7455 Inc. v. Tuala Nw., LLC

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: TOOKEY, J.
• Citation: 7455 Inc. v. Tuala Nw., LLC, 274 Or App 833, 362 P.3d 1179 (Or. App. 2015)
• Decision Date: 12 November 2015
• Docket Number: C128167CV,A154857.
• Parties: 7455 INCORPORATED, Plaintiff–Appellant, v. TUALA NORTHWEST, LLC, an Oregon limited liability company; CenterCal Properties, LLC, a Delaware limited liability company; Nyberg CenterCal II, LLC, a Delaware limited liability company; and D.R.M. 7455 Nyberg Road, LLC, Defendants–Respondents.

274 Or.App. 833

362 P.3d 1179

7455 INCORPORATED, Plaintiff–Appellant,

v.TUALA NORTHWEST, LLC, an Oregon limited liability company; CenterCal Properties, LLC, a Delaware limited liability company; Nyberg CenterCal II, LLC, a Delaware limited liability company; and D.R.M. 7455 Nyberg Road, LLC, Defendants–Respondents.

C128167CV

A154857.

Court of Appeals of Oregon.

Argued and Submitted Jan. 6, 2015. On Respondents' motion to dismiss filed Dec. 9, 2014. Appellant's Response filed Dec. 23, 2014. Decided Nov. 12, 2015.

Terrance J. Slominski argued the cause for appellant. With him on the briefs was David Venables.

Amy Edwards argued the cause for respondents Tuala Northwest, LLC, CenterCal Properties, LLC, and Nyberg CenterCal II, LLC.

No appearance for respondent D.R.M. 7455 Nyberg Road, LLC.

Before HADLOCK, Presiding Judge, and HASELTON, Chief Judge, and TOOKEY, Judge.

TOOKEY, J.

Defendant D.R.M. 7455 Nyberg Road, LLC (DRM) owned commercial property (the DRM property) in Tualatin. Plaintiff 7455 Incorporated leased the DRM property to operate a business under the name of "Jiggles." Defendant Tuala Northwest, LLC, owned commercial property, on which a K–Mart store was located (the Tuala property), adjacent to the DRM property. Defendants Nyberg CenterCal II, LLC, and CenterCal Properties, respectively, leased and managed the Tuala property. For the sake of convenience, we will refer to Tuala, Nyberg, and CenterCal as "defendants" throughout this opinion.

After defendants erected a fence and a locked gate across a portion of the Tuala property, blocking access to the DRM property through the Tuala property, plaintiff brought this action, seeking a declaration that it has a private prescriptive easement over the Tuala property, seeking an injunction preventing defendants from interfering with that easement, and claiming damages for intentional interference with economic relations based on interference with that easement. The trial court subsequently dismissed plaintiffs claims for prescriptive easement and injunctive relief for lack of standing, and its claim for intentional interference for failure to state a claim under ORCP 21 A(8). As we explain more fully below, we conclude that the trial court did not err in dismissing for lack of standing plaintiffs claims for prescriptive easement and injunctive relief and, therefore, we also conclude that plaintiffs claim for intentional interference necessarily fails. Accordingly, we affirm.

The facts, as alleged in plaintiffs first amended complaint, are as follows:

"For approximately forty (40) years, employees, agents and customers of Plaintiff and Plaintiffs predecessors in interest have accessed the [DRM] property by crossing an easement on a piece of property running along the east side of the [Tuala] property and then crossing the [Tuala] Property for ingress and egress to Nyberg Road. * * *

"On or about November 2, 2012, Center[C]al acting on its own behalf, on behalf of Nyberg CenterCal, or on behalf of, or with the assistance of, Tuala, caused a fence to be placed along the east side of the [Tuala] Property. The fence has a locked gate at the Access Point.^[1]

"Plaintiff and its predecessors have used Defendant Tuala's property as alleged herein adversely, under a claim of right, continuously, and with the knowledge of Tuala and its predecessors, entitling Plaintiff and [DRM] to a prescriptive easement along the route alleged herein.

" * * * *

"For approximately 40 years, the general public has used the routes described above for ingress and egress to Tuala's property, acquiring a public prescriptive easement.

" * * * *

"The placing and locking of the gate described above creates an unreasonable interference with Plaintiffs property and inhibits emergency access to the [DRM] Property by police, the fire department, or for medical emergencies.

"The court should grant Plaintiff a temporary, preliminary, and permanent injunction requiring Defendants * * * to remove the gate or such portion of the fence at the Access Point.

" * * * *

"The actions of [defendants] were done intentionally for the purpose of interfering with Plaintiff's business and done without any right to do so, causing Plaintiff damage in the approximate amount of $35,000. Plaintiff will continue to suffer damage in the future in an amount to be proven at trial."

Based on the foregoing allegations, plaintiff sought a judgment "[d]eclaring Plaintiff to have a prescriptive easement from the Access Point across the [Tuala] Property to Nyberg road"; "[e]njoining Defendants * * * from interfering with Plaintiffs employees and customers from use of the easement"; and awarding damages against defendants "in an amount not less than $35,000[.]"

Defendants moved to dismiss plaintiffs complaint. In their motion, defendants argued that plaintiff, as a mere lessee, lacked standing to bring claims for a prescriptive easement and injunctive relief, and alternatively argued that, even if plaintiff had standing to assert those claims, plaintiffs complaint did not allege sufficient facts to support them. As to the intentional interference claim, defendants argued that plaintiffs complaint failed to state ultimate facts sufficient to constitute that claim because it did not allege that defendants acted through improper means or for an improper purpose. DRM neither joined in plaintiffs claims nor opposed defendants' motion.

After a hearing on the matter, the trial court dismissed plaintiffs claims. As to the prescriptive easement claim, the court ruled on the basis of standing, concluding as follows:

"[A] third party does not have right or standing to bring [a prescriptive easement claim]. I believe that the case law on this issue is clear, that only the landowner has that right to bring a claim, and the court cannot settle the issue of prescriptive easement in this particular setting or posture."

As to the intentional interference claim, the court concluded:

"I believe that there must be some intentional facts alleged that the means or the motive of the interference with the business relationship beyond the simple fact of the interference exists in the case in order for the claim to go forward.

"And as I've discussed with [plaintiffs counsel], the complaint merely states that that fence was erected, not that it interfered in some substantial way with Plaintiffs business, was improper in terms of the way it was constructed, or the method, or the purpose for erecting that gate and fence."

Plaintiff now appeals the dismissal of its claims.

We address, as a preliminary matter, defendants' motion to dismiss as moot plaintiff's claim for a prescriptive easement. Defendants contend that plaintiff's claim for a prescriptive easement is now moot for the reason that, after the filing of the notice of appeal, plaintiff vacated the property, and, thus, "a decision in Plaintiff's favor as to the prescriptive easement claim would have no practical effect on Plaintiff's ability to use the [Tuala] Property." As we have noted, "[a] case is considered moot if a decision by the court ‘no longer will have a practical effect on or concerning the rights of the parties.’ " State ex rel. O'Connor v. Helm/Clackamas County, 273 Or.App. 717, 726, 359 P.3d 550 (2015) (quoting Brumnett v. PSRB, 315 Or. 402, 406, 848 P.2d 1194 (1993) ); see Couey v. Atkins, 357 Or. 460, 469, 355 P.3d 866 (2015) (stating that a plaintiffs "concrete stake in the outcome" of a declaratory judgment action "must continue throughout the pendency of the case"). For instance, "a case becomes moot when an event occurs that ‘render[s] it impossible for the court to grant effectual relief.’ " Hamel v. Johnson, 330 Or. 180, 184, 998 P.2d 661 (2000) (quoting Greyhound Park v. Ore. Racing Com., 215 Or. 76, 79, 332 P.2d 634 (1958) (brackets in Hamel )). In this case, although plaintiff has vacated the property, the parties' interests remain actively adverse because plaintiff seeks damages on its intentional interference claim, which is, in turn, dependent on its contention that it had a prescriptive easement. Thus, the appeal is not moot, and we deny defendants' motion to dismiss as moot plaintiffs claim for a prescriptive easement.

We now consider whether the trial court erred in dismissing for lack of standing plaintiff's claims seeking a declaration that it has a private prescriptive easement and seeking an injunction preventing defendants from interfering with that easement.² The term "standing" ordinarily "means the right to obtain an adjudication." Eckles v. State of Oregon, 306 Or. 380, 383, 760 P.2d 846 (1988), appeal dismissed, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989) ; see also Kellas v. Dept. of Corrections, 341 Or. 471, 476–77, 145 P.3d 139 (2006) (stating that " ‘[s]tanding’ is a legal term that identifies whether a party to a legal proceeding possesses a status or qualification necessary for the assertion, enforcement, or adjudication of legal rights or duties"). Parties have standing to "assert only their own legal rights and cannot rest their claim upon the legal rights of third parties."

Kelly v. Silver, 25 Or.App. 441, 452, 549 P.2d 1134 1976 ). Thus, "[t]o say that a plaintiff has ‘no standing’ is to say that the plaintiff has no right to have a tribunal decide a claim under the law defining the requested relief, regardless whether another plaintiff has any such right." Eckles, 306 Or. at 383, 760 P.2d 846.

On appeal, plaintiff argues that, as a lessee, it had standing to assert an independent claim for a prescriptive easement over the Tuala property. Plaintiffs argument is rooted in its contention that property ownership is not one of the elements required to establish a prescriptive easement, which is a nonpossessory interest in the land. Plaintiff notes that Oregon courts allow the "tacking" of a tenant's use for purposes of establishing adverse possession or a prescriptive easement by the owner, and argues that if a tenant's use of the property is considered the owner's...