author: TOOKEY, J. Sercombe, S. J., dissenting. SERCOMBE, S. J., dissenting.

text:
    Ryan HAMMEL and Jamie Hammel, Plaintiffs-Appellants, v. Mark MCCULLOCH, individually and Powers McCulloch & Bennett, LLP, an Oregon limited liability partnership, Defendants-Respondents.
    A163891
    Court of Appeals of Oregon.
    Argued and submitted January 5, 2018. April 3, 2019
    Kelly L. Andersen, Medford, argued the cause for appellants. Also on the briefs was Kelly L. Andersen, P. C.
    Peter R. Mersereau, Portland, argued the cause for respondents. On the brief were Thomas W. McPherson and Mersereau Shannon LLP.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Sercombe, Senior Judge.
   TOOKEY, J.

This legal malpractice case has its beginnings in a Tri-Met bus striking five pedestrians in a Portland crosswalk. Plaintiffs, Ryan and Jamie Hammel, allege, among other points, that defendants, attorney Mark McCulloch and the law firm of Powers McCulloch & Bennett, LLP, were negligent in failing to pursue claims against certain entities in connection with the personal injury litigation that defendants commenced on plaintiffs' behalf as a result of being struck by the Tri-Met bus. The trial court granted summary judgment to defendants on the grounds that plaintiffs could not establish the "causation" and "damages" elements of their legal malpractice claim. Plaintiffs appeal the trial court's judgment in favor of defendants. For the reasons that follow, we reverse the grant of summary judgment to defendants and remand for further proceedings.

We review a trial court's grant of summary judgment to determine whether there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. "That standard is satisfied if, viewing the relevant facts and all reasonable inferences in the light most favorable to the nonmoving party-here, plaintiff[s]-no objectively reasonable juror could return a verdict for [plaintiffs] on the matter that is the subject of the motion for summary judgment." Hinchman v. UC Market, LLC , 270 Or. App. 561, 566, 348 P.3d 328 (2015) (internal quotation marks omitted); see also Mason v. BCK Corp. , 292 Or. App. 580, 587, 426 P.3d 206, rev. den. , 363 Or. 817, 431 P.3d 420 (2018) (in analyzing a motion for summary judgment, "the court determines whether there is 'some evidence' or 'any evidence' that presents a genuine issue of material fact for the jury to resolve"). We state the facts consistently with that standard.

I. FACTS

A. History of the Underlying Litigation

In April 2010, a Tri-Met bus struck five pedestrians in a crosswalk in Northwest Portland. Plaintiffs, as well as Robert Gittings, were injured in the bus accident, but survived their injuries. The two other individuals who were struck by the bus, Danielle Sale and Jenee Hammel, died as a result of their injuries. Subsequently, the personal representative of the Estate of Jenee Hammel, the personal representative of the Estate of Danielle Sale, and Gittings (the products-liability claimants), filed wrongful death and personal injury claims against Tri-Met. Additionally, the products-liability claimants filed claims against the manufacturer of the bus, New Flyer, and against the manufacturers, Hadley and Rosco, of a side-view mirror that was installed on the bus.

In October 2010, plaintiffs retained defendants to represent them in connection with the injuries that they had sustained as a result of the bus striking them. After consultation with defendants, plaintiffs asserted claims against Tri-Met, but not against New Flyer, Hadley, or Rosco. Less than a month after asserting their claims against Tri-Met, plaintiffs contacted a different attorney, Michelle Burrows, who eventually replaced defendants as attorney of record in the litigation. By the time that Burrows replaced defendants, the statute of limitation had run on plaintiffs' unasserted claims against New Flyer, Hadley, and Rosco. Subsequently, plaintiffs' and the products-liability claimants' lawsuits were consolidated.

As a result of the lawsuits filed against it, Rosco entered a global settlement with the products-liability claimants in the amount of $225,000. The $225,000 was equally divided among the three products-liability claimants, with each claimant receiving $75,000. Additionally, Hadley settled with each of the products-liability claimants for $100,000.

Tri-Met and New Flyer entered a settlement with plaintiffs and the products-liability claimants. Specifically, Tri-Met and New Flyer each agreed to pay $2 million in exchange for plaintiffs and the products-liability claimants releasing their claims. The question of how the total settlement fund of $4 million would be distributed among plaintiffs and the products-liability claimants was left to plaintiffs and the products-liability claimants, and their respective attorneys, to determine, which they subsequently did.

The $2 million global settlement proceeds received from Tri-Met were distributed as follows:

• $603,911 to the Estate of Jenee Hammel;
• $546,939 to Gittings;
• $524,150 to the Estate of Danielle Sale; and
• $325,000 to plaintiffs.

The $2 million global settlement proceeds received from New Flyer were distributed as follows:

• $721,089 to the Estate of Jenee Hammel;
• $653,061 to Gittings; and
• $625,850 to the Estate of Danielle Sale.

Thus, plaintiffs received 16.25 percent of the $2 million paid by Tri-Met, but none of the $2 million that was paid by New Flyer to the products-liability claimants. Instead, according to plaintiffs, the $2 million that was paid by New Flyer was "simply redistributed to the [products-liability claimants] in exact mathematically increased proportion to what they had received from Tri-Met." That is, "the distribution of New Flyer's $2 million was not a renegotiation by the attorneys and clients involved," but rather "a simple duplication of the Tri-Met negotiations, without [plaintiffs]."

Plaintiffs did not participate in the distribution of the $2 million global settlement received from New Flyer, the $225,000 global settlement received from Rosco, or the $100,000 settlements received from Hadley, because defendants did not file claims against New Flyer, Rosco, or Hadley.

B. Procedural History of the Legal Malpractice Case

After resolution of their claims against Tri-Met, plaintiffs brought an action for legal malpractice against defendants. In the operative complaint, plaintiffs allege that (1) defendants were negligent in failing to file claims against New Flyer, Rosco, and Hadley, and (2) had defendants done so, plaintiffs would have received settlement funds from New Flyer, Rosco, and Hadley.

In the trial court, defendants moved for summary judgment on plaintiffs' legal malpractice claim. Defendants argued that plaintiffs could not prove the essential elements of "harm" and "causation" because there was no evidence that plaintiffs would have recovered "more in the global settlement if they had *** alleg[ed] products liability claims."

In opposition to defendants' motion for summary judgment, plaintiffs argued, among other points, that if they had filed a claim against New Flyer it was "highly probable" that plaintiffs "would have received the same distribution of the $325,000 of the New Flyer funds that they had received of the Tri-Met funds." They also argued that because 16.25 percent was their "agreed-upon share" of the Tri-Met settlement funds, it was probable that plaintiffs would have received the same share of the settlement funds paid by Rosco and Hadley if defendants had filed claims against Rosco and Hadley. In opposing defendants' motion for summary judgment, plaintiffs relied on, among other evidence, (1) an October 12, 2016, declaration from Burrows (the Burrows declaration), who, as noted above, replaced defendants as plaintiffs' attorney of record in the underlying litigation, and (2) an October 13, 2016, declaration from Hala Gores (the Gores declaration), who represented the personal representative of the Estate of Jenee Hammel in the underlying litigation.

The trial court granted defendants' summary judgment motion. In a November 9, 2016, letter opinion, the trial court concluded, in pertinent part, that

"[t]he question in this case is how, if at all, would both payors of settlement funds and persons dividing those funds behaved differently if Defendants had pursued a claim against certain products liability defendants. None of the declarations proffered by Plaintiffs serve as a valid basis for a conclusion in that regard. *** The problem is that the question of motive and behavior of either insurance companies or the other plaintiffs can be resolved only by evidence from those parties and not by third-party commentators on what might have happened differently. The motives and behaviors about which the declarants here would testify are either hearsay (that is, based on statements made by the other plaintiffs or insurance company representatives to the declarants), incompetent, or speculative."

On appeal, plaintiffs contend, among other points, that the record permits an inference that, if defendants had sued New Flyer, Rosco, and Hadley, "at the very least plaintiffs would have received the same $325,000 from New Flyer as they had received from Tri-Met, and they almost certainly would have received something significant from Rosco and Hadley."

Defendants contend that plaintiffs were required, but failed, to come forward with admissible evidence showing that the outcome of the global settlement negotiations would have been more favorable to them had defendants asserted the products-liability claims noted above on their behalf against New Flyer, Hadley, and Rosco. Specifically, defendants contend that plaintiffs' appeal fails because (1) plaintiffs "produced no evidence" from New Flyer, Hadley, or Rosco "suggesting that they would have been willing to increase their global settlement payments" if plaintiffs had asserted claims against them and (2) "produced no evidence from the [products-liability claimants] suggesting that they would have accepted less money in settlement if plaintiffs had pleaded products liability claims."

II. ADMISSIBILITY OF THE BURROWS DECLARATION AND THE GORES DECLARATION

In the trial court, defendants made motions to strike certain paragraphs of the Burrows declaration and the Gores declaration, including paragraph 4 of the Burrows declaration and paragraph 11 of the Gores declaration. In paragraph 4 of the Burrows declaration, Burrows states, in pertinent part:

"When Tri-Met and New Flyer settled at the same time ***, each paying $2 million for a total of $4 million in all, [plaintiffs] received $325,000 (16.25%) of the $2 million paid by Tri-Met, but none of the identical $2 million paid by New Flyer. Instead, the New Flyer money that otherwise would have gone to [plaintiffs] was simply redistributed to the [products-liability claimants] in exact mathematically increased proportion to what they had received from Tri-Met. *** Significantly, the distribution of New Flyer's $2 million was not a re-negotiation by the attorneys and clients involved. Instead, it was a simple duplication of the Tri-Met negotiations, without the [plaintiffs]."

In paragraph 11 of the Gores declaration, Gores states:

"[Plaintiffs] did not participate in the distribution of the $2,000,000 global settlement received from New Flyer, the $225,000 global settlement received from Rosco, or the $300,000 ($100,000 per individual) settlement received from Hadley, because their attorney, Mark McCulloch, did not make claims against New Flyer, Rosco and Hadley."

The trial court did not directly rule on defendants' motions to strike, but noted in its letter opinion that it did not "see any foundation for the statements in th[o]se declarations relating to the matter at issue," which the court characterized as "how, if at all, would both payors of settlement funds and persons dividing those funds behaved differently if [d]efendants had pursued a claim against" New Flyer, Hadley, and Rosco. It went on to conclude, as noted above, that "[t]he motives and behaviors about which the declarants here would testify are either hearsay[,] *** incompetent, or speculative."

On appeal, plaintiffs argue that the trial court "ignored" the Gores declaration and the Burrows declaration when ruling on defendants' motion for summary judgment. Defendants, for their part, characterize the trial court as concluding that the Burrows declaration and the Gores declaration were "without foundation, incompetent and inadmissible." Defendants argue that statements in the Gores declaration and the Burrows declaration "about what the parties to settlement negotiations in the underlying litigation might have done if plaintiffs had pled products liability claims [are] inadmissible because [they] lack[ ] any foundation * * *, [are] purely speculative, and thus incompetent."

In light of our analysis below, we consider, in particular, whether paragraph 4 of the Burrows declaration-as excerpted above-and paragraph 11 of the Gores declaration were admissible in resolving defendants' motion for summary judgment.

ORCP 47 D provides that declarations in opposition to summary judgment

"shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant or declarant is competent to testify to the matters stated therein."

We note, however, that " ORCP 47 D does not require an explicit statement by the affiant as to his personal knowledge and competence." West v. Allied Signal, Inc. , 200 Or. App. 182, 190, 113 P.3d 983 (2005) (emphasis in original). Rather, "the rule's requirements are satisfied if, from the content of the affidavit read as a whole, an objectively reasonable person would understand that statements in the affidavit are made from the affiant's personal knowledge and are otherwise within the affiant's competence." Id.

We conclude that an objectively reasonable person would understand that Burrows, who represented plaintiffs and participated in discussions regarding distribution of funds under the settlement agreement between New Flyer, Tri-Met, the products-liability claimants, and plaintiffs, would have personal knowledge of, and be competent to testify to, the method the parties chose to distribute the funds described above.

We also conclude that an objectively reasonable person would understand that Gores, who represented one of the products-liability claimants, would have personal knowledge of, and be competent to testify to, why plaintiffs did not participate in the settlements with New Flyer, Rosco, and Hadley.

Accordingly, we conclude that paragraph 4 of the Burrows declaration, as excerpted above, and paragraph 11 of the Gores declaration were admissible in resolving defendants' motion for summary judgment.

III. SUMMARY JUDGMENT ANALYSIS

An action for legal malpractice is not significantly distinct from an ordinary negligence action. As we have noted, "[i]t is simply a variety of negligence in which a special relationship gives rise to a particular duty that goes beyond the ordinary duty to avoid a foreseeable risk of harm." Watson v. Meltzer , 247 Or. App. 558, 565, 270 P.3d 289 (2011), rev. den. , 352 Or. 266, 286 P.3d 1231 (2012). Accordingly, "in order to prevail in a legal malpractice action, a plaintiff must allege and prove (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) causation , i.e. , a causal link between the breach of duty and the harm." Id. (emphases in original).

Under Oregon negligence law, the element of "causation" ordinarily refers to "causation-in-fact" or "but-for" causation. Id ."That is to say, in order to prevail in a negligence action, a plaintiff must establish that but for the negligence of the defendant, the plaintiff would not have suffered the harm that is the subject of the claim." Id. (emphasis in original). In the legal malpractice context, "that means that, to prevail, a plaintiff must show, not only that the attorney was negligent, but also that the result would have been different except for the negligence." Id. (internal quotation marks omitted); see also Joshi v. Providence Health System , 198 Or. App. 535, 538-39, 108 P.3d 1195 (2005), aff'd , 342 Or. 152, 149 P.3d 1164 (2006) (" 'Cause-in-fact' also has a well-defined legal meaning: it generally requires evidence of a reasonable probability that, but for the defendant's negligence, the plaintiff would not have been harmed."). "Causation may be proved by circumstantial evidence, expert testimony, or common knowledge." Two Two v. Fujitec America, Inc. , 355 Or. 319, 332, 325 P.3d 707 (2014).

With respect to defendants' failure to bring claims against New Flyer, the summary judgment record in this case would permit a reasonable juror to find that (1) at the time that plaintiffs and the products-liability claimants entered into their agreement with New Flyer and Tri-Met to settle for $4 million, neither plaintiffs nor the products-liability claimants knew what share of the New Flyer and Tri-Met settlement funds they would receive, (2) plaintiffs received 16.25 percent of the Tri-Met settlement funds, (3) plaintiffs did not receive any of the New Flyer settlement funds because they did not bring a claim against New Flyer, and (4) the distribution of the $2 million in New Flyer settlement funds was not a renegotiation by the attorneys and clients involved, but a simple mathematical duplication of the Tri-Met negotiations, without plaintiffs.

From those facts, a reasonable juror could further find, without impermissible speculation, that defendants' failure to sue New Flyer caused harm to plaintiffs, as a reasonable juror could infer that, but for that failure, plaintiffs would have received 16.25 percent of the settlement funds paid by New Flyer. That is not the only plausible inference that could be drawn; it is, however, a reasonable and permissible one. See State v. Miller , 196 Or. App. 354, 358, 103 P.3d 112 (2004), rev. den. , 338 Or. 488, 113 P.3d 434 (2005) ("The inference need not inevitably follow from the established facts; rather, if the established facts support multiple reasonable inferences, the jury may decide which inference to draw."); West , 200 Or. App. at 192 n. 4, 113 P.3d 983 (noting that an inference is permissible and not "impermissible speculation" when "there is an experience of logical probability that an ultimate fact will follow a stated narrative of historical fact" and in such case "the jury is given the opportunity to draw a conclusion" (internal quotation marks omitted)).

The above analysis concerning defendants' failure to bring claims against New Flyer is essentially the same with respect to defendants' failure to bring claims against Hadley and Rosco. Regarding defendants' failure to bring claims against Hadley, the summary judgment record in this case would permit a reasonable juror to find that (1) every claimant who brought a claim against Hadley in connection with the April 2010 Tri-Met accident received a settlement of $100,000, regardless of whether the claim concerned an injury, as did the claims brought by Gittings and plaintiffs, or a death, as did the claims brought by the personal representative of the Estate of Danielle Sale and the personal representative of the Estate of Jenee Hammel, (2) plaintiffs were injured in the April 2010 bus accident, and (3) plaintiffs did not participate in the settlements with Hadley because they did not sue Hadley. From those facts, a reasonable juror could further find, without impermissible speculation, that defendants' failure to sue Hadley caused harm to plaintiffs, as a reasonable juror could infer that, but-for that failure, plaintiffs would have received a $100,000 settlement from Hadley. Again, that is not the only plausible inference that could be drawn, but it is a reasonable and permissible one.

Finally, regarding defendants' failure to bring claims against Rosco, the summary judgment record in this case would permit a reasonable juror to find that (1) every claimant who brought a claim against Rosco in connection with the April 2010 Tri-Met accident participated in the $225,000 global settlement and received an equal share of the proceeds of that settlement, regardless of whether the claim concerned an injury, as did the claims brought by Gittings and plaintiffs, or a death, as did the claims brought by the personal representative of the Estate of Danielle Sale and the personal representative of the Estate of Jenee Hammel, (2) plaintiffs were injured in the April 2010 bus accident, and (3) plaintiffs did not participate in the global settlement with Rosco because they did not sue Rosco. From those facts, a reasonable juror could further find, without impermissible speculation, that defendants' failure to sue Rosco caused harm to plaintiffs, as a reasonable juror could infer that, but-for that failure, plaintiffs would have received an equal share of the settlement funds from Rosco. Again, that is not the only plausible inference that could be drawn, but it is a reasonable and permissible one.

Defendants' arguments to the contrary are not persuasive. Defendants rely on Watson for the proposition that in a legal malpractice case a plaintiff's difficulty in proving its case does not "alter [the] burden of proof on the elements of harm and causation." We agree, but, as explained above, in this case, plaintiffs have provided sufficient evidence regarding those elements to survive summary judgment.

Further, we are not persuaded by defendants' argument that plaintiffs' claim fails because plaintiffs "produced no evidence from the [products-liability claimants] suggesting that they would have accepted less money in settlement if plaintiffs had pleaded products liability claims." Contrary to defendants' suggestion, a concession by the parties involved in a transaction is not the only way to prove causation. Cf. Watson , 247 Or. App. at 569, 270 P.3d 289 ("An express concession by another party to a transaction is not the only way to prove causation in a transactional legal malpractice case."). Here, from the evidence in the record, a reasonable juror could find that had defendants brought products-liability claims against New Flyer, Rosco, and Hadley, plaintiffs would have received settlement funds from those entities, as did each of the products-liability claimants.

We have considered defendants' other arguments and they are unavailing.

IV. CONCLUSION

In light of our analysis above, we conclude that the evidence adduced by plaintiffs created a genuine issue of material fact on the elements of causation and harm. Consequently, the trial court erred in granting summary judgment.

Reversed and remanded.

Sercombe, S. J., dissenting.

SERCOMBE, S. J., dissenting.

The issue under review is whether plaintiffs satisfied their burden of going forward with evidence under ORCP 47 C, that, but for defendants' negligence, plaintiffs would have obtained a more favorable settlement of their asserted and unasserted claims in the two mediations. The majority concludes that plaintiffs presented sufficient evidence to discharge that burden, reversing the trial court's legal conclusions that the proffered evidence of a more favorable settlement was inadmissible and that the proof of loss was speculative. The majority determines that evidence of the terms of the settlement agreement between the parties, together with the assertions in the Burrows and Gores declarations that plaintiffs did not receive any of the New Flyer settlement funds because they did not bring a claim against New Flyer, was sufficient by itself to discharge plaintiffs' burden of proof under ORCP 47 C, and to establish a prima facie case that plaintiffs suffered an ascertainable loss because of defendants' negligence.

I disagree with the majority's analysis of the evidence. In my view, the evidence was insufficient to prove that the settlors would probably have settled the case more favorably to plaintiffs if defendants had filed products-liability claims on plaintiffs' behalf. There was no direct evidence of the reasons for the actual settlement amounts or the rationale for the allocations of the entire $4 million settlement fund and the $2 million Tri-Met payment fund. Without that evidence, a factfinder cannot forecast whether different factual assumptions would drive a different settlement. I dissent from the majority's conclusion that proof of a likely, hypothetical settlement under different facts can be made without any evidence of the parties' settlement intent in making the actual deal.

Plaintiffs pleaded that, had defendants timely filed products-liability claims on their behalf, the products-liability settlors would have increased their payouts by 16.25 percent-plaintiffs' actual allocation of the Tri-Met payout-and paid that increase to plaintiffs. Alternatively, plaintiffs argued that, had the claims been made, 16.25 percent of the New Flyer, Rosco, and Hadley settlement funds that were paid would have been allocated to plaintiffs and that lesser amounts of those funds would have been paid to the other claimants. Both theories of recovery rest upon an unsupported factual premise-that the parties allocated the Tri-Met settlement fund (as opposed to allocating the entire $4 million settlement fund) based, in part, on each claimant's proportionate share of the total incurred damages, so that the 16.25 percent Tri-Met allocation to plaintiffs represented their likely share of any settlement. Plaintiffs treat the allocation of the Tri-Met payment as a template for the hypothetical distribution of other settlement funds. Plaintiffs seek damages of 16.25 percent of the actual New Flyer, Rosco, and Hadley settlement funds, or the amount of additional funds that those settlors might have paid.

In my view, there is no evidence to support that factual premise-the assumption that the parties allocated plaintiffs' share of the entire $4 million settlement fund on the basis of plaintiffs' claims against Tri-Met alone. The attorney declarations submitted by plaintiffs omit any such assertion. And the fact of that allocative intent could have been easily attested to by Burrows and Gores in their declarations (if it were true). Both of those declarants represented parties in the mediation and participated in the allocation discussions.

In fact, the evidence of the settlement agreement, and the testimony of the attorney for two of the three main claimants, suggests a different distributive intent-one where the parties allocated the $4 million fund based, in part, on the parties' proportionate shares of the total incurred damages, both to settle the pleaded claims against Tri-Met and New Flyer as well as the contribution claims by Tri-Met against New Flyer for plaintiffs' recovery, and then accounted for plaintiffs' $325,000 share as funded by Tri-Met's contribution. The allocation mediation session more likely resulted in the distribution of funds from Tri-Met and New Flyer based on the parties' share of the composite $4 million fund, rather than, as concluded by the majority, being based on the number of claimants against New Flyer.

Under ORCP 47 C, in summary judgment proceedings "[t]he adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial." See also OEC 307(2) ("The burden of producing evidence as to a particular issue is initially on the party with the burden of persuasion as to that issue.").

After defendants moved for summary judgment on plaintiffs' malpractice claims, plaintiffs had the burden of going forward with evidence to prove causation and damages. We reaffirmed the causation standard for legal malpractice cases in Watson v. Meltzer , 247 Or. App. 558, 565-66, 270 P.3d 289 (2011), rev. den. , 352 Or. 266, 286 P.3d 1231 (2012) (quoting Jeffries v. Mills , 165 Or. App. 103, 122, 995 P.2d 1180 (2000) ): " 'To show causation in a legal malpractice action, a plaintiff must demonstrate that she would have obtained a more favorable result' but for the negligence of the defendant." That same causation standard has been applied in cases alleging an unfavorable settlement because of attorney negligence. See Filbin v. Fitzgerald , 211 Cal. App. 4th 154, 166, 149 Cal.Rptr.3d 422, 432 (2012) ("The plaintiff must also establish that[,] but for the alleged malpractice, settlement of the underlying lawsuit would have resulted in a better outcome."); Slovensky v. Friedman , 142 Cal. App. 4th 1518, 1528, 49 Cal.Rptr.3d 60, 67 (2006) ("Thus, a plaintiff who alleges an inadequate settlement in the underlying action must prove that, if not for the malpractice, she would certainly have received more money in settlement or at trial.").

Thus, the issue on review is whether plaintiffs satisfied their burden under ORCP 47 C to produce admissible evidence to show that it was more probable than not that, had the products-liability claims been made by defendants, the three products-liability settlors would have settled the dispute in a particular way that was more favorable to plaintiffs than the actual distribution of funds.

As noted, there was no evidence from any of the parties or their attorneys on the reasons why the Tri-Met fund was allocated in the manner that it was, or the likelihood that the Tri-Met allocation reflected the overall damage shares of each of the parties. The trial court concluded:

"There is a complete lack of evidence from either the payors of settlement funds or the persons dividing the funds as to whether they would have, or even might have, behaved differently if additional plaintiffs had been involved in the claims against the products liability defendants."

The evidence of the settlement negotiations was meager. In December 2012, Rosco settled with the products-liability defendants for $225,000 with the Sale estate, the Hammel estate, and Gittings each receiving $75,000. In February 2013, Hadley settled with the three products-liability claimants for $300,000, paying the Sale estate, the Hammel estate, and Gittings each $100,000. Nothing more is known about those negotiations and settlements, beyond the terms of the executed releases.

Tri-Met, New Flyer, and the claimants mediated the amount of the Tri-Met and New Flyer settlements separately from the later claimant mediation of the amounts to be paid from the funds to claimants. According to Rick Pope, the attorney for the Sale estate, and Gittings, "[i]n June 2013, all the parties conducted a mediation with Judge Lyle Velure. *** The parties on August 11, 2013 reached agreement on a global settlement figure in payment of all claims. *** [A]ll the plaintiffs settled with all remaining defendants Tri-Met, Day and New Flyer for $4 million, consisting of a $2 million payment from New Flyer and a $2 million payment from Tri-Met."

The amount of the $4 million settlement fund, referenced by Pope, appears to have not been affected by the number of claimants making claims against New Flyer. The majority recognizes that, "at the time that plaintiffs and the products-liability claimants entered into their agreement with New Flyer and Tri-Met to settle for $4 million, neither plaintiffs nor the products-liability claimants knew what share of the New Flyer and Tri-Met settlement funds they would receive." 296 Or. App. at 851, 441 P.3d at 623. The settlement agreement among the parties recites that a "global settlement" of $4 million was reached "without any specific distribution [of the $4 million] contemplated by the parties."

Put another way, the contribution of $4 million by Tri-Met and New Flyer was made without regard to "any specific distribution" to the parties-that is, without regard to the number of potential claims that could be paid from that fund to the five claimants. Rather than showing that New Flyer would have increased its $2 million payment if additional products-liability claims had been filed, the evidence shows the contrary-that is, that the $2 million New Flyer settlement was made without regard to the number of claims made against it or otherwise to accommodate a particular distribution to the claimants.

Instead, the evidence was that other factors affected the amount of money paid in settlement by Tri-Met and New Flyer. According to Pope, the factors affecting the settlement amount agreed to by Tri-Met and New Flyer, included the $1 million cap on the total damage claims from a single occurrence against Tri-Met under the Oregon Tort Claims Act (OTCA), ORS 30.272 (2009), whether and the degree to which the injured claimants had uncapped remedies against the individual Tri-Met defendants, the potential allocation to New Flyer of excess claims against Tri-Met if New Flyer's fault was greater than 25 percent under ORS 31.610(3) (especially problematic given that the "evidence of Tri-Met's wrongdoing was so overpowering that Plaintiffs ran a substantial risk of prevailing against New Flyer on a percentage of fault less than 25 percent"), and the capped liability of the settlors to the two wrongful death claimants. Pope's testimony was the only evidence of the factors considered by the parties in arriving at a $4 million settlement.

There was no evidence that the amount of funds that either Tri-Met or New Flyer paid in settlement was determined by the number of claims against each of the them. In fact, a contrary inference is more easily drawn. Tri-Met paid the same amount in settlement as New Flyer, even though five claimants filed tort claims against Tri-Met and three claimants asserted tort claims against New Flyer.

Nor can the probability of additional settlement funds from New Flyer, Hadley, and Rosco as a result of the first settlement amount mediation be inferred from the actual allocation of the settlement funds in the later allocation mediation. What Tri-Met and New Flyer presently intended when they contributed funds in the first global mediation could not have been affected by a later mediation among different parties about different issues. Thus, there was no evidence to support plaintiffs' pleaded theory of causation and damages-that New Flyer would have paid more than $2 million in settlement had plaintiffs brought products-liability claims against it.

The distribution of the $4 million settlement was mediated by all five claimants after the settlors fixed their settlement amounts in the first mediation. The five claimants divided the $4 million into two $2 million settlement funds. The parties agreed that Tri-Met would pay its $2 million settlement contribution to the Sale estate (in the amount of $524,150, representing 26.2 percent of the proceeds to be paid), the Hammel estate ($603,911, representing 30.2 percent), Gittings ($546,939, representing 27.4 percent), and the Hammels ($325,000, representing 16.25 percent). The claimants then allocated the New Flyer $2 million payment to be paid to the Sale estate (in the amount of $625,850, representing 31.3 percent of the proceeds to be paid), the Hammel estate ($721,089, representing 36 percent), and Gittings ($653,061, representing 32.7 percent). The New Flyer payment allocation among the Sale estate, the Hammel estate, and Gittings is the same as the Tri-Met payment allocation among just those parties. From that parity, plaintiffs imply that the settling parties would have divided the New Flyer fund differently, probably along the lines of the division of the Tri-Met fund, had all products-liability claims been brought, and that plaintiffs would have received an additional $325,000.

There was insufficient evidence that a more favorable division of the $4 million payments would have occurred. Two scenarios could have occurred. The parties could have taken the $4 million in settlement funds (as well as the earlier Hadley and Rosco funds) and divided compensation among the five claimants in rough proportion to each claimant's share of the total pleaded and likely damages of all five claimants. Plaintiffs' share of the $4 million settlement would be paid from the Tri-Met fund, and the remaining three claimants would be paid from the remaining portion of the Tri-Met fund, the New Flyer fund, and the earlier Hadley and Rosco funds. Plaintiffs' recovery would be the same, $325,000, whether it was paid from one fund or four. That scenario is consistent with the facts.

Plaintiffs posited a different and less likely scenario-that the Tri-Met and New Flyer funds were divided to compensate the respective claimants against each settlor proportionate to their incurred damages against each particular settlor. That scenario is less consistent with the facts.

The total pleaded damages for all claimants was $33,250,000 ($10 million each for the Sale estate, the Hammel estate, and Gittings; $1,600,000 for Ryan Hammel; and $1,650,000 for Jamie Hammel). The entire recovery from all four funds for all claimants was $4,525,000 with the Sale estate obtaining $1,325,000, the Hammel estate recovering $1,500,000, Gittings receiving $1,375,000, and each of the Hammels recovering $162,500. To discern the distributive intent of the parties, it is useful to compare each party's share of the total pleaded damages (that party's proportionate compensatory need) with that party's share of the $2 million Tri-Met payment fund, and the party's share of the $4 million overall settlement fund:

Party % of % of % of Pleaded Damages Tri-Met Fund Total Fund Sale estate 30.1% 26.2% 28.7% Hammel estate 30.1% 27.4% 33.1% Gittings 30.1% 30.2% 30.0% R. Hammel 4.8% 8.1% 4.1% J. Hammel 4.9% 8.1% 4.1%

This comparison suggests that the parties' proportionate compensatory needs were considered and used in the apportionment of the total settlement fund and that plaintiffs' share of the Tri-Met payment fund was increased to allow for that proportionate compensation. The actual distribution of the Tri-Met fund over-compensated plaintiffs compared with the compensation paid to the two estates and Gittings. A comparison of each claimant's percentage of the recovery of the Tri-Met fund to that claimant's pleaded damage percentage suggests that, except for the Gittings distribution, the Tri-Met fund was not allocated to the claimants in proportion to their incurred damages. Instead, plaintiffs received more from the Tri-Met payment fund than they would if Tri-Met were allocating its share applying the same considerations to all five claimants.

The overall settlement is more consistent with the proportion of damages pleaded in the complaints than is the Tri-Met allocation. The recovery in each individual case, as a percentage of the total recovery, is generally consistent with the pleaded damages in each individual case as a percentage of the total pleaded damages. The consistency between the pleaded and the agreed-to damages makes it more likely than not that the parties intended to distribute the $4 million payment fund consistently with the overall harm incurred by the claimants, without regard to whether the claimants had filed all actionable causes of action.

At the very least, plaintiffs' predicate fact that the $2 million Tri-Met fund was divided according to the proportions of the five damages claims asserted against Tri-Met was improbable, and the evidence was insufficient to discharge plaintiffs' burden of going forward with that evidence under ORCP 47 C. Thus, the terms of the settlement and the Pope testimony do not prove that it was likely that, had defendants filed products-liability claims, the New Flyer fund would have paid plaintiffs an ascertainable amount of money.

Plaintiffs next claim that evidence beyond the settlement terms presented issues of fact on causation and damages that precluded summary judgment for defendants. The majority relies on parts of two declarations by two attorneys who were involved in the settlement discussions. In her declaration, Burrows declared that the divided New Flyer money "otherwise would have gone to [plaintiffs]" and that, because the division of the New Flyer fund was in the same proportions as the division of the Tri-Met fund as to the Sale estate, the Hammel estate, and Gittings, "if McCulloch had made product liability claims against New Flyer, then Ryan and Jamie Hammel would have received $325,000 of the New Flyer money, just as they had received $325,000 of the Tri-Met money." Burrows also explained that, because Ryan Hammel gave "powerful" deposition testimony (prior to the mediations) on his emotional distress damages from witnessing the death of his sister, the settling defendants "probably would paid more than the $2 million, $300,000, and $225,000 they did pay." Hala Gores, attorney for the Hammel estate, declared that plaintiffs did not participate in the distribution of the New Flyer, Hadley, or Rosco funds "because their attorney, Mark McCulloch, did not make claims against New Flyer, Rosco and Hadley." She also opined that, had Ryan and Jamie Hammel made claims against the products-liability settlors, that "New Flyer would have paid more than $2,000,000 to settle the claims against it," "Rosco would have paid more than $225,000, and Hadley would [have] paid more than $300,000 to settle the claims against [it]."

Defendants moved to strike those and other allegations in the Burrows and Gores declarations. As noted, in its letter opinion, the trial court ruled:

"The court does not see any foundation for the statements in these declarations relating to the matter at issue here. *** The motives and behaviors about which the declarants here would testify are either hearsay (that is, based on statements made by the other plaintiffs or insurance company representatives to the declarants), incompetent, or speculative."

That ruling was correct. In testifying about the probable settlement posture of the products-liability defendants, Burrows and Gores opined as lay witnesses. Lay opinion testimony is limited to testimony that is "rationally based on the perception of the witnesses" and "helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." OEC 701 ; see also OEC 602 (witness testimony must be based on "personal knowledge of the matter"). The opinion testimony by a lay witness that the settlors would have increased the funds tendered for settlement or would have divided those funds differently must be "based on the perception of the witness," that is, on the perceptions of the declarant about the settlors. Here, the declarations about how the New Flyer fund would have been divided were not based on any perception of the declarant about the settlors past settlement intent.

Beyond the conclusory opinions in the declarations about hypothetical distributions, the only evidence that the settlors would have increased the settlement funds is Burrows's declaration in which she states that:

"[i]t is my opinion that Ryan Hammel's deposition testimony was so powerful that it lifted the value of all the cases, especially of the Hammels' case, and that if McCulloch had made claims against New Flyer, Hadley, and Rosco, these defendants probably would have paid more than the $2 million, $300,000, and $225,000 they did pay. Hammel['s] 16.25% share of such increased funds would have further increased their settlements."

Burrows opines that, based on her observations of plaintiff Ryan Hammel's "powerful" deposition testimony on his emotional distress damages, the products-liability settlors would have paid an unknown amount of additional money to settle all claims. Burrows rests her opinion not on her perceptions of the motives or actions of the settlors, but on the convincing quality of the proof of Ryan's emotional distress damages. That is an insufficient foundation for the opinion under OEC 701.

This same requirement of personal knowledge of settlement intent, rather than opinion evidence, was applied to a legal malpractice claim in Bryant v. Bryan Cave, LLP , 400 S.W.3d 325, 336, 341 (Mo. Ct. App. 2013), the plaintiff alleged losses stemming from a negligently drafted ante-nuptial agreement. There, rejecting both lay and expert opinion testimony that the wife would likely have agreed to different terms, the court determined that the plaintiff had not met his burden of proof on causation: "The opinion evidence *** as to whether [wife] would have agreed to the provisions at issue is inadmissible at trial, and cannot serve as a basis for satisfying [plaintiff's] evidentiary burden in a summary judgment proceeding." Id. at 336.

Similarly, Oregon case law confirms that evidence of causation must be based on personal knowledge, and not rest on unsupported opinion or speculation. For example, in Davis v. County of Clackamas , 205 Or. App. 387, 134 P.3d 1090 (2006), the plaintiff motorcycle driver was injured in an intersection collision with another vehicle and later brought claims against the corner property owner and tenants, as well as the county, for failing to clear vegetation that impeded her view of the oncoming vehicle. Id. at 389, 134 P.3d 1090. After the defendants moved for summary judgment on the issue of causation, the plaintiff submitted a police report that quoted her as saying that she did not see the approaching car because "a bush was in the way and obscured her view." Id. at 390, 134 P.3d 1090. The plaintiff testified she stopped and then pulled out further to see because of the blockage. Id. She later equivocated. An affiant testified that, in his opinion, the bush blocked the view. Id . at 392, 134 P.3d 1090.

We concluded that the police officer's testimony as to the cause of the accident was not admissible "because he did not have personal knowledge of the circumstances that caused it." Id. at 395, 134 P.3d 1090. The opinion testimony was inadmissible because the affiant was not applying specialized knowledge or expertise. Id. The police report was inadmissible hearsay. Therefore, there was no evidence on causation and summary judgment for the defendants was proper. Id . at 398, 134 P.3d 1090. Those same limitations apply to the inadmissible opinions in this case that the settlors would have paid more in settlement if more products-liability claims had been filed. Those opinions were not based on personal knowledge or expertise. As was the case in Davis , summary judgment for defendants was proper.

Plaintiffs' attorney in the malpractice case declared that he had retained "an unnamed qualified expert" who is "available and willing to testify and who has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment" under ORCP 47 E. Plaintiffs argue that the declaration suffices to preclude summary judgment for defendants. At the summary judgment hearing, plaintiffs represented that their retained expert would testify that insurance companies predictably resolve only the claims asserted against their insureds. That expert opinion will not resolve the factual question of whether these particular products-liability settlors would have paid more to the Hammels if products-liability claims had been filed. Resolution of that fact question requires personal knowledge of the actions of the settlors during the first mediation proceeding, not the application of expertise.

We reached that result in Deberry v. Summers , 255 Or. App. 152, 296 P.3d 610 (2013). In that legal malpractice case, the plaintiff alleged that the defendant attorney failed to include a provision in a trust or will that would have carried out the settlor's intended distribution to the plaintiff. Id. at 154, 296 P.3d 610. The defendant had prepared a trust agreement that placed into trust a number of homes for the benefit of named individuals, including holding the Canyon Court home in trust for the plaintiff's granddaughter. Id. at 154-55, 296 P.3d 610. Later, the settlor sold the Canyon Court home, but did not change the beneficiary designation. Id. at 155, 296 P.3d 610. The defending attorney claimed that he did not have an agreement with the settlor to include a replacement home in the distribution to the plaintiff and was, therefore, entitled to summary judgment on whether he was negligent in failing to carry out the settlor's intentions. Id. at 156, 296 P.3d 610. The plaintiff countered with an ORCP 47 E declaration. Id .

We affirmed the trial court's allowance of summary judgment in the defendant's favor:

"The filing of an affidavit under ORCP 47 E precludes summary judgment only where expert opinion evidence is required to establish a genuine issue of material fact. Expert opinion evidence is necessary and helpful to a jury's understanding of the nature and scope of a lawyer's professional duty of care to a client, see, e.g. , Abraham v. T. Henry Construction, Inc. , 230 Or. App. 564, 217 P.3d 212 (2009), aff'd , 350 Or. 29, 249 P.3d 534 (2011) (affidavit submitted under ORCP 47 E to create genuine issue of material fact as to whether defendant breached a standard of care in construction). However, the existence of an agreement by defendant to prepare testamentary instruments that would ensure that plaintiff inherited any home in which she might reside at the time of Dorothy's death, including the West View Court home, is a fact question that requires personal, not expert knowledge. See Gwin v. Lynn , 344 Or. 65, 74, 176 P.3d 1249 (2008) (distinguishing between a witness's knowledge as an expert and personal knowledge of facts). Plaintiff does not assert that she has retained an expert witness who has personal knowledge that defendant made such an agreement with Dorothy. In such circumstances, the filing of a declaration under ORCP 47 E did not preclude summary judgment."

Deberry , 255 Or. App. at 163, 296 P.3d 610 (emphasis in original); see also Hunsinger v. Graham , 288 Or. App. 169, 186, 404 P.3d 1004 (2017) (expert testimony cannot create a question of fact on a point where personal knowledge is necessary).

The same holds true here. The existence of an intent by the settlors to more completely compensate plaintiffs is a fact issue that requires personal, not expert knowledge. An opinion on insurance industry settlement practices is irrelevant to whether New Flyer, Rosco, and Hadley would have, in these particular circumstances, settled for more. The trial court did not err in granting summary judgment to defendants, notwithstanding the filing of an ORCP 47 E declaration.

Finally, summary judgment in favor of defendants was proper because plaintiffs failed to produce evidence that the amount of their claimed damages could be determined with reasonable certainty. As noted in Merchants Paper Co. v. Newton , 292 Or. App. 497, 506, 424 P.3d 811 (2018), "[i]n every case actual damages sustained must be established by evidence upon which their existence and amount may be determined with reasonable certainty. Speculative damages are never allowed." (Quoting Parker v. Harris Pine Mills, Inc. , 206 Or. 187, 197, 291 P.2d 709 (1955).) As noted, the amount of money available to settle plaintiffs' claims was a function of a number of variables including the OTCA cap on the liability of Tri-Met, limitations on the recovery of the estates' wrongful death claims against both Tri-Met agents and the products-liability settlors, the contribution liability and comparative fault of New Flyer, and the strength of the claimants' negligence and products-liability claims. How all of those variables would work if one of them (the number of asserted claims) changed may not be capable of calculation. The specific damages cannot be inferred from evidence of general harm. Merchants Paper Co. , 292 Or. App. at 505-06, 424 P.3d 811 (imputed general harm insufficient to prove damages with reasonable certainty).

In sum, plaintiffs failed their ORCP 47 C burden of going forward with admissible evidence to show that it was more probable than not that Hadley, Rosco, and New Flyer would have paid an additional ascertainable amount in settlement had plaintiffs' product-liability claims been filed or that the parties would have paid plaintiffs more from the actual settlements. Plaintiffs failed to introduce admissible evidence to show that the settlors intended to compensate plaintiffs from the $2 million Tri-Met fund in proportion to all parties' claims against Tri-Met as opposed to compensation proportionate to plaintiffs' share of the entire $4 million fund. Without proof of the parties' actions in negotiating and entering into the settlement, plaintiffs failed to prove how the settlement would have occurred if supplemental facts or actions occurred.

This lack of foundation undercuts the testimony of Burrows and Gores that the New Flyer fund would have been distributed in the same way as the Tri-Met fund if the additional tort claims had been filed. The opinions were not stated to be based on personal knowledge of the parties' intent in allocating the Tri-Met fund and are inadmissible under OEC 602 and 701.

The Burrows and Gores declarations are perhaps more significant in what they do not say, than in what those declarations state. Both declarants conclude that plaintiffs would have been paid from the New Flyer fund if they had filed claims against New Flyer. Neither declarant, however, attested to the necessary factual predicate to that conclusion-the reasons the parties agreed to the $4 million settlement and the Tri-Met apportionment. That information was known to the declarants, because both of them represented parties to the mediations. The omission of that evidence is fatal to the continued viability of plaintiffs' claims.

In sum, the evidence of a more favorable outcome was not presented by plaintiffs. The evidence that was presented was conclusory and speculative, and insufficient to establish causation and loss. As noted by one commentator,

"[a] claim regarding an inadequate settlement often fails because it is inherently speculative. Negligence cannot be predicated on speculation that the attorney or another attorney could have secured a more advantageous settlement or the fortuitous event that a jury instead of a judge may have returned a higher award. A client, who was a plaintiff, must establish not only that concluding such a settlement fell outside the standard of care, but also what would have been a reasonable settlement and that such sums would have been agreed to and could have and would have been paid."

Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice , § 30.41, at 582-85 (5th ed. 2000).

I dissent from the majority's conclusions that evidence of the creation of the four settlement payment funds and the allocation of those funds in different proportions to five claimants, together with conclusory and unsupported opinions in the filed declarations, is sufficient evidence by itself to prove the probability of a deal that was not made-viz. , the creation of four settlement funds with substantial additional proceeds from three of the settlors or the distribution of each of the funds in the same proportion as the Tri-Met fund allocation.

      Amendments to ORCP 47 promulgated by the Council on Court Procedures became effective January 1, 2018. Because those amendments do not apply to this case, we apply the 2015 version of ORCP 47. All discussion and citations to ORCP 47 refer to the 2015 version.

      The amount paid in settlement by Tri-Met and New Flyer potentially reflected the contribution liability of New Flyer to any amounts paid as damages by Tri-Met to plaintiffs, as well as the direct liability of the settlor to each of the claimants. The failure to bring a claim against the products-liability defendants during the two-year period of limitations may not extinguish any claim for contribution that Tri-Met could make against the products-liability defendants for excess payment of plaintiffs' claims. The right of contribution exists among joint tortfeasors "even though judgment has not been recovered against all or any of them." ORS 31.800(1). The right of contribution exists when "a tortfeasor *** has paid more than a proportional share of the common liability." ORS 31.800(2). The recovery is "limited to the amount paid by the tortfeasor in excess of the proportional share." Id . Contribution to settlements can be obtained from another tortfeasor whose liability for the injury or wrongful death is extinguished by the settlement. ORS 31.800(3) ; see Jensen v. Alley , 128 Or. App. 673, 677, 877 P.2d 108 (1994) (setting forth the elements of a claim for contribution under ORS 31.800 ). ORCP 22 C allows the filing of a third-party complaint to obtain contribution as a matter of right within 90 days after service of the complaint. Otherwise, a third-party plaintiff must obtain consent of the parties and the court to make a later claim.

      In addition, all five claimants brought claims against the Tri-Met defendants under 42 USC section 1983 in federal district court. Those claims were settled with the tort claims.

      In her declaration, Michelle Burrows, plaintiffs' successor attorney in the malpractice case, explained:
      "Significantly, the distribution of New Flyer's $2 million was not a renegotiation by the attorneys and clients involved. Instead, it was a simple duplication of the Tri-Met negotiations, without the Hammels. Thus, I can say with confidence that if McCulloch had made product liability claims against New Flyer, then Ryan and Jamie Hammel would have received $325,000 of the New Flyer money, just as they had received $325,000 of the Tri-Met money."

      Although plaintiffs complain that the trial court "erred in ignoring [their] ORCP 47 E and other declarations and deposition testimony," they did not assign as error the evidentiary rulings just noted. Under ORAP 5.45, plaintiffs' complaints that the trial court erred in not considering the Burrows and Gores declarations cannot be "considered on appeal."

      Burrows's opinion that Ryan Hammel's deposition testimony, given before the August 2013 mediations, increased the value of his asserted and unasserted claims, compared with the value of Jamie Hammel's claim, is not supported by the facts. The parties actually settled Ryan's claims for $162,500, the same sum as agreed to be paid to settle Jamie's claims, notwithstanding Ryan's purported proof of additional, special damages. The settlements occurred several months after the deposition of Ryan Hammel. Presumably, the effect of that testimony on claims evaluation was reflected in the settlement that actually occurred.


source: Caselaw Access Project

author: ORTEGA, P. J.

license: Public Domain

text:
    In the MATTER OF the ESTATE OF Marilyn BOYSEN, Deceased.
    Erik Culver and Toni Horn, Appellants, v. Beth Deaver, Debra Whitaker, and Jill Lane, Respondents.
    A165172
    Court of Appeals of Oregon.
    Argued and submitted January 9, 2018. April 10, 2019
    Lawrence W. Erwin, Bend, argued the cause for appellants. Also on the briefs was Law Office of Lawrence W. Erwin.
    Matthew L. Mohill argued the cause and filed the brief for respondents.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

Toni Horn and Erik Culver, decedent's grandchildren, appeal a limited judgment that denied their petition to admit a writing into probate as a will or to open a small estate under ORS 112.238. That statute provides that a writing that does not satisfy the statutory will formalities may nonetheless be probated if it is proven by clear and convincing evidence that decedent intended that writing to be his or her will. Because we conclude that the probate court did not base its decision on decedent's intent at the time she created the writing, we vacate and remand to the probate court to make that determination.

Declining appellants' request for de novo review, we review for legal error and are bound by the probate court's factual findings if there is evidence to support them. ORS 111.105(2) ; Hobbs v. Harrington , 284 Or. App. 125, 127, 391 P.3d 915 (2017). We state the facts in accordance with that standard.

Five days after her husband's death, decedent Marilyn Boysen, in the presence of Horn and her husband David, prepared a handwritten document. She signed the writing, placed it in an envelope with the words "To Toni [Horn] from Grandma" on the outside, and gave it to Horn with instructions to hold it until she died. The writing states:

"Bill Boysen, my husband, died May 22, 2008, early morn[ing], leaving myself, his wife, Marilyn Boysen, his sole heir.
"In the event of my death, Marilyn Boysen, I leave my worldly possessions to our two grandchildren Toni Culver Horn and Erik Culver.
"Bill's approximately 1 1/4 carat ring to Erik Culver.
"Bill's 1 carat wedding band to David Horn.
"My jewelry to Toni Horn.
"All real property and personal property to be divided between Toni [Horn] and Erik [Culver]. They can sell everything or whatever they wish.
"Any real property, if they decide to keep it must remain in their two names and pass on to Bill and Marilyn Heirs.
"[s/ Marilyn Boysen] 05/27/2008"

Horn complied with decedent's instructions and kept the writing in her safe until decedent's death on November 5, 2016. After decedent died, Horn and Culver petitioned the probate court to admit the writing to probate. In support of their petition, Horn and her husband David submitted sworn declarations in which they averred the above facts and that decedent "went to great length[s] explaining what [Horn and Culver] needed to know about what was valuable, what things were family heirlooms, and what specific items she wanted each of us to have, and how important it was to her to be buried next to [her husband] when she passed."

At a hearing on the petition, Horn and David testified to the above facts, though, on cross-examination, David testified that decedent did not explain to him the value of the items listed in the writing. Culver testified that, about one month after decedent made the writing, decedent told him "I've given Toni [Horn] a will. Don't speak of it. She has it and she'll know what to do when my time comes." Appellants also submitted documents with decedent's handwriting and signature, which matched the writing submitted for probate.

Respondents, Beth Deaver, Debra Whitaker, and Jill Lane, who are decedent's three daughters and intestate heirs, presented evidence that decedent never told them or decedent's friend, Cheryl Woltz, about having a will. Additionally, Deaver and Whitaker testified that decedent was "in a real bad state" after her husband's death and that, during the years preceding her death, decedent asked them to place sticky notes on the items they wanted to keep after she passed. Finally, Whitaker testified that Horn and Culver did not see decedent for several years because of family disagreements and that, consequently, Whitaker doubted that decedent remembered creating the writing.

The probate court issued a letter opinion, which found:

"[T]he document is one page, handwritten on yellow lined paper. It is dated May 27, 2008. The document first states that decedent's husband had died five days earlier. Testimony suggests that decedent was distraught and 'in a bad state' for several months following his death. The document is signed by decedent and the signature is consistent with her signature on other documents. No witnesses signed the document. The document identifies only the two beneficiaries, without reference to the natural heirs, and bequests everything to the two (with the exception of a ring for one of the beneficiaries' husband). The two beneficiaries were present in her home and saw decedent write the document, sign it and place it in a plain envelope with the words 'To Toni From Grandma' on the outside. Toni Horn testified that decedent told her to keep it unopened until her death. A portion of the testimony at the hearing is inconsistent with statements made in the sworn declarations of the beneficiaries. There was no opportunity for reflection of what decedent wrote, nor did decedent access legal or other professional advice. Decedent did not tell anyone about the document she gave to *** Horn. Statements made by decedent on several occasions after the document was written were inconsistent with the document. Testimony at the hearing suggests there was significant family acrimony at the time the document was written, and even more so in the following years."

Based on those findings, the probate court denied the petition to admit the writing to probate and ordered the estate to pass by intestate succession. Appellants timely appealed, arguing that the probate court erred by not authenticating the writing as a will for probate.

Generally, in order to execute a legally enforceable will, a testator must follow the formalities set out in ORS 112.235. However, ORS 112.238 excuses those statutory formalities and provides:

"(1) Although a writing was not executed in compliance with ORS 112.235, the writing may be treated as if it had been executed in compliance with ORS 112.235 if the proponent of the writing establishes by clear and convincing evidence that the decedent intended the writing to constitute:
"(a) The decedent's will;
"(b) A partial or complete revocation of the decedent's will; or
"(c) An addition to or an alteration of the decedent's will."

Here, the writing that appellants submitted for probate does not satisfy the statutory formalities of ORS 112.235. Additionally, appellants do not contend that the writing revokes, adds to, or alters a formally executed will. Therefore, unless they can prove by clear and convincing evidence that decedent intended the writing to be her will, her estate passes by intestacy.

Appellants contend that, once the proponent of a noncompliant will establishes that the offered document has been signed by the decedent and the document is authenticated, the court should look within the four corners of the document to see if it looks like a will. Essentially, they urge us to adopt the proverbial "duck test": if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. See Nat'l Prods. Inc. v. Belkin Int'l, Inc. , No C16-402 TSZ, 2017 WL 3084435 at *7 (WD Wash July 19, 2017).

Respondents, on the other hand, argue that we should look to the decedent's testamentary intent at the time of her death. The Supreme Court has made clear, however, that, when evaluating a compliant will, courts look to the testator's intent at the time of execution . See In re Estate of Nawrocki , 200 Or. 660, 677, 268 P.2d 363 (1954) ("A will speaks as of the time of the testator's death, but the intent of the testator is manifested as of the time when the will is executed."); see also Putnam et ux. v. Jenkins et ux. , 204 Or. 691, 710, 285 P.2d 532 (1955) ("[I]t is recognized by the great weight of authority that evidence of the facts and circumstances existing at the time of the execution of the will, and known to the testator, is admissible * * * to enable the court to place itself in his situation, to see things as he saw them, and to apply his language as he understood and intended it.") (internal quotation marks omitted); Gomoll v. Temple , 145 Or. 299, 301, 27 P.2d 1018 (1933) ("In construing a will the vital requirement is to ascertain what the testator meant, and his intention must be gathered from the instrument as a whole, read in the light of the circumstances which surrounded him when it was made."). There is nothing in the text of ORS 112.238, that statute's legislative history, or ORS chapter 112, that suggests that courts should adopt a different focus when analyzing a noncompliant will under ORS 112.238. Therefore, an evaluating court must look for clear and convincing evidence of whether the decedent intended the specific writing at issue to be his or her will at the time of its creation. See Estate of Whitlatch v. Richardson , 99 Or. App. 548, 553, 783 P.2d 46 (1989) (drawing a distinction between a decedent's intent with respect to the disposition of property and the intent that a specific document be his or her last will).

ORS 112.238 was enacted in 2015 as a part of a larger effort to clarify and modernize sections of the Oregon probate statutes. Or. Laws 2015, ch. 387, § 29. This statute has not yet been examined by our court. "Our goal in interpreting statutes is to discern, to the extent possible, what the legislature intended a provision to mean.

State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). We examine the statutory text in context along with its legislative history[.]" Lake Oswego Preservation Society v. City of Lake Oswego , 360 Or. 115, 124, 379 P.3d 462 (2016). The statutory text is clear in that it allows a noncompliant will to be probated if clear and convincing evidence shows that the decedent intended it to be his or her will. The only remaining question is what is required to satisfy the clear and convincing evidence standard.

Clear and convincing evidence is a common standard and means that "the truth of the facts asserted is highly probable." Krueger v. Ropp , 282 Or. 473, 478, 579 P.2d 847 (1978). Because the legislative history is helpful in this case, we consider it to the extent that it provides context to what the clear and convincing evidence standard requires under ORS 112.238 specifically. See Lake Oswego Preservation Society , 360 Or. at 142, 379 P.3d 462. The legislative history reveals that, in the context of ORS 112.238, the clear and convincing evidence standard requires more than presenting the document itself or the document and an authenticated signature. Exhibit 2, Senate Committee on Judiciary, S.B. 379, Mar. 18, 2015 (amendments to the Oregon Probate Code Work Group Report prepared by Susan Gary). Although the document and an authenticated signature are certainly relevant, the standard requires more and may be satisfied with, for example, "evidence of the circumstances of the creation of the document, testimony of people who heard the decedent discussing his [or her] intent to execute a will, testimony of people who saw the decedent prepare or sign the will, or other documents prepared by the decedent that described the will." Id.

Here, the probate court's findings indicate that its analysis was not focused on the decedent's intent at the time of the writing. That is, on this record, several of the probate court's findings had little to no bearing on decedent's intent at the time of the writing's creation. First, the probate court found that the writing "identifies only the two beneficiaries, without reference to the natural heirs, and bequests everything to the two (with the exception of a ring for one of the beneficiaries' husband)." Under the circumstances here, these facts have little bearing on decedent's intent at the time of the writing.

The probate court also found that "[s]tatements made by decedent on several occasions after the document was written were inconsistent with the [writing]. Testimony at the hearing suggests there was significant family acrimony *** in the [years following the execution of the writing]." These findings likewise have little bearing on decedent's intent, because, as noted, the court's role is to determine whether decedent intended the writing to be her will at the time she wrote it, not to determine how, at the time of decedent's passing, she spoke about how her assets would be distributed. How decedent viewed her relationships after the writing was made or at the time of decedent's death does not explain, in these circumstances, decedent's intent when she prepared the writing and, thus, reflects an incorrect analysis of what was required of the probate court.

Lastly, the findings that the probate court did make concerning the circumstances at the time of the writing include the findings that the document was written and signed by the decedent, with a signature that matched other documents, and that it was written, signed and placed in an envelope in the presence of Horn and Culver. The probate court did not make an express finding of decedent's intent at the time of the writing. In light of the focus of the court's findings on events outside of the central question in the analysis, we conclude that the probate court did not correctly make its determination based on decedent's intent at the time the writing was created.

Because we conclude that the probate court incorrectly failed to focus its analysis on decedent's intent that the writing function as her will at the time it was created, and that formed the basis for the probate court's determination that the estate must pass by intestate succession, the probate court erred as a matter of law. Therefore, we vacate and remand for the court to evaluate the facts under the correct standard.

Vacated and remanded.

      ORS 112.235 provides:
      "(1) Except as provided in ORS 112.238, a will shall be in writing and shall be executed in accordance with the following formalities:
      "(a) The testator, in the presence of each of the witnesses, shall:
      "(A) Sign the will;
      "(B) Direct one of the witnesses or some other person to sign the name of the testator and the signer's own name on the will; or
      "(C) Acknowledge the signature previously made on the will by the testator or at the testator's direction.
      "(b) At least two witnesses shall each:
      "(A)(i) See the testator sign the will;
      "(ii) Hear the testator acknowledge the signature on the will; or
      "(iii) Hear or observe the testator direct some other person to sign the name of the testator; and
      "(B) Attest the will by signing the witness' name to the will within a reasonable time before the testator's death.
      "(2) The signature by a witness on an affidavit executed contemporaneously with execution of a will is considered a signature by the witness on the will in compliance with subsection (1)(b)(A)(iii) of this section if necessary to prove the will was duly executed in compliance with this section.
      "(3) A will executed in compliance with the Uniform International Wills Act shall be deemed to have complied with the formalities of this section.
      "(4) As used in this section, 'writing' does not include an electronic record, document or image."

      One legal scholar describes this as operative testamentary intent, which is "concerned with whether the decedent intended a document that expresses donative testamentary intent to be legally effective." See generally Mark Glover, A Taxonomy of Testamentary Intent , 23 Geo. Mason. L. Rev. 569, 589 (2016) (providing a taxonomy for testamentary intent and exploring its application to various components of the law of wills).

      The list is described as illustrative of facts a court may consider and not exhaustive.

      We note that there is no suggestion that decedent lacked capacity to create a will when she drafted the document, nor is there a suggestion that the writing was created as a result of fraud, duress, or undue influence.

      We note that the probate court found that decedent "did not tell anyone about the [writing] she gave to *** Horn." Culver testified that decedent did tell him about the writing, referred to the writing as her will, and implied that she intended him to be a beneficiary after her death, which he likely would not have been under the intestacy statutes. Respondents testified that decedent did not tell them about a will, which could nevertheless be consistent with Culver's testimony. It is not clear that the probate court's finding was based on a credibility determination. Because the case will be remanded to the trial court we need not address whether this finding was supported by the evidence.


author: LAGESEN, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Michael Lee REINEKE, Defendant-Appellant.
    A161198
    Court of Appeals of Oregon.
    Submitted January 23, 2018. April 17, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

Defendant's mother was strangled to death with a telephone cord. Defendant denied responsibility, but a jury found that he was the killer and convicted him of murder. The issue on appeal is whether the trial court erred when it permitted several witnesses to testify that the victim became reserved and unhappy after defendant moved in with her and seemed happier when defendant was not around. Defendant contends that the evidence was not relevant and that, if it was, its potential for unfair prejudice outweighed any probative value. We conclude that the trial court properly admitted at least some of the evidence and that, to the extent that it may have erred, the error was harmless in view of the properly admitted evidence.

I. BACKGROUND

In 2008, defendant moved in with the victim, who was in her seventies. In June 2010, the victim was strangled to death with a telephone cord in the kitchen of her home. Defendant called 9-1-1 requesting that a coroner and a police officer be dispatched to the home. When emergency responders arrived, they found the victim dead on the floor. Defendant was casual and unemotional when conversing with police and other emergency responders. Ultimately, defendant was arrested and charged with the victim's murder. Defendant pleaded "not guilty." He was tried and convicted, but, on appeal, we reversed his conviction because, in closing argument, the prosecutor had made a PowerPoint presentation to the jury that impermissibly urged it to infer defendant's guilt from his invocation of his constitutional right to remain silent. State v. Reineke , 266 Or. App. 299, 301, 309-10, 337 P.3d 941 (2014).

Defendant was retried on remand. At trial, the state built a circumstantial case against defendant. In addition to the evidence that defendant was living with the victim, the state presented evidence that (1) there was no forced entry into the house, and all the windows and sliding doors had dowels in the tracks; (2) the victim's cause of death was strangulation; (3) the telephone cord used to strangle the victim contained the DNA of defendant and the victim, none of the telephones in the household were missing cords, and the amount of defendant's DNA on the cord was consistent with "long or extensive contact with the object"; (4) the victim's purse was by her feet in the kitchen with valuables inside and her diamond ring was still on her finger; (5) a few weeks before the killing, defendant, speaking in a vicious tone, told the victim that he could not wait for her to die so that he could get his inheritance; (6) defendant's wallet contained a list of telephone numbers that identified the victim as a "(Pain in the ass!)"; (7) defendant was casual and not emotional when interviewed following the victim's death; (8) some money was missing from a jar that the victim kept in her bedroom-a jar that typically contained the victim's emergency stash of cash and usually included some $ 2 bills; and (9) when officers searched defendant upon his arrest, they found a large roll of cash totaling $ 989 that included three $ 2 bills.

The state also introduced the evidence that is the subject of this appeal. Although defendant objected (at least in part), the state introduced testimony from the following witnesses about the victim's demeanor in the time since defendant had moved in with her, and in the weeks immediately preceding her murder:

• David Lind, the victim's son-in-law, testified that he had taken the victim to lunch a few weeks before her death and that "she was not her sparkly self. She was more reserved. More-I don't know-just she didn't seem to be her happy-go-lucky self." Lind said that the reason that he had taken the victim to lunch was to "beg her to have [defendant] move out."
• Warren Wies, a friend of the victim's, testified that he "could tell that something was really wrong" with the victim "a couple days before she died" and that "she just wasn't herself." He testified further that he had told her that she should tell defendant to move out.
• Sharon Long, the victim's daughter who lived out of state, testified that the victim's demeanor during their telephone conversations changed after 2008.
Before 2008, the victim "would just chat and we would talk, and things were very relaxed." Then, after 2008, the victim "became more reserved, more quiet, [and] made the phone conversations shorter."
• Joe Carrouth, the victim's son, testified that the victim "was a lot more reserved[ ] [and] a lot quieter" when defendant was around and "vivacious" out of his presence. Carrouth explained that he and his wife had visited the victim in May 2010 and, at the end of his stay, had told her that she needed to get defendant out of the house.
• Cindy Carrouth, Joe's wife, testified that, from her observations, the victim was "sad" and "nervous" when in defendant's presence. She testified further that between 2008 and May 2010, the victim "just had changed a lot and-* * * just real depressed-looking and just-she wasn't the same. She just didn't have the light that she had before and happiness." Cindy Carrouth was so upset by the victim's condition that she encouraged the victim to come with them to their home in Georgia.

Defendant's primary response, through cross-examination and closing argument, was to highlight the circumstantial nature of the state's case and to urge the jury to view the case as one in which the investigating officers had made a rush to judgment that defendant was responsible without conducting a thorough investigation. The defense did not present any affirmative evidence of its own. The jury unanimously found defendant guilty as charged.

On appeal, defendant assigns error to the trial court's admission of the evidence about the victim's demeanor. In his first assignment of error, defendant contends that the court erred in admitting evidence that the victim's demeanor changed after defendant moved in with her. In his second assignment of error, defendant asserts that the court erred in admitting evidence that the victim's demeanor changed in defendant's presence. Finally, in his third assignment of error, defendant argues that the court erred by admitting evidence that the victim's friends and family members, responding to the victim's demeanor, advised her to move out or to have defendant move out.

In each instance, defendant argues that the challenged evidence was not relevant, OEC 401, and that, in all events, any probative value was substantially outweighed by the danger of unfair prejudice, OEC 403. Defendant argues further that the evidence likely affected the jury's verdict, asserting that the demeanor evidence was inflammatory and that the state's remaining evidence "was not so compelling as to render the error harmless." Defendant also argues that the evidence functioned as propensity evidence and that its admission deprived defendant of a fair trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution. In defendant's view, the evidence about the victim's demeanor invited the jury to infer that defendant's conduct caused that demeanor change and, for that reason, effectively constituted evidence that defendant had committed prior bad acts toward the victim. The evidence did so even though, in defendant's view, it was speculative to infer that the victim's demeanor changed as a result of anything that defendant had done. Defendant argues further that, to the extent that the trial court may have viewed the evidence as probative of a hostile relationship between the victim and defendant, it erred. In defendant's view, the fact that the victim may have felt hostility toward defendant does not imply that defendant felt the same way toward the victim.

The state's response is multifold. The state first contends that defendant did not preserve his first assignment of error, and also did not preserve any claim that the admission of the evidence violated his federal constitutional rights. With respect to the admission of the evidence identified in defendant's second and third assignments of error, the state initially argues that any error in admitting that evidence was harmless, in view of the other evidence admitted at trial. The state then argues that the trial court properly admitted the evidence under OEC 401 and OEC 403. In the state's view, evidence of the victim's demeanor was relevant to show that defendant and the victim had a hostile relationship, which, in turn, would permit the inference that defendant had a motive to kill her.

II. STANDARD OF REVIEW

At issue in this appeal are the trial court's relevancy rulings under OEC 401, and its rulings under OEC 403 that the probative value of the evidence at issue was not substantially outweighed by the danger of unfair prejudice. We review for legal error a trial court's determination that evidence is relevant under OEC 401. State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999). We review for abuse of discretion a trial court's decision to admit evidence over an OEC 403 objection. Id .

III. ANALYSIS

A. Preservation

We start with the question whether defendant's contentions on appeal are wholly preserved. We easily conclude that defendant's federal constitutional claims are not preserved. As defendant does not suggest that the trial court plainly erred in any respect, we do not consider those contentions any further.

The remaining issue is whether defendant preserved his contention that the trial court erred by admitting evidence that the victim's demeanor changed generally after defendant moved in. The state contends that defendant's objections extended only to (1) evidence that friends and family had told the victim to move out of the house and (2) evidence that the victim's demeanor changed in defendant's presence, and, thus, did not preserve his contention that the trial court erred by admitting evidence regarding the victim's general change in demeanor.

We agree with the state that, for the most part, defendant did not preserve his contention that the trial court erred in admitting evidence that the victim's demeanor changed generally after defendant moved in. Instead, with one exception, defendant's objections focused on the evidence that friends and family advised the victim that she or defendant should move out and on the evidence of how the victim's demeanor changed in defendant's presence. Indeed, at one point, defendant appeared to acknowledge that evidence about a general demeanor change would be admissible.

Here is how the issue evolved before the trial court. Lind was the first witness from whom the state elicited testimony regarding the victim's demeanor change after defendant moved in and the associated advice regarding the need for either the victim or defendant to move out. Before Lind testified, defendant objected to the state eliciting a statement from Lind that he had "begged" the victim to have the defendant move out, on the grounds that the evidence was not relevant and was unfairly prejudicial. Defendant emphasized that Lind's "concern[ ] [for] his mother's well-being" was not probative of whether defendant murdered the victim and asked that it be excluded. The trial court overruled the objection, permitting Lind to testify that he had noted a change in the victim's demeanor shortly before her death and that he had taken her to lunch "to beg her to have [defendant] move out" because of his concern for the victim.

The next day, before calling additional witnesses, the prosecutor told the court that she intended to elicit similar testimony from other friends and family members of the victim. She explained that she intended to ask witnesses whether they had observed a demeanor change in the victim after defendant moved in and whether that demeanor change caused the witnesses to talk to the victim about having defendant move out. The prosecutor indicated that the testimony she intended to elicit from Joe Carrouth would involve a "slight variation." Because he had not observed a change in the victim's demeanor over time, she intended to elicit testimony from him about his observations of how the victim's demeanor changed when the victim was in defendant's presence, and how those observations caused him to encourage the victim to have defendant move out. In response, defendant asked for a continuing objection on the same grounds that the defense had objected to the testimony from Lind the previous day, stating that the record that had been made with respect to the Lind testimony was sufficient to support the continuing objection. The court agreed to grant the continuing objection, stating that "your objections, and the basis for your objections will be noted previously in regards to Mr. Lind's testimony. * * * It'll be noted that that's essentially the basis that you're objecting to." Defendant then sought clarification regarding the scope of permissible questioning about the victim's demeanor change, remarking that he thought it would "tak[e] it a little bit too far beyond there was a change in her demeanor" if witnesses were permitted to testify that the victim seemed afraid of defendant, suggesting that such testimony would be the equivalent of testimony that defendant was abusive to the victim. The court ruled that it was "fair game" for the witnesses to talk about their observations of the victim's behavior in front of defendant, as long as they limited their testimony to descriptions of her demeanor.

Those discussions did not alert the trial court that defendant was objecting to evidence about the victim's change in demeanor after defendant moved in with her; if anything, defendant's discussion of whether certain evidence would go "too far beyond" whether there was a change in the victim's demeanor would have affirmatively indicated to the court that defendant was not objecting to that type of evidence. For that reason, we conclude that defendant's first assignment of error is, in the main, not preserved.

As noted, there is one exception. As the state acknowledges, at one point when the prosecutor asked Cindy Carrouth whether the victim's demeanor had changed between 2008 and 2010, the defense stated, "we object again." The trial court overruled the objection. Although defendant did not state the specific grounds for the objection, given defendant's use of the word "again" and the earlier discussions regarding demeanor evidence, we conclude that defendant's objection adequately communicated to the court that defendant was objecting to the admission of that portion of Cindy Carrouth's testimony regarding the victim's change in demeanor between 2008 and 2010 under OEC 401 and OEC 403. Thus, we conclude that defendant's first assignment of error is preserved as to the admission of Cindy Carrouth's testimony about the victim's demeanor change over time in response to the objected-to question by the prosecutor.

B. Merits

Given our conclusion regarding the extent to which defendant's first assignment of error is preserved, the merits issue before us is whether the trial court properly admitted, over defendant's OEC 401 and OEC 403 objections, (1) the Carrouths' testimony about how the victim's demeanor changed in defendant's presence; (2) Cindy Carrouth's testimony about the victim's demeanor change between 2008 and 2010; and (3) the testimony from Lind, Wies, and the Carrouths about encouraging the victim to have defendant move out or to move out herself. We conclude that, at a minimum, the trial court properly admitted the Carrouths' testimony about how the victim's demeanor changed in defendant's presence and that any error in admitting any of the other challenged evidence was harmless.

The trial court properly admitted the evidence of the Carrouths' direct observations of the victim's demeanor in defendant's presence because that evidence was probative of the nature of the relationship between the defendant and the victim and it was not an abuse of discretion for the court to conclude that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. The evidence, as introduced, was not particularly inflammatory and would permit the inference that there was hostility between the victim and defendant, something that would give rise to a motive for defendant to kill her.

The Supreme Court long has recognized that this type of evidence is admissible in a prosecution for murder. It has explained that "[e]vidence of motive * * * is always admissible in prosecutions for murder" and "all evidence of whatsoever nature tending to throw light upon the relations existing between the accused and the deceased and the feeling between them is competent."

State v. Finch , 54 Or. 482, 488-89, 103 P. 505 (1909) ; see also State v. Flett , 234 Or. 124, 126-28, 380 P.2d 634 (1963) (explaining the relationship between relevance and admissibility in homicide cases and noting the "slight probative value" of evidence with some small tendency to illuminate the relationship between the defendant and the victim). In particular, "[e]vidence that shows a hostile relationship existed between a defendant and his victim tends to shed light on a defendant's mens rea " and is pertinent in a murder case, given that "[t]he state ha[s] the burden to prove beyond a reasonable doubt that defendant's acts were intentional." State v. Moen , 309 Or. 45, 68, 786 P.2d 111 (1990). Here, the trial court did not err or abuse its discretion in admitting the Carrouths' direct observations of how defendant's presence affected the victim's demeanor.

Whether the remaining evidence at issue in defendant's preserved assignments of error was properly admitted is not as clear because that evidence does not speak directly to the nature of the relationship between the victim and defendant in a nonspeculative, objective way but is more indicative of the witnesses' subjective beliefs about the relationship. However, we do not address that question because the admission of that evidence, even if erroneous, was harmless, in view of the evidence that was properly admitted or was admitted without challenge. Erroneously admitted evidence is harmless if it had little likelihood of affecting the jury's verdict. State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). In evaluating whether the erroneous admission of evidence is harmless, "we consider any differences between the quality of the erroneously admitted evidence and other evidence admitted on the same issue to assess whether the jury would have found the evidence to be duplicative, cumulative, or unhelpful in its deliberations." State v. Chandler , 278 Or. App. 537, 541, 377 P.3d 605, rev. den. , 360 Or. 568, 385 P.3d 82 (2016) (internal quotation marks omitted).

Here, even if the trial court erred by admitting evidence that witnesses advised the victim to move out or have defendant move out because of their perceptions of the victim's demeanor change, or by admitting the objected-to testimony of Cindy Carrouth, that evidence did not add much that was new, or particularly probative, to the evidence that was properly before the jury on the issue of defendant's relationship with the victim. We have concluded that the court correctly admitted the evidence about the Carrouths' observations about how the victim's demeanor changed in defendant's presence. Apart from the objected-to testimony of Cindy Carrouth, the testimony from Lind, Wies, and Long, and the unobjected-to portion of Cindy Carrouth's testimony about the victim's general change in demeanor between 2008 and 2010, also was properly before the jury because defendant did not raise any objection to it. In addition, the jury was presented with more direct (and inculpatory) evidence of the hostile relationship between the victim and defendant, including that defendant told the victim a few weeks before her death that he could not wait for her to die so that he could get his inheritance and that he referred to her as a "Pain in the ass" on the list of phone numbers in his wallet. In view of all of that evidence, it is likely that the jury perceived the challenged evidence as either cumulative of the other admitted evidence addressing the nature and degree of hostility in the relationship between the victim and defendant or, in the case of the evidence that friends and family advised the victim that either she or defendant should move out, as not particularly helpful, in view of the other, directly probative evidence on the point.

Affirmed.

      The state points out that, shortly before the objected-to testimony, Cindy Carrouth had testified, without objection, that the victim had seemed "happy and jolly" over the telephone before defendant moved in and that she observed a change in demeanor that coincided with defendant moving in with the victim, in that the victim started to sound "kind of sad."

      Although the evidence at issue in Moen was of other acts by the defendant, we do not understand the court's explanation of why evidence of a hostile relationship between the victim and the defendant is relevant in a homicide case to turn on whether the evidence at issue involved other acts.