Deberry v. Summers

Trial court did not err in granting summary judgment in favor of defendant-attorney after he filed a motion under ORCP 47 E because the witness plaintiff planned to call had no personal knowledge of the events; therefore no genuine issue of material fact existed, and summary judgment was proper.

Deberry appeals from a summary judgment for Summers for professional negligence and breach of contract. Deberry's now-deceased grandmother (decedent) was Summers's client for whom Summers drafted a revocable living trust granting a trust interest in a parcel of real property to Deberry. Decedent then sold the property, purchased a new piece of property, and did not grant a trust interest to Deberry in the second property. Deberry testified that decedent had assured her that the property would be hers upon decedent's death. The property, however, was unlisted in the trust and therefore passed under the terms of decedent's will, granting Deberry only 20%, rather than full, ownership. Deberry asserted that Summers failed to carry out his promise to decedent by granting a trust interest in the second property. The Court held that the trial court did not err in granting summary judgment after Summers filed a motion under ORCP 47 E, because the expert Deberry planned to call had no personal knowledge of whether such a request to change the trust took place between Summers and decedent. The record was devoid of any genuine issue of material fact, and summary judgment was proper. Affirmed.