338 May 1, 2024 No. 279

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Erwin Singh BRAICH, 

in his capacity as the sole

Trustee of the Peregrine Trust,

Plaintiff-Appellant,

v.

Ricky SMITH; 

Sable Palm Development, 

a corporation of the Turks and Caicos Islands, 

British West Indies; 

C & S Mining, LLC; and Janice Cone,

Defendant-Respondents,

and

Jane and John DOE 1-20,

Defendants.

Grant County Circuit Court

21CV07957; A179038

Robert S. Raschio, Judge.

Argued and submitted March 28, 2024.

Brooks Cooper argued the cause for respondents. Also on 

the brief was Matthew Whitman.

Michael Vergamini filed the brief for appellant.

Before Tookey, Presiding Judge, Egan, Judge, and DeVore,

Senior Judge.

EGAN, J.

Affirmed.
Cite as 332 Or App 338 (2024) 339

EGAN, J.

Plaintiff, as the sole trustee of the Peregrine Trust 

(the trust), filed a complaint pro se in the Grant County 

Circuit Court, alleging that defendants breached an agreement to sell a gold mine to the trust, seeking specific performance. On defendants’ motion, the trial court dismissed 

plaintiff’s claim, and plaintiff appeals. We conclude that the 

trial court did not err in dismissing the claim and therefore 

affirm.

ORS 9.320 provides:

“Any action, suit, or proceeding may be prosecuted or 

defended by a party in person, or by attorney, except that 

the state or a party that is not a natural person appears by 

attorney in all cases, unless otherwise specifically provided 

by law. Where a party appears by attorney, the written proceedings must be in the name of the attorney, who is the 

sole representative of the client of the attorney as between 

the client and the adverse party, except as provided in ORS 

9.310.”

Under ORS 9.320, a business trust must be represented by 

an attorney, and a nonlawyer may not represent a business 

trust before the court. Marguerite E. Wright Trust v. Dept. of 

Rev., 297 Or 533, 536-37, 685 P2d 418 (1984); see also Oregon 

Peaceworks Green, PAC v. Sec. of State, 311 Or 267, 271, 810 

P2d 836 (1991) (same rule with respect to unincorporated 

associations). It is undisputed that the trust was subject to 

ORS 9.320. The trust was thus required to be represented 

by an attorney in order to pursue a claim in a court of law. 

Plaintiff’s complaint was signed by plaintiff as trustee and 

was not signed by an attorney. Thus, defendants filed a 

motion to dismiss the complaint.

Plaintiff subsequently retained attorney Andrew 

Martin. After Martin filed a notice of his representation 

of plaintiff with the court, the parties stipulated to a withdrawal of defendants’ motion to dismiss. The parties then 

entered into a written settlement agreement, under which 

plaintiff agreed to pay defendants the sum of $500,000, as 

earnest money for the purchase of the mine, in exchange for 

the dismissal of plaintiff’s complaint. The settlement agreement stated:
340 Braich v. Smith

“[I]f the earnest money is not deposited within three days 

after the open of escrow this agreement [sic] none of the 

Parties shall have any further obligations under this 

agreement except any lawsuits currently pending between 

the Parties shall be dismissed with prejudice.”

Plaintiff never deposited the earnest money. Martin,

who had not filed an amended complaint on the trust’s 

behalf, withdrew from plaintiff’s representation. Defendants 

thus renewed their motion to dismiss, asserting once again 

that plaintiff did not have representation by an attorney, as 

required by ORS 9.320. As additional grounds for dismissal, 

defendants asserted that the complaint failed to state a 

claim for breach of a contract to sell the mine, because it 

did not allege a written agreement, ORS 41.580 (Oregon’s 

statute of frauds), and, further, that dismissal was required 

under the parties’ settlement agreement, which defendants 

attached to the complaint, after plaintiff failed to deposit 

the required sum in escrow.

On the date of the hearing on defendants’ motion 

to dismiss, attorney Sunny Kakwani filed a notice of “limited scope representation” of plaintiff, for the hearing only. 

Plaintiff, again in his capacity as trustee for the Peregrine 

Trust, filed a “motion for adjournment,” seeking postponement of the hearing so that counsel could prepare. The trial 

court summarily denied plaintiff’s motion because it had 

not been filed by an attorney. Kakwani, appearing at the 

hearing on plaintiff’s behalf, did not address the court’s ruling or renew plaintiff’s motion for a postponement.

Kakwani did not offer any argument on the merits of defendants’ motion to dismiss. He asked the court to 

allow the matter to continue, because plaintiff wished to 

have time to “unravel” some “malfeasance.”

The court granted defendants’ motion to dismiss 

and agreed with defendants that the dismissal should be 

with prejudice, as provided in the parties’ settlement agreement. The judgment states that the complaint is dismissed 

because plaintiff did not have an attorney, as required by 

ORS 9.320, and therefore could not maintain the action. 

The judgment further states that dismissal was required 
Cite as 332 Or App 338 (2024) 341

by the parties’ settlement agreement after plaintiff failed to 

deposit the required earnest money.

Both of plaintiff’s assignments of error on appeal 

challenge the trial court’s granting of defendants’ motion 

for dismissal. Plaintiff’s first assignment of error asserts 

that the trial court erred in determining that the complaint 

must be dismissed because plaintiff lacked “capacity” to sue. 

However, the basis for dismissal, as stated in the judgment, 

was not a lack of capacity; rather, the judgment states that 

the complaint was dismissed because the trust was not represented by counsel, as required by ORS 9.320. We do not 

see where in the record plaintiff preserved a challenge to 

that determination. But if and to the extent that plaintiff 

did preserve the contention, we conclude that the trial court 

did not err. Under ORS 9.320, plaintiff could not represent 

the trust in court. The complaint was required to be signed 

by an attorney, and it was not. The fact that plaintiff had 

retained counsel on the day of the hearing for the limited 

purpose of attending the hearing did not relieve plaintiff of 

that requirement.1

In his second assignment of error, plaintiff challenges the trial court’s determination that dismissal was 

required by the parties’ settlement agreement. Plaintiff 

contends that the trial court’s ruling as to the effect of the 

parties’ settlement agreement wrongfully determined a 

factual matter that could not be decided on the pleadings, 

in essence treating the motion to dismiss as a motion for 

summary judgment. It does not appear that plaintiff preserved his challenge to the trial court’s ruling. But even if 

his challenge is preserved, or if, as plaintiff suggests, we 

were to review the assignment as presenting plain error, 

we would conclude that, in light of our determination on the 

first assignment that the trial court did not err in dismissing the complaint, which is dispositive, we need not address 

the challenge raised by the second assignment.

Affirmed.

1 Under the first assignment, plaintiff also contends that the trial court 

should not have denied his “motion for adjournment.” Any argument relating to 

that ruling is not preserved and we therefore decline to address it.