Jump To

Top Caption Disposition Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

Feb. 25, 2026 Get Citation Alerts Download PDF Add Note

Lynn v. Ellis

Court of Appeals of Oregon

• Citations: 347 Or. App. 532
• Docket Number: A185223
• Precedential Status: Non-Precedential
• Judges: O'Connor

• Disposition: Vacated and remanded for entry of a judgment declaring the parties' rights.

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (7.7K)

• PDF

Disposition

Vacated and remanded for entry of a judgment declaring the parties' rights.

Combined Opinion

532 February 25, 2026 No. 169

This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

Vicki D. LYNN,
Plaintiff-Appellant,
v.
Milinda ELLIS
and Levi Ellis,
Respondents-Respondents.
Crook County Circuit Court
23CV52213; A185223

Annette C. Hillman, Judge.
Argued and submitted November 6, 2025.
Gregory P. Lynch argued the cause and filed the open-
ing brief for appellant. Also on the reply brief was Lynch
Murphy McLane LLP.
Tyler J. Moore argued the cause for respondent Milinda
Ellis. Also on the brief was Law Office of Tyler J. Moore,
LLC.
No appearance for respondent Levi Ellis.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
O’CONNOR, J.
Vacated and remanded for entry of a judgment declaring
the parties’ rights.
Nonprecedential Memo Op: 347 Or App 532 (2026) 533

O’CONNOR, J.
In this property dispute, plaintiff appeals from a
limited judgment dismissing a complaint against defendant1
for a declaratory judgment to quiet title and for adverse
possession.
In a single assignment of error, plaintiff argues that
the trial court erred when it granted defendant’s motion for
summary judgment and dismissed plaintiff’s claims. We
conclude that, when viewing the evidence in the light most
favorable to plaintiff, there is no genuine issue of material
fact and defendant is entitled to judgment as a matter of law.
We therefore affirm the court’s grant of summary judgment
in favor of defendant. Nevertheless, we remand for the trial
court to enter a judgment declaring the rights of the parties.
ORCP 47 governs summary judgment. “In review-
ing a grant of summary judgment, we view the record in
the light most favorable to the party opposing summary
judgment.” Oltmanns v. Lewis, 135 Or App 35, 37, 898 P2d
772 (1995). We review a trial court’s decision on a motion for
summary judgment for legal error. Beneficial Oregon, Inc.
v. Bivins, 313 Or App 275, 277, 496 P3d 1104 (2021) (“We
review a grant of summary judgment to determine whether
any genuine issue of material fact exists and whether defen-
dant is entitled to judgment as a matter of law.”) Waxman v.
Waxman & Associates, Inc., 224 Or App 499, 503, 198 P3d
445 (2008) (internal quotation marks omitted); ORCP 47 C.
The dispute arises from plaintiff and defendant
both claiming ownership of a residential property. In 2007,
plaintiff leased the property from Levi Ellis, and she lived
on the property for the next 16 years. Defendant is Levi
Ellis’s sister. In 2023, defendant told plaintiff that defen-
dant had purchased the property from Levi Ellis. Defendant
presented plaintiff with a quitclaim deed that conveyed
the property to defendant and was dated August 9, 2023.
Plaintiff claimed that she had purchased the property from
Levi Ellis prior to Levi Ellis purporting to convey the prop-
erty to defendant in the quitclaim deed.
1
The complaint listed two defendants: Levi Ellis and Milinda Ellis. We use
the term “defendant” to refer to Milinda Ellis, who is a party to this appeal. Levi
Ellis defaulted in the trial court and does not appear on appeal.
534 Lynn v. Ellis

In 2023, plaintiff initiated this action to determine
the legal owner of the property. Defendant filed an answer
that included affirmative defenses and asserted counter-
claims of ejectment/eviction and waste.
Plaintiff moved for summary judgment and argued
that she completed the purchase of the property from Levi
Ellis on January 1, 2012. She argued that her purchase of the
property was conclusively established by a limited judgment
on her breach of contract claim against Levi Ellis by the trial
court on March 6, 2024. Accordingly, she argued, defendant
could not have obtained ownership of the property from Levi
Ellis in 2023, and plaintiff was entitled to judgment as a mat-
ter of law. Plaintiff submitted a declaration with the motion.
The declaration stated that she purchased the property in
July 2007 for $30,000—she made a $10,000 down payment
and then paid $350 a month until 2014—although the decla-
ration also states that the loan was paid in full on January
1, 2012. Plaintiff also submitted exhibits in support of her
motion for summary judgment, including a quitclaim deed
from Levi Ellis to defendant recorded on August 14, 2023,
that conveys the property to defendant in exchange for $10.
Defendant opposed plaintiff’s motion for summary
judgment and filed a cross-motion for summary judgment,
noting that plaintiff had not identified a written agreement
to sell the property and arguing that the Oregon statute of
frauds requires a written agreement for the sale of real prop-
erty. In response to the cross-motion for summary judgment,
plaintiff submitted a second declaration. Plaintiff attached
an exhibit to the declaration that she described as “a copy
of the agreement [she] had with Levi Ellis.” The exhibit is
a lease dated 2007 that includes an option to purchase the
property. The lease stated that all modifications must be in
writing and that plaintiff could exercise the option to pur-
chase only “by written notice” more than 60 days before the
expiration of the lease. The lease defined the term as start-
ing on August 1, 2007, and ending on February 31, 2008.2
The lease listed the purchase price as $35,000.

2
The lease states that the term ends on February 31, 2008, even though
there was no 31st day of February 2008 (or any February). That mistake does not
affect our analysis of the issues on appeal.
Nonprecedential Memo Op: 347 Or App 532 (2026) 535

At the hearing on the motions for summary judg-
ment, we understand plaintiff to have argued that she exer-
cised the option to purchase contained in the lease or par-
tially performed on an oral modification to the purchase
agreement. The trial court granted summary judgment in
favor of defendant and denied plaintiff’s motion for sum-
mary judgment, explaining that “[t]here is nothing in writ-
ing with respect to any change to that agreement, there
was no writing with respect to conveyance of that property,
and I’m not finding any genuine issue of material fact.”
In response to questions from plaintiff’s counsel, the trial
court explained that plaintiff’s declaration was insuffi-
cient to show a conveyance without a written agreement
and there was insufficient evidence, in the light most favor-
able to plaintiff, of an oral agreement that would bring the
transfer of the property outside the statute of frauds. The
trial court entered a limited judgment dismissing plain-
tiff’s second claim (quiet title) and third claim (adverse pos-
session) against defendant.3
On appeal, plaintiff renews the argument she made
in the trial court, asserting that “[a]t a bare minimum,
[plaintiff’s] declaration created a genuine issue of material
fact as to whether [plaintiff] had exercised the option to pur-
chase and/or orally modified her agreement to purchase the
property * * *.” As we understand her argument, her position
is that the declaration asserting that she had an agreement
with Levi Ellis to purchase the property constitutes evi-
dence from which a jury could conclude that she exercised
the purchase option in the lease or that she and Levi Ellis
agreed to an oral modification of the purchase option in the
lease. Plaintiff further argues that a jury could find that
she partially performed on that oral agreement. Defendant
responds that the deed in her name established her title
to the property as a matter of law and plaintiff failed to
produce evidence to create a genuine dispute of material
fact over whether she exercised the option to purchase the
property or reached an oral agreement that would take the
transfer outside of the statute of frauds.

3
Plaintiff’s first claim is a breach of contract claim against Levi Ellis only,
not defendant.
536 Lynn v. Ellis

“Oregon’s statute of frauds requires that certain
types of agreements, including those ‘for the sale of real
property, or any interest therein,’ must be in writing, unless
an exception applies. The doctrine of part performance is
one such exception.” Brice v. Hrdlicka, 227 Or App 460, 465,
206 P3d 265 (2009) (quoting Luckey et ux v. Deatsman, 217
Or 628, 633, 343 P2d 723 (1959)). “Under that doctrine, a
court may enforce an agreement that would otherwise vio-
late the statute of frauds if three requirements are met,” the
first of which is that “the party asserting part performance
must provide preponderating evidence of an agreement that
is clear, certain and unambiguous in its terms.” Id. at 465
(internal quotation marks omitted). The second and third
requirements are that “there must be evidence of conduct
unequivocally and exclusively referable to the contract” and
that “there must be equitable grounds for enforcing the
agreement[.]” Id. at 465-66 (internal quotation marks omit-
ted). Thus, for plaintiff to survive summary judgment, the
evidence must have demonstrated that there was a genu-
ine issue of material fact regarding either her exercise of
the option or the applicability of the partial performance
exception.
Viewing the evidence in the light most favorable
to plaintiff, we conclude that there is no genuine issue of
material fact as to whether plaintiff validly exercised the
purchase option or that would establish the applicability of
an exception to the statute of frauds. In her second decla-
ration, plaintiff states that the lease constituted the agree-
ment she had with Levi Ellis. However, the record contains
no evidence that she provided written notice to exercise the
purchase option in the agreement. See Two Two v. Fujitec
America, Inc., 355 Or 319, 324, 325 P3d 707 (2014) (under
ORCP 47 C, a party opposing summary judgment has bur-
den of producing evidence on any issue raised in the motion
as to which that party would have the burden of persuasion
at trial).
Additionally, plaintiff did not produce evidence
that could satisfy the partial performance exception to the
statute of frauds. See Brice, 227 Or App at 465-66 (party
asserting partial performance exception to statute of frauds
Nonprecedential Memo Op: 347 Or App 532 (2026) 537

has burden of persuasion at trial). Although plaintiff argues
that her declarations establish that she performed on an
agreement to purchase the property, plaintiff does not
state in either of her declarations that she and Levi Ellis
made an oral agreement or an oral modification to the
lease. Plaintiff’s counsel suggested at oral argument on the
motions for summary judgment that plaintiff and Levi Ellis
had made an oral agreement or oral modification. But coun-
sel’s statements are not evidence. Because plaintiff failed
to produce evidence of a clear, certain, unambiguous oral
agreement to purchase the property, no rational trier of fact
could have found that the partial performance exception to
the statute of frauds applies.
Accordingly, there is no genuine dispute of mate-
rial fact and defendant is entitled to judgment as a mat-
ter of law. The trial court correctly denied plaintiff’s motion
for summary judgment and, based on the quitclaim deed,
granted defendant’s motion for summary judgment.
We remand, however, for the entry of a judgment
that declares the rights of parties, consistent with this opin-
ion. “If there is a justiciable controversy, the plaintiff is enti-
tled to a declaration of its rights, even if that declaration is
directly contrary to what it believes its rights to be.” Beldt v.
Leise, 185 Or App 572, 576, 60 P3d 1119 (2003). “When a trial
court dismisses a declaratory judgment claim after deciding
it on the merits, it is our practice to vacate and remand for
correction of the judgment, even if we are affirming on the
merits.” City of Corvallis v. State of Oregon, 304 Or App 171,
190-91, 464 P3d 1127 (2020).
Vacated and remanded for entry of a judgment
declaring the parties’ rights.