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Joseph Mill Property, LLC v. S&V Properties, LLC

Court of Appeals of Oregon

December 18, 2019

JOSEPH MILL PROPERTY, LLC, an Oregon limited liability company, Plaintiff,
v.
S&V PROPERTIES, LLC, a California limited liability company, Defendant. S&V PROPERTIES, LLC, California limited liability company, Third-Party Plaintiff-Appellant,
v.
OFFICEMAX INCORPORATED, a Delaware corporation, Third-Party Defendant-Respondent, and James ZACHARIAS, Third-Party Defendant.

          Argued and Submitted October 13, 2017; on respondent's amended motion to dismiss fled December 14, 2017; appellant's response fled December 22, 2017; and respondent's reply fled January 9, 2018.

          Wallowa County Circuit Court 131014327; Brian Dretke, Judge.

          D. Zachary Hostetter argued the cause for appellant. Also on the briefs were R. Daniel Lindahl, Bullivant Houser Bailey PC, and D. Rahn Hostetter, Hostetter Law Group LLP.

          Janet M. Schroer argued the cause for respondent. On the brief was Bruno J. Jagelski.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         [301 Or.App. 320] Case Summary:

         Defendant appeals an order granting third-party defendant OffceMax Incorporated's (OfficeMax) motion to dismiss. The parties agree that defendant had obtained a license to store mulch on OfficeMax's property after defendant processed wood waste that had been located on the property. Defendant argues that the trial court incorrectly determined that OfficeMax could revoke the license at will, arguing that OfficeMax was estopped from revoking defendant's license because defendant had made valuable and permanent improvements to the property in reliance on the license. In the alternative, defendant argues that the license was not revocable because either it was coupled with an interest or it had already been executed.

         Held:

         The trial court did not err. Although defendant had expended capital and labor to process the wood waste into the resulting mulch, defendant did not identify any valuable and permanent improvements that defendant had made to the property in reliance on the license. Neither of the other exceptions to the general rule that licenses are revocable that defendant identified applies in this case.

         Affirmed.

         [301 Or.App. 321] ARMSTRONG, P. J.

         Defendant S&V Properties appeals a limited judgment of dismissal, assigning error to the trial court's order granting third-party defendant OfficeMax's motion to dismiss. OfficeMax had granted defendant a license to store mulch on OfficeMax's property, and defendant argues that the trial court incorrectly determined that OfficeMax could revoke defendant's license at will. Licenses are generally revocable, and we conclude that defendant failed to allege facts sufficient to satisfy any of the exceptions to that general rule. Hence, we affirm.[1]

         When reviewing a trial court's decision on a motion to dismiss, we assume the truth of all well-pleaded allegations, as well as any inferences that may be drawn from them, and view those allegations in the light most favorable to the nonmoving party. L. H. Morris Electric v. Hyundai Semiconductor, 187 Or.App. 32, 35, 66 P.3d 509 (2003). We review a trial court's ultimate decision on the motion for legal error. Id.

         OfficeMax purchased property that was contaminated with a wood-products landfill. Although the prior owner had obtained a permit from the Oregon Department of Environmental Quality (DEQ) for the landfill, the permit required the eventual closure of the landfill. In preparing to sell the property, OfficeMax contracted with defendant to process the landfill material and remove it from the site. The original removal plan called for processing approximately 56, 000 to 65, 000 cubic yards of material and anticipated that it would yield approximately 5, 000 cubic yards of mulch. The parties reached an agreement in August 2008 that ...


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