Dahlke v. Jubie

“Parties opposing summary judgment have the burden of producing evidence that creates a material issue of fact as to those issues, but only to those issues.” Two Two v. Fujitec America, Inc., 355 Or. 319, 326, 325 P.3d 707 (2014). “That means that issues not ‘raised in the motion’ are not properly before the trial court on summary judgment.” Eklof v. Steward, 360 Or. 717, 731, 385 P.3d 1074 (2016).

 Defendant appealed a judgment that directed her to execute a deed transferring real property from the living trust to the marital trust. On appeal, Defendant argued that the trial court improperly granted summary judgment on a significantly different issue than Plaintiffs advanced in their motion without allowing Defendant to respond,  and that genuine issues of material fact existed that precluded summary judgment. In response, Plaintiffs argued that the trial court simply determined that Defendant did not produce evidence of a loan that would support the deed transfer, a different issue than Plaintiff raised in its motion for summary judgment. “Parties opposing summary judgment have the burden of producing evidence that creates a material issue of fact as to those issues, but only to those issues.” Two Two v. Fujitec America, Inc., 355 Or. 319, 326, 325 P.3d 707 (2014). “That means that issues not ‘raised in the motion’ are not properly before the trial court on summary judgment.” Eklof v. Steward, 360 Or. 717, 731, 385 P.3d 1074 (2016). The Court found that the trial court erred by granting summary judgment and held that when the trial court went beyond the issue raised by Plaintiffs’ motion, Defendant was not given the opportunity to call to the court’s attention to any material issues of fact that may have existed with respect to what the trial court ultimately ruled on. Reversed and remanded.