JOSEPH MILL PROPERTY, LLC, an Oregon limited liability company, Plaintiff,
S&V PROPERTIES, LLC, a California limited liability company, Defendant. S&V PROPERTIES, LLC, California limited liability company, Third-Party Plaintiff-Appellant,
OFFICEMAX INCORPORATED, a Delaware corporation, Third-Party Defendant-Respondent, and James ZACHARIAS, Third-Party Defendant.
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.
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.
M. Schroer argued the cause for respondent. On the brief was
Bruno J. Jagelski.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Or.App. 320] Case Summary:
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
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.
Or.App. 321] ARMSTRONG, P. J.
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.
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.
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 ...