of fact and conclusions of law even if he didn’t know which standard to apply.

Ronn