Ford v. Grimes

Full title: Helen FORD, Respondent, v. Beverly Ann GRIMES, Appellant

Court: Oregon Court of Appeals

Date published: Nov 13, 1991

820 P.2d 904 (Or. Ct. App. 1991)

820 P.2d 904

Opinion

90CV031; CA A66552

Argued and submitted September 13, 1991.

Reversed and remanded with instructions to enter amended judgment; Otherwise affirmed November 13, 1991

Appeal from Circuit Court, Curry County, Robert F. Walberg, Judge.

Maurice L. Russell, II, Salem, argued the cause for appellant. With him on the briefs were Churchill, Leonard, Brown Donaldson, Salem, and Patrick R. Foley, Brookings.

John L. Hemann, Salem, argued the cause for respondent. With him on the brief were Garrett, Seideman, Hemann Robertson, P.C., Salem, and James W. Gardner, Gold Beach.

Before Warren, Presiding Judge, and Joseph, Chief Judge,^_ and Edmonds, Judge.

_ Joseph, C.J., vice Richardson, J.

PER CURIAM

Reversed and remanded with instructions to enter amended judgment awarding plaintiff $4,049.01; otherwise affirmed.

PER CURIAM

Defendant appeals a judgment that quieted title to real property in plaintiff, awarded plaintiff past due rent and dismissed defendant's counterclaims. Defendant's first two assignments of error relate to her counterclaims for a declaration of an equitable mortgage and a constructive trust, each of which must be proved by clear and convincing evidence. See Albino v. Albino, 279 Or. 537, 550, 568 P.2d 1344 (1977); Blue River Sawmills et al v. Gates et al, 225 Or. 439, 447, 358 P.2d 239 (1961). On de novo review, we conclude that there is no clear and convincing evidence of an equitable mortgage or a constructive trust.

Defendant next argues that there is no evidence to support the $5,400 judgment for past due rent.¹ Plaintiff testified that defendant and her husband paid the house loan payments of $449.89 per month to the escrow agent in lieu of rent. There is no other evidence regarding the amount of past due rent. Therefore, plaintiff is entitled only to a judgment of $4,049.01 for arrearages in rent from July 1, 1989, through March 30, 1990.

1 The trial court awarded past due rent ancillary to granting relief in the quiet title claim, an equitable proceeding. Therefore, our review is de novo. See Wittick v. Miles, 274 Or. 1, 5, 545 P.2d 121 (1976); Cobra Building Devel., Inc. v. City of Salem, 59 Or. App. 441, 443, 651 P.2d 150, rev den 294 Or. 295 (1982).

Reversed and remanded with instructions to enter amended judgment awarding plaintiff the sum of $4,049.01; otherwise affirmed.