Moyer v. Columbia State Bank
| Decision Date | 15 December 2021 |
| Docket Number | A168182 |
| Citation | 316 Or.App. 393,505 P.3d 26 |
| Parties | Thomas P. MOYER, Jr.; Colleen Moyer Thrift; Ian Moyer ; Patrick Moyer; Michael Thrift; and Ashley Craven, Plaintiffs-Appellants, v. COLUMBIA STATE BANK, a Washington chartered bank; Miller Nash Graham & Dunn LLP, an Oregon limited liability partnership; and Duffy Kekel LLP, an Oregon limited liability partnership, Defendants-Respondents, and First Republic Bank, a California chartered bank, dba First Republic Trust Company, Defendant. |
| Court | Oregon Court of Appeals |
John W. Stephens, Portland, argued the cause for appellants. Also on the briefs was Esler Stephens & Buckley LLP.
Paul Southwick argued the cause for respondent Columbia State Bank. Also on the brief were John F. McGrory, Jr., Ashlee Aguiar, and Davis Wright Tremaine LLP.
Peter R. Mersereau, Portland, argued the cause for respondent Miller Nash Graham & Dunn LLP. Also on the brief were Blake H. Fry and Mersereau Shannon LLP.
Brian R. Talcott, Portland, argued the cause for respondent Duffy Kekel LLP. Also on the brief were Elizabeth C. Knight and Dunn Carney Allen Higgins & Tongue LLP.
Before Ortega, Presiding Judge, and DeHoog, Judge, and Shorr, Judge.
Plaintiffs appeal from a limited judgment dismissing their third amended complaint against defendants Columbia State Bank (Columbia State), Miller Nash Graham & Dunn LLP (Miller Nash), and Duffy Kekel LLP (Duffy Kekel). Plaintiffs raise 10 assignments of error. For the reasons discussed below, we agree with plaintiffs on their first assignment of error, which contends that the trial court erred in dismissing plaintiffs’ breach of contract claim against Columbia State. As we discuss, however, we reject plaintiffs’ second through eighth assignments of error. Finally, we reject plaintiffs’ ninth and tenth assignments of error without discussion. As a result, we reverse the limited judgment to the extent that it dismisses plaintiffs’ sixth claim for relief for breach of contract against Columbia State and remand for further proceedings on that claim, but we otherwise affirm the limited judgment's dismissal of all other claims.
When we review a trial court's decision to dismiss a complaint for failure to state ultimate facts sufficient to constitute a claim pursuant to ORCP 21 A(8), "we assume that all well-pleaded facts are true and give plaintiff the benefit of all favorable inferences that reasonably may be drawn from those factual allegations." Piazza v. Kellim , 360 Or. 58, 61, 377 P.3d 492 (2016).1 We state the facts in accordance with that standard.
This case is one of a number of disputes involving family members of the late Thomas P. Moyer Sr. that relate to his or various family trust assets. See, e.g. , Hawkins v. 1000 Limited Partnership , 282 Or. App. 735, 738, 388 P.3d 347 (2016), rev. den. , 361 Or. 543, 397 P.3d 32 (2017) (). During his lifetime, Moyer Sr. was a real estate developer in the Portland area. Id . at 739-40, 388 P.3d 347.
Plaintiffs are several (but not all) of Moyer Sr.’s children and grandchildren. The current litigation arose after Moyer Sr. was diagnosed with advanced Alzheimer's disease
in 2010. Moyer Sr. had previously established a trust, the Thomas P. Moyer Revocable Living Trust, dated July 25, 2007 (Trust). Plaintiffs allege that the Trust was to be administered for the benefit of Moyer Sr. during his lifetime, and then, following his death, for his four children and 13 grandchildren. The Trust was revocable during Moyer Sr.’s lifetime but became irrevocable upon his death. In July 2010, Moyer Sr. resigned as trustee of the Trust and appointed First Republic Trust Co. (First Republic) as the new trustee.
In 2012, two of the plaintiffs to this dispute, Thomas Moyer Jr. and Colleen Moyer Thrift, as well as a third child of Moyer Sr., Tim Moyer, petitioned the Multnomah County Circuit Court for appointment of a conservator and a guardian for Moyer Sr. due to his Alzheimer's diagnosis. They claimed that a conservator was necessary to "evaluate whether any actions can be taken to minimize [the estate's] tax burden, and to take such actions if deemed appropriate." Plaintiffs ultimately wanted a third-party professional to oversee gifts that could also reduce the tax burden on Moyer Sr.’s estate upon his death. Moyer Sr. and his daughter Kimberly Moyer filed objections to the petition. First Republic, the trustee to the Trust, also filed an objection.
As part of a process to resolve the conservatorship petition, John Draneas, the attorney for, among others, plaintiffs Thomas Moyer Jr. and Colleen Thrift, engaged in deliberations with the attorneys for the various interested, but not all named, parties to that proceeding. Draneas engaged in substantive exchanges about the conservatorship proceeding with the attorney for Moyer Sr., as well as defendant Duffy Kekel, the law firm representing defendant First Republic.2 Some of those exchanges were reflected in various correspondence circulated among the attorneys. Plaintiffs contend that defendant Miller Nash, the attorney for Columbia State, was also provided with some of this information, and that Miller Nash and Columbia State, among others, were part of the discussions to resolve the conservatorship proceeding.
Ultimately, following a negotiation among the interested parties, defendant Columbia State was appointed by the court, pursuant to a Stipulated Limited Judgment, as a "Special Fiduciary" under ORS 125.010(3)(d) and a "Special Representative" under ORS 130.120 on behalf of Moyer Sr. The Stipulated Limited Judgment empowered Columbia State to "make gifts * * * and otherwise engage in estate planning on behalf of Mr. Moyer [Sr.]" and provided that the "aggregate gifts made by the Special Fiduciary shall not exceed $60,000,000 in value" without prior court approval. It authorized First Republic to make distributions from the Trust for estate planning and gifting purposes. It also provided that Columbia State would be paid out of the Trust and that Columbia State would engage Miller Nash to provide legal services to it in its capacity as special representative and special fiduciary.
Plaintiffs contend that in the course of negotiations that led to that Stipulated Limited Judgment, and as reflected in that judgment, defendants made certain direct promises to plaintiffs. It is those direct promises that plaintiffs contend are the basis for their breach of contract claims against defendants. The precise nature of some of those alleged promises is hard to pin down. However, we understand plaintiffs to allege certain express promises made by First Republic, Columbia State, and Duffy Kekel to plaintiffs, which all boil down to the following allegation that is repeated either verbatim or in similar form throughout plaintiffs’ complaint: namely, that those defendants had promised "to develop and carry out (implement) estate planning proposals for Mr. [Moyer Sr.]’s estate with the objective (to accomplish the result) of minimizing the transfer taxes that might become due upon the death of Mr. Moyer [Sr.]."3 What those specific proposals were to be is left somewhat vague in the complaint. Plaintiffs contend that First Republic and Columbia State purportedly promised to implement estate planning proposals that would "involve aggregate taxable gifts in an amount between $38 million to $60 million and result[ ] in an estimated transfer tax savings of $9.6 million to $20 million." Plaintiffs then list general procedures that First Republic and Columbia State promised to undertake, such as engaging in a comprehensive review of Moyer Sr.’s estate and then identifying and implementing estate planning techniques to accomplish those savings. Plaintiffs also contend that those defendants were to work with plaintiffs’ attorney to accomplish the foregoing.
In support of their "direct" breach of contract claims, plaintiffs also generally rely on alleged "implied" promises that plaintiffs claim defendants made in the course of and perhaps following the negotiations that led to the resolution of the conservatorship proceeding that resulted in the Stipulated Limited Judgment. Plaintiffs incorporate into their complaint various correspondence between plaintiffs’ lawyer and either Moyer Sr.’s lawyer or First Republic's lawyers, Duffy Kekel. Plaintiffs do not allege any specific gifts or tax savings measures that any defendant promised to undertake or assist with.
Plaintiffs point to an August 28, 2012, letter from Duffy Kekel sent on behalf of its client First Republic to plaintiffs’ lawyer that mentions that "we are considering several possible transactions." After listing those considered transactions, the letter notes that, "[u]ltimately, the decision to adopt one of these proposals, or to adopt other proposals, lies with the parties who have previously been designated by Mr. Moyer [Sr.] to carry out his estate plan, but we nevertheless wish to receive your comments." Plaintiffs allege that the Stipulated Limited Judgment provided Columbia State with the power to "make gifts, create trusts, and otherwise engage in estate planning on behalf of Mr. Moyer [Sr.] * * * consistent with Mr. [Moyer Sr.]’s existing estate plan as embodied in the Trust." The judgment provided that "[t]he aggregate gifts made by [Columbia State] shall not exceed $60,000,000 in value" and that First Republic was authorized to make distributions from the...
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