Esquire Investments, Inc. v. Summers

“Preservation rules are pragmatic as well as prudential. What is required of a party to adequately present a contention to the trial court can vary depending on the nature of the claim or argument; the touchstone in that regard, ultimately, is procedural fairness to the parties and to the trial court.” Peeples v. Lampert, 345 Or 209, 220 (2008).

Esquire Investments Inc. (Esquire) owned land adjoining that of Summers and sought a declaration that they had an easement over Summers’s property to impose a right of way for a public road. Esquire appealed the trial court’s judgment in favor of Summers. Esquire assigned error to the ruling that Summers’s property was not subject to a right-of-way for a public road that was described in a prior easement, and even if it were, it never became effective because the county did not accept it. On appeal, Esquire’s main argument was based on the doctrine of merger and that after the sale of the land it merged with the unambiguous terms of the warranty deed that Summers’s predecessor in interest accepted. “Preservation rules are pragmatic as well as prudential. What is required of a party to adequately present a contention to the trial court can vary depending on the nature of the claim or argument; the touchstone in that regard, ultimately, is procedural fairness to the parties and to the trial court.” Peeples v. Lampert, 345 Or 209, 220 (2008). The Court found that the arguments that Esquire raised at trial never gave the trial court or Summers fair notice of the merger issue that they raised on appeal. The Court therefore concluded that Esquire failed to raise and preserve the doctrine of merger argument at the trial court level. Affirmed.