author: SHORR, J.

text:
    Sherman HAMMOND, Plaintiff-Appellant, Cross-Respondent, v. Michael Coleman HAMMOND, Defendant-Respondent, Cross-Appellant.
    A162225
    Court of Appeals of Oregon.
    Argued and submitted September 8, 2017. February 27, 2019
    Eugene V. Anderson, Medford, argued the cause for appellant-cross-respondent. Also on the briefs was Davis, Hearn, Anderson & Turner.
    Robert M. Stone, Medford, argued the cause and filed the briefs for respondent-cross-appellant.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Plaintiff Sherman Hammond and defendant Michael Hammond are brothers who have been litigating over a 49-acre piece of real property in Jackson County since 2009. Defendant lives on the subject property, known as Jackson County Tax Lot 800, and plaintiff lives on an adjacent lot. In a previous case that was twice before this court, it was determined that plaintiff holds title in fee simple to Tax Lot 800. After the decision in that case became final, plaintiff initiated this litigation by filing a claim for ejectment. Defendant responded with a counterclaim for adverse possession and raised a statute of limitations defense. After a bench trial, the trial court entered a general judgment denying both plaintiff's and defendant's claims. The trial court ruled that defendant had not established the boundaries of the property he claimed to have adversely possessed, but found that the 10-year statute of limitations barred plaintiff's claim for ejectment. Plaintiff appeals from the judgment, assigning error to the trial court's ruling that the statute of limitations barred his claim of ejectment. Defendant cross-appeals from the same judgment, assigning error to the trial court's denial of his claim of adverse possession. For the following reasons, we affirm the trial court's denial of plaintiff's claim for ejectment as barred by the statute of limitations, and we also affirm the trial court's denial of defendant's claim for adverse possession.

Because plaintiff's ejectment claim is an action at law, Spears v. Dizick , 235 Or. App. 594, 598, 234 P.3d 1037 (2010), with respect to plaintiff's appeal, we review the trial court's factual findings for any competent evidence to support those findings and its legal conclusions for legal error. McIntyre v. Photinos , 175 Or. App. 478, 482, 28 P.3d 1259 (2001).

Because defendant's adverse possession claim is in equity, id. at 482-83, 28 P.3d 1259, we have discretion to review the trial court's findings of fact de novo . ORS 19.415(3)(b). However, de novo review is generally disfavored and is reserved only for "exceptional cases." ORAP 5.40(8)(c). Defendant requests that we exercise our discretion to review de novo because "the trial court's decision does not comport with uncontroverted evidence in the record." We disagree and decline to take de novo review. Instead, we accept the trial court's findings of fact that are supported by the evidence and review for legal error whether those facts establish the elements of the parties' claims. Sea River Properties, LLC v. Parks , 355 Or. 831, 855, 333 P.3d 295 (2014). We state the following facts consistently with that standard.

The parties' parents originally purchased Tax Lot 800 in 1946 and lived in a home near the southwest corner of the lot. Defendant moved onto Tax Lot 800 around 1973 and has lived in various houses and trailers in the northeast and southwest quadrants of the lot since that time. The parties' other brother, Jerry Hammond, has also lived on Tax Lot 800 in a house on the western side of the lot since 1976. Plaintiff resides on Tax Lot 600-a 43-acre lot immediately south of Tax Lot 800-which he purchased in 1972 and has lived on since 1975.

In 1985, after the death of the parties' father, the parties' mother deeded Tax Lot 800 to plaintiff. Since 1985, plaintiff has paid the property taxes for Tax Lot 800. Plaintiff also performed maintenance on the property, such as brush clearing and mowing, though it is not clear when and where on the property this maintenance occurred. Sometime in 1996 or 1997, defendant moved into his mother's house at his mother's invitation, to provide care for her.

The parties' mother died on October 8, 2001. A few days later, defendant encountered plaintiff outside of a memorial service for their mother and "threw at him" a copy of their mother's will, stating in effect that he was doing so "pursuant to instructions from their mother." The will purported to divide Tax Lot 800 into "four equal parts," and it gave defendant two of the quarters. The will stated, in relevant part:

"I am dividing my realestate [sic ] into four equal parts. Myself controlling one part and each of my three sons controlling one part. [M]aking up a total of four parts. To my son Michael Coleman I leave the fourth of realestate where he now lives (North east quarter) and my quarter where my house sits. (Southwest quarter) I leave my entire house and out buildings and entire contents and all my automobile [i]nterests for being my care-giver for all these years......to my son Michael Coleman........"

The will also purported to give plaintiff the southeast quarter of Tax Lot 800 and "legal control" over the northwest quarter, while Jerry and his wife would receive only "the right to pass to and from where he now lives and the blessing of living there for life." While some other personal property is mentioned in the will-namely, the house and its contents, outbuildings, and automobile interests that were to go to defendant-the vast majority of the nine-page document is intended to divide and devise Tax Lot 800.

The parties had no further direct communication about the will until 2009. Plaintiff discussed the will with his wife, and plaintiff testified that he became aware that defendant claimed an ownership interest in Tax Lot 800 in 2001, when he read the will. Plaintiff and his attorney engaged in the following colloquy at trial:

"Q. Until the septic incident in 2003/2004, did you have any idea that [defendant] was claiming some kind of ownership interest in the property?
"A. The only kind that I saw was on the will.
"Q. Okay.
"A. If that was a claim, I guess.
"* * * * *
"Q. And when was the first time that you saw this will that got entered into the probate case?
"A. I think the day after she-my mom died, or the second day."

Plaintiff's attorney posed the same question to plaintiff's wife, and she gave a similar answer:

"Q. * * * [D]id you ever discuss with [plaintiff] the fact that [defendant] was making a claim of ownership of tax lot 800?
"A. Yes. Probably, yeah.
"Q. And when did that issue first arise, the issue being [defendant] claiming an ownership interest in the real property?
"A. I suppose when we saw the will."

Meanwhile, defendant continued to live in his mother's home on Tax Lot 800 after her death. He began to accumulate large quantities of "junk" around the house. Eventually the accumulation became so great that it blocked the access road to plaintiff's and Jerry's houses. Plaintiff and his wife asked defendant on a number of occasions to remove or organize the "junk," but the condition of the property where defendant lived only worsened. Jerry testified that, because of the block in the road, he had not been to the part of the property where defendant lived since 2002. Plaintiff's wife testified that she stopped going to that part of Tax Lot 800 because she felt intimidated by defendant.

Beginning around 2002, defendant paid plaintiff's wife $ 50 per month for 14 months. The parties never referred to these payments as "rent," and defendant could not say what the money was used for. Plaintiff's wife testified that the money was used for past-due bills that had accumulated since the death of the parties' mother.

In 2003 or 2004, plaintiff discovered a man digging up a septic tank on Tax Lot 800. Plaintiff discovered that defendant had told the man that defendant owned the land and authorized the man to dig up the tank. Defendant continued to live in his mother's house until 2011, when the water was shut off. At that point, defendant moved into a trailer approximately 70 to 100 yards from the house, "[v]ery near the property line."

In March 2009, defendant sought to probate his mother's will. In the course of that litigation, it was ultimately decided that the 1985 deed gave Tax Lot 800 to plaintiff as an inter vivos gift with a delayed right of enjoyment, and thus the devise to defendant in the will had no effect. After that decision became final in 2014, plaintiff filed this action for ejectment. As noted, defendant asserted a statute of limitations affirmative defense and a counterclaim for adverse possession.

After a bench trial, the trial court issued a letter opinion, ruling that defendant had proved adverse possession of "the property" and that plaintiff's claim for ejectment was barred by the statute of limitations in ORS 12.050. Then, upon plaintiff's motion for reconsideration, the trial court issued a second letter opinion in which it reversed its decision on defendant's counterclaim for adverse possession. The trial court determined that defendant had failed to establish the boundaries of the land he claimed to possess, and that the court would be required to "guess at setting the boundary lines." The court observed that defendant's claim at trial appeared to be coextensive with the gift in his mother's will:

"[H]e appeared to maintain that the property he was claiming by adverse possession was coextensive with the portion of the property that was bequeathed to him in his mother's will. Although the contents of the will were relevant on the narrow issue of notice, and this is the case only because a copy of it was provided to Plaintiff, the will has no relevance on the issue of exclusive possession. It might have been relevant if, for example, Defendant had testified that he tried to keep everybody out of the area within Tax Lot 800 his mother attempted to give him in her will, but he did not provide such testimony."

Moreover, the trial court found that defendant had not overcome evidence that plaintiff regularly maintained Tax Lot 800. The trial court explained that defendant's failure to address this evidence precluded a finding that defendant had exclusively possessed Tax Lot 800.

As for plaintiff's ejectment claim, on reconsideration, the trial court reaffirmed its ruling that the statute of limitations had run. The court reasoned as follows:

"[A]fter listening again to Plaintiff's testimony, I heard him very clearly say that when he was investigating Defendant having authorized a neighbor to dig up the septic system on the property, the neighbor justified his actions by stating '[defendant] said that he owned the property.' This is an additional finding I make further supporting that Plaintiff was on notice more than ten (10) years prior to filing his ejectment claim that Defendant was asserting an ownership interest in the property."

The trial court then entered a general judgment denying both plaintiff's and defendant's claims. Plaintiff now appeals from the general judgment. Defendant cross-appeals from the same judgment.

We begin with defendant's cross-appeal. Defendant assigns error to the trial court's denial of his adverse possession claim, arguing that the court erred in concluding that defendant failed to establish the boundaries of the property that he claimed to have adversely possessed. Defendant argues that his mother's will and the trial testimony regarding his use of the property was sufficient to establish that defendant adversely possessed a portion of the southwest corner of Tax Lot 800 "at minimum from a point beginning at the point where the road was purposely blocked and continuing to the property line and to Elk Creek Road." In response, plaintiff argues that defendant never pleaded that he claimed only a portion of the property, and that the trial court correctly concluded that defendant offered no evidence of the boundary lines of the geographic area he claimed.

To establish adverse possession, a claimant must show by clear and convincing evidence that his or her use of the property-or that of a predecessor in interest-was "actual, open, notorious, exclusive, hostile, and continuous" for a period of 10 years, that the claimant had an "honest belief" that he or she was the actual owner of the property throughout the vesting period, and that that belief was objective and reasonable under the circumstances. ORS 105.620 ; Case v. Burton , 250 Or. App. 14, 22-23, 279 P.3d 259 (2012) (stating the legal standard for adverse possession and explaining the common law and statutory background of the doctrine). That includes proving by clear and convincing evidence the boundaries of the property adversely used. Case , 250 Or. App. at 23, 279 P.3d 259. The clear and convincing evidence standard is a heavy burden for a claimant to meet, as it requires "proof that is 'free from confusion, fully intelligible, distinct' and that establishes the truth of the asserted fact is 'highly probable.' " Stonier v. Kronenberger , 230 Or. App. 11, 18, 214 P.3d 41 (2009) (quoting Shields v. Villareal , 177 Or. App. 687, 693-94, 33 P.3d 1032 (2001) ). Here, the trial court found that defendant did not sufficiently identify the area of adversely possessed property. Because, as explained below, that finding is supported by evidence in the record, we affirm the trial court's conclusion that defendant did not prove his adverse possession claim.

In its opinion letter on reconsideration, the trial court found that defendant

"did not allege in his answer over what area he was seeking ownership by adverse possession. He did not clarify his position through his trial testimony. In that regard, he only provided a general location of his trailer/RV and he did not attempt to describe the boundaries of the land within Tax Lot 800 he claimed to exclusively possess. Nor did he offer a survey or attempt to establish the boundary of the property he was claiming by landmarks, physical characteristics of the property, signage or the like.
"During the trial, Defendant * * * appeared to maintain that the property he was claiming by adverse possession was coextensive with the portion of the property that was bequeathed to him in his mother's will. Although the contents of the will were relevant on the narrow issue of notice, and this is the case only because a copy of it was provided to Plaintiff, the will has no relevance on the issue of exclusive possession. It might have been relevant if, for example, Defendant had testified that he tried to keep everybody out of the area within Tax Lot 800 his mother attempted to give him in her will, but he did not provide such testimony."

The trial court's findings are supported by the record. In his pleadings, defendant claims adverse possession of "the property," a term that was defined in plaintiff's complaint as the entirety of Tax Lot 800. However, as defendant concedes on appeal, defendant has sought to establish adverse possession of only the southwest quarter of Tax Lot 800 that was coextensive with one of the quarters purportedly bequeathed to him in his mother's will. As to that claim, there is evidence in the record that supports the trial court's ruling that defendant did not establish by clear and convincing evidence each element of adverse possession for a defined area of the southwest quarter of Tax Lot 800.

For instance, the record is devoid of evidence showing that defendant actually used the entirety of the southwest quarter, which was approximately 12 acres of Tax Lot 800. "The element of actual use is satisfied if a claimant establishes a 'use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suited.' " Stiles v. Godsey , 233 Or. App. 119, 126, 225 P.3d 81 (2009) (quoting Allison v. Shepherd , 285 Or. 447, 452, 591 P.2d 735 (1979) ). Defendant presented no evidence that he had used any land beyond his mother's former residence and the area immediately surrounding it since he moved in with his mother in 1996 or 1997. The trial court found only that defendant occupied his mother's former residence from the time his mother died in 2001 until around 2011, when he moved into a nearby trailer, and that he collected massive quantities of "junk" in the area "around the family home." Because there was no evidence that defendant used, let alone adversely possessed, an established area outside the immediate area of the residence, the trial court did not err in denying defendant's claim of adverse possession to the southwest quarter of Tax Lot 800.

For the first time on appeal, defendant argues that the area he adversely possessed within the southwest quarter is identifiable as "at minimum from a point beginning at the point where the road was purposely blocked and continuing to the property line and to Elk Creek Road." With respect to any smaller area within the southwest quarter, the record supports the trial court's finding that defendant did not sufficiently identify the boundaries of that portion of the property. Defendant presented no evidence regarding the location of the block in the road in relation to the property line or Elk Creek Road. The trial court reasoned that it "would be required to guess at setting the boundary lines of the property within Tax Lot 800 that Defendant claims he exclusively possessed over the requisite ten (10) year period." Defendant did not meet his burden to establish by clear and convincing evidence the property he adversely possessed. Therefore, the trial court did not err in rejecting defendant's counterclaim for adverse possession.

We turn to plaintiff's appeal. Plaintiff raises two assignments of error, both of which relate to the trial court's denial of his claim for ejectment as barred by the 10-year statute of limitations in ORS 12.050. Plaintiff argues that the trial court erred in determining that defendant's words and conduct constituted sufficient notice of ouster by 2003. Defendant responds that the court correctly concluded that plaintiff was on notice that defendant claimed an ownership interest in the property by 2001, when defendant gave plaintiff a copy of the will, or at the latest by 2003 or 2004 when plaintiff saw someone digging up the septic tank, which defendant had authorized.

The parties agree that ORS 12.050 is the applicable statute of limitations for plaintiff's ejectment claim. The parties disagree, however, about when the statute began to run on plaintiff's claim. Defendant argues that the "discovery rule" applies to the commencement of the 10-year limitation period provided by ORS 12.050 and that, therefore, the statute began to run on plaintiff's claim when plaintiff knew, or reasonably should have known, of the right to eject defendant from the property. Accordingly, defendant argues that plaintiff's claim accrued in 2001, when defendant threw a copy of the will at plaintiff, or at the latest by the 2003 or 2004 "septic tank incident." Plaintiff argues, in essence, that the statute of limitation did not begin to run against plaintiff's claim until defendant's use of the property met the open, notorious, exclusive, and hostile elements of adverse possession, and that defendant did not meet these elements until he filed to have his mother's will probated in 2009. As we will explain, both parties are partially correct.

We first address defendant's contention regarding the application of a discovery rule to ORS 12.050. The discovery rule is a rule of interpretation for statutes of limitations "that has the effect of tolling the commencement of such statutes under certain circumstances." Rice v. Rabb , 354 Or. 721, 725, 320 P.3d 554 (2014). Under the discovery rule, the period of limitation commences either when a plaintiff actually discovers his or her injury or when a reasonable person exercising reasonable care should have discovered his or her injury. Id. The incorporation of a discovery rule into a statute of limitation cannot be assumed; rather, "we apply the statutory [interpretation] methodology established in State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009), to determine whether the legislature intended to incorporate a discovery rule in the pertinent statute of limitations." Rice , 354 Or. at 726, 320 P.3d 554. Accordingly, we begin with the text and context of ORS 12.050, as well as the related statute of ORS 12.010, and the prior case law interpreting those statutes.

ORS 12.050 provides:

"An action for the recovery of real property, or for the recovery of the possession thereof, shall be commenced within 10 years. No action shall be maintained for such recovery unless it appear that the plaintiff, an ancestor, predecessor, or grantor was seized or possessed of the premises in question within 10 years before the commencement of the action."

ORS 12.050 and its precursors have been part of Oregon law from before statehood and have remained largely unchanged since the Deady Code. See General Laws of Oregon, Civ.

Code, ch. I, § 4, p. 140-41 (Deady 1845-1864). The text of ORS 12.050 does not itself explain what event triggers the running of the statute.

ORS 12.010 applies to limitation periods set out in ORS chapter 12 and provides that those limitation periods begin to run when the cause of action "accrues." ORS 12.010 provides:

"Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute."

In Rice , the Oregon Supreme Court held that ORS 12.010 incorporated the discovery rule as applied to ORS 12.080(4), which provides a limitation period for actions for taking, detaining or injuring personal property. 354 Or. at 728, 320 P.3d 554. The court relied on its longstanding definition of "accrue" from Berry v. Branner , 245 Or. 307, 421 P.2d 996 (1966), to hold that a cause of action accrued within the meaning of ORS 12.010"at the time that [a plaintiff] obtained knowledge, or at the time that a person exercising reasonable care should have obtained knowledge, of the injury negligently caused by the defendant * * *." Rice , 354 Or. at 728, 320 P.3d 554. In other words, because ORS 12.080(4) fell "under the purview of ORS 12.010," which provides that a limitation period prescribed in ORS chapter 12 begins to run upon the accrual of the claim, the limitation period in ORS 12.080(4) was subject to the discovery rule, as that rule had been articulated in Berry . Rice , 354 Or. at 728, 320 P.3d 554.

Following the reasoning in Rice , we have held that the discovery rule also applies to the limitation period in ORS 12.080(3) for claims of an injury to an interest in real property. See Goodwin v. Kingsmen Plastering, Inc. , 267 Or. App. 506, 340 P.3d 169 (2014), aff'd on other grounds , 359 Or. 694, 375 P.3d 463 (2016) ; Tavtigian-Coburn v. All Star Custom Homes, LLC , 266 Or. App. 220, 337 P.3d 925 (2014). We do so again here, with respect to ORS 12.050, agreeing with defendant that the discovery rule applies to the statute of limitations for ejectment claims.

By its plain terms, ORS 12.010 applies to the limitations period set out in ORS 12.050. ORS 12.050 provides that an action for the recovery of real property must be commenced "within 10 years," but it does not specify the event that triggers the running of the limitation period. ORS 12.010, in turn, provides that, unless a different limitation period is prescribed by statute, actions "shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued * * *." The threshold question then becomes when a cause of action for ejectment has "accrued."

An action subject to the discovery rule typically accrues "whenever one person may sue another," but not before the plaintiff "has or can reasonably be expected to have knowledge of any wrong inflicted upon her." Berry , 245 Or. at 312, 421 P.2d 996. However, a property owner who has constructive notice of "possible problems" with the owner's title is not required to bring an action to eliminate those problems. Assn. of Unit Owners v. Far West Federal Bank , 120 Or. App. 125, 131, 852 P.2d 218 (1993) (citing Meier v. Kelly , 22 Or. 136, 138, 29 p. 65 (1892) ). Only after an actual repudiation occurs or an adverse claim is asserted against the owner's interest is a landowner required to take legal action to protect that interest. Eichner v. Anderson , 229 Or. App. 495, 500, 212 P.3d 521, rev. den. , 347 Or. 258, 218 P.3d 540 (2009) (citing Oliphant v. French , 256 Or. 341, 472 P.2d 275 (1970), and Assn. of Unit Owners , 120 Or. App. at 131, 852 P.2d 218 ). Therefore, for the purposes of ORS 12.050, an action in ejectment "accrues" when an actual repudiation occurs or an adverse claim has been asserted against a property owner's interest such that the owner knows or reasonably should have known of the repudiation or adverse claim. We agree with plaintiff that the elements of adverse possession define when an actual repudiation or an adverse claim has been asserted, and we are satisfied that, in the circumstances presented here, the point at which plaintiff's action accrued is determined by the well-established law of adverse possession.

Knowledge of an adverse claim is imputed to the owner or legal holder of property when another party shows "actual, open, notorious, exclusive, continuous and hostile use of the property for a ten-year period, under an honest belief that the party is the owner of the property." McIntyre , 175 Or. App. at 483, 28 P.3d 1259 ; ORS 105.620. In other words, the law requires an adverse possessor to "keep his flag flying" on the land in such an open, notorious, and hostile manner that knowledge of the adverse possessor's claim to the land can be imputed to the landowner. Id. at 484-85, 28 P.3d 1259.

Here, the argument between the parties is over the element of hostility. The parties agree that defendant originally came into possession of his mother's residence and the immediately surrounding area with the permission of his mother. Plaintiff argues that, after the parties' mother died, defendant continued to live on the land with plaintiff's permission, and that defendant never communicated his intention to possess the land hostile to plaintiff's ownership interest sufficient to transform defendant's use of Tax Lot 800 from permissive to hostile. As a result, plaintiff contends that he did not have actual or constructive notice of defendant's claim until at least 2009, when defendant sought to probate his mother's will. Defendant argues that he gave clear and unequivocal notice of his intention to continue to reside on the land under a claim of ownership by 2001 or "at the latest by 2003/2004," when he threw the will at plaintiff, hired a third party to dig up the septic tank, and purposely blocked the road to the parties' mother's former residence.

To establish hostility, a "claimant must demonstrate a subjective intent to possess the property intending to be its owner and not in subordination to the true owner." Hoffman v. Freeman Land and Timber, LLC. , 329 Or. 554, 561, 994 P.2d 106 (1999) (internal quotation marks and brackets omitted). It is well established that permissive possession is not adverse. Scott v. Elliott , 253 Or. 168, 178, 451 P.2d 474 (1969) ("Permissive use, no matter how long continued, is not adverse, and when proved, denies the adverse possession."); Fitts v. Case , 243 Or. App. 543, 551-52, 267 P.3d 160 (2011). Thus, the 10-year period does not begin to run, both for an adverse possession claim and for the statute of limitations on an ejectment claim, if a claimant possesses the land with the owner's permission.

Possession of property that starts as permissive can become adverse, if the possessor asserts an ownership interest in the land. Once the possession becomes adverse, then the 10-year period begins to run:

"Where a claimant seeking to establish title by adverse possession originally entered the premises with the permission of the legal owner, his possession is considered in subordination to that of the legal owner and does not start the statutory period running until, by words or conduct, the claimant asserts that he is holding in his own right and brings that assertion to the knowledge of the rightful owner."

McCall v. Hyde , 39 Or. App. 531, 534-35, 592 P.2d 1064 (1979) ; see also Rise v. Steckel , 59 Or. App. 675, 687, 652 P.2d 364, rev. den. , 294 Or. 212, 656 P.2d 943 (1982) (holding that it "was not until * * * defendant refused plaintiff's demand for possession that defendant's words and conduct clearly asserted his intention to possess the residence in his own right"). A clear assertion of ownership by the adverse possessor is necessary because, absent such an assertion, the law presumes that a nonowner's possession is subordinate to the legal title holder. Hoffman , 329 Or. at 561, 994 P.2d 106 (citing Laurance v. Tucker , 160 Or. 474, 484, 85 P.2d 374 (1938) ).

Application of the discovery accrual rule is an issue of fact to be decided by the factfinder. T. R. v. Boy Scouts of America , 344 Or. 282, 296, 181 P.3d 758, cert. den. , 555 U.S. 825, 129 S.Ct. 146, 172 L.Ed.2d 40 (2008). Here, the trial court found that defendant had conveyed his position that he owned the property by 2003, identifying three discrete ways that defendant had conveyed this intention. First, the court found that defendant's act of delivering a copy of the will to plaintiff in 2001, together with his accompanying statement, was sufficient to put plaintiff on notice that defendant was claiming an ownership right in the property. Second, the court found that, by 2003, defendant had accumulated so much "junk" that he blocked access to his brothers' homes, and that he refused to remove or reorganize the junk at plaintiff's request. Lastly, the court found that defendant's act of digging up the septic tank without permission conveyed defendant's position that he was the owner of the property described in the will. As explained below, those findings are supported by evidence in the record, and those findings further support the court's ultimate finding that defendant, by words or conduct, communicated to plaintiff that defendant intended to possess, as an owner, the portion of Tax Lot 800 on which defendant resided.

Of most significance, the trial court found that defendant's act of throwing the will at plaintiff, along with defendant's accompanying statement, was sufficient on its own to put plaintiff on notice regarding defendant's claim of ownership. That finding is supported by the evidence in the record. While defendant's statement that he was acting pursuant to his mother's instructions is not particularly elucidating in regard to defendant's intention, other evidence in the record supports the trial court's finding. The will itself was relatively short-only nine pages-and its primary (if not exclusive) purpose was to divide Tax Lot 800 into four equal parts and distribute two of the quadrants to defendant. Defendant's act of throwing the will at plaintiff "must have had the desired effect" of communicating defendant's intended ownership interest, as the trial court found, because both plaintiff and his wife testified that they became aware of defendant's claim of ownership on the land when they read the will.

Additionally, the other significant facts found by the trial court-that defendant blocked the road with his "junk" and authorized someone to dig up the septic tank without plaintiff's permission-are also supported by evidence in the record. Those facts, combined with the mother's will, provide a legally sufficient basis from which the trial court could find that defendant had clearly communicated his intention to possess the land as an owner would by 2003. Therefore, because the court did not err in concluding that plaintiff was on notice of defendant's adverse claim to a portion of Tax Lot 800 by 2003, the court did not err in determining that plaintiff's claim for ejectment was barred by the statute of limitations, ORS 12.050.

Because the trial court did not err in finding that plaintiff was aware that defendant was asserting an adverse claim on a portion of Tax Lot 800 more than 10 years before plaintiff filed his claim for ejectment, we affirm the trial court's denial of plaintiff's ejectment claim as barred by the statute of limitation, ORS 12.050.

Affirmed on appeal and cross-appeal.

APPENDIX 1

      A map of Tax Lots 800 and 600 is included as Appendix 1. The map is a modified version of an exhibit that was admitted at trial.

      See Hammond v. Hammond , 246 Or. App. 775, 268 P.3d 691 (2011) (reversing the trial court's ruling that the deed unambiguously conveyed Tax Lot 800 to plaintiff in fee simple); Hammond v. Hammond , 262 Or.App. 238, 327 P.3d 572, rev. den. , 355 Or. 879, 333 P.3d 333 (2014) (affirming without opinion the trial court's determination that the deed was an inter vivos gift to plaintiff with a delayed right of enjoyment).

      Defendant initially filed his adverse possession claim as an affirmative defense, but the trial court construed defendant's defense as a counterclaim pursuant to ORCP 19 B.

      Defendant does not argue on appeal that he, alone, possessed the entirety of Tax Lot 800, nor could defendant plausibly have made such a claim, because it was undisputed that the parties' brother, Jerry, lived on Tax Lot 800 with his family. "The requirement of exclusive use [for an adverse possession claim] is not met when two or more persons are in possession of the property." Werner v. Brown , 44 Or. App. 319, 324, 605 P.2d 1352, rev. den. , 289 Or. 71 (1980).

      The parties' mother's will purported to divide Tax Lot 800 "equally" into four quarters, giving one quarter to plaintiff, one to Jerry, and two to defendant. An equal division of the 49-acre Tax Lot 800 would render the southwest quarter to be 12 and one-quarter acres.

      A six-year limitation applies when a plaintiff seeks monetary damages for "wrongful withholding." ORS 105.030. Plaintiff sought both declaratory relief and monetary damages in his complaint; however, because the trial court ruled that the 10-year statute barred plaintiff's claim, it did not reach the issue of damages. Issues related to plaintiff's claim for damages, therefore, are not before us on appeal.

      The Oregon Supreme Court has explained that the requirement that a party show that he or she was "seized or possessed of the premises" within 10 years is satisfied "where the party opposing an adverse claimant is the holder of the legal title." Evans v. Hogue , 296 Or. 745, 754, 681 P.2d 1133 (1984).

      The statutory precursor to ORS 12.050 provided a 20-year limitation period for
      "[a]ctions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of the action."

      The statute of limitations for the recovery of real property and the doctrine of adverse possession are two sides of the same coin. The statute of limitations was, for much of Oregon's history, the legal basis for a claim of adverse possession. See, e.g. , Coos County v. State of Oregon , 303 Or. 173, 191, 734 P.2d 1348 (1987) ("Acquisition of title by adverse possession is based upon the running of the statute of limitations for bringing an action to recover real property."). Though the legislature codified adverse possession, or Laws 1989, ch. 1069, the doctrine remains inextricably bound up in our case law with the ORS 12.050 statute of limitations. Therefore, the case law on adverse possession is useful for determining when the statute of limitations begins to run on an ejectment claim.

      Defendant relies on our analysis in McGrath v. Bradley to argue that, after the parties' mother died, plaintiff merely acquiesced in defendant's continuing use of the property, which he argues is not enough to show that he was using the property with plaintiff's permission. 238 Or. App. 269, 274-75, 242 P.3d 670 (2010) (explaining that, in the context of a prescriptive easement, a property owner must do more than show mere acquiescence in the nonowner's use of the land to establish permissive use). However, McGrath is a case involving a prescriptive easement, not adverse possession, and, as a result, defendant's reliance on that case is misplaced. See Hoffman v. Freeman Land and Timber, LLC. , 329 Or. 554, 562-63, 994 P.2d 106 (1999) (use of prescriptive easement case law in the context of adverse possession is reversible error).

      In cases involving a "pure mistake" over a boundary dispute, the law presumes that the nonowner's use is hostile to the owner's interest. Hoffman , 329 Or. at 561 n 4, 994 P.2d 106 ; Morris v. Kanne , 295 Or. App. 726, 732, 436 P.3d 36 (2019). Here, the presumption does not apply because this is not a case of a mistaken boundary line.

      An exception exists when the claimant came into possession based on an alleged parol gift of the land, even though the possession originated with the landowner's permission. See Miller v. Conley , 96 Or. 413, 417-19, 190 P. 301 (1920) ; Schrenk v. Garvin , 76 Or. App. 523, 526, 709 P.2d 762 (1985), rev. den. , 300 Or. 563, 715 P.2d 95 (1986). Because a parol gift is not at issue here, the exception does not apply.

      Many of the cases cited herein, including Rise and McCall , are cases in which we reviewed the trial court's findings of facts de novo , whereas here we are reviewing for legal error. Nevertheless, the legal principle-that one whose possession originated with permission must clearly communicate by words or deeds his intention to claim an ownership right in the property before the possession will be considered adverse-is applicable to our analysis. Cf. Troubled Asset Solutions v. Wilcher , 291 Or. App. 522, 533 n 4, 422 P.3d 314, rev. allowed , 363 Or. 727, 429 P.3d 384 (2018) ("We acknowledge that the cases we cite regarding gross negligence were subject to de novo review. Although they employed a different standard of review of the facts, the legal principles delineated in those cases are still relevant to our analysis.").

      The ultimate result in this case is almost certainly unsatisfying to both parties. Defendant is left without legal title to the property, but plaintiff, who retains legal title, is unable to eject defendant. This outcome, however, results from defendant's failure to prove the boundaries of the land he claimed by adverse possession, which is a product of the nature of the evidence that he presented at trial.


source: Caselaw Access Project

author: TOOKEY, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Lisa Jean TAYLOR, Defendant-Appellant.
    A161184
    Court of Appeals of Oregon.
    Submitted October 27, 2017. February 27, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the briefs for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, which the court entered following defendant's conditional guilty plea. The issue on appeal is whether the trial court erred when it partially denied defendant's motion to suppress evidence.

The trial court determined that a law enforcement officer impermissibly interrogated defendant, in violation of defendant's rights under Article I, section 12, of the Oregon Constitution, because defendant did not understand her Miranda rights and because defendant equivocally invoked her right to remain silent. As a result, the trial court suppressed the statements that defendant made following field sobriety tests and defendant's responses to a series of questions that the officer asked to complete a DUII interview report. However, the trial court declined to suppress evidence of defendant's blood alcohol content (BAC), which the officer obtained when defendant agreed to take a breath test.

Defendant assigns error to that ruling, arguing that the "trial court should have suppressed the breath test results because that evidence derived from the exploitation of the violation of defendant's Article I, section 12, right." For the reasons that follow, we conclude that the trial court erred in failing to suppress the evidence of defendant's BAC and, accordingly, we reverse and remand.

I. BACKGROUND

We review the denial of a defendant's motion to suppress for legal error and are bound by the trial court's express factual findings if evidence in the record supports them. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). "If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion." Id . at 75, 854 P.2d 421. We recount the facts in accordance with that standard.

A. Facts

At 4:21 p.m., Sergeant Marl received information from a concerned citizen about defendant driving erratically near the Milwaukie Marketplace. The citizen informed Marl that she had almost had a head on collision with defendant, because defendant was driving the wrong way coming out of the Milwaukie Marketplace, and that defendant was currently in the drive-through of a Taco Bell. After receiving that information and a description of defendant's car, Marl drove to the marketplace where he saw defendant's car leave the Taco Bell drive-through, run over a curb, and park in a through way between a Shari's and the Taco Bell.

Marl approached defendant's car and observed that she appeared to be "passed out[,] *** slumped over and wasn't moving." Marl then noticed that defendant was not passed out, but that "she was actually trying to eat some food that she had got at Taco Bell." Defendant "slowly looked up at [Marl] and she had some food running down her chin" and "dripping into her lap, but she told [Marl] that she was okay." Marl observed that defendant's "eyes were watery, her speech was slurred," and her movements were "slow and methodical." Marl asked defendant how much she had to drink, and defendant replied that she had "one drink" at home. Because Marl suspected defendant of DUII, he alerted other officers in the area and asked defendant to perform some field sobriety tests. Defendant agreed to take the field sobriety tests.

At 4:26 p.m., Officer Downey arrived on his motorcycle and continued the DUII investigation. Downey "noticed a faint odor of alcohol," that defendant's "eyes were glassy, her face was flushed, her speech was slurred, * * * that her hand and body motions were slow and sluggish[,] and that she was sitting behind the wheel of her vehicle and was swaying back and forth." After observing defendant, Downey thought that defendant had been driving under the influence of intoxicants, and he also obtained defendant's consent to perform field sobriety tests.

Defendant performed the horizontal gaze nystagmus test (HGN), part of the walk-and-turn test, and part of the one-leg stand test. Downey observed multiple "clues" on the HGN test that indicated that defendant was under the influence of intoxicants.

When Downey administered the walk-and-turn test, he noticed that defendant "was swaying in a circular motion," that none of her steps were heel to toe, and that defendant "couldn't walk on the white line." Defendant stated that she could not complete the walk-and-turn test "because she had dyslexia" and she sat down on the curb. Downey then demonstrated the one-leg stand test for defendant, but defendant "couldn't stand without swaying" and she sat back down on the curb. Defendant stated that she could not perform the one-leg stand test "because she had dementia." At that point, Downey asked defendant "if she should be driving, if she had been drinking and had dementia and dyslexia." Defendant responded, "Probably not." When asked by Downey how defendant felt "on a scale of one to ten with zero being completely sober and ten being falling down drunk," defendant replied that "she was a two."

At 4:41 p.m., Downey arrested defendant for DUII, advised defendant of her Miranda rights, and asked defendant if she understood those rights. Defendant said, "No." Downey then read defendant her Miranda rights a second time and asked defendant if she understood those rights. Defendant said, "No." Downey followed up by going through each right, trying to express each right in simpler terms, and asked defendant a third time if she understood her rights. Defendant did not respond, and Downey had Marl transport defendant to the holding facility at the Milwaukie Police Department.

At 5:02 p.m., Downey began the observation period for the breath test by filling out some paperwork and by checking defendant's mouth to make sure there were no foreign substances that would compromise the breath test results. Downey then interviewed defendant using the Oregon State Police alcohol influence interview report, which is designed to gather evidence for DUII investigations. After asking defendant 28 questions from the alcohol influence interview report and documenting her responses, Downey read defendant the implied consent "rights and consequences" form. After each paragraph, Downey asked defendant whether she understood that paragraph. When defendant indicated that she did not understand a paragraph, Downey reread the paragraph again until defendant indicated that she understood. Downey wrote defendant's answers down on the implied consent form. Additionally, at some point during the 45-minute-long observation period, defendant and Downey "had a long conversation about [defendant's] motor officer tattoo," and discussed their mutual acquaintances in the Portland Police motorcycle unit.

At the end of the observation period, fifteen minutes had elapsed from the time Downey completed the alcohol influence interview report and when Downey asked defendant whether she would take a breath test. When Downey asked defendant to take a breath test, defendant said, "Yeah," and took the breath test at 5:47 p.m. The breath test showed that defendant's BAC was 0.29. Defendant was subsequently charged with DUII.

B. Trial Court Proceedings

Before trial, defendant filed a motion to suppress "(1) the unlawfully administered field sobriety tests; (2) the unlawful questioning of [defendant]; and (3) the unlawfully administered breath test." More specifically, defendant argued that she did not consent to the field sobriety tests and that the other evidence was the product of a Miranda violation that occurred when Downey "interrogated [defendant] after having read her Miranda warnings despite the fact that [defendant] responded to the officer that she did not understand her rights."

In response, the state contended that defendant voluntarily consented to perform the field sobriety tests and that "defendant was properly Mirandized." Additionally, the state argued that, even if defendant was not properly Mirandized, the breath test results were not derivative of any Miranda violation. In support of its argument that defendant's consent to take the breath test was not derived from a violation of defendant's Article I, section 12, rights, the state contended that Downey reading defendant the implied consent form attenuated the Miranda violation. In the alternative, the state argued that the breath test results would be admissible irrespective of any Miranda violation because the state could lawfully conduct the search and seizure under the exigency or search incident to arrest exceptions to the warrant requirement under Article I, section 9, of the Oregon Constitution and, therefore, defendant had no constitutional right to refuse the breath test and her valid consent was not necessary.

The trial court partially agreed with defendant, concluding that, after Downey had administered the field sobriety tests, the circumstances had become sufficiently compelling to require Miranda warnings. The trial court further concluded that Downey violated defendant's Article I, section 12, rights because defendant unequivocally stated that she did not understand her Miranda rights, and because Downey failed to clarify whether she was equivocally invoking her right to remain silent before questioning defendant at the holding facility. As a result, the trial court suppressed the statements that defendant made following the field sobriety tests and her responses to the 28 questions from the Oregon State Police alcohol influence interview report.

Regarding the BAC evidence, the trial court concluded that defendant's consent to take the breath test was sufficiently attenuated from the Miranda violation. The trial court explained that the taint from the Miranda violation had dissipated by the time defendant consented to a breath test because it was not "a flagrant violation of her rights," and because Downey reading and then rereading defendant the implied consent form was a "significant" intervening event that created "a sufficient time gap" to attenuate the prior violation. Accordingly, the trial court ruled that the breath test results were admissible. The trial court did not make any findings or reach any conclusions with respect to the state's exigency or search incident to arrest arguments. Following the trial court's ruling on defendant's motion to suppress, defendant entered a conditional guilty plea.

II. ISSUES ON APPEAL

On appeal, defendant argues that the trial court erred when it failed to suppress the breath test result because the "[p]olice violated Article I, section 12, of the Oregon Constitution by questioning defendant without confirming that defendant understood her Miranda rights" and the breath test results were "derived from the Article I, section 12, violation." The state's response is two-fold. First, the state argues that the "breath test evidence was not derived from a violation of Article I, section 12, because defendant had no right to refuse the test" under Oregon's implied consent law. Second, the state argues, in the alternative, that, "under the totality of the circumstances, defendant's decision to submit to a breath test was not derived from a violation of Article I, section 12."

However, in light of the Supreme Court's intervening issuance of State v. Swan , 363 Or. 121, 420 P.3d 9 (2018), the parties have refined their positions. The state concedes that the court in Swan rejected its argument that defendant had no legal right to refuse the test as a result of the implied consent statutes. See State v. Banks , 364 Or. 332, 337-39, 434 P.3d 361 (2019) (rejecting the state's argument that, under the implied consent statutes, the defendant did not have a constitutional right to refuse the officer's request that he take a breath test); Swan , 363 Or. at 137-46, 420 P.3d 9 (rejecting the state's argument that the implied consent statutes require the admission of breath test results when the decision to take a breath test is the product of a violation of the defendant's Article I, section 12, rights). The state acknowledges that, "[a]t first glance, this case appears to be very similar to Swan ," but argues that "the facts of this case are distinguishable from those in Swan in a number of key respects," and that an application of the factors in Swan lead to a conclusion "that the evidence was not derived from the Article 1, section 12, violation." Additionally, the state raises an argument that the "police lawfully were permitted to seize [the] breath-alcohol evidence without a warrant based on exigency and as a search incident to arrest."

Defendant contends that an application of the factors from Swan supports her contention that "[d]efendant's breath test results derived from the Article I, section 12, violation." Furthermore, defendant responds that the state's alternative bases for affirmance under the exigency and search incident to arrest exceptions to the warrant requirement fail "because [the state] does not explain how a questionably permissible search under Article I, section 9, alleviates a violation of a defendant's Article I, section 12, rights." We begin by addressing whether the breath test results were derived from Downey's violation of defendant's Article I, section 12, rights.

A. Causal Chain Analysis

Article I, section 12, requires police to provide Miranda warnings to a person that is subjected to custodial interrogation to ensure that a person's waiver of the right to remain silent and to consult with counsel is knowing and voluntary. State v. Vondehn , 348 Or. 462, 474, 236 P.3d 691 (2010). As discussed above, the trial court concluded that Downey violated defendant's Article I, section 12, rights when Downey subjected defendant to custodial interrogation because defendant unequivocally stated that she did not understand the Miranda warnings, and she equivocally invoked her right to remain silent. Because the trial court implicitly found that defendant did not understand those warnings, we must defer to that implicit finding. State v. Lunacolorado , 238 Or. App. 691, 695, 243 P.3d 125 (2010), rev. den. , 350 Or. 530, 257 P.3d 1020 (2011). A defendant " 'who does not understand the Miranda warnings' " does not understand that he or she has those rights, "and statements made absent the defendant's understanding of those warnings * * * are presumptively involuntary and subject to suppression" because the defendant cannot validly waive those rights. State v. Finonen , 272 Or. App. 589, 591 n. 2, 356 P.3d 656 (2015) (quoting Lunacolorado , 238 Or. App. at 695, 243 P.3d 125 (emphasis in Finonen )). Furthermore, "[w]hen the defendant makes an ambiguous or equivocal invocation of [the right against self-incrimination] under Article I, section 12, * * * the police are required to ask follow-up questions to clarify what the person meant before proceeding with interrogation." State v. Avila-Nava , 356 Or. 600, 609, 341 P.3d 714 (2014). Downey did not ensure that defendant understood her rights or ask follow-up questions to determine whether defendant was exercising her right to remain silent.

Because a violation of defendant's Article I, section 12, rights occurred when Downey interrogated defendant using the Oregon State Police alcohol influence interview report, the disposition of this appeal turns on whether defendant's consent to take the breath test 15 minutes later was derived from the prior Miranda violation.

"[T]he question whether testimonial or physical evidence derives from a prior Miranda violation cannot be reduced to a mechanical formula but will vary depending on the totality of the circumstances." Swan , 363 Or. at 131, 420 P.3d 9. As the court did in Swan , we look to the factors set out in State v. Jarnagin , 351 Or. 703, 277 P.3d 535 (2012), "in deciding whether the breath test results were admissible because defendant's decision to take the breath test broke the causal chain between the prior Article I, section 12, violation and [her] breath test results." Swan , 363 Or. at 131, 420 P.3d 9. We consider, among other things:

"the nature of the violation, the amount of time between the violation and any later statements, whether the suspect remained in custody before making any later statements, subsequent events that may have dissipated the taint of the earlier violation, and the use that the state has made of the unwarned statements."

Jarnagin , 351 Or. at 716, 277 P.3d 535. "The state bears the burden of production and persuasion to show that defendant's decision to take the breath test was not the product of [Downey's] violation of defendant's Article I, section 12, right[s]." Swan , 363 Or. at 133, 420 P.3d 9.

In Swan , the court applied the five Jarnagin factors to determine "whether the breath test results were admissible because defendant's decision to take the breath test broke the causal chain between the prior Article I, section 12, violation and his breath test results." Id . at 131, 420 P.3d 9. Regarding the first Jarnagin factor-the nature of the violation-the court concluded that the violation was flagrant and repeated because the defendant had invoked his right to counsel and, despite that invocation, the officer asked the defendant 28 questions from a DUII interview report. Id . at 133-34, 420 P.3d 9. With respect to the second and third factors-" 'the amount of time between the violation and any later statements' " and " 'whether the suspect remained in custody before making any later statements' "-the court concluded that those factors suggested that the "defendant's decision to take the breath test was the product of the immediately preceding Miranda violation" because "no time elapsed between the questions that [the officer] asked in violation of defendant's right to counsel and his question whether defendant would take a breath test," and because the "defendant remained in custody throughout that time." Id . at 131-32, 420 P.3d 9 (quoting Jarnagin , 351 Or. at 716, 277 P.3d 535 ). Finally, with respect to the fourth and fifth factors-whether subsequent events dissipated the taint of the earlier violation and the use that the state has made of the unwarned statements-the record did not disclose the substance of the 28 questions that the officer asked the defendant after he invoked his right to counsel, and only disclosed three of the warnings from the Implied Consent Combined Report that the officer read to the defendant. Id . at 132, 135, 420 P.3d 9. Consequently, the court concluded that "there is no way of knowing on this record whether the officer's illegal interrogation * * * effectively made defendant's decision to take the breath test a foregone conclusion" and, because the implied consent warnings did "not disclose any intervening information that * * * would have reminded [defendant] that he was free to not take the breath test," there was not a subsequent event that dissipated the taint of the earlier violation. Id . at 132, 136, 420 P.3d 9. After considering those factors, the court concluded "that the state failed to prove that defendant's decision to take the breath test did not derive from the preceding repeated violation of defendant's Article I, section 12, right to counsel." Id . at 136, 420 P.3d 9.

With that background in mind, we turn to the application of the Jarnagin factors in this case.

1. Nature of the violation

Regarding the first factor-the nature of the violation-Downey violated defendant's Article I, section 12, rights when he took defendant into custody and subjected her to interrogation at the holding facility without ensuring that defendant understood her rights or clarifying whether defendant had invoked her right to remain silent. That violation of defendant's Article I, section 12, rights is not one of the most egregious or flagrant violations that we have analyzed under these circumstances. See Swan , 363 Or. at 133-34, 420 P.3d 9 (concluding that the violation was "flagrant and repeated" where the officer advised the defendant of his Miranda rights, took the defendant into custody, and then proceeded to ask the defendant 28 questions using the DUII interview report, despite the defendant's request for counsel);

State v. Koch , 267 Or. App. 322, 332, 341 P.3d 112 (2014) (concluding that the violation was "flagrant" where the officer subjected the defendant to custodial interrogation by "repeatedly" questioning the defendant using a drug recognition evaluation after the defendant had requested to speak with an attorney). However, the violation in this case is also not one that we would characterize as not flagrant or repeated. See Jarnagin , 351 Or. at 717, 277 P.3d 535 (noting that the Miranda violation was "not flagrant" where "the officers failed to recognize that the circumstances had become sufficiently compelling to require Miranda warnings"); State v. Delong , 357 Or. 365, 374-80, 350 P.3d 433 (2015) (concluding that the violation was not flagrant where the officers failed to advise the defendant of his Miranda rights before obtaining his consent to search his car because there was no "prolonged stationhouse questioning" and the defendant invited the officers to search his car unprompted by any express request for consent to search).

Here, we conclude that the nature of the violation lies somewhere between the flagrant and repeated violations in Swan and Koch and the non-flagrant violations in Jarnagin and Delong . On the one hand, when Downey read defendant her Miranda rights, defendant unequivocally stated twice that she did not understand her rights. Additionally, when Downey read defendant her Miranda rights a third time, defendant did not respond, indicating her apparent unwillingness to speak to Downey. Despite defendant's unequivocal response that she did not understand her rights and her apparent unwillingness to speak with Downey, Downey, knowing that the situation was sufficiently compelling to require Miranda warnings, continued to press forward without asking any more follow-up questions and then proceeded with the custodial interrogation. Downey's failure to seek clarification and to cease questioning-and, indeed, his repeated questioning of defendant using the Oregon State Police alcohol influence interview report-was the type of violation that could "create[ ] the impression that the assertion of one's rights is meaningless." State v. Foster , 288 Or. 649, 656, 607 P.2d 173 (1980).

On the other hand, when defendant first stated that she did not understand the Miranda warnings, Downey took the time to present those rights in simpler terms in an attempt to help defendant understand her rights. Although Downey's attempt to present the Miranda rights in simpler terms could have had the effect of mitigating the violation, his failure to clarify whether defendant understood her rights or was invoking her right to remain silent before questioning defendant "place[d defendant] in a more disadvantaged position, making it easier and more likely for [Downey] to exploit that illegality to obtain [defendant's]

consent" to take the breath test. State v. Unger , 356 Or. 59, 82, 333 P.3d 1009 (2014).

Given that Downey could not interrogate defendant at the holding facility using the Oregon State Police alcohol influence interview report because defendant did not understand her rights, we conclude that the violation was "repeated." Swan , 363 Or. at 134, 420 P.3d 9. Additionally, defendant "indicated that she wanted to go home * * * at least half a dozen" times while she was in custody. Downey's persistence in unlawfully interrogating defendant while she was in custody, despite her apparent unwillingness to speak with Downey, would indicate to defendant that she was unable to terminate the encounter and would likely affect her decision to submit to the breath test. Furthermore, Downey acknowledged that the alcohol influence interview report is designed to gather evidence for a DUII investigation. See Unger , 356 Or. at 82, 333 P.3d 1009 ("unlawful and lengthy in-custody interrogation" is conduct that "is more likely to affect the defendant's decision to consent than more restrained behavior"). Although Downey did not otherwise engage in any other overreaching or overbearing conduct, we conclude that, on balance, the repeated nature of the violation tilts the scales in defendant's favor. See id . at 85, 333 P.3d 1009 ("polite police misconduct" does not necessarily mean that the subsequent consent is valid).

2. Amount of time between the violation and any later statements

As we explained in Koch , 267 Or. App. at 332, 341 P.3d 112, " Jarnagin 's second [factor] is temporal-viz ., the time that elapsed between the violation and the point at which the police obtained the evidence at issue." Here, 15 minutes had elapsed from the time Downey unlawfully interrogated defendant using the alcohol influence interview report and when Downey asked defendant whether she would take a breath test. As discussed in more detail below, the only intervening circumstance that occurred during those 15 minutes was Downey reading defendant the implied consent form. In Jarnagin , the court concluded that a 15- to 16-hour interlude between the violation and the point at which the police obtained the evidence at issue was "not sufficient to break the causal chain." 351 Or. at 717-19, 277 P.3d 535. The temporal nexus in this case is even stronger than the nexus in Jarnagin and is analogous to the nexus in Swan . In Swan , the court stated that "no time elapsed between the questions that [the officer] asked in violation of defendant's right to counsel and his question whether defendant would take a breath test" when the only intervening event was the officer reading the defendant the "Implied Consent Combined Report." 363 Or. at 131-32, 135, 420 P.3d 9. Under those circumstances, the court concluded that "the prior illegality and defendant's decision to take the breath test blended into a continuum" because "there was no break in time, place, or custody between the officer's repeated Article I, section 12, violation and defendant's decision to take the breath test that might have attenuated the effect of the violation." Id . at 132, 420 P.3d 9 (internal quotation marks and citations omitted); see also State v. McAnulty , 356 Or. 432, 458, 338 P.3d 653 (2014) (suppressing statements obtained "immediately after" a Miranda violation); Koch , 267 Or. App. at 333, 341 P.3d 112 (concluding that the defendant's decision to give a urine sample was the product of an earlier Miranda violation when "[t]here was no significant break between the violation and the procurement of the urine sample, let alone a change in time 'sufficient to dissipate the effects of an earlier Miranda violation' " (quoting Jarnagin , 351 Or. at 718, 277 P.3d 535 )). Because only 15 minutes had elapsed from the time Downey unlawfully interrogated defendant and when Downey asked defendant whether she would take a breath test, the second factor also suggests that defendant's decision to take the breath test was the product of the preceding Miranda violation.

3. Whether defendant remained in custody before making any later statements

With respect to the third Jarnagin factor-whether the suspect remained in custody-defendant remained in custody from the time that Downey interrogated defendant at the holding facility in violation of her Article I, section 12, rights, to the time that Downey asked defendant whether she would take a breath test. Thus, "there was no break in time, place, or custody between the officer's repeated Article I, section 12, violation and defendant's decision to take the breath test that might have attenuated the effect of the violation." Swan , 363 Or. at 132, 420 P.3d 9 ; see also Koch , 267 Or. App. at 333, 341 P.3d 112 (concluding that "the circumstances *** militate *** in favor of suppression" because the "defendant was under compelling circumstances within 15 minutes of the initial encounter and was under arrest when he gave the urine sample"). Because defendant was under compelling circumstances within 20 minutes of the initial encounter when she was placed under arrest, and there was no break in custody before Downey asked defendant to take a breath test, the third Jarnagin factor also militates in favor of suppression.

4. Subsequent events that may have dissipated the taint of the earlier violation

As for Jarnagin 's fourth factor-subsequent events that may have dissipated the taint-the only intervening circumstance that the trial court found that occurred during the 15 minutes that elapsed between the unlawful interrogation of defendant and her consent to take the breath test was Downey reading defendant the implied consent form. Downey testified that, when he read defendant the implied consent form, Downey read the form sentence by sentence to defendant, sometimes rereading a paragraph to defendant several times, until Downey "got an affirmative response that [defendant] understood it." Downey recorded the number of times he had to read a paragraph and defendant's affirmative responses on the implied consent form, and the form was entered into evidence at the suppression hearing. The trial court found it "significant" that Downey read and then reread defendant the implied consent form to ensure that "she understood what * * * was involved in refusing or taking the breath test" in reaching its conclusion that defendant's consent to take the breath test was not derived from the Miranda violation.

In our opinion in State v . Swan , 276 Or. App. 192, 204-06, 366 P.3d 802 (2016), rev'd , 363 Or. 121, 420 P.3d 9 (2018), we, like the trial court in this case, found it "significant" that the officer had provided the "defendant with the implied consent information necessary to make an informed choice concerning the breath test at two different times," and concluded that the implied consent warnings were a subsequent event that intervened to break the causal chain between the violation and the later obtained breath test results. The Supreme Court reversed our decision in Swan , noting that, although it has held that implied consent warnings, which advise a defendant of the consequences of refusing to take a breath test, do not render a defendant's consent involuntary, that question differs from the question of whether that "advice was sufficient to break the causal chain between the violation and [a] defendant's decision to take the breath test." 363 Or. at 135, 135 n. 7, 420 P.3d 9 (citing State v. Moore , 354 Or. 493, 503-05, 318 P.3d 1133 (2013) ). The Supreme Court stated that warning the "defendant of the adverse consequences of refusing to take the test would have tilted his decision towards submitting to the test" and, because the "record d[id] not disclose any intervening information that [the officer] told defendant that would have reminded him that he was free not to take the breath test," the court concluded that the state failed to prove that a subsequent event had dissipated the taint of the earlier violation. Id . at 134-36, 420 P.3d 9.

Here, the implied consent form contains several admonitions about the consequences for refusing to take the breath test. In reading defendant the implied consent form, Downey advised defendant that, if she refused to take the breath test, "evidence of the refusal *** may be offered against you," "your driving privileges are subject to suspension for each test refusal," "[s]uspension for refusing a test is substantially longer than suspension for failing a test," "you will not be eligible for a hardship permit for at least 90 days, and possibly three years, after the suspension takes effect, depending on your driving record," "[i]f you *** have an Oregon driver license or permit, the license or permit will be taken immediately," and "you will be subject to a fine of $650." The state argues that "[t]hat information supports the trial court's inference that defendant's decision to take the test was based on a considered weighing of the benefits and disadvantages of taking the test, rather than anything she said during the DUII interview." We disagree; "the point of informing a DUII suspect of the adverse consequences of refusing to take a breath test is not to ensure that the suspect's decision to refuse is knowing," rather, "it is to persuade a suspect to submit to the test." Swan , 363 Or. at 144-45, 420 P.3d 9 ; see also Banks , 364 Or. at 340-41, 434 P.3d 361 (observing that the legislative purpose with the implied consent advice and consequences "was to 'coerce a driver's submission to take the tests' " (quoting State v. Cabanilla , 351 Or. 622, 632, 273 P.3d 125 (2012) )).

The implied consent form does not contain any information that would have reminded defendant that she had the right to remain silent or to consult with an attorney, or that she was free to refuse the breath test. See Swan , 363 Or. at 144, 420 P.3d 9 (under the implied consent laws, a DUII suspect also "retains a statutorily recognized right to decide, at the point of arrest, whether to cooperate with the state and take a breath test"); Vondehn , 348 Or. at 485-86, 236 P.3d 691 (concluding that, under the circumstances, "belated Miranda warnings" were "an objective indication that the situation had changed and was governed by new rules"). Although the implied consent warnings may have informed defendant of the adverse consequences of her refusal to take a breath test, we conclude that those warnings did not dissipate the taint of the earlier violation. See Swan , 363 Or. at 135-36, 145, 420 P.3d 9 ("[A]dvising a DUII suspect of the adverse consequences of refusing to take a breath test is intended to weight the suspects decision towards taking the test.").

The state also points to a "long conversation" that Downey had with defendant about defendant's "motor officer" tattoo and their mutual acquaintances, but the state adduced no evidence of when that conversation occurred during the 45-minute-long observation period. See id . at 133, 420 P.3d 9 (the "state bears the burden of production and persuasion"). Additionally, the trial court did not make any findings about when that conversation occurred or refer to that conversation in its attenuation analysis. However, the court did find that it "must have taken quite some time to go through [the implied consent form] line by line * * * writing down what [defendant's] answers were" during the 15 minutes that elapsed from the time Downey unlawfully interrogated defendant and when Downey asked defendant whether she would take a breath test. Because the record does not disclose whether the "long conversation" about defendant's tattoo occurred during those 15 minutes, "the state failed to establish any subsequent event that 'intervened to break the causal chain' between the violation and the later obtained" breath test. Koch , 267 Or. App. at 334, 341 P.3d 112 (quoting Jarnagin , 351 Or. at 717, 277 P.3d 535 ). Furthermore, because the only intervening information that the trial court found that defendant received was the implied consent warnings that "would have tilted [her] decision towards submitting to the test," we conclude that the fourth Jarnagin factor also weighs in favor of suppression. Swan , 363 Or. at 136, 420 P.3d 9.

5. The use that the state has made of the unwarned statements

We turn to the final factor under Jarnagin "to consider what use the police made of the suppressed statements in obtaining" the breath test results. Koch , 267 Or. App. at 334, 341 P.3d 112. Here, defendant acknowledged that she had been drinking and that she should not have been driving in response to Downey's unlawful questioning following the field sobriety tests. When Downey asked defendant "if she should be driving, if she had been drinking and had dementia and dyslexia," defendant responded, "[p]robably not." Additionally, when asked by Downey how defendant felt "on a scale of one to ten with zero being completely sober and ten being falling down drunk," defendant replied that "she was a two." Later, when Downey interrogated defendant using the alcohol influence interview report at the holding facility, defendant admitted that she had started drinking at 4:00 p.m., that she drank two "vodka squirts," and that she had not eaten since the night before. Finally, the alcohol influence interview report and the breath test were part and parcel of the same DUII protocol; both were administered in the same custodial setting, by the same officer, and were designed to gather evidence of defendant's impaired driving, as admitted in defendant's unlawfully elicited inculpatory statements. Thus, defendant's admissions that she had been drinking and should not have been driving left little of incriminating potential unsaid, other than her precise BAC, and "were inextricably intertwined with [Downey] seeking, and obtaining," the breath test results. Id. at 334, 341 P.3d 112. Based on the totality of the circumstances, we conclude that the fifth factor also tilts the scales in favor of suppression.

B. Causal Chain Conclusion

In sum, although Downey's violation of defendant's Article I, section 12, rights was not the most egregious or flagrant violation, it included, among other things, Downey's repeated unlawful in-custody questioning of defendant using the Oregon State Police alcohol influence interview report. That repeated unlawful custodial interrogation likely affected defendant's decision to take the breath test. Additionally, defendant remained in custody throughout the unlawful interrogation, and only 15 minutes had elapsed from the time Downey unlawfully interrogated defendant using the alcohol influence interview report and when Downey asked defendant whether she would take a breath test. During those 15 minutes, the only subsequent event that occurred was Downey reading defendant the implied consent form that contains several admonitions about the consequences of refusing to take a breath test. Finally, defendant's inculpatory admission that she had been drinking and should not have been driving left little of incriminating potential unsaid, other than her precise BAC, and was inextricably intertwined with Downey seeking, and obtaining, the breath test results. Under those circumstances, we conclude that the state failed to prove that defendant's decision to take the breath test did not derive from the preceding repeated violation of defendant's Article I, section 12, rights.

C. Exigent Circumstances and Search Incident to Arrest

As noted above, the state raised the argument in its supplemental brief that the "police lawfully were permitted to seize [the] breath-alcohol evidence without a warrant based on exigency and as a search incident to arrest." Defendant responds that the state's alternative bases for affirmance under the exigency and search incident to arrest exceptions to the warrant requirement fail "because [the state] does not explain how a questionably permissible search under Article I, section 9, alleviates a violation of a defendant's Article I, section 12, rights." We conclude that the state's undeveloped argument does not provide a sufficient basis for us to affirm.

In making its implied-consent argument in its opening brief, the state makes the same tangential points concerning exigency and search incident to arrest that it did in its brief to the Supreme Court in Swan . We agree with the Supreme Court's observation in Swan that, in its opening brief, "[t]he state does not appear to argue that it is relying on either of those exceptions to the warrant requirement as a basis for obtaining defendant's BAC independently of her implied consent to take a breath test." 363 Or. at 137 n. 9, 420 P.3d 9. To the extent that the state is relying on exigency or search incident to arrest as independent bases for obtaining defendant's BAC in a single paragraph of its supplemental brief, without citation to any legal authority, we decline to consider those grounds for affirmance without a developed argument on those issues. See id . (declining to follow federal precedent on the search incident to arrest exception "under Article I, section 9, without a more fully developed argument on that issue"); Beall Transport Equipment Co. v. Southern Pacific , 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons. , 187 Or. App. 472, 68 P.3d 259 (2003) (it is not this court's "function to make or develop a party's argument when that party has not endeavored to do so itself").

III. CONCLUSION

For the reasons explained above, we conclude that the trial court erred when it concluded that the BAC evidence did not derive from the violation of defendant's Article I, section 12, rights. Therefore, the trial court erred in denying defendant's motion to suppress the BAC evidence on that basis. Furthermore, because defendant entered a conditional guilty plea, we do not engage in a harmless error analysis. State v. Dinsmore , 182 Or. App. 505, 519, 49 P.3d 830 (2002). Accordingly, we reverse and remand.

Reversed and remanded.

      Article I, section 12, of the Oregon Constitution provides, in part, "No person shall *** be compelled in any criminal prosecution to testify against himself."

      ORS 813.010(1)(a) provides that "[a] person commits the offense of driving under the influence of intoxicants if the person drives a vehicle while the person" has "0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person."

      Article I, section 9, provides:
      "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

      The trial court also concluded that defendant voluntarily consented to perform the field sobriety tests and, therefore, Downey could "testify at trial as to his observations as to [defendant's] physical movements on those tests." Defendant does not challenge that determination on appeal.

      After the Supreme Court's issuance of Swan , we allowed the parties to submit supplemental briefs in this case.

      We do not opine on the basis for the trial court's conclusion that Downey violated defendant's Article I, section 12, rights, because the state does not challenge any aspect of that ruling.

      On appeal, the state does not contest the trial court's determination that the violation occurred because defendant did not understand her rights. However, the state argues that Downey's violation of defendant's Article I, section 12, rights was the result of Downey's belief that defendant did not truly lack an understanding of her rights. As the court in Swan noted, an officer's good-faith belief that he stayed within constitutional bounds "has no bearing" on this analysis. 363 Or. at 134 n. 6, 420 P.3d 9.

      In Swan , the "Implied Consent Combined Report" was not part of the record, but the court noted that the officer had read defendant the report "in its entirety verbatim" and that the officer had also testified regarding three admonitions contained in the report for refusing to take the breath test-the defendant's loss of driving privileges, a $650 fine, and that the defendant's refusal would be used against him in court. 363 Or. at 135, 420 P.3d 9.