Boardmaster Corporation v. Jackson County
| Decision Date | 24 December 2008 |
| Docket Number | A137053.,070876L2. |
| Citation | 224 Or. App. 533,198 P.3d 454 |
| Parties | BOARDMASTER CORPORATION, Larry Olson, and Garry Olson, Plaintiffs-Appellants, v. JACKSON COUNTY, R. Michael Kuntz, and Pacific Power, Defendants-Respondents. |
| Court | Oregon Court of Appeals |
Eric A. Kaufman, Medford, argued the cause and filed the briefs for appellants.
Benjamin M. Bloom, Medford, argued the cause for respondents Jackson County and R. Michael Kuntz. With him on the brief was Hornecker, Cowling, Hassen & Heysell, L.L.P.
Jeffrey S. Lovinger, Portland, argued the cause for respondent Pacific Power. With him on the brief were Kenneth E. Kaufmann, Charles A.C. von Reis, and Lovinger Kaufmann LLP.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
Plaintiffs, BoardMaster Corporation (BoardMaster) and its officers, Larry and Garry Olson, brought this action against defendants Pacific Power, Jackson County, and R. Michael Kuntz after Jackson County ordered Pacific Power to discontinue electrical service to BoardMaster's lumber mill. The trial court dismissed plaintiffs' claims against defendant Pacific Power, pursuant to ORCP 21 A(8), on the basis that applicable tariffs authorized Pacific Power to discontinue plaintiffs' electrical service. The trial court also determined that plaintiffs failed to commence their claims against defendants Jackson County and Kuntz within the time limited by statute, ORS 30.275(9), and, consequently, dismissed plaintiffs' claims against those defendants pursuant to ORCP 21 A(9). Plaintiffs challenge both rulings on appeal, and we affirm.
In reviewing the grant of a motion to dismiss, we assume the truth of all allegations in the complaint, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party. Wiederhorn v. Multnomah Athletic Club, 215 Or.App. 392, 394, 170 P.3d 1 (2007). Our review of a motion to dismiss based on failure to state ultimate facts sufficient to constitute a claim, ORCP 21 A(8), or failure to commence an action within the time limited by statute, ORCP 21 A(9), is limited to the allegations, including exhibits incorporated by reference, of the complaint. ORCP 21 A; Wiederhorn, 215 Or.App. at 394, 170 P.3d 1; Checkley v. Boyd, 170 Or.App. 721, 730, 14 P.3d 81 (2000), rev. den., 332 Or. 239, 28 P.3d 1174 (2001).
Plaintiffs' complaint includes the following material allegations: In July 2002, plaintiff BoardMaster purchased property located at 747 West Fork Trail Creek Road in Jackson County, for the purpose of operating a lumber mill and general lumber sales. Larry and Garry Olson served as BoardMaster's President and Secretary, respectively.
On June 13, 2003, Kuntz, the Code Enforcement Manager for Jackson County, sent a letter on behalf of the county to Pacific Power. That letter, which was incorporated by reference in plaintiffs' complaint, identified the owner of BoardMaster's property as "Mr. Wilbur Pride Jones" and stated the following, in relevant part:
Plaintiffs allege that the representations made in that letter were false and that the statutes cited in the letter did not provide Jackson County with legal authority to order the power to be removed.
On June 24, 2003, Pacific Power delivered a letter to BoardMaster notifying it that Jackson County had ordered Pacific Power to shut off electricity to BoardMaster's property because an electrical permit had not been issued for power to run to a manufactured home on that property.
On August 2, 2003, BoardMaster hired an electrician to remove the electrical line from the lumber mill to the manufactured home. Plaintiffs allege that disconnecting the electrical line to the manufactured home cured any existing electrical hazard or code violation on BoardMaster's property.1 BoardMaster sent proof of that removal to Jackson County, Kuntz, and Pacific Power via facsimile and certified mail.
On August 5, 2003, Pacific Power, relying on the July 13 letter from Jackson County, disconnected electric service to BoardMaster's property and, consequently, to its lumber mill. Plaintiffs allege that Pacific Power disconnected power despite the fact that plaintiffs had already cured any violation and notified all defendants of that cure.
At times after August 5, 2003, including during the two years prior to the filing of plaintiffs' complaint on March 6, 2007, BoardMaster contacted all defendants to request restoration of electrical power to the lumber mill—but those requests were denied. Plaintiffs further allege that BoardMaster continued, on a daily basis, to be financially injured by defendants' actions.
Plaintiffs filed their complaint on March 6, 2007, alleging claims for relief for, inter alia, negligence, misrepresentation, intentional infliction of emotional distress, and breach of contract. Specifically, and most pertinent to this appeal, plaintiffs allege, inter alia, that: (1) Pacific Power was negligent in (a) "failing to recognize that the legal authority cited to them in Jackson County's letter ordering power to be removed was invalid, and in failing to properly research the matter prior to acting upon said letter" and (b) "failing to restore power to plaintiffs' lumber mill, even with knowledge that plaintiffs had cured the code violation"; (2) Kuntz was negligent in "failing to request Pacific Power to return power to the lumber mill during the past two years, even though no code violations exist"; (3) Jackson County was negligent in "failing to have its employees request Pacific Power to restore power to the lumber mill"; and, finally, (4) the Olsons "have had to endure years of pain and suffering in trying to get the power restored."
Pacific Power moved to dismiss plaintiffs' claims against it on the ground that, pursuant to ORCP 21 A(8), plaintiffs had failed to state ultimate facts sufficient to constitute a claim for relief. In particular, Pacific Power argued that the terms of an applicable tariff protect it from liability for harm resulting from service disconnection in reliance on apparent governmental authority. That tariff states, in part:
Pacific Power & Light Co., General Rules and Regulations: Continuity of Electric Service and Interruptions, Rule 14 (Jan. 16, 2002) (Rule 14). Consequently, according to Pacific Power, because it suspended plaintiffs' electric service in reliance on an order from Jackson County, Rule 14 protects it from liability for doing so.
Alternatively, Pacific Power argued that, pursuant to ORCP 21 A(9), plaintiffs' complaint required dismissal because plaintiffs' claims had not been commenced within the time limited by statute, as provided in ORS 12.110(1).
Defendants Jackson County and Kuntz likewise moved to dismiss plaintiffs' claims against them pursuant to ORCP 21 A(9). Those defendants argued, inter alia, that plaintiffs failed to commence their claims within the two-year statutory period enumerated in ORS 30.275(9).2
Plaintiffs opposed those motions. In response to Pacific Power's motion to dismiss under ORCP 21 A(8), plaintiffs contended that, to avoid liability based on Rule 14, the cause for disconnecting power must have been "beyond the Company's reasonable control." Consequently, plaintiffs argued, Rule 14 is not applicable because three allegations in their complaint identify causes not beyond Pacific Power's reasonable control: (1) Pacific Power failed to recognize that the legal authority cited to them in the letter from Jackson County was invalid; (2) Pacific Power failed to restore power to plaintiffs' lumber mill even after plaintiffs had cured the code violation; and (3) Pacific Power failed to follow Oregon law.
Plaintiffs further remonstrated that an alternative tariff to Rule 14 is controlling in this case. That tariff states, in part:
Pacific Power & Light Co., General Rules and Regulations: Discontinuance of Service for Other Causes, Rule 11-1 (Jan. 16, 2002) (Rule 11-1) (boldface in original; emphasis added). Plaintiffs argued that, because they alleged that the electrical violation on BoardMaster's property had been remedied, under Rule 11-1,...
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