Adelsperger v. Elkside Dev.
| Decision Date | 18 May 2023 |
| Docket Number | SC S069449 |
| Parties | RON Adelsperger; Sally Adelsperger; Walter Arnold; Sandy Arnold; Larry Brewer; Marilyn Brewer; James Brown; Lonna Brown; Bill Burgess; Jane Burgess; Shirley Calkins; Jerry Christensen, aka Gerald Christenson; Cindy Christensen, aka Cynthia Evans-Christenson; Russell Cobb; Norma Cobb; Ron Ellis; Sallie Ellis; Amy Flickenger Pierpoint, aka Amy Flickenger-Pierpoint; Glen Pierpoint; Mike Fredrickson; Tresea Fredrickson; David Fulcer; Sarah Fulcer; Jack Gibson; Sharon Sue Gibson, aka Sue Gibson; Mary Gray; Rudolph Hanna; Brenda Hanna; Gerald Hastings, aka Jerry Hastings; Shirley House; Michael Huntley; Gloria Huntley; Rodney Hyde, aka Rod Hyde; Patricia Hyde; Johnnie Issacs, aka Johnnie Isaacs; Rowina Issacs, aka Rowena Isaacs; Don Johnson, aka Donald Johnson; Linda Johnson; Robert Kasmar; Linda Kasmar; Kraig Knutson; Barbara Knutson; Tom Kuntz; Brenda Kuntz; Richard Mathis; Linda Mathis; Gary McCord; Marie McCord; David McReynolds; Joseph Moore; Geraldine Moore; Adam Morgan; Vicky Morgan, aka Victoria Morgan; Thomas Noel; William Oar; Donald Partridge, aka Don Partridge; Lucille Partridge, aka Lucy Partridge; Craig Pedersen; Cheryl Pedersen; David Smith; Carol Smith; William Thomas, aka Bill Thomas; Jackie Thomas; Fred Waidtlow; Linda Waidtlow; Gary Wayman; Charlotte Wayman; David Weberg; Jeanne Weberg; Forrest Wheeler; and Jane Wheeler, Petitioners on Review, v. ELKSIDE DEVELOPMENT LLC, Successor in Interest to Osprey Point RV Park, LLC, and Barnett Resorts, LLC, an Oregon Limited Liability Company, dba Osprey Point RV Resort, Defendants, and Chris BARNETT and Stefani Barnett, Respondents on Review. |
| Court | Oregon Supreme Court |
Argued and submitted January 18, 2023
On review from the Court of Appeals (CC 19CV14756) (CA A174502) [*]
Ronald L. Sperry III, Johnson & McKinney DBA DC Law, Roseburg argued the cause and filed the brief for petitioners on review. Also on the brief was Dan G. McKinney.
Elizabeth W. Armitage, Frohnmayer, Deatherage, Jamieson Moore, Armosino & McGovern, P.C., Medford, argued the cause and filed the brief for respondents on review. Also on the briefs was Tracy M. McGovern.
Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong and James, Justices. [**]
The decision of the Court of Appeals is affirmed in part, affirmed in part by an equally divided court, and reversed in part. The judgment of the circuit court is affirmed in part, affirmed in part by an equally divided court, and reversed in part, and the case is remanded to the circuit court for further proceedings.
This case comes to us upon the grant of summary judgment. Elkside Development, LLC (Elkside) owned and operated the Osprey Point RV Resort in Lakeside, Oregon. Part of Elkside's business model involved selling membership contracts that conferred free use of the campground, among other benefits. In April 2017, Barnett Resorts LLC, an Oregon limited liability company operated by member-managers Stefani Barnett and Chris Barnett, purchased Elkside. Shortly after the purchase, Stefani Barnett and Chris Barnett sent a letter to all campground members, identifying them as "owners" of the resort, and indicating that they would not honor Elkside's membership contracts. Plaintiffs-a group of 71 people who, collectively, were party to 39 membership contracts with Elkside-brought suit alleging a variety of claims against Stefani Barnett and Chris Barnett individually, and against the company, Barnett Resorts LLC. Three of those claims have formed the basis of the parties' arguments on appeal. For our purposes, they can be categorized as (1) a breach of contract claim; (2) an intentional interference with contract claim; and (3) a statutory claim of elder abuse, based on the fact that the majority of the membership contracts had been held by plaintiffs over the age of 65.[1]
As to the claims against Stefani Barnett and Chris Barnett individually, the trial court granted summary judgment for defendants, relying on ORS 63.165 and our opinion in Cortez v. Nacco Materials Handling Group, 356 Or 254, 280, 337 P.3d 111 (2014).[2] ORS 63.165(1) provides:
Plaintiffs appealed, arguing that the trial court erred in its understanding of ORS 63.165. Plaintiffs argued, in part, that whether ORS 63.165 shielded the Barnetts from liability required considering whether their actions were entirely in support of the LLC, or whether they were, instead, in furtherance of a non-LLC individual motive. The Court of Appeals heard oral argument, and then affirmed without opinion. We allowed review and now reverse in part the decision of the Court of Appeals and the judgment of the trial court: Specifically, we reverse as to the elder abuse claim, affirm as to the breach of contract claim, and affirm the intentional interference claim by an equally divided court.
The contours of summary judgment review are set by the operative complaint and the specific arguments for summary judgment advanced by a party. Under ORCP 47 C, the party opposing summary judgment has the burden of producing evidence on any issue "raised in the motion" as to which that party would have the burden of persuasion at trial. Two Two v Fujitec America, Inc., 355 Or. 319, 324, 325 P.3d 707 (2014). But a party does not have the burden of producing evidence on an issue that is not raised in the motion. Id. at 325.
Once the parameters of what is, and is not, at issue in summary judgment are identified, we will affirm the trial court's judgment if we agree that "there is no genuine issue as to any material fact and * * * the moving party [was] entitled to a judgment as a matter of law." ORCP 47 C; see also Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001) (describing that standard on review). No issue of material fact exists if, viewing the evidence in the light most favorable to the nonmoving party-here, plaintiffs- "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." ORCP 47 C. In accord with that standard, we begin by setting forth, in greater detail, plaintiffs' allegations in the first amended complaint, as well as defendants' framing of the basis for summary judgment. Plaintiffs' second claim for relief alleged a breach of contract claim against Elkside, Barnett Resorts LLC, and the Barnetts individually, claiming that they had "breached the membership camping contract and guarantee with each Plaintiff by denying Plaintiffs the contractual right to the use of the Resort facilities set forth in the membership camping contracts." They further alleged that Elkside
Plaintiffs' fourth claim for relief alleged a statutory elder abuse claim, asserting that both the Barnetts individually, as well as Barnett Resorts LLC, had a "responsibility to honor the membership campground contracts of the Elderly Plaintiffs" and had "acquired a property right of the Elderly Plaintiffs (ORS 124.110[(1)](a)) or [held] in trust the annual dues and property rights of the Elderly Plaintiffs (ORS 124.110[(1)](b))." The claim then alleged that both Barnett Resorts LLC and the individual defendants had "acted in bad faith in refusing to honor the property rights and knew or should have known that the Elderly Plaintiffs had the rights in the membership camping contracts and the rights to use the Resort."
Finally, plaintiffs' sixth claim for relief alleged intentional interference with contractual relations against both Barnett Resorts LLC and the Barnetts individually. That claim was specifically raised as an alternative claim to the breach of contract, "in the event Defendants Barnett are found not to be a contractual successor to [Elkside] and bound as a contracting party to the membership camping contracts." In that alternative, plaintiffs alleged that the Barnetts intentionally interfered with the contractual relationship "between Plaintiffs and [Elkside] by acquiring the Resort with knowledge of the existence of the membership camping contracts and thereafter denying the Plaintiffs access to Resort facilities."
Defendants' arguments for summary judgment were undifferentiated by the individual claims in the complaint. Instead, defendants raised a unitary argument, against all claims and on behalf of all defendants equally, that primarily relied on the assertion that defendants had purchased property, not a business. Defendants challenged the recordation of the membership contracts, arguing that alleged failure to record prevented the contracts from encumbering the property. Without recordation, defendants argued, the membership camping contracts were retail installment contracts pursuant to ORS 94.989(2). Defendants argued that they had not purchased the contracts, only the land of the mobile home park. Those arguments encompassed almost the entirety of the summary judgment motion but were not the basis for the trial court's ruling and are not the subject of this appeal.
The argument that did form the basis of the trial court's partial grant of summary judgment occurs in the final two paragraphs of the summary judgment motion:
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