author: ORTEGA, P. J.

text:
    In the MATTER OF T. M. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of A. K. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of M. R. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of A. K. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of T. M. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of M. R. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of A. K. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of T. M. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    In the Matter of M. R. H., a Child.
    Department of Human Services, Petitioner-Respondent, v. M. A. H., Appellant.
    A166378 (Control) A166379 A166380 A166859 A166860 A166861 A166862 A166863 A166864
    Court of Appeals of Oregon.
    Argued and submitted May 15, 2018. May 30, 2019
    Valerie Colas, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

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

   ORTEGA, P. J.

In this consolidated appeal, mother challenges judgments terminating her parental rights to her three children and the denial of her motion to terminate dependency jurisdiction as to the youngest child, A. We conclude that clear and convincing evidence establishes that mother has engaged in conduct and is characterized by conditions that remain seriously detrimental to all three children; that integration of the children into mother's home is improbable within a reasonable time due to conduct or conditions not likely to change; and that termination is in the best interests of each of the children. Accordingly, we affirm the juvenile court's judgments.

By way of overview, the two older children, M (born in 2004) and T (born in 2005), are in foster care for the third time, and A (born in 2013) is in foster care for the second time. The children have been in their current foster placement, with their paternal grandparents, since November 2014, and we have addressed the family's long-running involvement with the Department of Human Services (DHS) on two prior occasions. See Dept. of Human Services v. M. J. H. , 278 Or. App. 607, 609, 375 P.3d 579 (2016), rev. den. , 361 Or. 486, 395 P.3d 870 (2017) (vacating and remanding permanency judgments), and Dept. of Human Services v. M. A. H. , 284 Or. App. 215, 218-19, 391 P.3d 985, rev. den. , 361 Or. 486, 395 P.3d 870 (2017) (concluding that DHS made reasonable efforts to address mother's mental health needs and affirming permanency judgments). In this appeal of the termination judgments, we review the facts de novo , ORS 19.415(3)(a), and we recount the facts only as necessary to give context to our ruling, beginning with a summary of the procedural history for context.

I. FACTS

Mother and father had a relationship characterized by domestic violence, substance abuse, and child neglect that resulted in the removal of M and T from their care in 2010 and removal of all three children in 2013. M. J. H. , 278 Or. App. at 609, 375 P.3d 579. They were returned to parents' care for a second time in April or May of 2014. Id . In October of that year, M contacted his aunt with concerns that mother was using drugs and, the following month, DHS again removed the children from mother's care and placed them in foster care with grandparents, where they have remained for the intervening years. Id. at 609-10, 375 P.3d 579.

In January 2015, as a consequence of that last removal from mother's care, the juvenile court took jurisdiction "based on the risk of harm created by mother's criminal activities, lack of parenting skills, substance abuse, and her practice of leaving the children with unsafe care providers." M. A. H. , 284 Or. App. at 218-19, 391 P.3d 985. In June 2015, DHS filed new dependency petitions, additionally alleging that "mother has mental health issues that interfere with her ability to safely parent her children." Id. at 219, 391 P.3d 985. The cases were not consolidated and proceeded on separate tracks, resulting in termination judgments on one of the tracks in June 2016, id. , while permanency judgments for the other cases were being appealed and were ultimately reversed. M. J. H. , 278 Or. App. at 614, 375 P.3d 579. As a result of that reversal, the juvenile court set aside the 2016 termination judgments and consolidated the two tracks of dependency cases. At a second termination trial, mother moved to dismiss jurisdiction and wardship as to all three children; the juvenile court denied those motions and entered judgments of termination.

Mother has a long history of using drugs, neglecting the children's physical and medical needs, keeping the children in filthy living conditions, and being involved in violent relationships. She also has been physically violent with the children and has mental health issues. She made some progress in addressing some of these issues in the year before trial but did not exhibit good understanding of how her past behavior has affected the children and still endangers them.

Mother's history of substance abuse dates back as early as 2000. In October 2012, while pregnant with A, mother was reportedly using drugs in front of her children at an emergency shelter. She was admitted to a residential facility for methamphetamine detoxification in August 2013. More recent drug use is unclear. In early 2015, mother claimed abstinence from prescription opioids for over a year. During a drug and alcohol treatment assessment in November 2015, mother falsely denied ever using amphetamine and opiates and was diagnosed with opioid use disorder. Between November 2015 and October 2016, mother gave 79 UAs, all negative, but had three no-shows and two dilute UAs, and her treatment provider did not know if mother had a relapse plan in place. In August 2016, mother told Dr. Basham that she had started using methamphetamine at age 28 and last used in July 2015. At the time of that assessment, she had a prescription for Adderall, which contains amphetamine, and Basham believed that mother was "maintaining her addiction through the use of [Adderall]."

When Dr. Deitch evaluated mother in March 2015, she claimed to be taking Adderall for ADHD and to have had a recent bipolar episode. He later found out that mother was under the influence during the evaluation and concluded that her mental health problems predated her issues with substance abuse. She exhibited Dependent, Antisocial, and Borderline Personality Features. He further diagnosed her with stimulant use disorder, opioid use disorder, post-traumatic stress disorder related to domestic violence, rule-out bipolar disorder, and adjustment disorder with mixed depression and anxiety. At the time of trial, mother was in individual therapy with Crowe to address PTSD from domestic violence.

M testified that, in mother's home, he had felt that he had to help care for his younger siblings because they were not being fed or looked after or helped when they were hurt. In his words, "I just felt like I just became the parent." He sometimes stayed home from school to take care of his siblings, and occasionally ate non-food items such as pencils, paper, and bark chips because he was hungry and there was no food in the house.

Although mother's counselor, Crowe, sees progress in her ability to recognize the impacts of her behavior on the children, mother continues to display a tendency to minimize those impacts and to focus on the responsibility of others. Crowe acknowledged that mother continues to have issues with being in denial and has limited insight into her parenting and the resulting damage to the children and blames some of those impacts on father's family, including grandparents. Mother identified the harm to be that the children "were scared," that they "had some neglect," and that they "have experienced a loss of family." She expressed the view that it was best for them to "be with their mom."

DHS caseworker Tannler, during a home visit in March 2017, discussed with mother that, as she was already aware, M did not want to return to her home. Mother expressed the view that grandparents had "soured" the children's view of her and poisoned them against her. Tannler told mother that M had explained that he did not trust her to continue in recovery; M expected that she would be back on drugs in two weeks and he would again not be able to go to school, would have to hide from the police, and he would have to parent his siblings. Mother maintained that those fears were all the result of poisoning by grandparents. According to Tannler, "all I'm hearing [from mother] is blaming of others and a minimizing of the impacts that have occurred to the kids."

Mother maintained that, if the children were returned to her, she would not allow them to continue a relationship with grandparents, even while she acknowledged A's bond with grandparents (with whom she has lived most of her life) and that severing contact with grandparents would be detrimental to all three children. Deitch opined that cutting off contact with grandparents would be harmful to the children and that mother's determination to do so shows a lack of insight and a deficit in her understanding of what a child would need.

Quaresma, a therapist working with M and T, met with mother in March 2017 to discuss the prospects for resuming visits with the children, which had been suspended for about a year, pending the outcome of the termination trial. When Quaresma explained the concerns about returning the children, given mother's history of relapse and the children's multiple removals from her care, mother deflected those concerns; she attributed that history to her "bad relationship" with father and noted that her oldest son (not involved in this case) had shown improvement since he started visiting her. Quaresma found mother to be "lacking some insight as to the impact of the trauma that the children have been through." She noted that mother did not take "a lot of accountability * * * for some of her actions and choices."

Dr. Basham evaluated mother in August 2016 and interviewed her by phone again in January 2017, shortly before trial. At trial he indicated that he did not know "the details of what issues and special needs the * * * children may present" but that he sees mother "as having a positive prognosis for basically living a reasonably stable life and engaging as a parent, functioning as a parent in general." He acknowledged, however, that he lacked sufficient information about the children's needs to form an opinion about whether mother could be reunited with them within a reasonable time, but he noted that mother displayed nothing "anywhere close to * * * true insight and taking responsibility for" the conduct and conditions that led to the children's removal. He opined that, before they could safely be returned to her care, "she'll need to take accountability for it and stop blaming others for their placement in foster care."

In the time between the trial court's entry of the prior 2016 termination judgments, the court's vacation of those judgments, the subsequent permanency hearing, and the trial at issue in this appeal, DHS did not allow or facilitate any visits between mother and the children. Thus, by the time of trial, mother had not visited with the children since April 2016. M did not want to visit mother or live with her; T was open to visits but wanted to continue living with grandparents.

Mother had demonstrated poor parenting skills during visits, which had been "chaotic." She yelled at the children and encouraged A to hit her. M and T physically fought, and mother encouraged them or could not stop them. M reported that, when he lived with her, mother had hit him with "[r]andom items around the house that she could get her hands on," including belts and a coat hanger, and would yank the children by the hair and push them around "[a]ll the time." Mother denied any physical violence toward the children, but other family members, including father, reported incidents when she had been violent.

Both M and T exhibited serious tooth decay requiring extractions when they were removed from mother's care in 2010 and 2013. Both have undergone evaluations while in foster care that reveal significant emotional and psychological difficulties related to experiences of neglect, police interventions, drug use by mother, and violence between their parents. T has been diagnosed with ADHD and an adjustment disorder and suffers from anxiety. He has developed a strong bond with grandparents and is ambivalent toward mother. In his September 2016 evaluation with Dr. Munoz, he indicated that he would agree to live with parents only if "they promised that they both have a nice job and a nice house and everything is organized and they won't do drugs again"; however, he doesn't know if they could do that.

M has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood; after the second removal he also was eating non-food objects such as pencils and erasers, but that has ceased to be a concern. M cares very much about mother but does not want to live with her again, because he does not trust that she can alter her former pattern of relapsing when the children were returned. He is closely bonded to grandparents.

Both boys have experienced significant trauma and exhibit anxiety and anger. T has behavioral issues; he is impulsive and has difficulty regulating his behavior. Both boys are hypervigilant and have trouble concentrating.

A is now on track developmentally but is at risk for attachment issues given her history of placement disruptions. She is bonded to grandparents and, at her age, a disruption of that attachment would be very detrimental.

II. TERMINATION HEARING

During the termination hearing, mother filed a motion to dismiss to terminate the wardship of all three children. In denying her motion, the court concluded that, due to mother's criminal activities, failure to remedy her substance abuse and parenting skills in addition to her mental health issues and inability to leave her children in the care of safe providers, there were grounds for jurisdiction. At the conclusion of the hearing, the court terminated mother's parental rights to all three children due to unfitness. The court concluded that the following conduct or conditions of mother were seriously detrimental to the children: (1) addictive or habitual use of intoxicating liquors or controlled substances; (2) exposure and the risk of exposure of children to domestic violence; (3) lack of effort or failure to obtain and maintain a suitable or stable living situation for the children; (4) failure to learn or assume parenting skills and/or housekeeping skills sufficient to provide a safe and stable home for the children; (5) physical neglect of the children; (6) an emotional illness, mental illness, or mental deficiency; (7) lack of effort to adjust her circumstances, conduct or conditions to make return of the children to her possible; and (8) failure to effect a lasting adjustment for such extended time that it appears reasonable that no lasting adjustment can be effected.

III. ANALYSIS

The juvenile court will terminate a parent's rights due to unfitness if the court finds by clear and convincing evidence that the parent is unfit due to "conduct or condition seriously detrimental to the child" and that "integration of the child * * * into the home of the parent * * * is improbable within a reasonable time due to conduct or conditions not likely to change." ORS 419B.504. Evidence is clear and convincing if it makes the existence of a fact "highly probable" or if it is of "extraordinary persuasiveness." State ex rel. Dept. of Human Services v. A. M. P. , 212 Or. App. 94, 104, 157 P.3d 283 (2007) (internal quotation marks omitted). A parent's fitness is measured at the time of the termination trial, State ex rel. Dept. of Human Services v. Simmons , 342 Or. 76, 96, 149 P.3d 1124 (2006), and the focus of the test is "on the child, not just the seriousness of the parent's conduct or condition in the abstract." State ex rel. SOSCF v. Stillman , 333 Or. 135, 146, 36 P.3d 490 (2001). Finally, termination of parental rights must be in the child's best interests. ORS 419B.500.

To determine if a parent is unfit, courts engage in a two-step analysis. Stillman , 333 Or. at 145, 36 P.3d 490. First, the court determines whether "(1) the parent has engaged in some conduct or is characterized by some condition; and (2) the conduct or condition is 'seriously detrimental' to the child." Id . "Second-and only if the parent has met the foregoing criteria-the court also must find that the 'integration of the child into the home of the parent * * * is improbable within a reasonable time due to conduct or conditions not likely to change.' " Id . In evaluating the second step, the court must "evaluate the relative probability that, given particular parental conduct or conditions, the child will become integrated into the parental home 'within a reasonable time.' " Id . at 145-46, 36 P.3d 490. The "reasonable time" standard is child-specific-the particular period of time that "is reasonable given a child['s] emotional and developmental needs and ability to form and maintain lasting attachments." ORS 419A.004(20).

On appeal, mother argues that the juvenile court erred in denying her motion to terminate the wardship as to A, and also erred in terminating her parental rights to all three children because the evidence does not establish that she is currently unfit. She further argues that DHS failed to establish that the time required to address the alienation of M and T is unreasonable given their circumstances. Finally, she argues that DHS failed to establish that termination of her parental rights is in the best interest of any of the children.

On de novo review, we conclude that the evidence is clear and convincing that, despite the progress that mother has made in the year before trial, mother is nevertheless unfit due to current conditions that, in combination, remain seriously detrimental to the children. See State ex rel. Juv. Dept. v. F. W. , 218 Or. App. 436, 469, 180 P.3d 69, rev. den. , 344 Or. 670, 189 P.3d 25 (2008) (evidence of current detrimental effects on the children is pertinent to parent's unfitness, as well as to whether reunification is improbable within a reasonable time). Given that conclusion, we also conclude that the juvenile court correctly denied mother's motion to terminate A's wardship.

To determine whether mother's conditions remain detrimental to the children, we must consider the children's needs in the context of the history of this case. See Dept. of Human Services v. K. M. M. , 260 Or. App. 34, 45-46, 316 P.3d 379 (2013), rev. den. , 354 Or. 837, 325 P.3d 738 (2014). The children in this case have spent an extended period of time in the foster care of their grandparents; indeed, A has spent the majority of her life in their care. The children have also endured a history of neglect and deprivation and a series of placement disruptions-yet mother has indicated that, while she would cooperate with a gradual return to her care, her intention is to terminate the children's relationship with grandparents, whom she blames for the fact that M and T do not wish to return to her custody, and despite her recognition that such a move would be detrimental to them.

In mother's view, she is no longer using drugs, is no longer living with father, and has maintained a stable life that will enable her to parent the children. However, her failure to recognize her own pattern of relapse and how that may play into the fears of M and T undercuts her claims that drug use is no longer of concern; her period of sobriety, however stable it may be, has occurred while the children were out of her custody, and her failure to reckon with the costs to the children of her history of drug dependence rises to the level of present unfitness even if she is currently sober. So, likewise, does her lack of concern about disrupting the children's current attachments; M and T have significant emotional and behavioral challenges, and mother's inability to recognize how her history has contributed to those challenges, instead blaming the caregivers who have provided the children with a stable placement, undermines her claim that she is ready to provide them with minimally adequate care. Where, as here, the children "have special needs and are healthily bonded to their foster parents, the issue is * * * whether the parent has waited too long to reform in light of the child's pressing needs." State ex rel. Dept. of Human Services v. A. L. S. , 228 Or. App. 700, 723, 209 P.3d 817, rev. den. , 347 Or. 43, 217 P.3d 689 (2009) (citing F. W ., 218 Or. App. at 464, 180 P.3d 69 ). Mother's reforms-which are tenuous and untested at best-are insufficient here and pose a continued risk of harm to the children. Furthermore, we conclude that further delays in establishing a permanent placement for the children to allow mother to rebuild her relationships with M and T, given the time that has passed and her failure to reckon with how her past behavior has affected them, would be unreasonable under the circumstances.

Finally, we conclude that termination of mother's parental rights is in the best interests of the children. A has spent the majority of her life in foster care and has experienced developmental delays; continued delays in permanency will only compromise her best interests in forming healthy attachments. M and T, likewise, have spent significant portions of their lives in foster placements and disrupted placements with mother, and both continue to deal with emotional and behavioral challenges as a result. Mother's unwillingness to grapple with the reasons for their struggles makes termination of her parental rights the best option for achieving the stability they need.

Affirmed.

      Father's parental rights were terminated based on uncontested allegations; those judgments are not at issue in this appeal.


source: Caselaw Access Project

author: SHORR, J.

license: Public Domain

text:
    ALEXANDER LOOP, LLC, an Oregon limited liability company; Goodpasture Partners, LLC, an Oregon limited liability company; and BDC-Eugene, LLC, an Oregon limited liability company, Plaintiffs-Appellants Cross-Respondents, v. CITY OF EUGENE, Defendant-Respondent Cross-Appellant.
    A166156
    Court of Appeals of Oregon.
    Argued and submitted November 30, 2018. May 30, 2019
    Heidee Stoller, Portland, argued the cause for appellants-cross-respondents. On the briefs were Cody M. Weston, Courtney R. Peck, Portland, and Perkins Coie LLP.
    Lauren Sommers argued the cause and filed the briefs for respondent-cross-appellant.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

This case involves claims for breach of contract and unjust enrichment brought by a group of property developers against the City of Eugene. Plaintiffs had received permission from the city to develop a 23-acre property with residential and commercial units. As part of the development process, plaintiffs agreed to undertake certain improvements to the transportation infrastructure near the development. Plaintiffs' claims are based on allegations that the city failed to fully reimburse plaintiffs, as agreed in a letter, for approximately $ 1.3 million in "system development charges" (SDCs) based on SDC credits that plaintiffs would generate through those infrastructure improvements. The trial court granted the city's motion for summary judgment on plaintiffs' claims for breach of contract and unjust enrichment. For the reasons explained below, we affirm, concluding that (1) the letter agreement does not contain a promise by the city to pay plaintiffs $ 1.3 million but only an estimate of the SDC credits that plaintiffs would receive from the infrastructure improvements and (2) the city was not unjustly enriched under the circumstances of this case.

I. BACKGROUND

This case turns on whether the city was obligated to reimburse plaintiffs for SDC credits generated during the course of the development project. We begin with an explanation of the applicable laws governing SDCs and SDC credits. We then summarize the material facts, consistently with our standard of review of a grant of summary judgment, in the light most favorable to plaintiffs as the nonmoving party. Evans v. City of Warrenton , 283 Or. App. 256, 258-59, 388 P.3d 1167 (2016).

SDCs are fees that cities may charge developers to account for the increased demand on certain infrastructure systems caused by new development. ORS 223.299(4)(a). Cities typically assess SDCs for "capital improvements" associated with the new development. Capital improvements are defined by statute as public assets or facilities used for the following city infrastructure systems:

"(A) Water supply, treatment and distribution;
"(B) Waste water collection, transmission, treatment and disposal;
"(C) Drainage and flood control;
"(D) Transportation; or
"(E) Parks and recreation."

ORS 223.299(1)(a).

Cities that assess SDCs must also provide developers with credits against those fees for the construction of a "qualified public improvement," i.e. , "a capital improvement that is required as a condition of development approval." ORS 223.304(4). By default, SDC credits offset only like-kind SDCs charged for the type of improvement being constructed. ORS 223.304(5)(a). In other words, SDC credits are system-specific, and credits generated as a result of a qualified public improvement in one type of system-transportation, wastewater treatment, and so on-cannot be applied to offset SDCs assessed as a result of a development's effects on a different system. Developers can, however, bank excess credits to offset like-kind SDCs assessed in subsequent phases of the same development. ORS 223.304(5)(c). Notwithstanding that default restriction, local governments have the option to establish a system for the transferability of credits between infrastructure systems "if a local government so chooses." Id .

The Eugene City Council has adopted code provisions governing the city's imposition of SDCs on developers as well as the generation of SDC credits. Eugene Code (EC) 7.700 - 7.740. The city council enacted the city's SDC scheme to "impose an equitable share of the public cost of capital improvements upon those developments that create the need for or increase the demands on capital improvements." EC 7.700.

The city's SDC scheme largely duplicates the scheme provided by state law. Developers in Eugene can accrue SDC credits by making qualified public improvements associated with a development project. EC 7.730(4). As under state law, SDC credits under the city code are awarded on a system-by-system basis and offset only like-kind SDCs associated with burdens on a particular infrastructure system, such as stormwater, wastewater, or, as in this case, transportation. Id . Developers may bank excess credits for subsequent phases of the same development project but cannot transfer credits to other projects or between systems. EC 7.730(6), (7).

Notably for this case, the city code expressly prohibits developers from transferring credits approved for one type of capital improvement to offset SDCs associated with burdens on a different system. EC 7.730(4) ("The credit provided for by this subsection shall apply only to the improvement fee imposed for the type of improvement being constructed."). For example, if a developer generates transportation SDC credits, it may use those credits to offset only transportation SDCs up to but not exceeding the sum total of transportation SDCs assessed for the entire development project. The developer may not use those credits to offset SDCs assessed as a result of effects on other city infrastructure systems, such as wastewater or stormwater sewer systems, even if the total number of SDC credits for any system exceeds the total SDCs for that system. The city did not elect, in other words, to provide for transferability of credits despite having that option under ORS 223.304(5)(c). Thus, although a developer may receive SDC credits in excess of the total SDCs assessed in any particular system over the life of a development project, the city code prohibits the city from reimbursing the developer for credits that exceed the SDCs associated with that system or allowing the developer to transfer those credits to SDCs in other systems. EC 7.730(4), (7).

In this case, the development project consisted of a 23-acre plot known as Goodpasture Island with an apartment complex, a senior-housing facility, and commercial units. The city conditioned its approval of the development project on plaintiffs' agreement to undertake capital improvements to off-site infrastructure, including widening the Goodpasture Island Bridge and building a new bridge nearby. Under the city code, plaintiffs' capital improvements would be eligible for SDC credits, in an amount calculated by the city, that plaintiffs could use to offset like-kind SDCs assessed by the city. The bridge improvements qualified for transportation SDC credits.

When they learned that they would be required to undertake the bridge improvements, plaintiffs sought additional funds from their lenders to cover the associated costs. At plaintiffs' request, the city provided a letter agreement that plaintiffs could share with their lenders, which in part explained that plaintiffs would be assessed SDCs as part of the development project and receive SDC credits for the bridge improvements. The letter agreement, which is discussed in greater detail below, included the city's "best estimates based on presently available information" of SDCs and SDC credits. The city estimated that the total to be paid by plaintiffs in permits and SDCs for the development project was $ 4,544,046, while the bridge improvements would generate an estimated $ 1.3 million in SDC credits. Those estimates were "subject to further refinement," and the actual amounts would be "determined in the normal course of building permit submittal and approval."

Following completion of the bridge improvements, the city calculated that plaintiffs had earned $ 1,133,643.29 in transportation SDC credits. The city also calculated that the transportation SDCs assessed and collected for the development project totaled only $ 375,768.91. The city informed plaintiffs that, pursuant to the SDC scheme set forth in section 7 of the city code, the city was able to reimburse plaintiffs up to, but not beyond, the total transportation SDCs, notwithstanding that plaintiffs had accrued more than $ 757,000 in additional transportation SDC credits. The city explained that plaintiffs could bank those remaining credits for 10 years for potential future use, but, under the city code, the city was unable to reimburse plaintiffs for credits that exceeded the total system-specific SDC. As a practical matter, however, plaintiffs had no use for the banked SDC transportation credits because plaintiffs had completed the development project and there were no further anticipated transportation SDCs to offset with transportation SDC credits.

After the city limited plaintiffs' use of the transportation SDC credits, plaintiffs initiated the present action, alleging claims for breach of contract and unjust enrichment. As to the first claim-breach of contract-plaintiffs alleged that the city had entered into a binding agreement to pay plaintiffs for approximately $ 1.3 million in SDC credits in exchange for plaintiffs undertaking the bridge improvements and that the city had breached that agreement when it reimbursed plaintiffs only $ 375,768.91. As to the second claim-unjust enrichment-plaintiffs alleged that the city had obtained benefits from plaintiffs in the form of infrastructure improvements and was unjustly retaining those benefits without having to pay plaintiffs for funding and building those improvements.

The city moved for summary judgment on both claims. With respect to plaintiffs' breach of contract claim, the city argued that the letter agreement did not amount to a promise to pay plaintiffs $ 1.3 million but, rather, provided only estimates of total SDC credits that plaintiff would receive. Moreover, the city contended that it was prevented by the city code from reimbursing plaintiffs for credits that exceeded like-kind SDCs.

Plaintiffs responded that the text of the letter agreement demonstrates that the city intended to deviate from the city code to reimburse plaintiffs for an estimated $ 1.3 million in transportation SDC credits, regardless of the total transportation SDC. Plaintiffs argued that, while the letter agreement might require the city to determine the amount of SDC credits plaintiffs would receive consistently with the city code, the city had agreed to deviate from the code with respect to how it applied those credits. At the very least, plaintiffs argued, the city had failed to show that the letter agreement unambiguously supported its position, which meant that summary judgment was not appropriate on the breach of contract claim.

With respect to the unjust enrichment claim, the city argued that nothing "unjust" had occurred. That is, under the terms of the letter agreement, plaintiffs did not have a reasonable expectation that they would be paid $ 1.3 million, because they were aware of the SDC credit scheme in the city code and knew that the letter agreement included only nonbinding estimates. Further, the city contended that plaintiffs had actually received $ 1.13 million in transportation SDC credits, which was close to the estimated credit total in the letter agreement.

Plaintiffs responded that the city had failed to prove that, as a matter of law, no injustice had resulted from the city's refusal to reimburse plaintiffs approximately $ 1.3 million. Plaintiffs argued that both they and the city reasonably expected that the city would actually pay plaintiffs approximately $ 1.3 million, not that the city had promised only to provide approved SDC credits of approximately that amount. Again, plaintiffs argued that that at least presented a genuine issue of fact that must be resolved at trial.

The trial court granted the city's motion for summary judgment on both claims. As to the breach of contract claim, the court determined that the letter agreement was unambiguous and that the disputed provision, viewed in the context of the agreement as a whole and under the circumstances of its execution, "cannot be construed as a promise to pay $ 1.3 million but merely as an estimate of SDC credits that would be applied to the project." As to the unjust enrichment claim, the court determined that "plaintiffs cannot prevail on this claim because there was no injustice-plaintiffs received a SDC credit of $ 1.13 million in line with the estimate set forth in the letter agreement." Furthermore, plaintiffs' "subsequent inability to immediately use all of the credits is the result of the application of law all parties were made aware of before they entered into the letter agreement."

Plaintiffs appeal, reprising the arguments they made below. When a case is before us following a trial court order granting a motion for summary judgment, we review the record to determine whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Evans , 283 Or. App. at 258, 388 P.3d 1167. We will affirm if we determine that, viewing all relevant facts and reasonable inferences in the light most favorable to the nonmoving party-here, plaintiffs-no reasonable juror could return a verdict for the nonmoving party on the matter that is the subject of the motion for summary judgment. Id. at 258-59, 388 P.3d 1167.

II. ANALYSIS

A. First Assignment of Error-Breach of Contract

Plaintiffs first argue that the trial court erred in granting the city's motion for summary judgment because, at the very least, the SDC credit reimbursement provision of the letter agreement is ambiguous. In general, the construction of a contract is a question of law, as is the initial question of whether a contract is ambiguous. Yogman v. Parrott , 325 Or. 358, 361, 937 P.2d 1019 (1997). However, a dispute over the meaning of a contract provision is not suitable for summary judgment if the provision is ambiguous because that raises a question of fact. PGF Care Center, Inc. v. Wolfe , 208 Or. App. 145, 151, 144 P.3d 983 (2006). The "mere fact" that the parties to a contract present competing interpretations of a particular provision of that agreement "does not compel a conclusion of ambiguity." Manley v. City of Coburg , 282 Or. App. 834, 839, 387 P.3d 419 (2016). Rather, a provision is ambiguous only "if it is capable of more than one sensible and reasonable interpretation." PGF Care Center, Inc. , 208 Or. App. at 151, 144 P.3d 983. By contrast, a provision is unambiguous if "its meaning is so clear as to preclude doubt by a reasonable person." Id .

To answer whether the letter agreement is ambiguous, we first consider the text of the disputed provision in the context of the agreement as a whole and in light of the circumstances underlying the formation of the contract. Yogman , 325 Or. at 361, 937 P.2d 1019 (examining, as the first step of contract analysis, the text of the disputed provision in the context of the whole agreement); Batzer Construction, Inc. v. Boyer , 204 Or. App. 309, 317, 129 P.3d 773, rev. den. , 341 Or. 366, 143 P.3d 239 (2006) (examining, at the first step, circumstances underlying contract formation in addition to text and context); ORS 42.220 (allowing the court, "in construing an instrument," to consider the "circumstances under which [the contract] was made"). If, based on our review of the text, context, and underlying circumstances, we determine that there is only one plausible interpretation of the disputed provision, "then our analysis is complete and we give the appropriate effect to the parties' intentions." Industra/Matrix Joint Venture v. Pope & Talbot, Inc. , 341 Or. 321, 332, 142 P.3d 1044 (2006) (describing Yogman analysis). If, on the other hand, the disputed provision is ambiguous, we "proceed to the second of the three analytical steps" and "examine extrinsic evidence of the contracting parties' intent." Yogman , 325 Or. at 363, 937 P.2d 1019. Summary judgment is inappropriate if, at this second step, it is apparent that there is a genuine issue of fact raised about the parties' intent in the relevant extrinsic evidence. Petrillo v. PERB , 286 Or. App. 200, 206, 398 P.3d 1006, rev. den. , 362 Or. 175, 406 P.3d 608 (2017) ("Summary judgment is not appropriate unless there are no factual disputes regarding relevant extrinsic evidence."). Finally, if "the first two analytical steps have not resolved the ambiguity," we turn to the "third and final analytical step," which involves a consideration of "appropriate maxims of construction." Yogman , 325 Or. at 364, 937 P.2d 1019.

We start with the text of the provision in the context of the letter agreement as a whole. Id. at 361, 937 P.2d 1019. Section 5 of the agreement addresses SDCs and SDC credits as follows:

"(A) The parties acknowledge and agree that the SDC amounts and credits in Part 'B,' below, are best estimates based on presently available information, and that the actual amounts may differ and that the actual amounts will be determined in the normal course of building permit submittal and approval.
"(B) The parties agree that the estimated amount of $ 3,858,553 is the total amount to be paid by Alexander for building permits and SDCs to develop the Apartment Project and that $ 685,493 is the total amount to be paid by BDC for the Senior Housing Project. Developer acknowledges and agrees that actual amounts may differ and will be determined in the normal course of building permit submittal and approval. The amounts owed for SDCs for the two projects will be offset by an SDC credit currently estimated based on best information but subject to further refinement at $ 1,300,000 which can be allocated between the Apartment Project and the Senior Housing Project at the Developer's discretion. * * * The actual amounts of SDC credits may differ and will be determined in the normal course of building permit submittal and approval."

The text of the disputed provision, considered in isolation, appears ambiguous. On the one hand, a reasonable juror, looking only at the provision itself, might understand the reference to SDCs being "offset by an SDC credit," without any reference to categories of SDCs or limitations, to reflect a promise by the city to allow plaintiffs to apply all SDC credits to offset all SDCs without regard to category. At the same time, however, the provision does not include an articulated promise by the city to fully reimburse plaintiffs for any and all SDC credits regardless of total like-kind SDCs. Moreover, the provision speaks entirely in generalizations and estimates, such that it is difficult, if not impossible, to find any truly promissory language in it. The provision in isolation remains ambiguous and subject to competing reasonable interpretations.

Any ambiguity in the text of the provision, however, is resolved when considered in the context of the entire agreement. First, nowhere in the letter agreement is there other language that even approaches a promise by the city to deviate from the city code in the manner suggested by plaintiffs. Second, and more significantly, section 6 of the letter agreement includes a statement that the parties "acknowledge and agree that nothing in [the] agreement is intended to prohibit, or shall prohibit, [the] city from taking any action required by state law or city code." As described, the city in this case awarded plaintiffs transportation SDC credits worth $ 1,133,643.91 and, drawing from those credits, reimbursed plaintiffs for the total transportation SDC for the development project. The city's approach was consistent with, and, indeed, compelled by, the city code, under which a developer may offset an SDC using only like-kind SDC credits. Plaintiffs' position, by contrast, is that section 5 of the letter agreement amounts to a promise by the city to deviate from the city code to fully reimburse plaintiffs for all transportation SDC credits regardless of the sum total of the transportation SDCs assessed by the city. Beyond the fact that section 5 of the letter agreement does not clearly contain such a promise, plaintiffs' position is untenable in light of the city's unambiguous commitment to adhere to state law and the city code, both of which preclude the city from reimbursing plaintiffs for transportation SDC credits that cannot be matched to transportation SDCs.

The evidence in the record of the underlying circumstances of the contract formation provides additional support for that conclusion. The underlying circumstances can include the position of the parties. Batzer Construction, Inc. , 204 Or. App. at 317, 129 P.3d 773. Here, plaintiffs are land developers who presumably knew, or were on notice of, the state and local laws and regulations governing large-scale development projects like the one in this case. See Arken v. City of Portland , 351 Or. 113, 140, 263 P.3d 975, adh'd to on recons , 351 Or. 404, 268 P.3d 567 (2011) (parties are charged with notice of the law). In fact, the record includes evidence that the city pointed plaintiffs to the specific city code provisions explaining how the city calculates and reimburses developers for SDC credits, including the category-specific restrictions imposed by the city code on the credit reimbursement process. It is untenable for plaintiffs to now argue that they believed that the city had promised to reimburse them for SDC credits in a manner inconsistent with the city code despite the lack of a clear commitment by the city to do so and especially considering the city's commitment in the letter agreement itself not to deviate from the city code.

Turning to the city's position, there is nothing to suggest that the city was ever in the position to deviate from the city code provisions governing SDC credits on a case-by-case basis. Under ORS 223.304(5)(c), cities are capable of adopting SDC credit reimbursement schemes that allow for credit transfers. But, as explained, the Eugene City Code uses a category-specific reimbursement model to calculate and apply SDC credits. The city code does not include any language permitting the city to make case-by-case exceptions or exemptions to reimburse a developer for all SDC credits regardless of like-kind SDCs. The city's express invocation of state law and the city code in its dealings with plaintiffs demonstrates that the city understood its obligation to adhere to the city code and was not promising to deviate from it.

The circumstances underlying the formation of a contract also include evidence pertaining to the contract's formation. Batzer Construction, Inc. , 204 Or. App. at 322, 129 P.3d 773. The city points to an email sent by the City Attorney's office to plaintiffs before the parties signed the letter agreement as relevant evidence of the letter agreement's formation. That email included the following passage:

"[T]he city manager will not sign any agreement that requires him (or staff) to violate state law or city code. The manager (and staff) have no authority to limit or otherwise specify the amount of permit fees or SDCs prior to our receipt of the plans that are actually used to determine the amount of those fees and SDCs. So if the bank wants a couple paragraphs that specify the ESTIMATED amount of fees and SDCs (and credits), that is fine, but that estimate will in no way whatsoever be binding or a factor when the actual plans are submitted and the fees and SDCs actually determined. In my view, those paragraphs[-section 5 of the letter agreement-]are worthless and should be deleted from the agreement since the paragraphs are not an agreement on anything. But if the bank wants them, we can leave them in but only with the express statements that they are estimates and that the actual amounts will be determined later."

(Capitalization in original.)

As a preliminary matter, we acknowledge, as we have before, that "the distinction between the extrinsic evidence that can properly be considered at the first, as opposed to the second, Yogman level is, as a practical matter, less than clear." Nixon v. Cascade Health Services, Inc. , 205 Or. App. 232, 241 n. 10, 134 P.3d 1027 (2006). Indeed, although ORS 42.220 limits our consideration at the first level of contract analysis to extrinsic evidence of "the circumstances under which the agreement was made," our case law "offers little guidance as to what evidence so qualifies." Id . We have, however, recognized that precontractual communications between the parties to a contract as to the meaning of a particular phrase or provision may be considered among the circumstances underlying the formation of the contract. See Batzer Construction, Inc. , 204 Or. App. at 321-22, 129 P.3d 773 (treating statements made by the defendant to the plaintiffs before the parties signed the contract regarding the meaning of a term in the contract as evidence of the circumstances underlying the formation the contract); Nixon , 205 Or. App. at 241 n. 10, 134 P.3d 1027 ("[T]he content of discussions during contract negotiations appear to qualify [as evidence that can be considered at the first Yogman step]."). The city's email to plaintiffs falls into that category, and so we consider it to the extent that it provides insight into the circumstances underlying the letter agreement.

Read for that limited purpose, the email further articulates what is demonstrated by the text and context of the letter agreement itself, namely that (1) section 5 of the letter agreement entails only a nonbinding estimate of how much plaintiffs might receive from the city in SDC credits and (2) the parties understood that the city was not promising in the letter agreement to deviate from the city code with respect to the amount or method of SDC credit reimbursement. Indeed, the email put plaintiffs on notice that the city fully intended to adhere to the city code with respect to SDCs and SDC credits. In short, the email demonstrates that plaintiffs were aware before they signed the letter agreement that the city was not making any binding promises to reimburse plaintiffs for any particular amount of SDC credits, that the actual amount would be entirely dependent on calculations made by the city at a later date consistently with the city code, and that the total credits and the application of those credits would conform to the methodologies required by the city code.

With the foregoing in mind, we conclude that the trial court did not err in granting the city's motion for summary judgment on plaintiffs' breach of contract claim. In light of (1) the text of the letter agreement read in context, including the agreement's unambiguous invocation of the city code and (2) the circumstances underlying the agreement's formation, including the parties' respective positions and prior communications between the parties, the letter agreement unambiguously does not constitute a binding agreement by the city to deviate from the city code to reimburse plaintiffs for SDC credits that cannot be matched to like-kind SDCs. Thus, the trial court did not err in granting summary judgment to the city on plaintiffs' breach of contract claim.

B. Second Assignment of Error-Unjust Enrichment

We turn to whether the trial court erred when it granted summary judgment in the city's favor on plaintiffs' unjust enrichment claim. Oregon courts analyze claims for unjust enrichment under the methodology established by Larisa's Home Care, LLC v. Nichols-Shields , 362 Or. 115, 131-32, 404 P.3d 912 (2017). In that case, the Supreme Court directed that unjust enrichment claims should be decided on a " 'case-by-case basis.' " Hoag Living Trust v. Hoag , 292 Or. App. 34, 45, 424 P.3d 731 (2018) (quoting Larisa's Home Care, LLC , 362 Or. at 127, 404 P.3d 912 ). The court explained that "Oregon courts should examine the established legal categories of unjust enrichment as reflected in Oregon case law and other authorities to determine whether any particular enrichment is unjust." Larisa's Home Care, LLC , 362 Or. at 132, 404 P.3d 912.

Plaintiffs essentially argue that the parties intended for the city to reimburse all SDC credits in exchange for the bridge improvements and that, as a matter of equity, the trial court should require the city to do so even if (1) the contract is unambiguous and fails to capture that intent and (2) the city code prohibits the city from doing so. But, on appeal, plaintiffs have not identified any Oregon case or other legal authority that has classified that circumstance as an established category of unjust enrichment, and we are aware of none. For example, even if we assume that plaintiffs genuinely believed that they would be reimbursed for all SDC credits, nothing in the record suggests that that mistake was the result of fraud or misrepresentation by the city. Cf. id. at 133, 404 P.3d 912 ("At least one of plaintiff's allegations in this action falls squarely within the categories recognized by Oregon case law and treatises to involve unjust enrichment: plaintiff alleges that [defendant's estate] has been benefited by fraud." (Citing Restatement (Third) of Restitution & Unjust Enrichment § 13 comment a (2010).)).

As discussed, plaintiffs had notice of the city code provisions governing SDCs and SDC credits, and the relevant provisions of the letter agreement do not amount to a promise by the city to deviate from its code in any respect. Based on the summary judgment record, it is apparent that the city followed the city code in its dealings with plaintiffs and repeatedly informed plaintiffs that it would adhere to the code. The consequences flowing from the city's strict adherence to the code is not a basis for unjust enrichment. Thus, the trial court did not err when it granted summary judgment to the city on plaintiffs' unjust enrichment claim.

Affirmed on appeal; cross-appeal dismissed as moot.

      The city also brings what it captions as a cross-appeal, in which it assigns error to the trial court's denial of an earlier motion for summary judgment on the basis of claim preclusion. We do not address that assignment of error in light of our disposition.

      ORS 223.304(5)(a) provides, in relevant part, that "[t]he credit provided for in subsection (4) of this section is only for the improvement fee charged for the type of improvement being constructed."

      ORS 223.304(5)(c) provides:
      "When the construction of a qualified public improvement gives rise to a credit amount greater than the improvement fee that would otherwise be levied against the project receiving development approval, the excess credit may be applied against improvement fees that accrue in subsequent phases of the original development project. This subsection does not prohibit a local government from providing a greater credit, or from establishing a system providing for the transferability of credits, or from providing a credit for a capital improvement not identified in the plan and list adopted pursuant to ORS 223.309, or from providing a share of the cost of such improvement by other means, if a local government so chooses."

      At the time of the summary judgment ruling in this case, our courts analyzed claims for unjust enrichment based on the elements in Jaqua v. Nike, Inc. , 125 Or. App. 294, 298, 865 P.2d 442 (1993). In Jaqua , we described those elements as (1) a benefit conferred, (2) awareness by the recipient that it has received the benefit, and (3) it would be unjust to allow the recipient to retain the benefit without requiring the recipient to pay for the benefit. The trial court relied on Jaqua when it granted the city's motion. After entry of the judgment in the city's favor, in Larisa's Home Care, LLC , 362 Or. at 131, 404 P.3d 912, the Supreme Court rejected the Jaqua test because it concluded that the test was too vague and under-inclusive of the circumstances in which a plaintiff could establish unjust enrichment. The court then set out a new test to be used by Oregon courts. We rely on the Larisa's Home Care, LLC , test to resolve this appeal because, as a general rule, we determine if a trial court erred based on the law existing at the time of appeal and not as of the time that the trial court made its ruling. See State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002) ("Error, in general, must be determined by the law existing at the time the appeal is decided, and not as of the time of trial.").


author: DeVORE, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Darold Jeffrey HAWS, Defendant-Appellant.
    A164522
    Court of Appeals of Oregon.
    Argued and submitted January 7, 2019. June 5, 2019
    Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

Defendant appeals a judgment of conviction for several offenses, including fourth-degree assault constituting domestic violence, ORS 163.160(3), and first-degree burglary constituting domestic violence, ORS 164.225. In his first of three assignments of error, defendant contends that the trial court erred in refusing to provide a special jury instruction defining "substantial pain" in relation to the assault charge. Next, he disputes the court's denial of his motion to exclude evidence. Finally, he assigns error to the court's instruction that the jury could reach a nonunanimous verdict. As to the first issue, we agree that defendant was entitled to a jury instruction that "fleeting" pain is not substantial, and we conclude that the failure to give the instruction was not harmless. We reject defendant's other assignments of error without discussion. As we will explain, we reverse and remand as to assault and burglary and remand for resentencing; otherwise, we affirm.

"In reviewing the trial court's refusal to give a requested instruction, we view the record in the light most favorable to establishment of the facts necessary to require that instruction." State v. Egeland , 260 Or. App. 741, 742, 320 P.3d 657 (2014) (citing State v. Black , 208 Or. App. 719, 721, 145 P.3d 367 (2006) ). We recount the facts in light of that standard.

In the course of a domestic dispute, defendant grabbed the victim, shook her, and struck her in the head with his hand. During the dispute, a screwdriver from defendant's pocket pressed into the victim's abdomen. Several people witnessed the attack, including the victim's six-year-old child. The victim obtained a restraining order against defendant the day after the incident, but she terminated it two weeks later.

Defendant was charged with nine offenses, including assault, burglary, and strangulation. At trial, the state called two witnesses who saw defendant attack the victim. Both recalled him "choking" and hitting her. One claimed to have observed defendant "punching" the victim in the head, but the other said that she "couldn't really tell" whether he used an "open hand" or a "[c]losed" fist. One witness said that defendant "push[ed]" a screwdriver into the victim's side. Neither witness observed the victim crying, and the victim did not appear to be holding her head or throat as if either hurt.

Two police officers testified. The responding officer recalled talking to the victim at the scene of the incident. According to that officer, the victim reported defendant having "placed his hands around her neck" for "about five to ten seconds" and having "slapped her once in the face[.]" An investigating officer recalled meeting with the victim five days later. At that time, the victim said that her throat had been sore. She rated her pain on a scale of one-to-10, indicating that it was a "two" on the night of the attack and a "six" the next day. The victim said that her pain persisted for two days and that her neck "was still hurting," but not as much as before.

On the witness stand, the victim acknowledged that she and defendant had argued, but she generally disagreed with or denied the state's characterizations of defendant's aggression, her fear, and her injuries. The state asked the victim whether she had told police that defendant had "placed both of his hands around [her] neck[,]" whether she said that defendant "slapped [her] on the left side of [her] face[,]" and whether she remembered saying that "defendant grabbed a screwdriver, was jabbing it into [her] left side near [her] stomach which later caused a bruise[.]" The victim replied that defendant shook her rather than strangled her and that he may have grabbed her by her shoulders instead of the neck. The victim said that she "never felt any strike marks" and did not believe that, amidst the commotion, she had been punched. The victim said that defendant had not pushed the screwdriver into her side but, rather, the screwdriver fell out of defendant's pocket and "poked" her during a "scuffle." The victim confirmed that she had rated her neck pain on a 10-point scale, but then claimed that, in actuality, her neck "was not sore at all," and she was merely conveying to officers that her neck had "tensed up."

The state introduced evidence to impeach the victim's testimony. That included photographs depicting bruises and red marks on the victim's neck, face, and abdomen, as well as call records and text messages between the victim and defendant. The state also presented the victim's petition for a restraining order, from which it read into the record a violent description of the incident of abuse that contradicted the victim's testimony.

In response, the victim testified that she had previously exaggerated defendant's conduct. She said that she felt compelled to petition for a restraining order against defendant because she was afraid that, had she not done so, the state may have taken custody of her child. The victim also said that she did not want to press charges, but officials assured her that doing so would ensure that defendant received needed substance abuse treatment. She explained, "He just needs help."

After the testimony concluded, the court and counsel reviewed proposed jury instructions. As to the assault charge, the parties agreed to use uniform jury instructions that, in relevant part, instructed that the state must prove that defendant caused "physical injury" to the victim, and defining physical injury as "an injury that impairs a person's physical condition or causes substantial pain." In addition, defendant requested a special instruction:

"Substantial pain means considerable pain. The term substantial pain refers to the degree and duration of pain suffered by the victim. To be substantial, pain must be ample or considerable. The requirement excludes pain that is fleeting or inconsequential."

The state opposed the special instruction, contending that the uniform instruction for physical injury was sufficient. Defendant argued that his instruction would clarify a word within the uniform instruction. The court denied defendant's request, recommending that, if counsel wanted to include the additional language, she submit it for consideration to the committee tasked with writing uniform jury instructions.

The parties' closing arguments resembled their approach to the jury instructions. As to the assault charge, the state argued that defendant had attacked the victim, strangled her, and shaken her, as evidenced in witness testimony and photographs of the victim's injuries. The state discussed the evidence of the strangulation and the victim's pain:

"[Defendant] put both his hands around her throat, strangled her[.] * * * [S]he didn't want to tell you it occurred or that she had any trouble breathing or swallowing, but she did tell officers that, and she rated her pain a two that night and then said that it was a six or seven two days after that. It was still painful when officers saw her on May 3rd.
"Whether or not there was petechiae present * * * he strangled her[.]"

In his argument, defendant distinguished lesser contact, arguing that the state had failed to prove that he caused a physical injury:

"Going to the Assault IV, what happened? There are all kinds of charges that could have been in (inaudible) here and that could have been brought here. Harassment, which is offensive physical contact. It's intended to be less than an assault, like spitting on someone, slapping someone across the face, giving them a shove, not nice contact. They didn't charge that. They charged assault. Assault is a specific crime meaning that you caused substantial pain or impairment of physical condition.
"Now, [the victim] says she was slapped. [A witness] says she was punched three times in the face by a pretty good sized guy and that her head moved to the side each time he punched her in the face with a closed fist. And there's no evidence of any pain. There's no evidence of any injury. I would suggest to you that slap is probably what he did. It's a terrible thing. If they charged harassment, I wouldn't-I'd be telling you the same thing I told you on the criminal mischief charge. That's what he did. That's what you should find him guilty of. * * *
"If you find that she didn't suffer substantial pain from his punching her, then that's not assault. And when I think about substantial pain, well, substantial, that's a lot. It's not something mild. It's substantial pain. It's not-They don't say just pain, and they really don't say discomfort. They say substantial pain, a lot of pain."

In rebuttal, the state still did not explicitly choose a particular theory of assault. It underscored that defendant "strangled" the victim, "slapped her in the face," "punched her in her head," and "jabbed a screwdriver into her side," and it cited the photographs and the victim's neck soreness as evidence of substantial pain.

The jury ultimately found defendant guilty of five offenses, including fourth-degree assault constituting domestic violence and first-degree burglary constituting domestic violence. The burglary offense was predicated upon defendant entering or remaining in the residence with the intent to commit assault.

On appeal, defendant challenges the trial court's refusal to give the special jury instruction defining substantial pain. He argues that the instruction would have helped the jury by explaining that the term "substantial" refers to the degree and the duration of pain. Defendant contends that the instruction is necessary whenever evidence supports the inference that the victim suffered only fleeting pain. He argues that such evidence existed here, suggesting that the victim was slapped, shaken, and inadvertently poked, rather than punched, choked, and deliberately jabbed.

The state argues that the instruction was unnecessary because the evidence raised no question as to whether the victim's pain was merely fleeting. Also, the state argues that defendant failed to demonstrate that the instruction would have supported his theory of the case, because defendant gave no opening argument, presented no evidence, and otherwise failed to make known any theory of insubstantial pain. Finally, the state argues that any error was harmless because the case presented the jury only a choice between substantial pain or no pain at all.

We review a trial court's refusal to give a requested jury instruction for legal error. Egeland , 260 Or. App. at 742, 320 P.3d 657.

Generally, a "criminal defendant is entitled to have the jury instructed in accordance with his or her theory of the case if the instruction correctly states the law and there is evidence to support giving it." State v. Roberts , 293 Or. App. 340, 341, 427 P.3d 1130 (2018) (quoting State v. McNally , 361 Or. 314, 320, 392 P.3d 721 (2017) ). A trial court has the obligation to "state to the jury all matters of law necessary for its information in giving its verdict." ORCP 59 B; ORS 136.330 (extending ORCP 59 B to criminal trials). However, a trial court may refuse a request for an instruction when its substance is "covered fully by other jury instructions given" or when the instruction is "not necessary * * * to explain the particular issue or point of law to the jury." State v. Harryman , 277 Or. App. 346, 356, 371 P.3d 1213, rev. den. , 360 Or. 401, 381 P.3d 843 (2016) (quoting Hernandez v. Barbo Machinery Co. , 327 Or. 99, 106, 957 P.2d 147 (1998) ).

We begin by considering whether the instruction that defendant sought correctly stated the law. Recently, in Roberts , we answered that question in the affirmative when considering a jury instruction nearly identical to that which defendant requested. We determined that our case law supports the assertion that "substantial" refers to both the degree of pain, which must be "ample" or "considerable," as well as the duration, which cannot be "fleeting." Roberts , 293 Or. App. at 345, 427 P.3d 1130 (citing State v. Long , 286 Or. App. 334, 340-41, 399 P.3d 1063 (2017) and State v. Guzman , 276 Or. App. 208, 212, 366 P.3d 816 (2016) ). As in that case, defendant's instruction here is legally correct.

We next consider whether the record contained evidence to support defendant's theory that the victim suffered only "fleeting" or "insubstantial" pain. That is, we ask whether the issue of duration was before the jury. We conclude that it was. Some testimony suggested that the victim showed no symptoms of pain immediately after the incident, much less days later. The victim said that she "never felt any strike marks." She disputed the soreness in her neck and said that she merely meant it had "tensed up" when she indicated that it had increased on a ten-point scale. Witnesses to the attack testified that they had not seen the victim crying or acting like she was in pain. The state also offered evidence of multiple means of injury that could be associated with pain of varying durations. Some evidence suggested that defendant slapped the victim, but never punched, choked, jabbed, or otherwise engaged in conduct that would cause pain that was more than fleeting. An observer said that defendant may have used an open hand to strike the victim, the responding officer reported that defendant "slapped" the victim once in the face, and the victim said that she did not believe that she had been punched. The victim also denied other aggression. She claimed that defendant only shook her, possibly by the shoulders, and that the screwdriver "poked" her inadvertently during a "scuffle."

From that evidence, a factfinder could conclude that the state failed to prove beyond a reasonable doubt that the victim suffered anything but momentary pain. See, e.g. , id. (a factfinder could conclude, from testimony that a mark on the victim's face may have come from a "very minor injury" that would not cause substantial pain, that the victim had not suffered substantial pain from a slap, "perhaps based on the understanding that pain associated with the slap was transitory"); State v. Johnson , 275 Or. App. 468, 469-70, 364 P.3d 353 (2015), rev. den. , 358 Or. 833, 370 P.3d 504 (2016) (evidence that the victim felt a "sting" when the defendant slapped her was insufficient to support a finding of substantial pain). At least some evidence raised the issue of duration and supported defendant's requested instruction.

The related question is whether the requested instruction was unnecessary. In Roberts , we concluded that a special instruction was necessary when the record contained evidence from which a factfinder could infer that the victim's pain was "fleeting," and when other instructions failed to fully cover that substance. 293 Or. App. at 348-49, 427 P.3d 1130. In that case, the parties agreed to the same uniform jury instructions on physical injury as given here. Id. at 343, 427 P.3d 1130. We determined that it was unnecessary to further instruct jurors on the definition of "substantial" insofar as it described the degree of pain, as the word "commonly is understood to include concepts like 'ample,' 'considerable,'

and not 'inconsequential,' " and simply supplying "common synonyms or antonyms" would "not change the meaning of the term." Id. at 347, 427 P.3d 1130. In a qualitative sense, such additional language about the degree of pain provided nothing new.

We concluded, however, that an instruction telling the jury that "substantial" encompasses a durational component-that the pain cannot be only momentary-was required under the circumstances. Id. at 347-49, 427 P.3d 1130. We reasoned that it was "unlikely that jurors would understand, without further instruction, that even pain that is significant in degree generally is not 'substantial pain'-at least, not for purposes of the element of 'physical injury'-if it is only fleeting, i.e. , not substantial in duration ." Id. at 347, 427 P.3d 1130 (emphasis in original). The uniform jury instruction on physical injury did not adequately address that particular point, and, as a result, further instruction was necessary. Id. at 348-49, 427 P.3d 1130.

Likewise, here, the durational component of defendant's requested instruction was necessary. This case involves the same uniform instructions on physical injury and a request for a nearly identical instruction on substantial pain as in Roberts . Because the record supports an inference that the victim suffered pain that was only momentary, it was necessary to instruct the jury that pain cannot be substantial if it is fleeting. The trial court erred in refusing to give defendant's requested instruction.

For a different reason, the state insists that the special instruction was still unnecessary. The state argues that defendant was not entitled to the instruction because he failed to establish that his theory of the case was that the victim had pain that was only fleeting. Although the state is correct that, in Roberts , it was the defendant who offered the evidence that supported the jury instruction, nothing required that to be so; the evidence could have just as easily come from the state. After all, criminal defendants bear no burden of proving their innocence. See, e.g. , ORS 10.095(6) ("[I]n criminal cases a person is innocent of a crime or wrong until the prosecution proves otherwise, and guilt shall be established beyond reasonable doubt[.]"). Simply put, Roberts stands for the proposition that a defendant is entitled to an instruction defining the durational component of substantial pain when the record supports it and when other instructions fail to fully cover that concept. From our review of the proceedings, we are satisfied that defendant sufficiently raised his theory.

Our inquiry does not end with the conclusion that the trial court erred in refusing to give defendant's requested instruction. "Instructional error, like any other error, does not justify reversal unless the error was prejudicial." Roberts , 293 Or. App. at 349, 427 P.3d 1130 (quoting State v. Guckert , 260 Or. App. 50, 60, 316 P.3d 373 (2013), rev. den. , 354 Or. 840, 326 P.3d 77 (2014) ). Accordingly, we will affirm a judgment despite the trial court's failure to give the requested instruction if little likelihood exists that the error affected the verdict. State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003) (describing the standard, under Article VII (Amended), section 3, of the Oregon Constitution). The focus of our inquiry "is on the possible influence of the error on the verdict rendered, not whether this court, sitting as factfinder, would regard the evidence of guilt as substantial and compelling." Id . We ask whether the instructional error could have "created an erroneous impression of the law in the minds of the jurors which affected the outcome of the case." Egeland , 260 Or. App. at 746, 320 P.3d 657.

In the first of two arguments, the state contends that the court's failure to give the substantial pain instruction was harmless because the record would not have supported the jury finding that defendant caused any pain without also finding that pain to be substantial. The state argues that, because the jury found that the victim experienced pain, it necessarily found that pain to be substantial. The state claims that evidence of the victim's persistent and worsening neck pain was undisputed and, based on that record, the substantial pain instruction would not have made a difference in the jury's deliberations.

We disagree. We are unable to discern whether the jury relied on evidence of the victim's neck soreness to conclude that defendant caused substantial pain. Although the victim acknowledged that she had rated her pain days after the incident, she disputed the meaning of that rating, explaining that she merely meant that her neck had "tensed up." Accepting the victim's dismissive explanation, the jury still could have convicted defendant, despite the victim's account of insubstantial neck pain. Indeed, at trial, the state alleged multiple types of aggression, including defendant punching the victim, slapping the victim, jabbing the victim with a screwdriver, and grabbing the victim by the throat. The state proffered evidence of all of those things; that evidence included photographs of the victim's injuries and testimony discussing injuries associated with each act. The state presented multiple acts and injuries that occurred and that each could constitute assault. We cannot presume that the jury necessarily found that defendant grabbed and hurt the victim's neck, as opposed to finding that he slapped her face, when it found him guilty of assault. Thus, it is unclear what particular evidence ultimately persuaded the jury and whether that evidence could not have been associated with fleeting pain.

Under these circumstances, we cannot conclude that the instructional error was harmless. With proper instruction, the jury would have known that a slap causing fleeting pain is legally insufficient. Absent such guidance, the jury may have operated with an erroneous impression of what constitutes substantial pain and a physical injury, and that understanding may well have affected the outcome as to the assault count.

In its second argument, the state argues that the court's failure to give the instruction was harmless because defendant's closing argument focused on the victim having no pain, as opposed to some fleeting pain. Again, we disagree. Defendant's strategy on the assault charge focused on challenging whether the victim's pain was substantial. Defendant claimed that "there [was] no evidence of any pain" as a means for showing that "a slap is probably what [defendant] did." Defendant cited the absence of pain after the attack to demonstrate that he did not engage in the type of conduct that could cause the pain necessary to constitute a physical injury for an assault. His argument that he slapped the victim suggested that the victim's pain was transitory. Consequently, an instruction on the durational component of substantial pain may have been helpful to the jury in determining whether the victim sustained a physical injury. For both reasons, we cannot conclude that the court's failure to provide the requested instruction had little likelihood of affecting the verdict.

Because the instructional error was not harmless with respect to the assault conviction, it follows that the error may have affected the burglary verdict. To prove first-degree burglary constituting domestic violence, the state had to show that defendant knowingly entered or remained unlawfully in the residence where the attack occurred with the intent to commit the assault . If the jury had found that defendant engaged in conduct that caused only fleeting pain to the victim, that could have affected its finding that defendant intended to commit assault when entering or remaining in the residence in the first instance. For that reason, our conclusion as to the assault verdict requires reversal of the burglary verdict, as well.

In sum, defendant was entitled to an instruction telling the jury that, to find a physical injury for an assault charge, the jury must find the pain to be substantial in duration, that is, not fleeting. No other instruction adequately covered that substance. The instructional error was not harmless, and reversal is required for the two offenses, directly or indirectly, pertaining to physical injury.

Judgment of conviction on Counts 1 and 4 reversed and remanded; remanded for resentencing; otherwise affirmed.

      After the initial briefing was complete, defendant filed a supplemental brief that included supplemental assignments of error raising as plain error the trial court's instructions to the jury that it could return nonunanimous verdicts. Defendant contends that the Sixth and Fourteenth Amendments to the United States Constitution require unanimous jury verdicts. We reject those arguments on the merits without further discussion.

      The jury also convicted defendant of three other offenses: felony strangulation, ORS 163.187(4) ; unlawful possession of methamphetamine, ORS 475.894 ; and second-degree criminal mischief, ORS 164.354.

      The instruction in Roberts stated: "Substantial pain encompasses both the degree and duration of pain suffered by the victim. Fleeting pain is insufficient. * * * To be substantial, the pain must be ample or considerable and not fleeting or inconsequential." 293 Or. App. at 343, 427 P.3d 1130.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Shane David MICKLEY, Defendant-Appellant.
    A165034
    Court of Appeals of Oregon.
    Submitted March 6, 2019. July 24, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
   PER CURIAM

Defendant was convicted of unlawful delivery of methamphetamine within 1,000 feet of a school, ORS 475.892 (Count 1); unlawful delivery of methamphetamine, ORS 475.890 (Count 2); and unlawful possession of methamphetamine, ORS 475.894 (Count 3). The jury additionally found that Counts 2 and 3 involved substantial quantities of the drug. We reject defendant's first assignment of error without discussion. In his second assignment, defendant argues that the trial court erred in failing to merge the guilty verdict on Count 1 with the guilty verdict on Count 2. The state concedes that the trial court committed plain error.

We accept the state's concession that the trial court erred in failing to merge the guilty verdicts. See State v. Rodriguez-Gomez , 242 Or. App. 567, 568, 256 P.3d 169 (2011) (concluding that delivery of methamphetamine within 1,000 feet of a school merges with delivery of methamphetamine); State v. Unger , 276 Or. App. 445, 450-51, 368 P.3d 37 (2016) (explaining that the substantial-quantity subcategory factor is not an element of a crime). Furthermore, we agree that the error is plain. See Unger , 276 Or. App. at 449-52, 368 P.3d 37 (concluding that the trial court plainly erred in failing to merge the guilty verdicts for manufacture of cocaine and manufacture of cocaine involving a substantial quantity); State v. Villarreal , 266 Or. App. 699, 700, 338 P.3d 801 (2014) (concluding that the trial court plainly erred in failing to merge convictions for delivery of cocaine within 1,000 feet of a school and delivery of cocaine). Finally, for the reasons stated in Unger , we conclude that it is appropriate to exercise our discretion to correct the error. 276 Or. App. at 451-52, 368 P.3d 37.

Convictions on Counts 1 and 2 reversed and remanded for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine within 1,000 feet of a school; remanded for resentencing; otherwise affirmed.

      Defendant argues that the error was properly preserved before the trial court and, in the alternative, that the error is plain. However, we need not decide whether the error was preserved in light of our conclusion that the error is plain.


text:
    In the MATTER OF the MARRIAGE OF Natalee Kathryn BUSH, Petitioner-Appellant, and Jason Everett Bush, Respondent-Respondent.
    A165323
    Court of Appeals of Oregon.
    Argued and submitted March 14, 2019. May 22, 2019
    Edmund J. Spinney argued the cause and filed the briefs for appellant.
    George W. Kelly, Eugene, argued the cause and filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   AOYAGI, J., Wife appeals a supplemental judgment modifying a general judgment of dissolution. In her first assignment of error, wife challenges the trial court's calculation of child support, specifically as related to husband's employment income and the parties' child care costs. In her second assignment of error, wife challenges the trial court's establishment of a 50/50 parenting plan. We reject the second assignment of error without written discussion. As to the first assignment of error, we exercise our discretion to review de novo the factual issue of how much income husband receives from employment and, having done so, reverse and remand for recalculation of child support in light of our finding on that issue. Otherwise, we affirm.

Given our disposition, the relevant facts are minimal and largely procedural. The parties married in 2008. They have two young children together. In 2015, the court entered a general judgment of dissolution. The child support award included in the general judgment reflected both parents' lack of employment. A little over a year later, wife moved to modify custody, the parenting plan, and child support. By the time she filed that motion, both parties were employed. Although custody and the parenting plan were the most hotly contested issues at trial, we limit our discussion of the record to summarizing the evidence regarding husband's income from employment, as relevant to child support.

On the day of trial, husband filed a Uniform Support Declaration (USD), using a form document with checkboxes and blank spaces, in which he provided information about his income. With respect to income from employment, husband stated on the second page of his USD that he earned $14.50 per hour, was paid twice monthly, and worked 32 hours per pay period. Husband also provided copies of his four most recent paystubs, which were attached to his USD.

At trial, husband testified about his income from employment. During direct examination, husband answered affirmatively when asked whether he was "adopt[ing] the figures contained [in his USD] as [his] testimony regarding [his] income." Notwithstanding that general adoption of the figures in the USD, however, husband was asked and answered specific questions about his income on both direct examination and cross-examination. He testified that he earned $14.50 per hour. He testified that he worked four days a week "from 7:30 to 4:00." He testified that he had previously worked five days a week but had stopped working on Saturdays to have more time with the children. He affirmed that the paystubs attached to his USD accurately reflected his work hours and how much he was paid. In that context, husband made a point of testifying that the most recent paystub attached to his USD-which recorded 62.67 hours worked-was a "more realistic representation" of his work hours than the other paystubs (some of which were higher and some of which were lower) and was "about the average amount" that he worked.

Ultimately, the trial court ruled that it would modify custody, the parenting plan, and child support. With respect to child support, the court stated in its written order that child support "shall be calculated based on the guidelines utilizing the new parenting plan and the parties' respective incomes as stated in their uniform support declarations." Husband filed a proposed supplemental judgment consistent with that order. Wife objected, arguing, among other things, that the child support calculation was incorrect. The trial court signed and entered the proposed judgment.

On appeal, wife challenges several aspects of the judgment. As already noted, however, we write only to address part of wife's first assignment of error. Specifically, we exercise our discretion under ORS 19.415(3) to review de novo how much employment income should be attributed to husband for purposes of calculating child support. We agree that de novo review is appropriate on that limited fact issue.

Two considerations lead us to exercise our discretion in that manner. First, although husband summarily stated at trial that he was adopting his USD figures as his testimony about income, husband more specifically testified that the paystubs attached to his USD accurately reflected how much he worked, and, during his sworn trial testimony, he answered specific questions about his rate of pay and average weekly hours. On this record, we are convinced that husband's income calculation on the second page of his USD reflects a simple mistake: having been asked how many hours he works in a pay period , husband answered with how many hours he works in a week . The trial court's subsequent decision to calculate child support based on the USD does not comport with husband's own uncontroverted testimony or the uncontroverted paystubs attached to his USD. See ORAP 5.40(8)(d)(ii). Second, the factual issue was important to the trial court's ruling on child support, and our determination of the fact regarding husband's income in wife's favor "would likely provide a basis for reversing or modifying the trial court's ruling." ORAP 5.40(8)(d)(iv). Wife concedes that the second page of the USD provides some evidence to support the trial court's ruling on child support and that, absent de novo review, she would be unable to obtain relief on appeal. See Kaptur and Kaptur , 256 Or. App. 591, 596 n. 2, 302 P.3d 819 (2013) (in a domestic relations case, absent de novo review, we review the trial court's factual findings to determine whether they are supported by any evidence). Although we exercise our discretion to review de novo only in exceptional cases, ORAP 5.40(8)(c), "a lower court's reliance on a crucial finding that does not comport with the evidence in the record can be a reason to exercise our discretion." Morgan and Morgan , 269 Or. App. 156, 159, 344 P.3d 81 (2015) (internal quotation marks omitted). This is such a case, with respect to the limited issue of husband's income from employment as relevant to calculating child support.

Turning to the factual issue, we rely on husband's testimony at trial and his paystubs-rather than the second page of his USD-in making our finding regarding husband's employment income. Husband's trial testimony was given under oath and is consistent with the paystubs attached to his USD, which he attested were accurate. Husband does not work the exact same number of hours every week, so the evidence allows some leeway in terms of a specific finding on his income from employment. Based on the record as a whole, however, we find that husband works 32 hours per week, at a rate of $14.50 per hour, with resulting income from employment of $2,010.67 per month. See OAR 137-050-0715(9) (regarding calculation of "monthly income"). That is the figure that should be used as husband's income from employment for purposes of calculating child support. We note that that finding does not depend on any demeanor-based credibility assessment. The only relevant evidence regarding husband's employment income came from husband himself. All of that evidence was consistent, except for the second page of his USD, which, on this record, it is apparent contains an error.

Reversed and remanded for recalculation of child support; otherwise affirmed.

      Our decision does not affect other aspects of husband's income calculation, such as the calculation of his veterans' benefits, or any other aspects of the child support calculation.

      On appeal, husband has not offered any plausible explanation for the discrepancy between his testimony and paystubs and the second page of his USD. He simply urges us not to take de novo review and then to affirm because the USD provides some evidence for the trial court's ruling. Alternatively, he argues that the issue is unpreserved. We are unpersuaded by either argument.