Weyerhaeuser Co. v. Klamath County, Or.
| Decision Date | 06 August 1998 |
| Docket Number | No. 97-35492,97-35492 |
| Citation | 151 F.3d 996 |
| Parties | , 98 Cal. Daily Op. Serv. 6184 WEYERHAEUSER COMPANY, a Washington corporation, Plaintiff-Appellant, v. KLAMATH COUNTY, OREGON and Klamath County Sheriff's Office, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arden E. Shenker, Law Offices of Arden E. Shenker, Portland, Oregon; Michael J. Gentry (on the briefs), Tooze Duden Creamer Frank & Hutchison, Portland, Oregon; Stanley C. Jones (on the briefs), Boivin Jones Uerlings DiIaconi & Oden, Klamath Falls, Oregon, for the plaintiff-appellant.
Andrew C. Brandsness, Brandsness, Brandsness & Rudd, Klamath Falls, Oregon; Reginald R. Davis (on the briefs), County Counsel, Klamath Falls, Oregon, for the defendants-appellees.
Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-94-00822-JPC.
Before: GOODWIN, ALARCON, and BRUNETTI, Circuit Judges.
Weyerhaeuser appeals from the order granting summary judgment in favor of Klamath County and the Klamath County Sheriff's Office in Weyerhaeuser's indemnity action. We affirm because we conclude that, under Oregon law, the Klamath County Board of Commissioners and the Klamath County Sheriff's Office lacked the authority to enter into an agreement for the provision of private security services. We also conclude that a county board of commissioners cannot be bound under the doctrines of apparent authority and ratification to perform the promises contained in an agreement for such services executed by a sheriff.
On January 15, 1986, Weyerhaeuser entered into an agreement ("the 1986 agreement") with the Klamath County Board of Commissioners ("Board of Commissioners") and Sheriff Thomas H. Duryee to provide private security services on Weyerhaeuser's property located within Klamath County. 1 The parties agree that the purpose of the 1986 agreement was to provide Weyerhaeuser with enhanced security services not available to any other resident of Klamath County; Weyerhaeuser has characterized the services as "specialized law enforcement services on Weyerhaeuser's land." Weyerhaeuser's Opening Br. at 2.
In exchange for these services, Weyerhaeuser paid hourly rates, which amounted to reimbursement for the costs associated with providing the services. The 1986 agreement contained an indemnity provision obligating Klamath County and the sheriff to indemnify Weyerhaeuser against any claims, damages, or costs arising out of the performance of the 1986 agreement, except for claims solely attributable to Weyerhaeuser's conduct. It also contained a December 31, 1986 expiration date. It did not include a provision for a renewal of the agreement. The 1986 agreement was signed by Sheriff Duryee, the three county commissioners, and John D. Monfore, land use manager for Weyerhaeuser.
On January 13, 1987, after the 1986 agreement had expired, Weyerhaeuser and Sheriff Duryee executed a new agreement ("the 1987 agreement") purporting to extend the terms of the 1986 agreement for one year. The 1987 agreement contained signature lines for the members of the Board of Commissioners. Sheriff Duryee signed the 1987 agreement on behalf of the Klamath County Sheriff's Office; John Monfore signed on behalf of Weyerhaeuser. No member of the Board of Commissioners signed the 1987 agreement.
On January 13, 1988, Sheriff Duryee and John Monfore executed another agreement ("the 1988 agreement") purporting to extend the terms of the 1986 agreement for an additional year. The 1988 agreement did not contain signature lines for the members of the Board of Commissioners.
In March 1991, Thomas Tenold, a former Weyerhaeuser employee, filed an action ("Tenold I") in an Oregon state court against Weyerhaeuser for intentional infliction of emotional distress, defamation, and malicious prosecution. These claims related to the investigation and criminal prosecution of Tenold for the alleged theft of railroad ties from Weyerhaeuser property between May 1988 and November 1988. These dates fell within the time period set forth in the 1988 agreement. The jury awarded damages to Tenold in excess of $2,500,000. Weyerhaeuser filed a notice of appeal. The judgment was affirmed, and Weyerhaeuser filed another notice of appeal.
On July 10, 1992, Tenold filed a second action ("Tenold II") against Weyerhaeuser for intentional infliction of emotional distress, defamation, and malicious prosecution arising out of events that allegedly occurred between 1990 and October 1991.
In June 1995, Tenold and Weyerhaeuser entered into negotiations to settle Tenold I and Tenold II. Weyerhaeuser invited the Board of Commissioners and Sheriff Duryee to participate in the settlement negotiations. They declined to do so. Weyerhaeuser ultimately settled all of the claims in Tenold I and Tenold II for $1,898,495.00. Thereafter, the appeal in Tenold I was dismissed. See Tenold v. Weyerhaeuser Co., 321 Or. 561, 901 P.2d 859 (1995).
On January 22, 1996, Weyerhaeuser filed this indemnity action against Klamath County and the Klamath County Sheriff's Office. Weyerhaeuser alleged that the claims in Tenold I and Tenold II resulted from the conduct of Klamath County Deputy Sheriff L.B. (Bud) Wilson in investigating the disappearance of railroad ties from Weyerhaeuser's property.
The parties filed opposing motions for summary judgment. Magistrate Judge John P. Cooney found that each of the agreements was void because Oregon law does not permit a county or a sheriff to enter into an agreement to provide security services. Judge Cooney recommended that the district court grant the motion for summary judgment filed by Klamath County and the Klamath County Sheriff's Office. The district court adopted Judge Cooney's findings and recommendations and ordered the entry of summary judgment in favor of each of the defendants.
Weyerhaeuser contends that the district court erred in holding that Klamath County and the Klamath County Sheriff's Office are not bound by the terms of the 1988 agreement. Weyerhaeuser maintains that Sheriff Duryee had the express or implied authority under Oregon law to enter into each of the private security services agreements without the written consent of the Board of Commissioners. Alternatively, Weyerhaeuser argues that Klamath County is liable under the doctrines of apparent authority or ratification. We disagree with each contention.
We review a grant of summary judgment de novo. See California First Amendment Coalition v. Calderon, 138 F.3d 1298, 1301 (9th Cir.1998). We also review de novo a district court's determination of state law in a diversity action. See Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).
The Board of Commissioners and Sheriff Duryee signed the 1986 private security services agreement. The 1986 agreement expired on December 31, 1986. None of the members of the Board of Commissioners was a party to the 1987 or the 1988 agreements. Weyerhaeuser does not contend that Klamath County is liable under the 1986 agreement or that the Board of Commissioners assented to the terms of the 1988 agreement when it was executed. To the The district court concluded that "the defendants lacked the authority to enter into the contracts at issue, thereby rendering the contracts invalid." Weyerhaeuser argues that Sheriff Duryee had the "implied, and likely the express, authority" to enter into the 1988 agreement without the approval or assent of the Board of Commissioners. Weyerhaeuser's Opening Br. at 9. Accordingly, we must first determine whether Sheriff Duryee had the express or implied authority under Oregon law to enter into the 1988 agreement and to bind Klamath County to its terms.
contrary, the undisputed evidence shows that Sheriff Duryee did not seek the approval or assent of the Board of Commissioners because, "some of the commissioners [sic] processes were somewhat laborious; we ended up in public meetings with a lot of questions. And I chose to believe that this was an extension of the original contract, and I just signed it." Sheriff Duryee Depo. at 23
The Oregon Constitution provides that "[a] county charter shall prescribe the organization of the county government and shall provide ... for the election ... of such officers as the county deems necessary." Or. Const. art. VI, § 10. It also states that county officers "shall among them exercise all the powers and perform all the duties, as distributed by the county charter or by its authority, now or hereafter, by the Constitution or laws of this state, granted to or imposed upon any county officer." Id.
Under Oregon law, "[t]he sheriff is the chief executive officer and conservator of the peace of the county." ORS 206.010. The sheriff's express duties are described as follows:
(1) Arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses.
(2) Defend the county against those who, by riot or otherwise, endanger the public peace or safety.
Id. The duties spelled out in ORS 206.010 are limited to the protection of all the persons within a county. Oregon law also expressly authorizes a sheriff to enter into contracts, jointly with the governing body of the county, to provide law enforcement to other units of local government. See ORS 206.345. 2 Weyerhaeuser has failed to identify any Oregon statute that expressly authorizes a sheriff to enter into private security services agreements.
In addition to express authority, an Oregon agency has "such implied authority as is necessary to carry out the power expressly granted." Warren v. Marion County, 222 Or. 307, 320, 353 P.2d 257, 264...
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