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FILED: July 8, 2004
IN THE COURT OF APPEALS OF THE STATE OF OREGON
PAUL B. PHILLIPS,
Appellant,
v.
CONI S. RATHBONE
and NAK Y. KIM,
Defendants,
and
GAIL F. OTT;

GAIL F. OTT, D. C., P. C.;

CONNIE J. DESILVA;

LASLOW'S RESTAURANT;

and NORTHWEST NEIGHBORHOOD MARKET,
Respondents. 0205-05104; A120176
Appeal from Circuit Court, Multnomah County.
Eric J. Neiman, Judge pro tempore.
Submitted on record and briefs November 7, 2003.
Paul B. Phillips pro se.
Sean Donahue filed the brief for respondents Gail F. Ott and Gail F. Ott, D. C., P. C. With him on the
brief was Donahue & Associates.
Dean Heiling filed the brief for respondents Connie J. Desilva and Laslow's Restaurant.
No appearance for respondent Northwest Neighborhood Market.
Before Edmonds, Presiding Judge, and Wollheim and Schuman, Judges.
EDMONDS, P. J.
Reversed and remanded as to count 3 and count 5 of plaintiff's complaint as to defendants Connie J.

DeSilva, Laslow's Restaurant and Northwest Neighborhood Market; otherwise affirmed. EDMONDS, P. J.
Plaintiff appeals after the trial court granted summary judgment to defendants. (1) ORCP 47 C. On appeal, plaintiff makes three assignments of error, arguing that the trial court erred in awarding judgment to defendants Gail F. Ott and Gail F. Ott, D.C., P.C. (Ott); Laslow's Restaurant and Connie J. DeSilva dba
Laslow's Restaurant (Laslow's); and Northwest Neighborhood Market (the Market) [Yong O. Lee and Kyong A. Lee (the Lees) dba the Market]. (2) We affirm in part and reverse in part.
Summary judgment is appropriate if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. ORCP 47 C. In resolving those issues on appeal, we review the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the party opposing the motion. Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997).
Plaintiff's complaint contains five claims for relief: (1) a claim for declaratory judgment relief under ORS
28.020 against defendant Ott; (2) a claim for breach of lease against defendant Ott; (3) (3) a claim for trespass against defendants Laslow's and the Market; (4) a claim labeled "theft of services" made against defendants Laslow's and the Market; and (5) a claim for injunctive relief made, apparently, against all defendants. Plaintiff alleges that he is the owner of real property located on Northwest Lovejoy Street in Portland and that, in July 1995, he entered into a lease agreement with Ott for one of the office suites located on his property. Ott operates the Lovejoy Chiropractic Clinic at that location. According to the complaint, Ott and plaintiff entered into a mediated agreement in 2000 under which Ott agreed not to "invite or expressly permit persons other than its staff and patients" to use plaintiff's parking stalls on the property. The complaint further alleges that, in 2001, plaintiff discovered that Ott had entered into an agreement with Laslow's "to share parking with or sublet parking to Laslow's for the use of Laslow's customers." Laslow's operates a restaurant adjacent to plaintiff's property. The complaint also alleges that in 2001, plaintiff discovered "from staff at Northwest Neighborhood Market that defendant [Ott] had entered into an agreement for parking" to use plaintiff's parking stalls. The Market's premises are also adjacent to plaintiff's property. Plaintiff also alleges that Laslow's and the Market continued to use plaintiff's parking area after he advised them that they were trespassing.
In his first assignment of error, plaintiff argues that the trial court erred in granting summary judgment to defendant Ott. He argues that there exists a genuine issue of material fact about whether Ott invited or expressly permitted persons other than his staff and patients to use plaintiff's parking area. In his affidavit in support of his motion for summary judgment, Ott denied plaintiff's allegations that he had agreed to permit Laslow's and the Market to use plaintiff's parking area. Plaintiff filed a controverting affidavit in which he averred, in relevant part,
"7. At Laslow's, defendant Connie [DeSilva] told me that they were using my property for
parking by permission of Gail Ott. She appeared open and honest, and she affably described
the arrangement, but she said that Gail Ott had stipulated that 'nothing could be written down'
about this agreement.
"8. On that same date, I spoke with the proprietors of Market. They told me that they were
using the parking lot by permission of Gail Ott, who had told them they could do so in the
evenings and on weekends." (4)
In his answering brief on appeal, Ott argues that "[n]either of these hearsay statements constitutes admissible evidence[.]"
In his reply brief, plaintiff responds that his statement in his affidavit in opposition to the motions for summary judgment that "[a]t Laslow's, defendant Connie [DeSilva] told me that they were using my property for parking by permission of Gail Ott" is not hearsay because it is an "admission of a party to the agreement and a party to this action." He also relies on an e -mail in evidence (exhibit 4) from Eric Laslow, who operates Laslow's together with his wife Connie DeSilva, in which Laslow states that, "we have access to the parking lot of [L]ovejoy [C]hiropractic [C]linic[.]" Plaintiff also relies on a letter (exhibit 3) that he wrote to Eric Laslow in which plaintiff stated:
"When I spoke with you on September 18, you informed me that you were directing your restaurant customers to park on my property at 2326 NW Lovejoy Street, through an arrangement with Gail Ott, one of my tenants at that property. I recognized that you [have been] using the parking lot for many months, and I spoke with Connie in July about the agreement you have with Ott."
OEC 802 provides that hearsay is not admissible as evidence except as provided in OEC 801 to OEC 806 or as otherwise provided by law. OEC 801(3) provides that "'[h]earsay' is a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Under OEC 801(4)(b)(A), a party's own prior statement is admissible nonhearsay when it is
offered against the party. (5)
Here, plaintiff offered the above statements by Connie DeSilva, Eric Laslow, and the Lees against Ott to prove the truth of the matter asserted in his complaint, i.e., that Ott breached his agreement with plaintiff by permitting Laslow's and the Market to use plaintiff's parking area for their customers' parking needs. Plaintiff argues that the above statements constitute statements of a party-opponent and are admissible under OEC 801(4)(b). However, DeSilva, Laslow, and the Lees are not parties to plaintiff's declaratory judgment and breach of lease claims against Ott. In order for a statement to be admissible against a party under the rule, it generally must be a statement that is made by a party and that is offered against that party. Laird C. Kirkpatrick, Oregon Evidence

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