Adelsperger v. Elkside Development LLC

Substantive arguments must be made against a theory on which the pleadings have been implicitly amended in order to preserve such arguments for appeal. Under Bates v. Bankers Life and Casualty Co., 362 Or, 337 (2018), rights under a contract are not “money or property” for the purposes of ORS 124.110(1)(b). Under Church v. Woods, 190 Or.App. 112 (2003) and Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or. 487 (1999), “improper motive” under ORS 124.110(1)(a) requires that the actor’s “purpose must be to inflict injury on the plaintiff ‘as such.’”

Barnett Resorts, LLC (“Barnett”) appealed a $3.2 million jury verdict for breach of contract and financial elder abuse. Barnett assigned error to, inter alia, the trial court’s denial of its motion for a directed verdict on the breach of contract and elder abuse claims. On appeal, Barnett argued that the theory on which the trial court denied its motion for a directed verdict on the breach of contract claim was not plead in the complaint and that the evidence of financial elder abuse was legally insufficient.

On the breach of contract claim, the Court concluded that the pleadings were implicitly amended to conform to the evidence at trial under ORCP 23 B. Substantive arguments must be made against a theory on which the pleadings have been implicitly amended in order to preserve such arguments for appeal. It held that because Barnett did not make substantive arguments against the implied theory, arguing only that it was not pled by Plaintiffs, the trial court was correct in denying the motion for a directed verdict.

On the financial elder abuse claim, the Court considered the sufficiency of the evidence under ORS 124.110(1)(a) and (b). The Court found that Plaintiff’s rights under the contracts did not constitute “money or property” under ORS 124.110(1)(b) because the Plaintiffs were not seeking what they had given Barnett, but rather something they were entitled to as a result. Under Bates v. Bankers Life and Casualty Co., 362 Or, 337 (2018), rights under a contract are not “money or property” for the purposes of ORS 124.110(1)(b). Under Church v. Woods, 190 Or. App. 112 (2003) and Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or. 487 (1999), “improper motive” under ORS 124.110(1)(a) requires that the actor’s “purpose must be to inflict injury on the plaintiff ‘as such.’” As for ORS 124,110(1)(b), the Court found that Plaintiffs failed to identify any improper means or motive by which Barnett could have taken or appropriated the elderly Plaintiffs’ property. Thus, the court erred by denying Barnett's motion for a directed verdict because Barnett could not be liable for financial elder abuse as a matter of law. Judgment on elder financial abuse claim reversed and remanded; otherwise affirmed.