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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

JOSEPHINE M. GANTT,

Plaintiff,

RE/MAX EQUITY GROUP d/b/aSACAGAWEA, LLC, a Delaware Corporation;ERIN RENWICK; ROD RENWICK; GARYHORTON;and SCOTTWIRKUS,

Defendants.

Case No. 16CV02127

DEFENDANTS REMAX EQUITYGROUP d/b/a SACAGAWEA, LLC,ERIN RENWICK AND RODRENWICK'S MOTION TO COMPELARBITRATION AND ALTERNATIVERULE 21 MOTIONS

(ORAL ARGUMENT REQUESTED)

UTCR 5.050 INFORMATION

Timerequested for argument: 30minutesTelephone attendance requested: NoCounsel located more than 25 miles from court: NoRecording service requested: Yes

UTCR 5.010 COMPLIANCE

Pursuant to UTRC 5.010, counsel for defendants REMAX Equity Group d/b/aSacagawea, LLC, Erin Renwick and Rod Renwick ("defendants") certifies that he conferred withplaintiffs counsel on the issues in dispute before filing these motions. Despite conferral, theparties were unable to resolve their dispute.///

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///

Page 1- DEFENDANTS REMAX EQUITY GROUP d/b/aSACAGAWEA, LLC, ERIN RENWICK AND RODRENWICK'S MOTIONTO COMPELARBITRATION ANDALTERNATIVE RULE 21 MOTIONS

HARTWAGNER LLPTrial Attorneys

1000S.W. Broadway, Twentieth FloorPortland, Oregon 97205

Telephone: (503) 222-4499/Fax: (503) 222-2301

3/21/2016 3:57:33 PM16CV02127

1 FACTUAL BACKGROUND

2 In October 2014, licensed real estate broker Erin Renwick responded to an inquiry from

3 plaintiff JosephineGantt about the value of the subject property. Ms. Renwick promptly

4 respondedto the inquiry and prepared a comparablemarket analysis which showed a range of

5 comparable listing prices for the subject property. Over the course of the next several months,

6 Ms. Renwick responded to several additional inquiries fromMs. Gantt to perform updated

7 market analyses for the subject property. Additionally, Ms. Gantt asked Ms. Renwick for the

8 names of various contractors to perform work on the home in orderto prepare it for sale.

9 In April or May2015, defendantlicensed real estate brokerGary Horton learnedthat the

10 subject property maybe listed for sale in the future. Mr.Hortoninformed his client, defendant

11 ScottWirkusabout the subjectproperty.

12 Thereafter, Mr. Wirkus viewed theoutside of theproperty and, onAugust 6,2015, wrote

13 anoffer to purchase thesubject property for $420,000, contingent on approval of the interior of

14 thehome. Mr. Wirkus also wrote a letter toMs. Gantt to accompany hiswritten offer.

15 Mr. Horton provided the written offerand letterto Ms.Renwick, who, in turn informed

16 Ms. Gantt about the offer and read the letter toMs. Gantt over the phone. Inresponse, Ms. Gantt

17 informed Ms. Renwick that her daughter's friend was interested inpurchasing the subject

18 property. Ms. Gantt indicated she wanted toallow her daughter's friend until September 1,2015

19 to determine if he/she couldpurchase the subject property. Ms. Gantt asked thatMs. Renwick

20 check back onSeptember 1,2015 tosee ifher daughter's friend was able tocomplete the

21 purchase. Ms. Gantt communicated toMs. Renwick that if herdaughter's friend was unable to

22 purchase thesubject property, shewanted to sell the subject property toMr. Wirkus. Ms.

23 Renwick relayed this information to Mr. Horton.

24 On or about September 1,2015, Ms. Renwick followed Ms. Gantt's instruction and

25 called her to inquire about whether her daughter's friend was going to purchase the subject26 property. Ms. Gantt responded that her daughter's friend was unable topurchase the subject

Page3 - DEFENDANTS REMAX EQUITY GROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD tnnn cw ™»'AttorneysRENWICK'S MOTION TO COMPEL ARBITRATION AND ^ 'SJES&ES?ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222^499/Fax: (503) 222-2301

1 property and she wanted to sell to Mr.Wirkus. Ms.Renwick relayed this informationto Mr.

2 Horton and asked that he submit an updated offer to reflect the current date and timelines. In

3 response, Mr.Hortonprepared anotheroffer forhis client to purchase the subjectproperty for

4 $420,000, still contingent on viewing the interiorof the home.

5 Upon receipt of the offer, Ms. RenwickcalledMs. Gantt to inform her about the terms,

6 including the offeredprice. Ms. Gantt responded that she wantedto counter the offer at

7 $430,000. Following Ms.Gantt's direction, Ms. Renwick prepared a counter offerandon

8 September 4,2015, brought the counter offer, along with Mr. Wirkus's offerandthe listing

9 documentation to Ms. Gantt for review andexecution. Thecounter offerprovided as follows:

10 "Purchase price to be $430,000.00. All other terms and conditions remain the same." If not

11 responded to, the counterofferwouldexpireon September 7 at 12:00 p.m.

12 Ms. Renwick reviewed all of the documentation in detail with Ms. Gantt over the course

13 of 2 to 3 hours, explaining that theproperty would be listed forsalewith thehopes of receiving

14 offers in back-up position toMr. Wirkus. They discussed that, in the current market, many

15 transactions failed for various reasons ("sale-fails") and back-upofferswere often utilized. Ms.

16 Gantt reviewed all documentation withMs.Renwick, asking appropriate questions. Ms.

17 Renwick andMs. Gantt reviewedcurrent comparable properties to ensure that Mr.Wirkus's

18 offerandMs. Gantt's counter offerwere consistent with themarket on thatdate. Theydiscussed

19 that, according to themarket information, it appeared a priceof $430,000 wasat the topof the

20 market for her home, in its original condition.

21 Ms. Gantt instructed Ms. Renwick thatshedidnotwant a signon the subject property

22 and did not want an open house or broker's tour of the home. Ms. Gantt instructed Ms. Renwick

23 that if anyone wanted to viewher property, they could do so duringlimitedhours, on limited

24 days. At no timeon September 4,2015, didMs. Ganttcommunicate any intention to terminate

25 thetransaction or that shedidnotwant to sell the subject property. Ms. Gantt acknowledged by

26 signing the counteroffer that she had fully readand understood the offer and counteroffer.

Page4 - DEFENDANTS REMAX EQUITYGROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD inftn „w Trial AttorneysRENWICK'S MOTION TO COMPEL ARBITRATION AND ,0°°*!£Ko£E3? ^ALTERNATIVE RULE21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 Lateron September 4,2015, Mr.Wirkus executed the seller's counteroffer, thereby

2 accepting Ms. Gantt'sproposed purchase price of $430,000. Importantly, byexecuting the

3 counter offer, theparties hada fully executed contract for the saleof the subject property on this

4 date.

5 Consistent with the termsof the purchase/sale agreement that had been executed,Ms.

6 Gantt agreed to allowMr.Wirkus theopportunity to viewthe interior of the home ("walk-

7 through") on September 11,2015. Ms.Ganttwas also informed the buyerhad arranged for a

8 professional home inspection to be conducted on September 14,2015. On September 10,2015,

9 Ms. Ganttreturned Ms.Renwick's callandconfirmed thewalk-through for the following day.

10 On September 11,2015, Ms.Renwick arrived at the subjectproperty for the walk-

11 through andto deliver copies of the listing and transaction documents toMs.Gantt. On this day,

12 for the first time,Ms. Gantt expressed a different understanding of the transaction. Ms. Gantt

13 informed Ms.Renwick that she did not knowshewas selling the subjectpropertyto Mr.Wirkus

14 and indicated she wanted "multiple offers."

15 Thereafter, Mr.Wirkus andMr. Horton arrived at the subjectproperty for the scheduled

16 walk-through. Mr. Wirkus greetedMs. Gantt with a bouquet of flowers and expressed his

17 appreciation for the home. When the partiesproceeded with the walk-throughof the home,Ms.

18 Ganttmade several comments about items she intendedto have repaired before the sale to Mr.

19 Wirkus closed. In fact, at the conclusion ofthe walk-through, Mr. Wirkus thankedMs. Gantt for

20 the opportunity to purchaseher home andMs.Gantt responded that she was happy to sell it to

21 him.

22 As Mr. Horton and Mr. Wirkus exited the home, they asked about accessing it for the

23 home inspection scheduledseveral days later. A planwas confirmedthat Ms. Gantt would let

24 them and the inspector into the home on the scheduled day. Ms. Renwick informed Mr. Horton

25 andMr. Wirkus abouther prior interaction withMs.Ganttand the surprising revelation thatMs.

26 Gantt was looking to list her home on theopenmarket, expecting "multiple offers." Mr.Wirkus

Page5 - DEFENDANTS REMAX EQUITYGROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD 1000 sw,JJjjUJ^,.tlRENWICK'S MOTION TO COMPEL ARBITRATION AND Portland, Ore'go^MS °°rALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 was visibly upset by this informationand left the subject property.

2 Given Ms. Gantt's communication with Ms. Renwick, she and Mr. Horton immediately

3 contacted Rod Renwick, the principal broker in the transaction.

4 Thereafter,Ms. Renwick made efforts to contactMs. Gantt to clarify her intentions and

5 to advise that legal advice was necessary given that Ms. Gantt was under contract with Mr.

6 Wirkus to sell the property. Mr. Renwick madesimilarattempts to contactMs. Gantt. When

7 Ms. Gantt refused to respond to inquiries about whether the home inspection would go forward

8 as planned on September 14,2014, Mr. Hortonwas forced to cancel the inspection.

9 Given that all efforts to contact her had been unsuccessful, Ms. Renwick delivered a letter

10 to Ms. Gantt explaining that, although she had not previouslyunderstoodMs. Gantt wanted to

11 solicit multiple offers, Ms. Renwick hoped the transactionwith Mr. Wirkus could be resolved.

12 One possiblesolutionMs. Renwick offeredwas thatMs. Gantt could reject any repair requests

13 proposed by Mr. Wirkus which could potentially lead Mr. Wirkus to terminate the transaction.

14 In the letter,Ms. Renwick furtherexplained(again) that many transactions failed for a varietyof

15 reasons and it was possible future offerswould fail and she wouldbe without any buyer for her

16 home.

17 Also on Monday, September 14,2015, Mr. Wirkusmet with legal counsel and sent a

18 letterto Ms.Ganttdemanding that sheperform underthe contract and permit the inspection and

19 appraisal.

20 OnWednesday, September 15,2015, Ms. GanttcontactedMr. Renwick and agreed to

21 allowthe home inspection the following day. Mr. Renwick explained that the typicalprocess

22 was to allowthe buyerand his inspector to haveaccess to the propertywithoutthe sellerpresent.

23 WhenMr. Hortonarrivedon the dayof the inspection, he was greetedbyMs.Ganttwho

24 allowed him into the home to wait for the buyer and the inspector. Once Mr. Wirkus arrived, he

25 wasnot pleased that the seller refused to vacate the homefor the inspection. A heateddiscussion

26 ensued between Mr. Wirkus and Mr. Horton inthepresence ofMs. Gantt. Ms. Gantt, apparently

Page 6 - DEFENDANTS REMAX EQUITYGROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD innn -w J™/"0^* ,, ,h „RENWICK'S MOTION TO COMPEL ARBITRATION AND 10°°^SfSSSSmALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 affected by witnessing the heated discussion betweenMr. Horton and Mr. Wirkus indicated to

2 Mr. Horton that if shehad known Mr. Wirkus was"like that,"shewould not haveagreed to sell

3 her home to him.

4 Following the inspection, on September 17,2015,Mr.Wirkus proposed a Repair

5 Addendum, requesting that Ms. Gantt contribute $5,800* toward his closing costs. That evening,6 Ms.Gantt rejectedthe proposal. Contrary to Ms.Gantt's allegations, Ms. Gantt did not have an

7 option of terminating the transaction with this Repair Addendum. It wassimply a request that

8 she couldeither accept, reject, or counter. On this date, the partieswerealreadyundercontract

9 for the sale of the home. Ms. Ganttdid not have an option to terminate.

10 On September21,2015, an appraisal was performedat the subject property at the request

11 ofMr. Wirkus's lender. Mr. Horton attended the appraisal and noted that Ms. Gantt's

12 belongings were packed and it appeared she was preparing to move.

13 On October 5,2015, the evening before the scheduled closing, Ms. Gantt delivered to Mr.

14 Renwick a hand-written note as follows: "I will not be at the closing on 10-6-15 due to illness -

15 and as I said to you this morning I will be seeking legal advice regarding certain issues, some

16 related to the contract."

17 The scheduled closing date passed and, on October 14,2015, Mr. Wirkus initiated

18 mediation and arbitration under the terms ofthe purchase/sale agreement seeking specific

19 performance. Arbitration remains pending betweenMs. Gantt and Mr. Wirkus.

20 On or about January 25,2016, Ms. Gantt filed her First Amended Complaint, seeking

21 damages and equitable relief.

22 ///

23 ///

24 ///

25 ///

26

This is the sameamountofanestimate providedto replace the sewerline forthe subject property.Page 7 - DEFENDANTSREMAX EQUITY GROUPd/b/a HARTWAGNER LLP

SACAGAWEA, LLC, ERIN RENWICK AND ROD ,„„„ sw. "-££"^FloorRENWICK'S MOTION TO COMPEL ARBITRATION AND Portland, Oregon 97205ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 MOTION 1: Motion to Stay and Compel Arbitration

2 Pursuant to ORS 36.6252, defendants move this Court for an order abating Ms. Gantt's3 claims andcompelling binding arbitration of all claims because her lawsuit is barred by the

4 Arbitration Agreement between the partieswhichrequires the partiesto arbitrate any claims.

5 POINTS AND AUTHORITIES

6 1. Legal Standard

7 Oregonlaw stronglyfavors arbitration clausesas a recognized and approvedmethodof

8 dispute resolution. Greenwood International v. GreenwoodForest Products, 108Or App74

9 (1991). Further, ORS 36.620 provides that an arbitrationprovision in any written contract is

10 valid, irrevocable andenforceable.3

11 Oregon courts will generally "construe arbitrationagreements liberally to enhance

12 arbitrability ofdisputes." Union County Sch. Dist. No. 1 v. Valley InlandPacificConstructors,

13 Inc., 59 Or App 602,606-07,652 P2d 349 (1982). The Oregon Revised Uniform Arbitration Act

14 (ORS 36.600-36.740) requires a court, upon a motion to compel arbitration, to order the parties

15 to arbitrate unless it finds that there is no enforceableagreement to arbitrate. ORS 36.625(1))(b)

16 (emphasis added). Under the Act, contractual arbitration agreements are enforceable unless

17 grounds exist for revocation of the contract. The Act reads:

18 An agreement contained in a record to submit to arbitration any existing orjg subsequent controversy arising between the parties to the agreement is

valid, enforceable and irrevocable except upon a ground that exists at law20 or in equity for the revocation ofa contract." ORS 36.620(1).

21 In addition, the Federal Arbitration Act (FAA), 9 USC§§1-16, also requires enforcement

22 of certainarbitration agreements and preempts, and is supremeto, less restrictivestate laws. See

23 Industra/Matrix Joint Venture v. Pope Talbot, Inc., 341 Or 321,329,142 P3d 1044(2006)

24 (discussing applicability of the Federal Arbitration Act in Oregon).

25 2 ORS36.625 provides in part: "(I) Onpetition of a person showing an agreement to arbitrate andalleging another person'srefusal to arbitrate

26pursuant to the agreement: **** (b) if the refusingpartyopposes the petition, thecourtshallproceed summarily to decidethe issue***andorderthe partiesto arbitrateunless it finds that there is noenforceableagreementto arbitrate."3Subject to limited exceptions at law or inequity that would allow for revocation ofthe contract.

Page 8 - DEFENDANTS REMAX EQUITY GROUPd/b/a HARTWAGNER LLP

SSEiS^ESJKS!5™*"*AND ROD iooo s.w.E2£X£L**«~RENWICK'S MOTIONTO COMPELARBITRATION AND Portland, Oregon 97205ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 2. Argument

2 The sale of the subjectproperty is subject to anArbitration Agreement included within

3 the Purchase/Sale Agreemententered into byMs. GanttandMr.Wirkus titled "DISPUTE

4 RESOLUTION INVOLVING LICENSEES ORFIRMS." (Decl. of Jacobs, Ex. 2). Ms.Gantt

5 signedthe agreementon September4,2015. Id. The agreement provides:

6 36. SMALL CLAIMS COURT AND ARBITRATION: Allclaims, controversies or disputes relating to this

' transaction... in which a Licensee... is named or included as aparty, shall be resolved exclusivelyas follows: (1) Ifwithin the

8 jurisdictional limit ofSmall Claims Court, the matter shall bebrought and decided there.. .(2)A11 other claims, controversies or

y disputes involving such Licensee orFirm shall be resolved throughfinal and binding arbitration using the arbitration selection processdescribed in Section 34 above... This Section 36 shall expresslysurvive Closing or earlier termination of this Agreement...

(Decl. of Jacobs, Ex. 2) (emphasis added). The claims raised in Ms. Gantt's First Amended

Complaint relate to the transaction - the sale ofthe subject property. Therefore, all claims

asserted againstdefendantsare subject to the arbitration provision. The arbitrationrequirement

in the Purchase/SaleAgreement is very broad in scope and covers the disputes in the First

Amended Complaint. Ms. Gantt signed the Purchase/Sale Agreement, including the dispute

resolutionprovision, and all claims are subject to the duties and obligations of that provision.

Alternatively, to the extent Ms. Gantt alleges her claims arise out of the listing

agreement, the arbitration clause in the listing agreementcontrols and provides as follows:

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2Q All claims that have not been resolved by mediation, or otherwise,shall be submitted to final and binding private arbitration in

~, accordance withOregon Laws... BYCONSENTING TOTHISz* PROVISION YOUAREAGREEING THATDISPUTES

ARISING UNDER THIS AGREEMENT SHALL BE HEARDAND DECIDED BY ONE OR MORE NEUTRALARBITRATORS AND YOU ARE GIVING UP THE RIGHT TOHAVE THE MATTER HEARD BY A JUDGE OR JURY. THERIGHT TO APPEAL AN ARBITRATION DECISION ISLIMITED UNDER OREGON LAW."

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Page 9 - DEFENDANTS REMAX EQUITYGROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD innn Bw ™al Attorneys.^».....„.,.„ ..~.—, 1000 S.W. Broadway,Twentieth FloorRENWICK'S MOTIONTO COMPELARBITRATION AND Portland, Oregon 97205ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 (Decl. of Jacobs, Ex. 3) (emphasis inoriginal). One or bothof these arbitration agreements

2 should beupheld andenforced according to their terms. Accordingly, defendants' motion to

3 compel arbitration in accordance with the terms of the Purchase/Sale agreement between Ms.

4 Gantt and Mr. Wirkus should be granted.

5 CONCLUSION

6 Basedon the express terms of the Arbitration Agreement, ORS 36.620,ORS 36.625,and

7 theFederal Arbitration Act, the agreement should beupheld andenforced according to its terms.

8 Accordingly, defendants' Motion to Stay this Action and Compel Arbitration in accordancewith

9 the termsof the agreement should be granted. If this Court finds that the partiesare not required

10 to arbitrate Ms. Gantt's claims, then pursuantto ORCP21, defendantsrequest the Court grant

11 defendants' motions as summarized above and detailed below.

12 MOTION 2: Motion to Dismiss - Elder Abuse

13 Pursuant to ORCP 21A(8), defendantsmove the Court for an order dismissing Ms.

14 Gantt's First Claim for Relief (Elder Abuse) for failure to state ultimate facts sufficient to

15 support a claim for financial Elder Abuse. Specifically, Ms. Gantt's First Amended Complaint is

16 deficientdue to Ms. Gantt's failure to allege ultimate facts to support allegations ofa wrongful

17 taking or appropriation of the subject property.

18 POINTS AND AUTHORITIES

19 1. Legal Standard

20 Under ORCP 18A, plaintiff is required to state ultimate facts to support each element of

21 her claims. SeeMoore v. Willis, 307Or 254,257, 767P2d62 (1988). This requires a "fairly

22 specific description of facts..." Davis v. Tyee Industries, Inc., 295 Or 467,476,668 P2d 1186

23 (1983) (quoting Comments to ORCP 18). Where a plaintifffails to allege ultimate facts

24 sufficient to statea claim, the Court should granta motion to dismiss. ORCP21A(8). In ruling

25 on a motion to dismissunderORCP21A(8), the Courtneedonlyaccept the truth of all "well-

26 pleaded" facts and the "reasonable inferences" to be drawn from those facts. Swanson v.

Page 10 - DEFENDANTS REMAX EQUITYGROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD .„„„ Qw Jrial AttorneysRENWICK'S MOTION TO COMPEL ARBITRATION AND ,0°°**££SSZm* F'°°rALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 Warner, 125 Or App 524,526, 865 P2d 493 (1993). The "mere recitationof the elementsofa

2 particular claim, without more, is not a statement of the ultimate facts sufficient to constitute that

3 claim forrelief." Huang v. Claussen, 147 OrApp 330,334,936 P2d394(1997), rev. den. 325

4 Or438,939 P2d 62 (1997). The Courtshould disregard speculative allegations and conclusions

5 oflaw. Heusserv. Jackson Cty Health Dep't,92 OrApp 156,162,757P2d 1363(1988). Under

6 ORCP 21A(8), claims for reliefthat arenosupported bytherequisite ultimate facts are subject to

7 dismissal.

8 2. Argument

9 Under ORS § 124.110, a plaintiffmay assert a claim for elder abuse under several

10 theories. Although it is unclear fromMs.Gantt's allegations, it appears Ms. Gantt contends

11 defendants "wrongfully took" or appropriated property from her, a vulnerable person. This is

12 permitted underORS 124.110(l)(a)assuming the specific elements of ORS 124.110(l)(a)are

13 met. An actionmaybe broughtunderORS 124.110(a): "Whena personwrongfully takes or

14 appropriates money or property ofa vulnerable person,without regard to whether the person

15 taking or appropriating the money or property has a fiduciary relationship with the vulnerable

16 person."

17 ORS 124 does not define the terms "take" or "appropriate." However, these terms were

18 defined by the Court in Church v. Woods, 190Or App 112,117 (2003). The Church Court

19 adopted the ordinary meanings of"take" and "appropriate" which it defined as "to transfer into

20 one's own keeping [or to] enter into or arrange for possession,ownership, or use of." Id.

21 Here, Ms. Gantt's elder financial abuse claim is insufficiently pled because, within this

22 claim, Ms. Gantthas failed to state any ultimate facts to suggestthat defendants transferred into

23 theirownkeeping or entered intoor arranged forpossession, ownership, or useofMs.Gantt's

24 property.

25 ///

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Page 11 - DEFENDANTS REMAX EQUITYGROUP d/b/a "ARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD ,„„„ -w Trial AttorneysRENWICK'S MOTION TO COMPEL ARBITRATION AND ^ ^SSSSSm ""ALTERNATIVE RULE 21MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 The closest Ms. Gantt comes is the legally conclusive allegation that "[defendants took

2 money or property fromMs. Gantt in the form ofan obligation to sell her home and the loss [sic]

3 cost of improvements and investments made to the propertybetween2014 and 2015." (First

4 Am. Compl. ^ 51(b)). This allegation is insufficient for two reasons.

5 First, this is a mere conclusive recitation of the element of the claim. The Court has

6 directed inHuang andHeusser that these types ofallegationsare insufficient and should be

7 disregarded for purposes ofmotions like this one.

8 Second, even ifwe accept these allegationsas allegationsof ultimate fact sufficient to

9 supportthe elementsofan elder financial abuseclaimand accept them as true, the actionsof

10 defendants of which Ms. Gantt complains donotfit theplain meaning definition of taking or

11 appropriation adopted by the Church Court. Defendants facilitated a sale to purchaserWirkus.

12 At no point did they take the propertyor arrange to take the property. For this reason,Ms.

13 Gantt's allegations do not support the requisite element of "taking" or "appropriation."

14 This is consistent with the Court's interpretation of themeaning of these terms inHoffart

15 v. Wiggins, 226 Or App 545 (2006). InHoffart, plaintiffs entrustedmoneywith defendant in

16 orderto allowthe defendant to investthemoney in various investment opportunities on

17 plaintiffs' behalf. 226 OrApp 545, 547,204P3d173 (2009). Subsequently, plaintiffs requested

18 defendant return their money, which defendant failed to do. Id. Thetrial courtgranted summary

19 judgmenton the elderabuseclaimafter determining that suchan arm's length transaction -

20 investing money for another - was a "legitimate transaction" and, therefore, nota wrongful

21 taking underthe statute. If the alleged "taking"inHoffart was insufficient to state a claim,

22 surely thealleged "taking" in thiscase is aswell. Indeed, the facts inHoffart were stronger than

23 thefacts here because Hoffart involved defendant actually possessing the funds at some point.

24 Despite that, theCourt held there wasno taking. Here, defendants did not"take"or possess Ms.

25 Gantt's property atany point.426

Indeed, noonehas"taken" Ms. Gantt's home. Shestill possesses it and, oninformation and belief, resides there.Page 12 - DEFENDANTS REMAXEQUITY GROUP d/b/a HARTWAGNER LLP

SACAGAWEA, LLC, ERIN RENWICK AND ROD ,nm cw JriaiMt0™VRENWICK'S MOTION TO COMPEL ARBITRATION AND 10°°*ES£S£XSS?""ALTERNATIVE RULE21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 Put simply, Ms. Gantt has not, and cannot, state a claim for financial elder abuse because

2 defendants never tookpossession of the subject property.

3 CONCLUSION

4 For the foregoing reasons, Ms. Gantt's FirstClaimfor Reliefand all damages associated

5 with it should bedismissed. Significantly, onlyMs. Gantt's ElderAbuse claim permits non-

6 economic damages. Therefore, her claimand the alleged non-economic damages associated with

7 it should be dismissed.

8 MOTION 3: Motion to Dismiss - Rescission

9 Pursuant to ORCP21A(8),defendants move theCourtfor an order dismissing Ms.

10 Gantt's Second Claim for Relief (Rescission) for failure to state ultimate facts sufficient to

11 support a claimfor rescission. Specifically, Ms.Gantt's FirstAmended Complaint is legally

12 deficient as a matter of lawandinsufficiently pled because: (1)defendants REMAX Equity

13 Group, Erin Renwick, and Rod Renwick are not parties to the agreement plaintiffseeks to

14 rescind and (2) even if these defendantswere parties to the agreement,Ms. Gantt has failed to

15 allege ultimate facts to support allegations that she promptlyreturned or offered to return the

16 benefit of the Purchase/Sale Agreement.

17 POINTS AND AUTHORITIES

18 1. Legal Standard

19 The same general pleading standard which applies to Motion No. 2 applies to this motion.

20 In sum,Ms. Gantt must allege ultimate facts to support each and every element ofher claim.

21 Ms. Gantt has failed to do so here. Legally conclusiveand/or speculative factual allegations are

22 insufficient and the Court should ignore them.

23 2. Argument

24 To effectively rescind a contract, one party to the contract must give the other party to the

25 contractnotice that he or she "unequivocally and unconditionally conveys the intent to insist on

26 the rescission." Stovall v. Publishers Paper Co., 284Or 53,63,584 P2d 1375 (1978). Further,

Page 13 - DEFENDANTS REMAX EQUITYGROUP d/b/a HARTWAGNER LLPltC^t™A±^ERlN RENWICK AND ROD .000 S.W.ESSSELl* FloorRENWICK'S MOTION TO COMPEL ARBITRATION AND Portland, Oregon 97205ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 the choice to seek rescission must occur promptly after the discovery of the grounds for

2 rescission. Plaintiffs are required to elect their remedy at that point. Finally, rescission must

3 also be coupled with the return, or offer to return, the benefit of the contract conferred on the

4 party seeking rescission. The Court in Sheppardv. Blitz (quoting from Scott v. Walton, 32 Or

5 460) concisely summarized these aspects of the law regarding rescission:

6 If [aparty] desires to rescind, hemust actpromptly, and return, oroffer to return,what he has received under the contract. He cannot retain the fruits of the

7 contract awaiting future developments to determine whether it will bemoreprofitablefor him to affirmor disaffirm it. Any delay on his part, and especially

8 hisremaining inpossession ofthe property received byhim under the contract.and dealing with it as his own, will be evidence ofhis intention to abide by the

9 contract.

10 177Or 501,504,163 P2d 519,521 (1945) (emphasis added). See also, e.g., Hay v. Pacific

11 Tastee Freeze, Inc., 276 Or 569,578(1976).

12 Defendants REMAX EquityGroup, ErinRenwick, andRodRenwick are not partiesto

13 the Purchase/Sale Agreement. In fact, they are specifically excluded as parties to the agreement

14 in the "DEFINITIONS" section. The agreement provides:

1. DEFITIONS: (1) All references in this SalesAgreement to "Licensee" and16 "Firm" shall refer to Buyer's and Seller's real estate agents licensed in theState of

Oregonand the respective real estatecompanies with which they are affiliated.17 (2) Licencee(s) and Firm(s) identified in the FinalAgencyAcknowledgement

Section aboveare not parties to thisAgreement, exceptas may be expressly1° applicable.19 (Decl. ofJacobs, Ex. 2) (emphasis added). Therefore, itdefies logic how Ms. Gantt's requested20 relief- rescission ofthe contract - could apply to them. For this reason alone, Ms. Gantt's

21 rescission claim should be dismissed against these parties. It is axiomatic that an individual or22 entity cannot rescind a contract towhich it isnot a party.

23 Further, even ifthe Court ignores this fundamental, legally dispositive defect ofMs.24 Gantt's rescission claim, the claim should be dismissed for failure toallege sufficient ultimate25 facts to support the elements ofrescission. To wit: Ms. Gantt has not alleged any ultimate facts26 that Ms. Gantt returned, or offered to return, the benefit ofthe Purchase/Sale Agreement. UnlessPage 14 - DEFENDANTS REMAXEQUITY GROUP d/b/a HARTWAGNER LLP

SACAGAWEA, LLC, ERIN RENWICK AND ROD 1ftnft „w Trial AttorneysRENWICK'S MOTION TO COMPEL ARBITRATION AND 10°°*ESESS3?ALTERNATIVERULE21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 or untilMs.Ganttallegesultimate facts supporting theconclusion that she promptly returned or

2 offered to return the benefit of the Purchase/Sale Agreement, she has not stated a claim for

3 rescission. As a result, this Courtshoulddismiss Ms.Gantt's claimfor rescission against

4 REMAX Equity Group, Erin Renwick, and Rod Renwick.

5 CONCLUSION

6 For the foregoing reasons, this Court should dismiss Ms. Gantt's Second Claim for Relief

7 against defendants.

8 MOTION 4; Motion to Dismiss - Damages

9 Pursuant to ORCP 21A(8), defendants move the Court for an order dismissing all ofMs.

10 Gantt's claimsfor failure to allege ultimatefacts to supportthe requisiteclaim for damages.

11 POINTS AND AUTHORITIES

12 1. Legal Standard

13 The same general pleading standardwhich applies to Motion No. 2 applies to this motion.

14 In sum, Ms. Gantt must allege ultimate facts to support each and every element ofher claim.

15 She has failed to do so here. For purposes of this motion, legally conclusive and/or speculative

16 factual allegations are insufficient and the Court should ignore them.

17 2. Argument

18 All ofMs. Gantt's claims include damages as a requisite element. Here, Ms. Gantt has

19 not alleged any ultimate facts to support damages. Namely, the subject property is still in Ms.

20 Gantt's possession and control and she resides there.

21 Ms. Gantt alleges $50,000 in economicdamages allegedly representing "the estimated

22 amount to which her homewould be sold for less than fair market value." (First Am. Compl. |

23 108) (emphasis added). The grammatical gymnastics of this statement is intentional on Ms.

24 Gantt's part, because the subject property has not yet been sold. Indeed, Ms. Gantt still

25 possesses it and resides it. In short, she has, at this point, sufferedno actual economicdamage.

26 Therefore, all ofher claims, and each of them, should be dismissed.

Page 15 - DEFENDANTS REMAX EQUITY GROUPd/b/a HART WAGNER LLPot^^t^^^NWICK AND ROD .000 S.W.EStXSSU* F.oorRENWICK'S MOTION TO COMPEL ARBITRATION AND Portland, Oregon 97205ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 CONCLUSION

2 Ms. Gantt has not, and cannot, state any ultimate facts supporting a damages claim.

3 Therefore, her claims, and each of them, should be dismissed.

4 MOTION 5: Motion to Dismiss - Election of Remedies

5 Pursuant to ORCP 21A(8), defendantsmove the Court for an order dismissingMs.

6 Gantt's Second Claimfor Reliefor her Thirdthrough SixthClaimsfor Relief. Ms.Ganttmay

7 eitherallege her Second Claimfor Reliefor herThird through SixthClaimsfor Relief, but not

8 both.

9 POINTS AND AUTHORITIES

10 1. Legal Standard

11 Thesame general pleading standard which applies toMotion No. 2 applies to thismotion.

12 In sum,Ms. Ganttmust allegeultimate facts to support eachand everyelementof her claim.

13 She has failed to do so here. Forpurposes of thismotion, legally conclusive and/or speculative

14 factual allegations are insufficient and the Courtshould ignore them.

15 2. Argument

16 Ms.Ganttallegesthe Purchase/Sale Agreement shouldbe rescinded becauseof: (1)

17 misrepresentation (First Am. Compl. UU56-59), (2)undue influence (First Am. Compl. H1f60-64),

18 (3) lack of consent (First Am. Compl. UH65-67), (4)unilateral mistake (First Am. Compl. H1f68-

19 70), and (5) lack of formation (First Am. Compl. 1(1)71 -75). Although some of these legal

20 doctrines can render a contract void andrescindable, well-established Oregon contract law

21 requiresMs. Gantt to elect her remedies should she choose to do so. As noted above, Ms. Gantt

22 was required to elect her remedy promptly following discovery of thepotential for rescission.

23 Ms. Gantt cannot pursue actions that both affirm and disaffirm the contract. See Ristauv.

24 Wescold, Inc., 120 OrApp 264, 267, 852P2d 271 (1993) rev'don other grounds 318Or 383

25 (1994).

26 ///

Page 16 - DEFENDANTS REMAXEQUITY GROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD ,««« cw n™"!.A,,0™eysRENWICK'S MOTION TO COMPEL ARBITRATION AND ,M°*J£SSo£!5S?^ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 Again, Sheppard v. Blitz (quoting from Scott v. Walton, 32Or460) concisely summarizes

2 the law regarding electionof remedies and pointsout the fatal flaw inMs. Gantt's First

3 Amended Complaint. TheCourt inSheppard stated:4

[A partyM]ayeither affirm the contract and sue for damages or disaffirm it, and5 be reinstated in theposition inwhich hewas before it was consummated. These

remedies, however, are not concurrent, but wholly inconsistent. The adoptionof6 one is the exclusion of the other.

7 177 Or 501,504,163 P2d 519, 521 (1945) (emphasis added).8 Here, Ms. Gantt contradictorily brings claims forrescission - which seeks the non-

9 existence ofthe contract - and claims for Unlawful Trade Practices, Breach ofFiduciary Duty,

10 Negligent Misrepresentation, and Declaratory relief- which necessitate, and arefactually

11 premised on,theexistence of a contract. Unlike other fact scenarios, where it is possible to

12 allege inconsistent claimspursuant to ORCP 16C, Ms. Ganttcannotdo so here as a matterof

13 law.

14 First, as explained above, Ms. Ganttwasobligated to electher remedy to rescind the

15 contract so as to make it non-existent or pursue otheractions premisedupon the existence of the

16 contract promptly following the revelation thatrescission waspossible. Unlike otherclaims

17 where ORCP16allowspleading in the alternative, common lawrequires an electionof remedies

18 when possible rescission is discovered. The nature of theclaim, as a matter of law, prohibits

19 alternative, contradictory pleading.

20 Second, ORCP 16C byits terms prohibits alternative, contradictory pleading in

21 circumstances like this. ORCP 16C is limited byORCP 17 by its own terms. ORCP 16C

22 provides that all inconsistent statements "shall bemade subject to theobligation set forth inRule

23 17." So,alternative, contradictory pleading isonly permitted when theobligations ofORCP 17

24 aremet. Ms.Gantt cannotmeet those obligations here.

25 As the Court isaware, ORCP 17C requires that anattorney make only those allegations

26 for which there isevidentiary support. Indeed, ORCP 17C states that, bysigning the First

Page 17 - DEFENDANTS REMAX EQUITYGROUP d/b/a hartWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD tnn» «. w Trial Attorney*RENWICK'S MOTION TO COMPEL ARBITRATION AND ^ ^SSoSS^StALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-1499/Fai: (503) 222-2301

1 Amended Complaint, Ms. Gantt's attorney certified to the Court that "the allegations and other

2 factual assertions in the pleading...are supported by the evidence." Here, as explained above, as

3 a matter of law Ms. Gantt cannot make this certification to support both a claim for rescission

4 and her third through sixth claims. Neither she, her counsel, nor anyone else can certify to the

5 Court that the Purchase/SaleAgreementwas both affirmed and disaffirmed. It is a simple logical

6 truth that both affirmation and disaffirmationcannot exist simultaneously. Therefore, Ms. Gantt

7 must dismiss either her Second Claim for Relief or her Third through Sixth Claims for Relief.

8 CONCLUSION

9 For the foregoing reasons, Ms. Gantt must dismiss either her Second Claim for Relief or

10 her Third through Sixth Claims for Relief. As a matter of law, she cannot both affirm and

11 disaffirm the contract at issue in her pleading.

12 MOTION 6; Motion to Dismiss - Declaratory Relief

13 Pursuantto ORCP21A(l), defendants movethe Court for an order dismissingMs.

14 Gantt's SixthClaimfor Relief. This Courtdoesnot havesubject matterjurisdictionover the

15 questionofwhetheror not the Purchase/Sale Agreement is rescindable.

16 POINTS AND AUTHORITIES

17 1. Legal Standard

18 The same general legal standard which applies to Motion No. 1 applies to thismotion.

19 There is a strong policy favoring arbitration of claims bothinOregon and federal law. The law

20 is clear, any"questions ofarbitrability must beaddressed with a healthy regard for the federal

21 policy favoring arbitration." Gilmer v. Interstate/Johnson Lane Corp., 500 US 20,26 (1991).22 Further, any doubts concerningthe scopeofarbitrable issuesshould be resolved in favorof

23 arbitration. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 US 615,626 (1985)24 quotingMosesH. Cone Memorial Hospital v. Mercury Construction Corp., 460 US 1, 24

25 ///

26 ///

Page 18 - DEFENDANTS REMAX EQUITY GROUP d/b/a HART WAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD 1(Mm _w nrriaiAt,0™y$ „ ,. „RENWICK'S MOTION TO COMPEL ARBITRATION AND 10°°^SSSS^S^ALTERNATIVE RULE21MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 (1983). Finally, the party "resisting arbitration bears the burden ofproving that the claims at

2 issue are unsuitable for arbitration." Green Tree FinancialCorp.-Alabama v. Randolph, 531 US

3 79,91 (2000).

4 2. Argument

5 Here, plaintiff acknowledges in her First Amended Complaint that the arbitration

6 provisions at issue in this case state that "all disputes relating directly or indirectly to the alleged

7 transaction between the parties including those for rescission be submitted to arbitration." (First

8 Am. Compl. f 109).

9 Ms. Gantt's claim for declaratory relief fits within all three of these categories. She asks

10 the Court to declare that the contractsat issuedo not applyand are voidable. This is a question

11 for an arbitratorto decide. This is consistentwith the terms of the contracts and relevantOregon

12 case law on the subject.

13 Oregon case law is abundantly clear thatcourtsare to presume personsare competent to

14 contract and that an individual claiming incompetency has the burdenof provingit. Cloud v.

15 U.S. National Bank, 280 Or 83,90,570 P2d 350 (1977);Kruse v. CoosHeadTimber Co.,248 Or

16 294,306,432 P2d 1009 (1967); DeLaMontayne v. DeLa Montayne, 131 Or 23,26,281 P 825

17 (1929). This is trueeven when an adult protected person hashada guardian appointed forhim.

18 ORS 125.300(2).

19 Moreover, under Oregon law, not only is an individual who executes a document

20 presumed to havecapacity to do so, that individual is also presumed to be familiarwith the

21 documents that bear hersignature. First Interstate Bank v. Wilkerson, 128 OrApp 328,337 n.

22 11(1994) (citing Broad v. Kelly's Olympian Co., 156 Or216,229 (1937)).

23 At thepleading stage, theCourt must accept allwell-pled allegations as true. Here, Ms.

24 Gantt acknowledges inher allegations that the contracts at issue state that the issue regarding the

25 efficacy ofa contract istobedecided by an arbitrator, not this Court. Further, Oregon law26 ///

Page 19- DEFENDANTS REMAXEQUITY GROUP d/b/a HART WAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD innn . w Trial AttorneysRENWICK'S MOTION TO COMPELARBITRATION AND ,0°° 'X.23SSE5?ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 presumes that Ms. Gantt was capable ofsigning the documents and understood them when she

2 did so. Shewill have the burden of proving otherwise whenthis issue comesbeforean

3 arbitrator.

4 CONCLUSION

5 For the foregoing reasons, the Court should grant defendants' Motion to Dismiss Ms.

6 Gantt's Sixth Claim for Relief.

7 MOTION 7: Motion to Strike - Irrelevant Allegations

8 In addition, or as an alternative to theirMotions to Dismiss, pursuant to ORCP 2IE, the

9 defendants move that the Court strike irrelevant, redundant, and improperly pled evidentiary

10 allegations contained in paragraphs 1,4,13,15-19,24,25,28, 30,32,33, 37, and 43 ofMs.

11 Gantt's First Amended Complaint.

12 POINTS AND AUTHORITIES

13 1. Legal Standard

14 Upon motion, a court may strike any "sham, frivolous, irrelevant, or redundant matter."

15 ORCP21E.

16 It is improper to plead evidence. See Cole v. Multnomah County, 39 Or App 211,220,

17 592 P2d 221, rev. denied, 286 Or 449 (1979). The Oregon Supreme Court has stated, "It is never

18 good pleading to allege the evidence by which one would seek to prove a primary fact. Proper

19 pleading requires the allegation of fact rather than the evidence thereof." National SuretyCo. v.

20 Johnson, 115 Or 624,632,239 P 538 (1925). As Multnomah County Circuit Court Judge Leslie

21 Roberts once stated, "By long practice, matters that should be struck from a pleading include

22 mere conclusions of law and assertions that may be evidence of the existence ofan ultimate fact,

23 but which do not unequivocally assert that ultimate fact." Multnomah County Circuit Court

24 Judge Leslie Roberts, Tipsfrom the Bench: Rule 21, Part 1,Multnomah Lawyer, Feb. 2010,

25 at 8.

26 ///

Page 20 - DEFENDANTS REMAX EQUITY GROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD imsw.£J£?pS-- F!oorRENWICK'S MOTION TO COMPEL ARBITRATION AND Portland, Oregon 97205ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 2. Argument

2 Ms. Gantt includes a bevy of irrelevant, redundant, and/or improper evidentiary

3 allegations in her First Amended Complaint.

4 A. Paragraph 1.

5 Paragraph 1 of the First AmendedComplaintcontains the following irrelevant allegations

6 and/or improperly pled evidence:

71. Ms. Gantt "resided in her home inNortheast Portland for approximately 47

8 years;"2. The subject property is Ms. Gantt's "only asset and the place where she raised

9 her four children as a single, workingparent;"3. Ms.Gantt "suffers fromhigh bloodpressure, visioncomplicationsand

'0 impairments, and severe arthritis;"j j 4. In the last twelve months Ms. Gantt's sister and nephew died; and

5. Ms.Gantt has experienced depression and difficultyconcentrating. (First Am.12 Compl. HI).

13 These allegations are irrelevant and/or improperly pled evidence. Thetime Ms. Gantt

14 spent inherhome is not anultimate fact necessary to support anelement of any of herclaims.

15 Ms. Gantt's ownership is theonlyultimate fact necessary to support her claims andcanbepled

1g simply. Remaining allegations regarding thetime she spent there, the fact it was hersole asset,

17 and the place where she raised herchildren are not necessary to support any of the elements of

jg herclaim. Arguably, these could beconstrued asevidence of herattachment to herhome -

19 however, defendants donot concede their admissibility - but that evidence is improperly

20 included in the pleading itself. Similarly, Ms. Gantt's health conditions and the fact her nephew

2i and sister died arenotultimate facts supporting anyof herclaims.

22 B. Paragraph 4.

23 Inparagraph 4, Ms. Gantt includes the irrelevant qualifier that thearbitration clauses in

24 thecontracts at issuewere"boiler plate." (FirstAm. Compl. f4). The fact that the clauses at

25 issue areor arenotboiler plate is notanallegation of ultimate fact demonstrating anyof the

25 requisite elements of Ms. Gantt'sclaims.

Page21 - DEFENDANTS REMAX EQUITYGROUP d/b/a HART WAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD innn . w IJ^Tt** h ,•• r,n».....,.^,.,.n . .^^.JL.. 'nnn S.W. Broadway, Twentieth FloorRENWICK'S MOTION TOCOMPEL ARBITRATION AND Portland, Oregon 97205ALTERNATIVE RULE 21 MOTIONS Telephone: (503) 222-4499/Fax: (503) 222-2301

1 C. Paragraph 13.

2 Paragraph 13 contains the following irrelevantallegation and/or improper allegations of

3 evidence:

4 1. She purchased her home in 1969;2. She has "high blood pressure, severe vision impairments, and arthritis which

make walking and other daily activities difficult;" and3. "There are times whenMs. Gantt is unable to get out ofbed due to pain from her

6 arthritis." (First Am. Compl. ^ 13).7 These allegations are similar to the allegations inParagraph 1and arealso either

8 irrelevant or the improper pleading of evidence.

9 D. Paragraphs 15 and 19.

I0 Paragraphs 15 and 19 similarly include irrelevant allegations that defendant Erin

II Renwick arrived toMs. Gantt's home "with flowers." (First Am. Compl. fflf 15, 19). The12 assertion that Ms. Renwick arrived with flowers isnot an ultimate fact necessary tosupport any

13 of therequisite elements ofMs. Gantt's claims.

14 E. Paragraphs 16s. 17. and 18.

15 Paragraphs 16,17, and 18 are wholly irrelevant beyond the allegation that Ms. Gantt told

16 defendant Erin Renwick that she did not want to sell. The paragraph lists the content ofalleged17 discussions between Erin Renwick and Ms. Gantt that are not necessary tosupport any ofthe18 requisite elements ofMs. Gantt's claims and/or consist of improper allegations ofevidence.19 F. Paragraphs 24 and 25.

20 Paragraphs 24 and 25 are mostly composed ofirrelevant allegations and/or improper21 allegations ofevidence. Beyond the assertion that plaintiffdid not want tosell her home, the22 allegations inthese paragraphs should bestricken.23 ///

24 ///

25_, This paragraph actually consists oftwo paragraphs. Defendants' motion isagainst both paragraphs labeled

"Paragraph 16." There are additional "paragraphs" inthe First Amended Complaint that aremultiple actualparagraphs. Where this occurs, defendants are moving against the entirety ofthe text ofthe labeled "paragraph."

Page 22 - DEFENDANTS REMAX EQUITY GROUP d/b/a HARTWAGNER LLPSACAGAWEA, LLC, ERIN RENWICK AND ROD innn -w Jrnia'1A,,orrys „,„ C1RENWICK'S MOTION TO COMPEL ARBITRATION AND ,0°°•"ESE&ES?ALTERNATIVE RULE21 MOTIONS Telephone: (503) 222-1499/Fax: (503) 222-2301

5

1 G. Paragraph 28.

2 Paragraph 28 containsseveral additional allegations regarding Ms. Gantt's medical

3 condition and her"wish she had never met Erin Renwick." These allegations are irrelevant

4 and/or improper pleading of evidence.

5 H. Paragraph 30.

6 Paragraph 30 is redundant of Paragraph 31 and includes irrelevant and improperly pled7 evidentiaryallegations.

8 I. Paragraphs 32 and 33.

9 Paragraph 32 contains the substance of alleged conversations between Ms.Ganttand Erin

10 Renwick. Apart from the alleged fact that the conversations occurred and Ms. Gantt expressed

11 the desire tovoid the agreement, these allegations are irrelevant and/or improperly pled

12 evidence. Paragraph 33 contains allegations regarding how Ms. Gantt felt and/or appeared after

13 Erin Renwick leftherhouse. These allegations arewholly irrelevant.

14 J. Paragraph 37.

15 Paragraph 37 contains allegations regarding what occurred on September 11,2015. This

16 includes allegations regarding what wasspecifically stated between Ms. Gantt andErinRenwick.

17 These allegations are wholly irrelevant.

18 K. Paragraph 43.

19 Paragraph43 contains the allegation"Ms. Gantt informedRod Renwick ofErin

20 Renwick's conduct and the misrepresentation regarding the documents. Rod Renwick responded

21 thatErin Renwick should not have done that, stating further 'Erin knows that is nothowwedo

22 things.'" This is improper pleading of evidence.

23 ///

24 ///

25 ///

26 ///

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CERTIFICATE OF SERVICE

I hereby certify thaton the 21st day of March, 2016,1 served the foregoing

DEFENDANT REMAX EQUITY GROUP d/b/a SACAGAWEA, LLC, ERIN RENWICK

AND ROD RENWICK'S MOTION TO COMPEL ARBITRATION AND

ALTERNATIVE RULE 21 MOTIONS, on the following parties at the following addresses:

Stephen S. Walters, OSB # 801200OREGON LAW CENTER522 SW 5th Ave., Ste. 812Portland, OR 97204Email:swalters@oregonlawccnter.oru

OfAttorneys for Plaintiff

Richard Mario, Esq.5300 Meadows RoadSuite 200Lake Oswego, OR 97035Email: ram@bucklev-law.com

Of Attorneys for Scott Wirkus

Jonathan P. Strauhull, OSB #106094Andrea N. Ogston, OSB # 053360LEGAL AID SERVICES OF OREGON520 SW 6th Ave. Suite #700Portland OR 97204ion.siraiiluilhV/'lasoivuon.oruandrea.ogstonfffilasorcgon.oru

OfAttorneys for PlaintiffChristopher DrotzmannDavis Rothwell Earle & Xochihua111 SW 5th avenue, Ste. 2700Portland, Oregon 97204cdrotzmannfffidavisrothwcll.com

Of Attorney for Gary Horton

[X] by mailing a true and correct copy thereof, certified by me as such, placed in a sealedenvelope addressed as set forth above, and deposited in the U.S. Post Office at Portland, Oregonon said day with postage prepaid.

[ ] by causing a true and correct copy thereof to be hand delivered in sealed envelopes tosaid addresses on the date set forth above.

[ ] by faxing a true and correct copy thereof to the fax numbers shown for said addresses onthe date set forth above.

[ ] by sendinga full, true and correctcopy thereofvia overnight mail in a sealed, prepaidenvelope, addressed to the attorneys as shown above on the date set forth above.

[X] by submitting said document via electronic mail, a copy thereofwas served on the partiesabove.

/Michael G. Jacobs, OSBUo. 093928

Page 1 - CERTIFICATE OF SERVICE HARTWAGNER LLP

1000 S.W. Broadway, Twentieth FloorPortlandi Oregon 97205

Telephone:(503) 222-4499 Fax: (503) 222-2301