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FILED: May 31, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
BERNARD D. BLUNIER
and JEAN MARIE BLUNIER,
husband and wife,
Plaintiffs-Respondents,

v.
RICHARD L. STAGGS, II,
Defendant,
and

WALTER SCOTT ZWINGLI,
Defendant-Appellant.

Polk County Circuit Court 09P10477
A145975
William M. Horner, Judge.
Argued and submitted on November 30, 2011.
Terrance J. Slominski argued the cause for appellant.  With him on the briefs were David

W. Venables and Slominski and Associates.

Teresa Ozias argued the cause for respondents.  With her on the brief was Shetterly, Irick
& Ozias.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.*
SCHUMAN, P. J.
Affirmed.
*Wollheim, J., vice Landau, J. pro tempore.

1  SCHUMAN, P. J.  
2  Defendant Zwingli appeals from a general judgment of foreclosure based  
3  on his failure to comply with terms of a trust deed in favor of plaintiffs, the beneficiaries  
4  under the deed--in particular, his failure to pay plaintiffs for attorney fees that they  
5  incurred in attempting to enforce the term of that deed under which defendant agreed to  
6  "preserve and maintain the property in good condition and repair" and "not to commit or  
7  permit any waste of said property."1 Defendant argues, first, that he did not violate that  
8  term and, second, that nothing in the trust deed compels him to pay for attorney fees  
9  incurred by plaintiffs prior to foreclosure itself.  We disagree with both of defendant's  
10  arguments. We therefore affirm.  
11  Because judicial foreclosure of a trust deed is an equitable proceeding, we  
12  have the discretion to review this case de novo. ORS 19.415(3)(b).  However, neither  
13  party presents an argument in favor of our doing so, nor do we perceive one.  
14  Accordingly, "[w]e review the trial court's legal conclusions for errors of law, and we are  
15  bound by its factual findings if there is any evidence to support them." Neff v. Sandtrax,  
16  Inc., 243 Or App 485, 487, 259 P3d 985, rev den, 350 Or 716 (2011) (footnote omitted).  
17  If there is a disputed issue of fact and the trial court could have reached the result that it  
18  did only if it resolved the dispute in one way, we will presume that it did so.  Ball v.  
19  Gladden, 250 Or 485, 487, 443 P2d 621 (1968).  
1 Although the original grantor of the deed, Staggs, was a defendant at trial, the only  
defendant on appeal is Zwingli, Staggs's successor.  Hereafter, references to defendant  
are to Zwingli only.  

1  In 2004, plaintiffs sold a house to Staggs in exchange for a promissory note  
2  secured by a trust deed. In April 2006, Staggs was in default, and plaintiffs started  
3  foreclosure proceedings.  Staggs assigned all of his interest in the property to defendant,  
4  subject to the original promissory note and trust deed in favor of plaintiffs.  Defendant  
5  cured the existing defaults, including the expenses that the trust had incurred in initiating  
6  foreclosure.  After evicting a tenant, defendant took possession of the property in June  
7  2007 and began extensive renovations, including replacing the roof, windows, doors,  
8  gutters, exterior railings, and electrical wiring; repairing the sewer and water connections;  
9  leveling the foundation; closing holes in the crawl space beneath the house; and  
10  refinishing and carpeting the floors.  Defendant undertook the improvements to increase  
11  the value of the house and to bring it up to code so that a future buyer could obtain  
12  financing.  
13  In October and November 2007, plaintiff Jean Blumier observed piles of  
14  construction debris and garbage on the property and became concerned; previously,  
15  plaintiffs had lost insurance coverage due to similar debris accumulation.  Plaintiffs sent  
16  defendant a certified letter asking him to clean up the property; defendant refused to  
17  accept the letter, and it was returned to plaintiffs.  At that point, they turned the matter  
18  over to their attorney, Ozias.  On November 15, 2007, Ozias (on behalf of plaintiffs)  
19  wrote to Staggs and defendant, complaining about the condition of the property and  
20  demanding that it be cleaned up within 30 days to avoid default.  Ozias relied on a  
21  provision in the trust deed stating that the grantor agrees "[t]o protect, preserve, and  

1  maintain the property in good condition and repair" and "not to commit or permit any  
2  waste of said property."  Ozias also stated that, to avoid default, defendant had to pay the  
3  additional attorney fees that plaintiffs had incurred in the process of enforcing  
4  compliance--that is, the attorney fees incurred in demanding that defendant pay attorney  
5  fees.  Defendant cleaned up the property and informed plaintiffs of that fact.  Ozias then  
6  sent defendant an e-mail informing him that he still owed $460.75 for attorney fees.  
7  Defendant refused to pay; Ozias wrote defendant several times attempting to collect the  
8  fees, each time adding the fees for her demand letters to the underlying debt obligation.  
9  Defendant paid off the promissory note in January 2009, but continued to refuse to pay  
10  attorney fees.  For that reason, the reconveyance of the property to defendant was not  
11  recorded. Finally, in June 2009, plaintiffs filed this action against defendant and Staggs  
12  to foreclose on the trust deed, alleging that defendant was in default for his failure to pay  
13  attorney fees and costs, which, by then, amounted to $2,054.04.  
14  At trial, defendant argued that the property was in very bad condition when  
15  he took possession in 2007 and that the condition of the property a few months later when  
16  plaintiffs and Ozias demanded a clean-up was the normal byproduct of the renovation  
17  work. Further, defendant argued that Ozias's fees were for her legal advice and services  
18  to plaintiffs, not fees incurred as an attorney or trustee enforcing the trust deed.  The trial  
19  court ruled that, by purchasing the property from Staggs, defendant assumed Staggs's  
20  interest and obligations under the 2004 trust deed.  Defendant does not assign error to that  
21  ruling. The court then stated:  

1  "[Defendant], you are the very best witness, aside from all these  
2  pictures, * * * [to] what you described as the deplorable condition of the  
3  house. It was in a condition of being wasted.  It was waste, waste was  
4  going on there.  The responsibility of the grantor, that would be you.  
5  "And what you said was 'well, I was fixing it and so why, why didn't  
6  they just leave me alone?'  The reason they didn't just leave you alone is  
7  because you, as the successor to the grantor, are required, not to permit any  
8  waste.  
9  "The property was in a condition of waste.  And the trust is entitled  
10  to remedy that and to take whatever reasonable actions were necessary to  
11  remedy that.  And you're right, they stayed all over you.  They kept saying  
12  'fix it, fix it, do it now.'  And it didn't get done now.  It got done later."  
13  The court also held that defendant was in default for failing to pay Ozias's attorney fees.  
14  Defendant renews his arguments on appeal.  
15  "Waste occurs when the person in possession of the land, by act or  
16  omission, causes the property's value to decrease as the result of abuse or destruction,  
17  thereby causing injury to the property and the holders of the legal interests in it."  
18  Whistler v. Hyder, 129 Or App 344, 349, 879 P2d 214, rev den, 320 Or 453 (1994).  
19  Although the Oregon courts have not announced the standard of review that applies to  
20  waste, the proper standard must reflect that the question whether waste has occurred is a  
21  legal conclusion based on historical facts such as, for example, facts relevant to the  
22  condition of the property and the acts or omissions of the person in possession.  We  
23  therefore review the historical facts for any evidence, Or Const, Art VII (Amended),

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