Adelsperger v. Elkside Development LLC , 371 Or. 61 ( 2023 )

No. 12 May 18, 2023 61
IN THE SUPREME COURT OF THE
STATE OF OREGON
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.
62 Adelsperger v. Elkside Development LLC
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.
(CC 19CV14756) (CA A174502) (SC S069449)
On review from the Court of Appeals.*
Argued and submitted January 18, 2023.
Ronald L. Sperry III, Johnson & McKinney DBA DC
Law, Roseburg, argued the cause and filed the brief for peti-
tioners 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.**
JAMES, J.
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.
Bushong, J. concurred in part and dissented in part and
filed an opinion, in which Garrett and DeHoog, JJ., joined.
______________
* Appeal from Coos County Circuit Court, Andrew E. Combs, Judge. 317
Or App 666, 504 P3d 1 (2022).
** Nelson, J., resigned February 25, 2023, and did not participate in the
decision of this case.
Cite as 371 Or 61 (2023) 63
64 Adelsperger v. Elkside Development LLC
JAMES, J.
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 member-
ship 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 pur-
poses, 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 judg-
ment for defendants, relying on ORS 63.165 and our opinion
in Cortez v. Nacco Materials Handling Group, 356 Or 254,
280, 337 P3d 111 (2014).2 ORS 63.165(1) provides:
“The debts, obligations and liabilities of a limited liabil-
ity company, whether arising in contract, tort or otherwise,
are solely the debts, obligations and liabilities of the limited
liability company. A member or manager is not personally
1
The other claims are variations, or attendant to, the three main categories
of claims. For example, the first claim for relief seeks a declaratory judgment as
to the existence of a contract. The third claim seeks the appointment of a trustee.
2
The trial court allowed a breach of contract claim, and an elder abuse
claim, against Barnett Resorts, LLC, to proceed, and the jury returned a verdict
in favor of plaintiffs. Those claims form the basis of another pending appeal—
Adelsperger v. Elkside Development LLC, 322 Or App 809, 523 P3d 142 (2022).
Cite as 371 Or 61 (2023) 65
liable for a debt, obligation or liability of the limited liabil-
ity company solely by reason of being or acting as a member
or manager.”
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.
OVERVIEW
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 P3d 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] enti-
tled to a judgment as a matter of law.” ORCP 47 C; see also
Robinson v. Lamb’s Wilsonville Thriftway, 332 Or 453, 455, 31
P3d 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.
66 Adelsperger v. Elkside Development LLC
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, claim-
ing that they had “breached the membership camping con-
tract 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 “breached the contracts by assigning
its obligations to [Barnett Resorts, LLC] without permission
or release from Plaintiffs. [Barnett Resorts, LLC] thereafter
denied the Plaintiffs’ rights under the membership camping
contracts.”
Plaintiffs’ fourth claim for relief alleged a statutory
elder abuse claim, asserting that both the Barnetts individ-
ually, as well as Barnett Resorts, LLC, had a “responsibil-
ity 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 rela-
tionship “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.”
Cite as 371 Or 61 (2023) 67
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 primar-
ily relied on the assertion that defendants had purchased
property, not a business. Defendants challenged the recor-
dation 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 con-
tracts 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:
“Members of a limited liability company are personally lia-
ble only to the same extent and in the same manners as
shareholders of a professional corporation. ORS 63.074(2).
A member is not liable for the acts or debts of an LLC
merely by reason of being a member. ORS 60.151(2).
“Plaintiffs have asserted claims against Barnett
Resorts, LLC, but also against Chris and Stefani Barnett
as the owners and operators of Barnett Resorts. It is axiom-
atic that an LLC owner or member is not liable for a claim
against the LLC. Indeed, the purpose of organizing and
carrying out business in an LLC, rather than some other
form, is to avoid such liability. Barnett Resorts, LLC is the
sole owner and operator of Osprey Point. Chris and Stefani
Barnett are entitled to judgment as a matter of law.”
As to the claims against the Barnetts individually,
the trial court granted summary judgment for defendants,
relying on ORS 63.165 and our opinion in Cortez, 356 Or at
280. As the trial court reasoned:
“The general rule regarding the liability of members
and managers of limited liability companies in Oregon was
explained in Cortez[, 356 Or at 280,] as follows:
68 Adelsperger v. Elkside Development LLC
“ ‘ORS 63.165 immunizes members and managers of an
LLC from vicarious liability for the debts, obligations,
and liabilities of that LLC. LLC members and manag-
ers, however, remain personally liable for their acts and
omissions to the extent those acts or omissions would
be actionable against the member or manager if that
person were acting in an individual capacity.’
“The court finds in the instant matter that of the six
claims alleged by plaintiffs’ in their first amended com-
plaint, that none of those claims allege acts or omissions
by defendants Chris Barnett or Stefani Barnett that would
provide a basis for imposing personal liability on either.
Chris Barnett and Stefani Barnett formed Barnett Resorts,
LLC on February 27, 2017; Barnett Resorts LLC purchased
the property on April 28, 2017; and Barnett Resorts LLC
has been the owner of the property ever since. For these
reasons, the court finds that defendants Chris Barnett and
Stefani Barnett are entitled to summary judgment on all of
plaintiffs’ claims.”
On appeal, defendants raise a number of argu-
ments in defense of the trial court’s ruling; however, many
of those arguments are unpreserved. Defendants argue that
plaintiffs’ claims for elder abuse fail because defendants did
not withhold money or property under ORS 124.110(1)(a)
or (b). That argument was developed at trial, on the claims
against Barnett Resorts, LLC that survived, but that was
not an argument before the summary judgment court.
Similarly, defendants argue that, as to the intentional
interference claim, plaintiffs failed to provide evidence of
an improper means or motive. That also was not an argu-
ment before the summary judgment court. As set forth
above, the arguments on summary judgment were limited,
and the sole basis of the court’s grant of summary judgment
was ORS 63.165. Accordingly, that is the singular issue we
address.
With that background now set, we turn to Cortez,
where we noted that the Oregon legislature patterned ORS
63.165 off the Uniform Limited Liability Company Act
(ULLCA) (1996) and adopted verbatim subsections 303(a)
and (b) from that uniform act. We noted that a comment to
that section included the following statement:
Cite as 371 Or 61 (2023) 69
“ ‘A member or manager is responsible for acts or omissions
to the extent those acts or omissions would be actionable in
contract or tort against the member or manager if that per-
son were acting in an individual capacity. Where a mem-
ber or manager delegates or assigns the authority or duty
to exercise appropriate company functions, the member or
manager is ordinarily not personally liable for the acts or
omissions of the officer, employee, or agent [of the LLC] if
the member or manager has complied with the duty of care
set forth in Section 409(c).’ ”
Cortez, 356 Or at 267-68 (citing ULLCA § 303 comment
(1996) (brackets in Cortez)). Accordingly, we held that “mem-
bers and managers remain personally liable for the actions
that they take on behalf of an LLC to the same extent that
they would be liable ‘if [they] were acting in an individual
capacity.’ ” Id. at 268 (brackets in Cortez). We therefore turn
to applying that principle to each of the three claims at issue
here. We begin with plaintiffs’ elder abuse claim, then pro-
ceed to consider the breach of contract claim, and conclude
with the intentional interference with contract claim.
ELDER ABUSE
ORS 124.100(2) provides that “[a] vulnerable person
who suffers injury, damage or death by reason of physical
abuse or financial abuse may bring an action against any
person who has caused the physical or financial abuse or
who has permitted another person to engage in physical or
financial abuse.” As used in the Oregon Revised Statutes,
the term “person” is generally defined to include “individ-
uals, corporations, associations, firms, partnerships, lim-
ited liability companies and joint stock companies.” ORS
174.100(7) (so providing unless context or specific statutory
definition provides otherwise). By its terms, then, an action
for elder abuse can lie against a corporate abuser, as well as
those people who have “permitted” the corporation to abuse
the elderly person.
To what extent, if at all, ORS 63.165 operates to
preclude a claim for elder abuse, under ORS 124.100(2), is a
question of statutory interpretation. We approach such ques-
tions with the “paramount goal” to discern the intention of
the legislature. State v. Gaines, 346 Or 160, 171, 206 P3d
70 Adelsperger v. Elkside Development LLC
1042 (2009). In pursuing that goal, we give primary weight
to the text and context of the disputed statutory terms. Id.As we emphasized in Gaines, “there is no more persuasive
evidence of the intent of the legislature than the words by
which the legislature undertook to give expression to its
wishes.” Id. (internal quotation marks omitted).
ORS 124.100(2), by its terms, contemplates direct
liability in tort for an individual who permits another—
including a corporation—to commit elder abuse. The parties
have provided us no legislative history that would contra-
dict the plain text, and our review of the history of ORS
124.100(2) shows no indication that the legislature sought to
exclude from direct liability those who permitted abuse by a
corporate actor.
As part of construing the text and context of a stat-
ute, we also look to case law construing the statute at issue.
See Sherman v. Dept. of Human Services, 368 Or 403, 411-
12, 492 P3d 31 (2021) (so demonstrating). In imposing direct
liability for those who permit another to commit elder abuse,
ORS 124.100(2) bears similarity to the statute at issue in
Cortez. There, we considered a workplace safety statute that
imposed obligations on a person who “retains the right to
control the manner or method in which the risk-producing
activity was performed.” 356 Or at 273. The plaintiff in
Cortez was injured while working for a lumber mill owned
by an LLC and sued the member-manager of the LLC,
arguing that the member-manager was a person subject to
the statute. Id. at 256. The member-manager argued that,
under ORS 63.165(1), it could not be held personally liable
for harm arising out of the LLC’s business operations based
on “merely having the authority to require the LLC to pre-
vent a workplace accident.” Id. at 263.
We held that ORS 63.165(1) did not shield the
member-manager of an LLC from liability for failing to sat-
isfy the statutory safe-workplace obligations. We reasoned
that “ORS 63.165(1) immunizes [the LLC member] only
from vicarious liability for the LLC’s obligations,” and not
from liability for its own omissions if, having retained con-
trol, the person failed to provide, or to require the LLC to
provide, a safe workplace. Id. at 264.
Cite as 371 Or 61 (2023) 71
Later, in Kinzua Resources v. DEQ, 366 Or 674, 468
P3d 410 (2020), we considered two additional statutes—
ORS 459.205 and ORS 459.268—which imposed obligations
on the permit holder for the proper closure of a landfill. We
construed the landfill permit statutes with ORS 63.165(1)
and concluded that individual liability for LLC member-
managers was permissible:
“The commission contends that ORS 63.165(1) permits it
to impose liability based on [the] petitioners’ own failure
to perform obligations with which they were individu-
ally charged in their capacity as persons ‘controlling’ the
landfill.
“We agree with the commission that ORS 459.205 and
ORS 459.268 impose obligations directly on each person
‘controlling’ a landfill and that liability for the person’s own
failure to satisfy those obligations is direct liability, which
ORS 63.165(1) does not prevent.”
Kinzua Resources, 366 Or at 687.
Like the statutes at issue in Cortez and Kinzua
Resources, ORS 124.100(2) creates liability for those that
perpetrate elder abuse, as well as those who permit others
to perpetrate elder abuse.3 That liability is not vicarious; it
is direct. In such an instance, ORS 63.165(1) is not a bar to
asserting a claim for a statutory violation of ORS 124.100(2)
against a member-manager of an LLC, when the LLC is
alleged to be the entity that directly perpetrated the elder
abuse. The trial court erred in granting summary judgment
as to this claim.
BREACH OF CONTRACT
We turn now to plaintiffs’ second claim for relief—
breach of contract. Here, we agree with the trial court
that there is no evidence that the Barnetts, acting in their
individual capacity, breached the contract. As we explain,
the trial court was therefore correct to preclude this claim
according to ORS 63.165.
3
We are not called upon here to delineate the boundaries of what constitutes
permission under the statute.
72 Adelsperger v. Elkside Development LLC
It is well established, both in Oregon and elsewhere,
that generally speaking, but with some exceptions, privity
of contract is an essential prerequisite to a breach of con-
tract claim. See, e.g., Davis v. Homasote Company, 281 Or
383, 386, 574 P2d 1116 (1978); DAFCO LLC v. Stewart Title
Guar. Co., 156 Idaho 749, 754, 331 P3d 491, 496 (2014) (“It
is axiomatic in the law of contract that a person not in priv-
ity cannot sue on a contract.” (Quoting Wing v. Martin, 107
Idaho 267, 272, 688 P2d 1172, 1177 (1984).)); Danielkiewicz
v. Whirlpool Corp., 426 F Supp 3d 426, 432 (ED Mich 2019)
(citing the same); Yucyco, Ltd. v. Republic of Slovenia, 984 F
Supp 209, 215 (SD NY 1997) (stating that a plaintiff “may
not assert a cause of action to recover damages for breach
of contract against a party with whom it is not in privity” of
contract); Cent. Con. Co. v. Paradise Valley Utility, 634 P2d
346, 348 (Wyo 1981) (“[P]rivity of contract is an essential
element [for] a cause of action on a contract[.]” (Internal quo-
tation marks omitted.)).
Here, the parties do not dispute that the Barnetts,
individually, are not signatories to the contracts at issue. The
membership contracts existed between Elkside and plaintiffs.
The purchase of Osprey Point was accomplished through a
contract between Elkside and Barnett Resorts, LLC. To the
extent that the Barnetts took any action in that contract for-
mation, they did so solely as agents of the LLC. Accordingly,
and as the parties effectively acknowledged at oral argument,
the Barnetts, individually, are not in privity with any of the
plaintiffs or Elkside as to the contracts at issue.
Under ORS 63.165, member-managers remain per-
sonally liable for their acts or omission only to the extent
that “those acts or omissions would be actionable against
the member or manager if that person were acting in an
individual capacity.” Cortez, 356 Or at 280. That concept pre-
sumes that “those acts or omissions” could have been under-
taken by a person in their individual capacity. In this case,
the Barnetts lack privity with Elkside or plaintiffs. Absent
certain circumstances not present here, such as issues of
implied warranty, a nonparty to a contract cannot bring
suit for breach of that contract, and in reverse, parties to a
contract cannot bring suit against a third-party for breach
of the contract. Thus, as alleged by plaintiffs, any “acts or
Cite as 371 Or 61 (2023) 73
omissions” by the Barnetts with respect to the contract could
not possibly have been undertaken in their individual capac-
ities. As such, the trial court did not err in granting sum-
mary judgment as to the breach of contract claim against
defendants Stefani Barnett and Chris Barnett individually.
INTENTIONAL INTERFERENCE
Finally, we turn to plaintiffs’ sixth claim, inten-
tional interference with contractual relations. “A mere
breach of contract cannot be sued on as a tort, but for tor-
tious acts, independent of the contract, a man may be sued
in tort, though one of the consequences is a breach of his
contract.” Harper v. Interstate Brewery Co., 168 Or 26, 37-38,
120 P2d 757 (1942) (citing Stock v. City of Boston, 149 Mass
410, 21 NE 871, 872, 14 Am St Rep 430 (1889)). Intentional
interference with economic or contractual relations is the
name we give to tortious conduct, independent of a contract,
that brings about a breach of that contract.
To state a claim for intentional interference with
economic or contractual relations, a party must allege each
of the following elements: (1) the existence of a professional
or business relationship, (2) intentional interference by
the third party with the relationship, (3) that the inter-
ference was accomplished through improper means or for
an improper purpose, (4) the interference caused damage
to the economic relationship, and (5) damages. McGanty v.
Staudenraus, 321 Or 532, 535, 901 P2d 841 (1995); Straube
v. Larson, 287 Or 357, 360-61, 600 P2d 371 (1979); Wampler
v. Palmerton, 250 Or 65, 73-76, 439 P2d 601 (1968); see Lewis
v. Oregon Beauty Supply Co., 302 Or 616, 621, 733 P2d 430(1987), overruled in part on other grounds by McGanty, 321
Or 532 (complaint must allege “[e]ither the pursuit of an
improper objective of harming plaintiff or the use of wrong-
ful means that in fact cause injury to plaintiff’s contractual
or business relationships”); see also Sheets v. Knight, 308 Or
220, 237, 779 P2d 1000 (1989), overruled in part on other
grounds by McGanty, 321 Or 532 (holding same); Top Service
Body Shop v. Allstate Ins. Co., 283 Or 201, 205, 582 P2d 1365(1978) (holding same).
In applying that rule here, it is important to call
attention to how the claim was pleaded in this instance.
74 Adelsperger v. Elkside Development LLC
Plaintiffs asserted an intentional interference claim as an
alternative to their breach of contract claim. As plaintiffs
stated in the first amended complaint, the claim was trig-
gered only “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.”
As such, the claim would only exist if it was determined
that Barnett Resorts, LLC was not a successor in interest to
Elkside and did not assume the obligations of Elkside’s con-
tracts with the plaintiffs. Further, plaintiffs did not allege
that the Barnetts, individually, had interfered with Barnett
Resorts, LLC’s contract. Rather, the claim asserted that
Barnett Resorts, LLC, and the Barnetts individually, inter-
fered as third parties to a contract between plaintiffs and
Elkside. That interference was alleged to be accomplished
by “acquiring the Resort with knowledge of the existence of
the membership camping contracts and thereafter denying
the Plaintiffs access to Resort facilities.”
So framed, ORS 63.165 is not an obvious bar.
Both individuals and corporations can be liable for inten-
tional interference in economic and contractual relations.
In the situation presented here, when both the LLC and its
member-manager are alleged to have acted tortiously vis-à-
vis a contract between third parties, the individual liability
of the member-manager under ORS 63.165 turns upon prin-
ciples of agency—whether the member-manager acted upon
individual motives, and for individual benefit, or merely
acted as an agent of the corporation, in furtherance of a cor-
porate motive. “So long as the officer or employee acts within
the general range of his authority intending to benefit the
corporation, the law identifies his actions with the corpora-
tion.” Wampler, 250 Or at 76-77.
Before the trial court and the Court of Appeals,
plaintiffs argued that the trial court erred in failing to con-
sider whether a genuine issue of material fact existed as
to whether the Barnetts interfered in furtherance of per-
sonal motives, or merely in their capacity as agents of the
LLC. Plaintiffs were correct. The trial court’s grant of sum-
mary judgment—based solely on ORS 63.165, without con-
sideration of whether the Barnetts were acting within their
authority for the benefit of the corporation, or for individual
Cite as 371 Or 61 (2023) 75
motives—was misplaced, and the trial court erred. See, e.g.,
Bova v. City of Medford, 262 Or App 29, 43, 324 P3d 492,
rev den, 356 Or 516 (2014) (reversing grant of summary
judgment based on an incorrect statutory interpretation).
Our holding here is narrow and confined to the par-
ticularities of the parties’ arguments and the trial court’s
reasoning. ORS 63.165 was the argument raised in defen-
dants’ summary judgment motion as to the elder abuse
and intentional interference claim, and the sole basis of
the trial court’s ruling. No opinion is offered as to whether
summary judgment might be appropriate on some alter-
native grounds. As discussed, the alternative arguments
presented on appeal were not before the trial court, and no
party has invoked a “right for the wrong reasons” rationale.
See Outdoor Media Dimensions Inc. v. State of Oregon, 331
Or 634, 659-60, 20 P3d 180 (2001) (setting out conditions
for affirmance under a “right for the wrong reasons” basis);
State v. Rogers, 330 Or 282, 295, 4 P3d 1261 (2000) (“The
‘right for the wrong reason’ principle establishes that appel-
late courts may examine legal arguments not relied on by a
trial court to determine if those arguments provide a basis
for affirmance.”). The foregoing analysis is simply that, on
this record, ORS 63.165 did not bar plaintiffs’ claim such
that summary judgment was required.
It is worth noting that the claims that survived sum-
mary judgment here, against Barnett Resorts, LLC, pro-
ceeded through verdict, and that verdict is now the subject
of a different appellate proceeding—Adelsperger v. Elkside
Development LLC, 322 Or App 809, 523 P3d 142 (2022). It is
certainly possible that the ultimate resolution of the issues
presented in that case may ultimately affect the claims at
issue here. As the dissent notes, whether this decision will
have a meaningful affect upon the parties is a prudential
concern. See, e.g., City of Damascus v. State of Oregon, 367
Or 41, 68 n 13, 472 P3d 741 (2020) (“We express no opinion
here regarding the circumstances in which advisory opin-
ions may or may not be unconstitutional * * *. The point is
that there are prudential and jurisprudential reasons to
avoid unnecessarily deciding legal issues that may be pre-
sented in a case, if the case can be appropriately resolved on
more limited grounds.”). However, at this point in time, that
76 Adelsperger v. Elkside Development LLC
case has not reached finality, and we will not prognosticate
its future. The dissent would hold the decision in this case,
to avoid “piecemeal litigation of related claims.” However, it
is not prudent to intentionally delay issuance of a decision
in this matter to await an unknown outcome when no lower
court has consolidated the cases, and no party has moved
for the cases to be consolidated, nor asked this court to hold
a decision in abeyance. The ultimate applicability of that
other case to the claims here is left to the sound wisdom of
the trial court upon remand.
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.
BUSHONG, J., concurring in part, dissenting in
part.
I agree with the majority’s disposition of the elder
abuse and breach of contract claims, and I join in the major-
ity opinion on those claims.1 I write separately, however, to
explain my preferred approach as a procedural matter as
to the elder abuse and intentional interference claims, and
relatedly, why I disagree with the majority’s disposition of
the intentional interference claim. I would await the final
appellate disposition of Adelsperger v. Elkside Development
LLC, 322 Or App 809, 523 P3d 142 (2022) (Adelsperger II),
recently decided by the Court of Appeals and involving simi-
lar claims from these same plaintiffs,2 before addressing the
elder abuse and intentional interference claims in this case.
In my view, we should not be addressing those claims at
this stage of the proceeding, because they are intertwined
with the issues decided in Adelsperger II. The final disposi-
tion of those issues may, in the end, transform the majority
1
For ease of reference, I use the term “majority opinion” throughout this
opinion in referring to the opinion authored by Justice James. However, that
opinion is not truly a “majority” opinion as to the intentional interference claim,
which we are affirming by an equally divided court.
2
The Court of Appeals denied petitions for reconsideration in Adelsperger II
on March 31, 2023. On May 5, plaintiffs petitioned this court for review of the
Court of Appeals’ disposition of their elder abuse claim.
Cite as 371 Or 61 (2023) 77
opinion into an advisory opinion that has no practical effect
on the parties. At the very least, deciding those issues now
unnecessarily continues the piecemeal litigation of related
claims.3
In reversing the trial court’s summary judgment
ruling on the two noted claims against defendants Stefani
and Chris Barnett (the Barnetts), the majority opinion con-
cludes that ORS 63.165 does not shield them individually
from liability for elder abuse or intentional interference
with contract. On the elder abuse claim, the majority opin-
ion concludes that ORS 63.165 is not a bar to asserting the
claim against the Barnetts individually simply because the
entity alleged to have “directly perpetrated the elder abuse”
is the LLC and not its individual members. 371 Or at 72.
But, in Adelsperger II—which involves the same claims as
asserted by these same plaintiffs against Barnett Resorts,
LLC—the Court of Appeals determined that plaintiffs had
failed to prove at trial that the LLC had perpetrated elder
abuse. Adelsberger II, 322 Or App at 827.
Similarly, the majority opinion acknowledges that
the intentional interference claim “would only exist if it was
determined that Barnett Resorts, LLC was not a successor
in interest to Elkside [Resorts LLC] and did not assume the
obligations of Elkside’s contracts with the plaintiffs.” 371 Or
at 74. But again, in Adelsperger II, the Court of Appeals con-
cluded that sufficient evidence at trial had supported the
jury’s conclusion that Barnett Resorts, LLC had been a suc-
cessor in interest and thus had assumed the obligations of
Elkside’s contracts with the plaintiffs. 322 Or App at 819-20.
If the Court of Appeals’ resolution in Adelsperger II
of those claims as to the LLC becomes final, then the major-
ity opinion’s resolution of the issues in this case—whether
the trial court properly granted summary judgment to the
Barnetts under ORS 63.165 on those same two claims—
would amount to an advisory opinion that has no practical
effect on the parties. And if the Court of Appeals’ resolution
of those claims in Adelsperger II does not become final—that
is, if we allow plaintiffs’ pending petition for review—then
3
My views expressed in this opinion do not apply to the breach of contract
claim addressed in the majority opinion.
78 Adelsperger v. Elkside Development LLC
deciding now that the Barnetts might be liable on those
claims and deciding later whether the Court of Appeals cor-
rectly resolved those claims against the LLC would continue
the piecemeal litigation of these related claims.
We typically seek “to avoid piecemeal litigation of
multiple claims likely to involve related facts.” Thompson v.
Coughlin, 329 Or 630, 637, 997 P2d 191 (2000). And there are
prudential reasons to avoid unnecessarily deciding issues
that may not have any practical effect on the parties. See
City of Damascus v. State of Oregon, 367 Or 41, 68 n 13, 472
P3d 741 (2020) (“We express no opinion here regarding the
circumstances in which advisory opinions may or may not be
unconstitutional[.] * * * Our point is that there are prudential
and jurisprudential reasons to avoid unnecessarily deciding
legal issues that may be presented in a case, if the case can
be appropriately resolved on more limited grounds.”).
The majority opinion acknowledges that final res-
olution of the claims against the LLC may affect the ulti-
mate disposition of the claims against the Barnetts. 371 Or
at 75. The majority opinion also acknowledges that, depend-
ing upon how the claims against the LLC are ultimately
resolved, today’s decision may not have any meaningful
effect on the parties. Id. at 75-76. Nevertheless, it concludes
that it would not be prudential to await the final resolution
of the claims against the LLC. Id.
The majority justifies that conclusion by treating
Adelsperger II as a different “case” that has not been consol-
idated with this case, concluding that the “ultimate applica-
bility of that other case” to the claims here should be left to
the trial court. Id. at 76. But there is no “other case”; there
is one action commenced by filing a complaint that ulti-
mately resulted in splintered appeals, each of which were
assigned different case numbers. See ORCP 3 (“[A]n action
shall be commenced by filing a complaint with the clerk of
the court.”). The claims addressed by the majority opinion
and by the Court of Appeals in Adelsperger II were asserted
in the same complaint filed in the same action.
I suggest that, under the circumstances, the pru-
dential decision would be to await final resolution of the
Cite as 371 Or 61 (2023) 79
claims against the LLC, and then resolve all the remaining
claims asserted in this action at once.
In addition, I disagree with the majority’s disposi-
tion of the intentional interference claim for a reason that
further highlights why we should not be deciding that alter-
native claim at all. The majority opinion called attention to
how this claim was pleaded—as an alternative to the breach
of contract claim—and framed the issue as whether ORS
63.165 barred a claim asserting that the Barnetts individu-
ally (and the LLC) interfered with contracts between plain-
tiffs and Elkside. 371 Or at 74.
The majority then concludes that ORS 63.165 is not
“an obvious bar” to the claim because, under Wampler v.
Palmerton, 250 Or 65, 74-77, 439 P2d 601 (1968), the claim
hinges on whether “the Barnetts were acting within their
authority for the benefit of the corporation, or for individ-
ual motives[.]” 371 Or at 74-75; see also id. at 74 (citing test
under Wampler); id. (applying test).
However, the circumstances presented here are dif-
ferent from those presented in Wampler, and the majority’s
application of the Wampler test for determining individ-
ual liability of corporate officials in this context is flawed.
The plaintiff in Wampler alleged that the individual defen-
dants—the president and a business advisor of Diamond
Lake Lumber Company (Diamond Lake)—were liable for
interfering with a logging contract between the plaintiff
and Diamond Lake. A jury ruled in favor of the plaintiff,
and the individual defendants appealed. 250 Or at 67-68.
This court first noted that, “[i]n the usual interfer-
ence with a contract situation, the person interfering is a
complete stranger to the contractual relationship.” Id. at 74.
But Wampler added a “complicating ingredient * * * where
the party induced to breach its contract is a corporation and
the third person who induces the breach is not a stranger,
but is a person who, by reason of his position with the corpo-
ration, owes a duty of advice and action to the corporation.”
Id. The interest protected by an interference with contract
claim “is the interest of the plaintiff in not having his con-
tract rights interfered with by intermeddling strangers.”
80 Adelsperger v. Elkside Development LLC
Id. at 77. Thus, “so long as the person inducing the breach
of a corporate contract is an officer or employe[e] acting for
the benefit of the corporation and within the scope of his
authority, the plaintiff cannot show that this interest was
invaded and therefore cannot maintain an interference with
contract action.” Id.“On the other hand,” the Wampler court explained,
“there is no reason to protect corporate officers or employe[e]s
who authorize, direct and participate in tortious conduct by
their corporate principal.” Id. “If the corporation commits a
tort as a result of such intentional action on the part of its
officers or employe[e]s, these agents are also responsible.”
Id. Thus, whether there was a jury question as to the lia-
bility of the individual defendants in Wampler depended on
“whether there [was] evidence that defendants were guilty
of engaging in tortious conduct upon behalf of the corpora-
tion.” Id. at 78. The Wampler court reviewed the evidence
at trial, noting first that “there is no direct evidence of any
bad motive or intent” in almost all cases “in which intent
is in issue.” Id. at 80. As a result, it was necessary for the
court “to ascertain whether there [was] sufficient circum-
stantial evidence” of bad motive or intent. Id. Finding none
in the trial court record, the court concluded that “[t]he trial
court erred in failing to grant the defendants’ motion for a
directed verdict.” Id. at 82.
Cases decided after Wampler have made it clear
that an intentional interference with contract claim requires
proof of “the pursuit of an improper objective of harming
plaintiff or the use of wrongful means that in fact cause
injury to plaintiff’s contractual or business relationships.”
Lewis v. Oregon Beauty Supply Co., 302 Or 616, 621, 733
P2d 430 (1987); see also Sheets v. Knight, 308 Or 220, 237,
779 P2d 1000 (1989), abrogated in part on other grounds by
McGanty v. Staudenraus, 321 Or 532, 901 P2d 841 (1995)
(plaintiff must plead and prove that defendant, “either with
an improper objective or through improper means, purpose-
fully interfered with the plaintiff’s contractual relation-
ship with some third party, thereby causing the plaintiff
damage”). Thus, under Wampler and subsequent cases, for
a corporate officer to be liable for intentionally interfering
with a contract entered into by the corporation, the officer
Cite as 371 Or 61 (2023) 81
must have authorized, directed, and participated in the cor-
poration’s tortious conduct, that is, conduct that not only
amounted to a breach of contract but that was taken for
improper motives or through improper means.
This case is different from Wampler because plain-
tiffs’ claim here is that the Barnetts may be individually
liable for interfering with contracts between plaintiffs and
Elkside. In other words, this case involves “the usual inter-
ference with contract situation” where the persons alleged to
have interfered with the contract—here, the Barnetts—are
strangers to the contractual relationship with which they
allegedly interfered. Thus, it is not clear that Wampler even
applies here. Moreover, even assuming that Wampler is on
point, applying the Wampler test would seem to require the
court to review the summary judgment record to determine
whether it contains direct or circumstantial evidence that
the Barnetts acted with “bad motive or intent” in causing
Barnett Resorts, LLC to tortiously interfere with the con-
tracts between plaintiffs and Elkside.
The majority opinion does not (1) explain why
the Wampler test applies in this context; (2) explain why
“individual motives”—not “bad motives or intent”—would
be enough to meet the Wampler test in this context; or
(3) review the summary judgment record to determine
whether it contains evidence of both individual motives and
“bad motive or intent” sufficient to avoid summary judg-
ment. Instead, it just concludes that the trial court erred
by granting summary judgment “without consideration of
whether the Barnetts were acting within their authority for
the benefit of the corporation, or for individual motives[.]”
371 Or at 74-75.
My disagreement with how the majority opinion
disposes of the intentional interference claim highlights
the reasons why we should not be reversing the trial court’s
decision to grant summary judgment on that claim—pled as
an alternative to plaintiffs’ breach of contract claim—at this
stage of the proceedings. Accordingly, I dissent from that
part of the majority opinion.
Garrett and DeHoog, JJ., join in this concurring
and dissenting opinion.