*1 20, 2009, April petition April Argued and remanded and submitted reversed (348 669) August Or for review denied David B. WIRTH Wirth, and Diana R. Plaintiffs-Respondents,
v. CASCADE, LLC, SIERRA an limited Oregon liability company;
and its member sole Pelt,
Dana Van Defendants-Appellants. CASCADE, LLC,
SIERRA an limited Oregon liability company, Third-Party Plaintiff,
v. FOSS.,
C. B. individual; an Schafner, individual, Pat Pumice; dba South Central 1-10, and Does Third-Party Defendants.
Klamath Circuit Court County
0604364CV; A136617
Charles F. Hinkle the cause for argued respondents. him on the Andrew R. Gardner and Stoel Rives brief were LLP.
742-b Presiding Judge, Wollheim, Brewer,
Before and Chief Judge, Judge.* Sercombe,
SERCOMBE, J. concurring.
Wollheim, J.,P.
* Brewer, J., Edmonds, C. vice P. J.
743 SERCOMBE, J. dispute plaintiffs a between
This case arises from Cascade, Sierra LLC David and Diana Wirth and defendants ownership mineral of certain and Dana Van Pelt over approxi- rights, including pumice, in the to mine comprise “Liskey mately Estate 28,000 acres of land that (the tract) County.1 filed a in Klamath Plaintiffs Tract” scope declaratory judgment of defen- action to determine rights specifically, and, interest in the tract mineral dants’ to the mineral defendants’ interest was limited whether rights approximately parcel that had been in an 180-acre conveyed quitclaim defendants deed. Defendants eight among responded that, other with counterclaims things, sought parties had entered into to establish that the agreement to mine the entire tract. The an oral judgment granted plaintiffs summary their trial court on declaratory judgment prejudice claim, dismissed with defen- eight judgment limited counterclaims, dants’ and entered a appeal.2 from which defendants presented that defendants sufficient
We conclude summary judgment genuine evidence on to create a issue of material fact as to whether there was an oral parties concerning tract, between the and that notwithstanding evidence of that was admissible parol the statute of frauds and the rule. Accord- evidence ingly, grant summary judgment plain- we reverse the on declaratory judgment tiffs claim and the dismissal of defen- eight dants’ counterclaims.
I. PROCEDURAL HISTORY rights Plaintiffs, the record owners of the mineral declaratory judgment complaint seeking tract, filed a rights are that defendants’ interests in those mineral “Liskey Mineral Plaintiffs now refer to the Estate Tract” as “Wirth “Liskey purposes opinion, property Reservation.” For of this we refer to the as the “tract,” property Tract” or is how the is referenced in the initial Estate pleadings. which judgment only the claims between and defen The limited resolved dants; remaining third-party it did not defendants’ claims. Those claims resolve dismissal, stipulated judgment by the trial court in a which were later dismissed appeal. is not at issue expressly rights approximately limited to those mineral in an parcel conveyed 180-acre to defendants a November 2001 quitclaim eight pleaded deed.3 Defendants answered and partnership agreement, counterclaims for breach of a breach fiduciary duty, quan- trust, establishment ofa constructive misappropriation meruit, secrets, tum of trade intentional relationships, injunctive interference relief, with business accounting. alleged and an an oral All of defendants’ counterclaims
partnership agreement, “special contract, an oral or a relationship” legal obliga- between the that created beyond quitclaim tions those stated in the November 2001 partnership agree- deed. Defendants claimed that an oral *6 provided they development, ment mining, that would be exclusive operator 28,000
and sales for the entire acres of the tract. pursuant moved, C,
Plaintiffs to ORCP for sum- mary judgment declaratory on their claim for relief and for dismissal of defendants’ counterclaims. Plaintiffs contended that no reasonable factfinder could conclude that there was a partnership agreement parties involving between the any part it, entire tract or that the statute of frauds bars proof counterclaims, of defendants’ that defendants cannot vary quitclaim the terms of the November 2001 deed with parol that evidence, and all of defendants’ counterclaims they depended should be dismissed because on the existence partnership agreement. objected of a Defendants to the argued questions motion and that there were of material fact concerning partnership, the existence of a that neither the parol applicable statute offrauds nor the evidence rule was plaintiffs satisfy case, this and that had failed to their burden summary judgment regarding through eighth on the second rely counterclaims because those counterclaims do not on the partnership agreement recovery. existence aof for The trial court concluded that no oral existed between the and that there were insufficient slightly property The record contains different estimates of the size by quitclaim covered the November 2001 deed. Those differences are not material addition, quitclaim to the issues involved in this case. In the November 2001 deed property separate convenience, covered in several areas. For our we refer to property containing conveyed quit the mineral interests the November 2001 parcel.” claim deed as the “180-acre to existence of an oral facts about the jury question addition, the trial issue. In a on that create agree- alleged oral determined that the court subject unenforceable, of frauds statute ment was promise by dependent to trans- it on because was Cascade. to defendant Sierra interest in the tract fer their of an oral that evidence Moreover, the trial court concluded parol partnership agreement evidence under the was barred ultimately that declared defendants The trial court rule. rights any right, mineral title, interest, no or claim have expressly conveyed except tract, for those within quitclaim then dismissed deed. court November 2001 failing prejudice eight defendants’ counterclaims with granted. be a claim from which relief can state STANDARDOF II. REVIEW appeal as make the same contentions on Defendants summary proceedings. they judgment their first did in the In argue assignment court error, defendants trial plaintiffs’ granting summary judgment declara- erred in on tory judgment claim, in the shows because evidence record genuine partner- on the issues of material fact existence of parol ship frauds and the and both the statute of inapplicable. assignment evidence rule are their second error, assert the trial court erred in dismiss- defendants summary judgment, ing on because their counterclaims premised through eighth counterclaims not second were *7 supported and the existence of a were judgment summary record. reviewing grant summary judgment, In we view may drawn record and all reasonable inferences that be the from light nonmoving party, it in the most to the favorable genuine any defendants, here to determine whether there moving party fact and is enti- issue of material whether judgment genuine as a No issue of tled to matter law. objectively juror if no could material fact exists reasonable nonmoving party. ORCP 47 C.4 In return a verdict for 4 C, governs summary judgment, provides, in rel ORCP which motions part: evant affidavits, pleadings, depositions, grant dec- “The court shall the motion if the any genuine and on file show that there is no issue as
larations
admissions
moving party
summary judg-
words,
other
“a
is entitled to
party
if,
ment
on
court,
the record before the
the adverse
”
jury
‘would not be entitled to a
determination.’
Jones v.
(1997)
Corp.,
404, 414,
General Motors
(quoting Seeborg
325 Or
III. HISTORICAL FACTS operated pum- In defendant Sierra Cascade Oregon, property adjacent ice mine in Chemult, to the 28,000-acre time, tract. At that Sierra Cascade was co-owned equal Erkiaga. shares defendant Van Pelt and Janie sought expand mining operations Sierra Cascade its rights neighboring discovered that the mineral in the land by Liskey, early had been owned who had died in 1997. began negotiations 2000, Van Pelt on behalf of Sierra Liskey’s surviving family Cascade with members—Maxine concerning pur- Wirth, Wirth, David and Diana Wirth — rights During nego- chase of the mineral in the tract.5 those Liskey’s tiations, Van Pelt learned that estate had not been probated plaintiff and that David Wirth was the sole heir rights. the mineral moving party material fact prevail and that the is entitled to as a matter oflaw. genuine if, No upon issue as to a material fact exists based the record before the party, court viewed in a objectively manner most favorable to the adverse no juror reasonable party could return a verdict for the adverse on the matter that subject summary judgment. is the party of the motion for The adverse has the producing any burden of evidence on issue raised the motion as to which the party persuasion adverse party would have the burden of at trial. The adverse may satisfy producing the burden of evidence with an affidavit or a declaration under section E of this rule.” party litigation. Maxine Liskey’s surviving Wirth is not a to this She is
daughter. Wirth, son, David who is Maxine Wirth’s is married to Diana Wirth. *8 August From December Sierra Cascade sent proposals family concerning six written to the Wirth proposals, tract. Under the first four of those Sierra Cascade rights would have received the mineral in the entire tract. proposals, Under the last two of those Sierra Cascade would rights only portion have received the mineral a limited the tract. December David Wirth sent Sierra proposal by Cascade a seventh written which Sierra Cascade rights approxi- would have received reserved mineral mately 100 acres of the tract. None of those seven written proposals adopted by parties. was ever part averred,
Van Pelt however, that, in the first plaintiffs orally agreed they 2000, he and that would form a plaintiffs business venture between Sierra Cascade and partnership. According inwas the nature of a to defendants’ responsive pleading, plaintiffs agreed to contribute to the rights their interest in the mineral of the tract. explains plaintiffs Van Pelt’s declaration wanted to deed rights mineral in smaller sections of the tract to Sierra they plaintiffs pro- Cascade as became needed so that could tect themselves from risks created Sierra Cascade’s min- ing activities. parties’ regarding terms of the oral development spe- tract, of the as described Pelt, Van (1) cifically provided: provide Sierra Cascade would invest- money pay development purchase ment equipment costs, machinery, litigation
and and initiate to clear and confirm (2) plaintiffs; title to the tract in pay Sierra Cascade would attorney (3) probating fees associated with the tract; Sierra develop, operate, Cascade would mine, remove, market, and pumice provide sell the site requi- from the tract and would know-how, skill, services, and confidential information (4) purposes; for pay plaintiffs those Sierra Cascade would percentage gross pumice of the sales of the mined from the (5) responsible tract; daily Sierra Cascade would be for the (6) operations partnership; plaintiffs and Sierra jointly develop long-term strategic plan Cascade would (7) developing plaintiffs tract; would allow Sierra development, mining, Cascade to be the exclusive and sales (8) operator plaintiffs cooperate for the tract; and would with obtaining permits Sierra Cascade in needed licenses and After mak- mine the tract. needed to reasonably in all things Pelt referred to Van agreement, oral ing alleged numerous occasions. “partner” as their *9 determined Pelt, he and plaintiffs Van According to phases. occur in two would project development that the the second 3,000 phase acres and to involve was first phase tract that of the designated parcels Pelt 5,000 acres. Van The parties mining operation. for the to acquire he wanted one at least maps, on several development plan detailed was Erkiaga Sierra Cascade. by and kept owned of which was plain- Pelt and between Van in the discussions not involved concerning reached were agreements which during tiffs Van Pelt by she later told tract, nor was development of Sierra an on behalf such negotiated that he had Cascade. David Wirth 2000, Pelt and Van April
Around hearing Planning Commission County a Klamath attended land- adjoining by use permit application a conditional on Pelt publicly represented Van meeting, owner. At that 27,000 develop had the exclusive Cascade Sierra Van Pelt’s state- David Wirth corrected acres of the tract. size, the commission advising to the tract’s ment as 28,000 acres. actually tract was pro- initiated the eventually probate Wirth David in the tract. rights title to the mineral to obtain ceeding $5,000 attorney fees in excess of paid Sierra Cascade In July proceeding. Wirth in the probate were incurred min- the title to the 2001, probate received out of David Wirth conveyed rights by He then those in the tract. rights eral Diana as tenants com- to himself and Wirth deed quitclaim 22, 2001, in Klamath their deed on mon; July recorded they County. to Sierra conveyed
Later that year, plaintiffs 8, deed, and recorded on November dated by quitclaim Cascade portions in several 2001, rights separate the mineral acres. The tract, conveyance approximately comprising defendants, entity plaintiffs a partnership was not to of a partner- mention the existence did the conveyance nor conveyance, for the exchange In parties. ship between of Sierra $3,000, eight percent royalty received gross proceeds products Cascade’s from the sale of mineral parcel per mined and sold from the 180-acre or 70 cents ton of products greater, mined, mineral whichever is and “other given promised value which was the whole consideration.” January employee
In Van Pelt hired an begin developing pumice a market for the from the tract. employee closely That worked with Diana Wirth on the mar- keting program advertising brochures, and went over all the marketing boards, and website materials with her. Diana approved marketing Wirth materials used Sierra Cascade. Those materials indicated that Sierra Cascade had “Largest the mining rights Pumice Reserves in the nation” and “exclusive Oregon.” Chemult,
near March Sierra Cascade filed a conditional permit application pumice mining portion use to allow on a application initially par- the tract. The covered the 180-acre April hearing cel and an additional 70 acres. The 23,2002, *10 application was attended Pelt, Wirth, Van David and attorney rights an Timberlands, for U.S. the owner of surface attorney to the tract. The U.S. Timberlands testified at the hearing might premature proceed that it be to on Sierra application Cascade’s because of U.S. Timberlands’ concern three-eighths rights might that of the tract’s mineral not be by plaintiffs. response began by owned Wirth testified in stating rights that he and Diana Wirth had “soldthe mineral royalty many many for a on acres, so not all ofit but so acres, argued to Sierra Cascade.” Wirth that his title to the tract representative Department was not clouded. A of the (DOGAMI) Geology and Mineral Industries indicated at hearing department accept single appli- would not a separate mining cation for sites. Sierra Cascade thereafter permit application filed an amended conditional use that only approximately parcel. included 80 acres of the 180-acre permit application granted May A on the amended was 31, 2002. August plaintiffs 2002,
In Pelt, wrote a letter to Van asking stop representing that Van Pelt that Sierra Cascade plaintiffs’ owned mineral reservation. Van Pelt saw that let- 2006, ter for the first time in when it was attached ato letter by plaintiffs’ attorney. during dispute sent 2002, Also a arose Erkiaga. co-owner, his Sierra Cascade Van Pelt and between Erkiaga During Sierra Cascade’s time, turned over that maps development addition, In to Diana Wirth. of the tract began interest to assert that Sierra Cascade’s Diana Wirth rights mineral in the 180-acre limited to the the tract was pur- Eventually, by parcel. had 2002, Van Pelt December becoming Erkiaga’s Cascade, interest in Sierra all of chased its sole owner. litigation U.S. settled with Sierra Cascade against litigation Sierra involved claims That
Timberlands. sought, among other U.S. Timberlands Cascade par- mining things, enjoin from the 80-acre Sierra Cascade permit pursuant first conditional use without cel obtaining mining permit to its litigation also from DOGAMI. against by Sierra Cascade claims U.S. Timberlands involved regarding mining rights of land in the 2,800 acres According vicinity Pelt, Sierra Cascade the tract. to Van agreement litigation on the three- to reach settled mining April eighths condi- raised at the interest issue hearing permit and to all of the surface tional use obtain mining rights tract, as well as access to the mineral any oppose not to DOGAMI U.S. Timberlands’ litigation, applications on the tract. As a result of that Sierra attorney $220,000 than fees. Cascade incurred more permit a DOGAMI in 2003. Sierra Cascade obtained year, plaintiffs execute That same Pelt asked Van writing detailing from 2000 and con- the oral firming agreed had that defendants would develop 28,000 acres of the tract. Plaintiffs sent the entire Pelt a letter in March which stated: Van owns, part of “The mineral that Sierra Cascade * * * Liskey right encompassing mineral some the vast A 28,000 contiguous Oregon. large acres in south central *11 * * * as a con- portion pumice of this land is underlaid with cataclysmic eruption. Mt. Mazama’s sequence [*] %* [*] very significant is in the national pumice deposit
“This inventory representative] [A of mineral materials. (United it Geological Survey) States has stated that USGS America. may largest deposits one of the North be % if: <*;{< * * * currently Liskey owned “The mineral is * * *.Mr. Dana Van Pelt and Sierra and Diana Wirth
Dave develop- enjoy commitment to the our trust and Cascade ment ofthis resource.” knowledge agreement, plaintiffs’ Van Pelt shared and
With In Sierra letter Sierra Cascade customers. that with began pay- actively parcel and mined the 180-acre Cascade early plain- ing royalties plaintiffs. In late and to Pelt that Sierra Cascade tiffs made demands on Van capacity purchase operations and additional increase its equipment.
IV. PARTNERSHIP CREATION requested declaratory Plaintiffs’ relief was based on against title to the tract. Defendants defended recorded declaratory judgment claim and a counterclaim asserted rights alleging they in the tract under a had title. that were not reflected the recorded We begin analysis by determining pro- our whether defendants summary judgment in order duced sufficient evidence on genuine create a issue of material fact as whether there was oral between con- cerning the entire tract. governing partnership
A. Law creation governs partnerships ORS the creation of 67.055 provides, part: in relevant * * * “(1) persons [T]he association of two or more carry profit part- on as co-owners business creates nership, persons whether or not the intend to create a partnership. * * * * “(4) determining partnership created, whether a following apply: rules “(a) indicating persons have created a Factors
partnership include: *12 752
“(A) prof- of right to receive a share receipt of or Their business; its of
“(B) in the partners an intent to be expression Their business;
“(C) participate in con- right or participation Their business; trol of the
“(D) share losses of sharing agreeing or Their against the by claims third liability or business business; and
“(E) to contribute contributing agreeing or Their to the business. money property «if: if: :{: if: if:
“(c) by not itself cre- sharing gross returns does a persons sharing if the them have partnership, a even ate property in from which joint or common or interest returns are derived.
“(d) person that a who presumption It ais rebuttable partner in profits of a business is receives a share of business, payment in profits unless the were received factors]. [certain enumerated
«if: ‡ ‡ ‡ ‡
“(e) losses the owners of An to share necessary partnership.” to create a is not business 67.020(1) addition, displaced by “Unless provides, ORS of law and chapter, principles of this particular provisions this supplement chapter.” equity Senate 67.055 and ORS 67.020 were enacted ORS (SB) (1997) January 1,1998. effective on Bill and became at issue 1997, 775, 4, 7, ch 103. The partnership Or Laws §§ 2000, after the effective case created allegedly this was ORS 67.055 Thus, governed by SB 268.6 its creation is date of 2003, however, initially governed only January 1, Before those statutes (3) (2) (1) foreign liability partnerships; part liability partnerships; limited limited 1,1998, January nerships unless the was continu created on or after (4) partnership; partnerships ing created before a dissolved the business of governed by January 1, 1998, the statutes. Since elected to be if the governed partnerships. 1, 2003, Or January 67.020 have all ORS 67.055 and ORS ch 84.§ Laws 67.020, and, any to ORS pursuant supplemental principles law and that have not been equity displaced by provisions of ORS 67.055. rely only
Defendants on the of ORS application of their support argument they 67.055 have produced sufficient for a jury agree- evidence to find a partnership contrast, ment existed. In plaintiffs rely only on preexisting case law and to consider neglect application of ORS 67.055 in of their that defendants support argument failed to *13 sufficient evidence to show a produce partnership agreement. Defendants, brief, in their contend that reply plaintiffs’ argu- ment “uses case law that has Before replaced.” [ORS 67.055] determining whether defendants have met their burden on summary judgment, we must first determine what law gov- erns that That a inquiry. requires determination extent to which the enactment of ORS 67.055 displaced case law prior governing creation. partnership
1. Prior case law governing partnership creation
The case law the creation concerning or existence of a was under partnership developed Oregon’s Uniform Law, Partnership enacted in originally 1939 and codified as 68.010 to 68.650. See Or Laws ORS 1939, ch 550. When the new statutory provisions governing were partnerships enacted in 1997 SB including ORS 67.055—the 268— See Or Uniform Partnership 1997, Law was repealed. Laws 775, 100,101 ch (repeal ORS 68.010 to 68.650 as operative §§ 2003).7 1, of January effect, While in the Uniform Partnership Law defined a as “an association of two or more on persons carry as co-owners a business for Or profit.” 6(1). 1939, 550, Laws ch The rules for determining the exis- § tence of a partnership provided, relevant part: sharing gross
“3. The returns does not of itself partnership, establish a persons sharing whether or not the joint them have a or any prop- common or interest erty from which the returns are derived. 7 Partnership The Uniform Law was amended at various times before its
repeal by However, SB 268. because those amendments are not material to our dis cussion, Partnership originally we cite the Uniform Law as enacted. by person profits receipt a of a share ofthe “4. The prima partner he in the facie evidencethat is a
business is business, prof- inferenceshall be drawn if such but no such [of payment certain enumerated its received were factors].” § 550, ch 7. Or Laws compared law, the Uniform
As with current Partnership provisions governing partnership existence Law indicating persons “[f]actors that have made no mention of 67.055(4)(a). partnership.” Compare a ORS Nor did created quan- Partnership provisions the Uniform tity Law address quality sufficiently that would indicate evidence jury whether a existed or whether there was a developed question Instead, case law that issue. those issues. addressed Com., Preston v. State Ind. Accident Or (1944), judgment
555-56, 149 P2d court reviewed pre- defendants, verdict, for the entered after a directed single question sented court’s determination: logging partnership whether there was a between two broth- alleged by plaintiff. Maden, ers named as had been “Partnership presumed, noted, court is never hence the bur- establishing upon party den of who (citations omitted). *14 alleges it.” at Further, Id. 562 the court explained any “[i]f that, there was substantial evidence ofthe partnership, jury question existence of a would be (citation omitted). involved.” Id. evidence performed before the trial court indicated that J. H. Maden partners do, acts that also but that his conduct taken in its entirety merely extending him was also consistent with brother, financial assistance to his J. B. Maden. Id. at 561. any profits The court determined that J. H. Maden received logging enterprise partial payment debt, from the were in ofa joint authority that there right nowas substantial evidence of business, to administer the and that there was no partnership. actual intent to form a Id. at 566. The court stated: in “Themere introduction evidenceof some conductwhich partnership,
is consistent the existence of a but with
755 equally nonexistence, not necessar- does with its consistent partnership ily proof plaintiffs the burden of when an inference of raise aspect, upon plaintiff. the In its most favorable the is only the level of bare rises evidence speculation.” “[b]eing judgment, of the affirmed the Thus, the court
Id. partner- opinion evidence no substantial that there was ship[.]” Id. at 567. P2d 54, 55-56, 199 ux., 185 Or
In Burnett v. Lemon et
by
(1948),
trial
the
a decree entered
reviewed
910
the court
hearing
that the oral
merits that found
on the
court after
alleged by
plaintiff
partnership
existed
the
resolving
appeal,
parties.8
the court stated
the
In
the
between
that “the
** * depends upon
partnership
the
existence of a
parties[.]”
also concluded
Id. at 64. The court
the
intention of
required
evidentiary proof
partnership
stronger
in
is
of a
asserting
partnership’s
alleged partner
cases where
party
made that
a third
has
than in cases where
existence
explanation
approval
(quoting
Id. at 65
with
assertion.
(1912),
63
distin
Hamilton,
180 Ala
60 So
from Watson v.
cases).
types
guishing
The court addition
between the two
subjective
ally
party’s
ofultimate
statements
held that a
own
proof
“self-serving
insufficient
i.e.,
declarations” —are
fact —
making
party
the statements is
of a
when
partnership.
party asserting
Id.
of the
the existence
also the
at 62 was
(“It
[the
plaintiff]
[the
defen
who, in the absence
talking
doing
the existence of a
about
dant], was
most of
relationship
partnership.
be established
Such
cannot
self-
added.)). Ultimately,
(Emphasis
serving
declarations.”
and held that
the decree
the trial court
court reversed
proof
plaintiff
as to
had failed to sustain his burden
alleged
agreement.
Id. at 66.
existence
Hayes Killinger,
P2d 747
Or
385
v.
(1963),
principles of law
on the
the court elaborated
precedent.
test
“The essential
in earlier
It stated:
announced
determining
is whether the
of a
the existence
Id. at
such a relation.”
intended to establish
added).
“[i]n
provide
(emphasis
that,
The court went on
Burnett,
explicitly
of the decree
Although
the court’s review
not
stated
*15
was de novo.
that case
express agreement codifying
relationship,
absence of an
the
may
the status
be inferred from the conduct of the
parties.”
relation to themselves and to third
The court indi-
considering
parties’
that,
cated
when
the
conduct to deter-
setup
mine whether a
exists, “the entire factual
must be examined as a whole” and that “noone factor is abso-
lutely
Nonetheless,
determinative.”
the
that,
court noted
[the]
“when faced with the
arise,
intricate transactions that
mainly
right
party
prof-
court looks
to the
of a
to share in the
liability
its, his
losses,
to share
and the
to exert some
control over the business. Those are deemed the earmarks of
(citations omitted).
partnership.”
Id.
The court later reiter-
“|j]oint
ated that
control as well as an
to share the
* * *
profits
generally
partner-
and losses is
essential
ato
(citations omitted).
ship.” Id. at 477
Hayes,
plaintiff
alleged
had
that four defen-
Killinger—
dants —Wallace and three individuals named
jointly
severally
joint
should be held
and
liable as
adventur-
injuries
plaintiff
operating
ers for
sustained while
Killingers’ corn-picking machine on Wallace’s farm.9 Id. at
Killingers
plaintiff
467. The
settled with the
trial,
before
and
plaintiff proceeded against
individually
the
theory
Wallace
on the
joint
liability.
and several
Id. at 469. At the close of
plaintiffs
case-in-chief,
the trial court sustained
involuntary
Wallace’s motion
nonsuit —what is now
ground
called a directed verdict—on the
that the record con-
joint
tained no evidence of a
venture between Wallace and
Killingers.
Id. at 467.
appeal,
light
On
the court viewed the evidence in the
plaintiff,
party opposing
most favorable to the
the motion.
owning
Id. at 470. Besides
the farm where the
injury
engaged by
Killingers
occurred, Wallace was
corn-picking operation by
assist them
providing
in their
alleged joint
truck to haul the corn. The
venture between
Killingers
any express
Wallace and the
was not based on
9 partnership
usually
A
general
formed for the transaction of
business of a
particular kind,
joint
usually
whereas a
purpose
venture is
formed for the
of a sin
gle
applicable
“[T]he
determining
transaction.
rules
partner
the existence of a
ship
joint
form the criteria of
Hayes,
existence of a
adventure.”
Goltz, 55 Or right community interest, to share such as “Amere profits of compensation rendered, does not for services as profits partner; must result to share make onea from the parties alleging [party ownership part of the business. among things, prove, partnership] that the other must intended to relationship. mutually a enter into such agreement alleged look oral, the court must was Where dealing parties’ primarily and course of conduct Self-serving partnership formed. a was determine whether party sufficient.” ofa are not declarations omitted.) (Citations find- the trial court’s Oshatz, reviewed de novo we parties.
ing partnership at Id. between that there was no concerning alleged plaintiff the the an oral 175. The acquisition property. Id. Besides evidence of real paid performed particular costs, plaintiff certain services and finding support the existence of of evidence testimony “primarily as to of his own consisted agreed upon[.]” We concluded he and defendant what partnership.” enough prove the existence of “that is not omitted). (citation plaintiff held that the We at 177-78 Id. proof carry intended to failed to his burden disputed prop- form a and were co-owners of the erty. Id. at 178. precedent developed along
Later
the same
See,
lines.
e.g.,
App
Martin,
Martin v.
77 Or
226, 232,
business,
supplies);
App
Susitna Ltd. v.
Federal,
First
118 Or
Pacific
(1993) (no joint
126, 130,
2. The case law ORS 67.055 briefly developed To review, then, case law that *17 Partnership under the Uniform Law addressed two main issues. The first was the identification of characteristics that partnership parties, indicated the existence of a between the parties’ i.e., sharing actual intent and their conduct in profits, sharing exercising joint losses, and control over the by business. The second issue addressed the case law was the evidentiary establishment of certain standards to be used in partnership cases where the existence of a issue, is at i.e., party proof, which bears the burden of the need for substan- partnership jury question tial evidence of a before a arises, equally the failure of evidence consistent with the existence and necessarily nonexistence of a to raise an partnership, insufficiency self-serving inference of and the prove, alleged declaration evidence to on de review, novo implied partnership agreement. oral or explained
For the reasons below, we conclude that displaced prece- enactment of ORS 67.055 much of the dent as to the first issue—identification of char- displace acteristics —but it did not the case law as to the sec- particular ond evidentiary issue—the establishment of standards. importantly, 67.055(1), partner
Most
under ORS
a
ship may
unintentionally by
parties.
be created
Thus, the
parties’
longer
actual intent
is no
the “essential test” for
Compare
partnership.
determining
ORS
aof
the existence
67.055(1) (“[T]he
carry
persons
more
to
of two or
association
partnership,
profit creates a
co-owners a business
on as
partnership.”),
persons
a
create
not
intend to
or
whether
with
(“The
determining
Hayes,
test in
which factors must exist for the creation
fact, the
of the
And,
have occurred.
text indicates that one
necessary
to
not
to
factors —an
share losses—is
Compare
67.055(4)(e),
Hayes,
partnership.
create a
ORS
with
(“Joint
477
as
as an
to share
235 Or at
control well
* * * partner
profits
generally
to a
the
losses is
essential
statutory
although
ship.”).
addition,
text of ORS
expressly
weight
67.055
indicate the
does not
relative
receiving
profits
can
factors,
five
it
be inferred that
a share of
important
sharing
profits
is the most
because the
is
of
only
presumption
part-
factor that creates a rebuttable
that a
67.055(4)(d).
nership has been created. See ORS
Nothing
67.055,
however,
ORS
addresses the
party
produce
nature of the
that a
to
evidence
must
establish
partnership agreement
parties.
an oral
between the
The stat-
proving
ute does
of
not address who bears
burden
(the
alleged partnership,
party
Preston,
see
Like the when a stat- enacts stat- “generally presume legislature ute, we light existing judicial utes in decisions that have direct bearing on those statutes.” Parole, Mastriano v. Board (2007) (citation omitted). Or 693, 159 P3d More- 67.020(1) provides, over, as earlier, noted ORS “Unless dis- placed by particular provisions chapter, principles of this equity supplement chapter.” statutory of law and this As no provision principles disturbs the Preston, law in Burnett, regarding and Oshatz the establishment of certain eviden- tiary principles supplemental standards, those remain ORS 67.055. Application controlling
B. law to historical facts
Bearing understanding in mind the above of control ling apply law, we now turn this that law to the facts of *19 briefly review, of under ORCP recall our standard case. To light to in the most favorable the facts C, 47 we must view entitle facts would to whether those defendants determine justify jury the If the facts to determination. defendants single a people that an in the minds of reasonable inference partnership plaintiffs regarding development not between defendants did exist oral tract, there of the then partner- genuine fact to whether a is issue of material as no alleged by ship defen- tract, the as existed as to summary judgment as a are to dants, and entitled matter of law. Self-serving declarations
1. summary judgment plaintiffs’ response motion, In to lengthy presented a declara the trial court with defendants underlying liti the Van as to the historical facts tion Pelt gation. the Pelt as to what declaration, In that Van averred agreed agreed parties they to a business in form —that develop the entire tract and nature of a they agreed conducting that business.
on certain terms “self-serving type subjective are of the of Those averments Oshatz Burnett and declarations” that explained courts review, insufficient, de novo to establish were on partnership agreement. Burnett, See the existence of an oral App Oshatz, at at 177-78. Because our 62; 185 Or 55 Or evidentiary summary judgment novo, is not de review pertaining to “self- Oshatz, standards from Burnett and serving inapplicable. declarations,” are Pelt’s averments Van agreed those to what the will be considered where as factors and the are relevant to the of ORS 67.055 averments setup factual as a whole. Sharing gross
2.
sales
of
parties agreed that
record indicates
gross
pay plaintiffs
percentage
Sierra Cascade would
beginning
pumice
And,
mined from tract.
sales
gross
paid plaintiffs eight percent
theof
2004, Sierra Cascade
roy
pumice
parcel. The
from the 180-acre
sales of
mined
equally
paid
parcel
consistent
from the 180-acre
are
alties
engaged merely pursuant
November
with acts
they
pursuant
quitclaim
as
are with acts done
deed
alleged partnership agreement.
terms of the
evidence,
That
necessarily
partner-
therefore, does not
raise
inference
ship.
only
Preston,
addition,
See
3. intent to be parties agreed they Pelt
Van averred that the that would form business in venture the nature of a plaintiffs “partner” and thereafter referred to him as on numerous occasions. That conduct is some evidence of an 67.055(4)(a)(B). expression partners. of intent to be See ORS Participation right participate 4. or to in control the business parties agreed they jointly develop
The would long-term strategic plan developing tract, but that responsible daily operations Sierra Cascade would be for the partnership. parties phase ofthe The detailed the dual devel- opment plan maps, of the entire tract on several one ofwhich kept by April was owned and Sierra Cascade. 2000, Around representation David Wirth corrected Van Pelt’s to County Planning Klamath Commission that Sierra Cascade mining rights had 27,000 exclusive to the tract, acres of the by noting actually 28,000 tract was acres in size. approved marketing Diana Wirth Sierra Cascade’s materials company “Largest that indicated that the had the Pumice Reserves in the nation” and that Sierra Cascade had mining rights Oregon.” “exclusive Chemult, near David April hearing original Wirth attended the 2002 on the con- permit application, beyond ditional use which covered land parcel, argued the 180-acre and to the commission that there was no cloud his title. In parcel. By Sierra Cascade began mining the 180-acre had made demands on Van Pelt that Sierra Cascade increase operations capacity purchase equip- its and additional ment. mining royalties, payment of the with the
As necessarily parcel inference of not raise an does 180-acre equally is consistent with that evidence because quit- merely pursuant engaged to the November in acts pursuant to the terms ofthe is acts done deed as it with claim alleged agreement. Preston, Or at 566. See however, conduct total, the above Taken in partici- participation parties’ or to some evidence alleged partnership. pate See ORS in control of 67.055(4)(a)(C). money property to the business
5. Contribution of pro- parties agreed would that Sierra Cascade purchase money development pay costs, investment vide machinery, litigation equipment to clear and and and initiate plaintiffs, confirm title to the tract Sierra Cascade pay attorney probate did, tract. fees Defendants would attorney probating pay fact, $5,000 in fees related attorney $220,000 incurred entire tract. Defendants also litigation against as result U.S. Timberlands— fees litigation that Pelt settled Sierra Van averred was three-eighths mining Cascade to reach on the *21 April hearing, interest at 2002 land use to issue raised the rights mining of all ofthe surface access to the mineral obtain to tract, the and to U.S. Timberlands’ not obtain oppose applications the DOGAMI on tract. agreed
Plaintiffs to to the contribute rights by deeding in their interest the mineral of tract as those sections sections of tract Sierra Cascade quitclaim did, fact, became needed. Plaintiffs Sierra parcel. As some of the other evi- Cascade the 180-acre with parcel conveyance of case, dence in this the 180-acre does necessarily its an inference of own. not raise partnership agreement preexisting is not men- Because a equally is with the deed, tioned in the partnership’s the evidence consistent partnership’s as it is nonexistence with total, Preston, at Taken in how- existence. See 174 Or 566. parties ever, conduct is some evidence ofthe the above alleged partner- money property contribution of ship. to the 67.055(4)(a)(E). ORS See Sharing
6. losses of
There is no evidence that the shared losses. necessary partner- That evidence is not in order to create a (e). ship. 67.055(4)(a)(D), ORS Remaining setup
7. aas whole factual
Lastly, remaining setup we consider the factual as a August through that, whole. record indicates December apparently parties allegedly after the entered into the partnership agreement part par- oral in the first proposals concerning ties considered seven written the own- ership rights. of the tract mineral As with the November quitclaim proposals pre- deed, none of those mention a existing partnership agreement. addition, David Wirth April hearing original testified at the use mineral on the conditional permit application that he and Diana Wirth had “soldthe
rights royalty many acres, for a on so not all of it but many acres, so Further, Sierra Cascade.” the record indi- Erkiaga, cates that then a half-owner of Sierra Cascade, was part alleged partner- neither of the discussions in which the ship agreement reached, was nor was she later made aware agreement by finally, only of such an Van Pelt. And other parties’ relationship plain- written documentation is letter, tiffs’ March 2003 which Van Pelt shared with Sierra Cascade customers, that said: “The right mineral owns, Sierra Cascade part is * * * Liskey
the vast right mineral encompassing some * * * 28,000 contiguous Oregon. acres south central
* * * * * * * “The Liskey mineral currently owned * * Dave and Diana Wirth setup Evidence of the factual as a whole is inconsistent with defendants’ contention that an oral existed. 8. Genuine issue material fact
Having thoroughly reviewed the record whole, as a in light most defendants, favorable to we conclude that presented partner defendants have ship sufficient evidence of a jury to entitle them ato determination. Given the broad partnership governing imprecise principles crea- of law partnership on the evidence exists based a tion, whether Although jury.10 usually question a record be will by presented is far from overwhelm- defendants the evidence meager ing, in Preston or offered as the evidence it is not as appropriately Hayes, intervened the trial court cases where jury. purvue Defendants from the to remove the case support presented that, believed, if would evidence have jury theory; whether to determine it is the role of the their the trial conclude that credible. We therefore that evidence is present determining failed to that defendants court erred partnership of an oral facts the existence sufficient agreement about jury question that issue. create a FRAUDS V. STATUTE OF genuine Despite a issue conclusion that there is our an and existence of oral material fact as to the creation concerning agreement partnership between grant affirm the of sum tract, must nonetheless entire we supported by mary judgment by the trial if it is the trial court rulings application of either the statute court’s on the proceed, parol first, to con rule. We frauds or the evidence viewing applicability frauds, of the statute of sider the light ORCP to defendants. See facts in the most favorable 47 C. alleged argue that the oral
Defendants subject agreement to the statute of frauds and is not holding Specifically, the trial otherwise. trial court erred court concluded: alleged, partnership agreement as
“[T]he to transfer their dependent upon promise [plaintiffs] a in the land to Sierra Cascade and thus would be interest subject the Statute of Frauds.” with contend that their Defendants plaintiffs’ interest in included a transfer of never specifically, and, did not include the tract to Sierra Cascade law, part whether the is a matter of but “What will constitute unless, opinion jury, nership in the under the evidence is one of fact for exists Hayes, Court, at men.” 235 Or one inference can be drawn reasonable but omitted). (internal quotations marks *23 according part- Rather, transfer of title. defendants, “the nership simply allows Sierra Cascade to mine and remove pumice, parties, pay plaintiffs per- it sell to third and then centage resulting argue of the sales.” Defendants that there partnership agreement affecting is a difference between a property, goal profits by selling real where the is to make property, agreement minerals taken from the and an property, real such as a title transfer of the mineral transfer rights. former, The contend, defendants is outside the statute frauds, while the latter is it. within argue alleged agreement Plaintiffs that the in this property. case, however, does involve a transfer of real Plain- description tiffs contend that, under defendants’ of the terms agreement, plaintiffs agreed of the to transfer to Sierra pumice Cascade their exclusive to mine and remove plaintiffs argue, from the transfer, tract. That constituted the profit prendre alternatively, mining transfer of a á or, of a subject claim, both of which are to the statute of frauds. argue agreement Plaintiffs also that, even if the did not con- property, stitute the transfer of an “interest” in real it none- “power concerning theless constituted the transfer of a such property” subject 93.020(1), so as to be to ORS a codification relating property.11 of the statute of frauds to real begin parties’ argu- We our consideration of the by looking allegations ments at the defendants’ as to statutory provisions codify Two applies the statute of frauds as it to real property. plaintiffs rely, 93.020(1), statute on provides: which ORS “No estate property, or interest in real other than a lease for term not exceeding year, any power one concerning property, nor trust or such can be created, by transferred operation or declared by otherwise than of law or a con- veyance writing, or other by instrument in party creating, subscribed transferring it, declaring by or agent or party the lawful of the under written authority, and executed required by with such formalities as are law.” 41.580(1) addition, similarly provides, part: ORS following agreement “In the it, cases the is void unless or some note or thereof, expressing consideration, memorandum writing is in and sub- by party charged, scribed lawfully to be agent or authorized of the evidence,
party; therefore, agreement of the shall not be received other than writing, secondary evidence prescribed of its contents the cases law: * * * * “(e) leasing longer period An year, for the for a than one or for property, any
the sale of real or of interest therein.” agreement. Based and terms nature legal effect of allegations, if the then determine will we those in land. of an interest the transfer involved pleading, responsive According to defendants’ in the “agreed their interest to the to contribute Liskey also rights Tract.” Defendants Estate mineral agreement provided alleged terms ofthe develop, operate, [Cascade] Pelt would and Van “Sierra Liskey pumice from the sell remove, market and mine, “[plaintiffs] Sierra allow would Tract” and that Estate mining, development, sales [Cascade] the exclusive to be Liskey dec- operator Tract.” Van Pelt’s Estate the entire alleged virtually to those identical terms laration describes responsive pleading. dec- above, *24 Pelt’s As noted Van his own explains sec- to deed smaller “wanted laration they tract] [of needed became Cascade as the to Sierra tions [plaintiffs] protect and their mineral themselves could so that conveyance specifies right.” of that “the initial He further only deed] quitclaim [in a small was the land part November ]” parties[ Agreement and that reached the the of phases using quitclaim “[t]he the deeds entire idea of [plaintiffs] from liabilities.” to shield was agree- alleged partnership oral conclude We contemplated transfer to to to defendants, ment, as described plaintiffs’ tract, in mineral interest deeding through process time be achieved over they as needed. sections of the tract became Sierra Cascade contemplated alleged question transfer The is whether writing required in achievement were be and its method of enforceable. to be Oregon in for common law
It has been
established
agreement
century
has for
which
that “a
over
improvement
purpose
purchase,
ofreal estate
and sale
its
operation
profit
offrauds.”
of the statute
is not within
(cit
(1975)
199, 208,
The court Harestad considered whether the
partner
profits
tiff was entitled to share
aas
from the sale
apartment complex.
parties
of an
Taking
step
the conclusion in Harestad one
further,
Wright Ogle,
the court in
v.
505, 508,
283 Or
769 actually properties at Id. ever existed. the three to contribute 508. including progeny, holdings and
The of Flower its agree only except Wright, apply the of frauds to from statute concerning in land, of interests therein the transfer or ments partner partnership and to situations: transfers from two transfers from partner partner partner, of on behalf the to amply protected parties ship. from cases, the will be those property partners’ identifying partnership the and in fraud by respective ORS 67.065.12That statute interests therein sep distinguish partnership property policies from to creates by property partner.13 owned an individual arate 12 (1997), 204, 67.065, Partnership Act section vol ORS to the Uniform similar “RUPA”) (1997) relating part 6, (commonly part 1 referred as ume ULA 97 nership property, provides:
“(1) partnership property acquired Property if in the name of: is “(a) partnership; or The “(b) partners the transfer- One or more with an indication in instrument capacity
ring property person’s partner title to a or ofthe existence the the as partnership partnership. of the but without an indication the name
“(2) by Property acquired partnership is name of transfer to: in the “(a) name; partnership in or its “(b) partners capacity partners partnership, in One or more in their as transferring partnership if the name title of the is indicated the instrument property. to the “(3) presumption property property partnership It if is a rebuttable is assets, purchased partnership transferring acquired if even not the name of with partners of one or with an indication in the instrument more property person’s capacity partner as a title to the or of partnership. existence of a “(4) acquired presumption property It a rebuttable in the name of is partners, one or more of the without an indication in the instrument transfer- ring capacity partner property person’s title to the ofthe as a or ofthe existence assets, separate property, of a even used for and without use of is partnership purposes.” if and, 67.065, concept emphasizes section title ORS like RUPA record therefore, parties dealing partnerships generally partners third with allows rely property title is able to on the record to determine whether owned be (1997). 2, 4, partnership. pt The stat- See RUPA 204 Comments vol 1 ULA § however, ute, contemplates property separate presumption that also acquired partner person’s property, if in the name of a without indication of the capacity partner partnership, as a can be addi- or of existence of rebutted 67.065(4). tional evidence. See ORS Brown, (Joseph § Caroline Contracts at 465 M. Perillo N. Corbin on 17.12 1997) ed., ed rev is in accord: “[Tjhere pro- necessity [offrauds] little to invoke the statute in order to seems being adequate protection title-holding partnerships, tect the there *26 770
Given our conclusion that there is a issue genuine material fact as of a to existence between the partnership Wright the rule of controls: if a has parties, partnership been land, established for the purpose dealing writing no necessary prove partner agreed to that a has to transfer his or her interest in certain lands to the 283 Or at partnership. 508. We discern no difference between a partnership in land and a dealing partnership dealing mineral inter- therein, reasons, ests as was in this case.14 For alleged those the statute of void, frauds does not to render apply (UPA)] by provisions Partnership [Uniform furnished reliability of the Act to lend partnership property to the identification of and the interests ofthe partners sions, injustice light evidentiary by provi- in it. In standards afforded those apt by giving partnership is more to be avoided effect to the oral by refusing [UPA’s] under the liberal rule rather than enforcement * * * great frauds[.] under the statute of the gested by Given the confusionin the and caselaw potential difficulty fitting categories sug- cases into the rather strained cases, brightline rule, it seems best to advocate a where there is ample suggested applies. cases, [UPA] evidence of the and the In such it is any agreement partners relating bringing between to or real
property within the framework of a should be held not within the [offrauds]. statute rule, however, apply “This should not when the evidence ofthe convincing. justifies itself is less than clear and the The absence of clear evidence protection frauds, important policy of the statute of and no of the UPA appears by application.” to be diminished its 14 case, 517.110, Our per conclusion is limited to the facts of this where ORS taining contracts,” “grubstaking apply. provides: does not That statute mining commonly copartnership, ‘grubstaking,’ “Allcontracts of known as writing, county shall be in and recorded with the clerk of the wherein the loca- mining copartnership tions thereunder are made. Unless contracts of contain parties thereof, the names of the thereto and the duration the contracts are void.” Originally Oregon, XXXVI, codifiedin see The Codes and Statutes of title III, (Bellinger 1901), ch largely & § Cotton ORS 517.110 has remained unchanged past century. codification, “grub over the At the time of the statute’s encompass stake” contract was understood to “the search for and location ofmines domain,” “one, public outfitter, supplies ‘grub,’ on the wherein called the other, prospector, labor, performs the benefit called the and all discoveries inure to the proportion by agreement.” Lindley ofthe in the fixed on Mines (1897) (footnote omitted). generally § 858 Grub stake contracts were held to be out- Oregon, however, side the statute of frauds. Id. was one of several western states explicitly require grub writing. Ricketts, stake contracts to be in Alfred H. (4th 1948). Mining 1American Law 907 ed § context, Given that historical we conclude that ORS 517.110 is aimed at a nar- rowly category mining agreements. express opinion defined We no as to whether policyunderlying mining agreements the statute extends other and business arrangements. merely alleged agreement dealing We note that the in mineral grub purposes interests in this case is not a stake contract for of ORS 517.110. to trans- unenforceable, oral any in the their mineral interest alleged partnership fer to the Cascade deeds to Sierra of a series of way quitclaim tract in holding The trial court erred sections. covering particular otherwise. *27 RULE
VI. PAROL EVIDENCE
evi
the
applicability
parol
we consider
Lastly,
The
evidence
parol
the evidence in this case.
dence rule to
ORS 41.740 and
by
provides:
rule is codified
agreement
an
have been reduced to
“When the terms of
containing
as
by
parties,
it is to be considered
writing
be,
terms,
can
and therefore there
between
all those
interest,
or successors in
representatives
and their
parties
no evidence of the
agreement,
terms of the
other than
imperfec-
a mistake or
writing, except
contents ofthe
where
writing
put
pleadings
in issue
or where
tion of the
the
this
is
dispute.
is the fact in
However
validity
ofthe
of the circum-
does not exclude other evidence
section
made, or to which
under which the
was
stances
relates,
42.220,
explain
in ORS
or to
an ambi-
it
as defined
extrinsic,
illegality or
or
or to establish
guity, intrinsic
as
term
includes deeds and wills
‘agreement’
fraud. The
parties.”
well as contracts between
man-
read that statute in literal
Oregon courts have never
“ ‘treated the statute as a codification
ner, but have instead
”
rule.’ Abercrombie v.
of the common law
evidence
parol
(1994)
Hayden
279, 286,
On defendants that the trial court applying parol erred in evidence rule to bar defendants’ alleged partnership agreement. evidence of the oral Defen- quitclaim dants contend that the November 2001 deed is at partially integrated writing larger part- best a and that the nership agreement agreed-upon includes additional terms quitclaim that are sep- not inconsistent with the deed, have might naturally arate consideration, and are such as be omit- quitclaim ted from the deed. regardless respond that, of whether
Plaintiffs quitclaim to a com- deed is considered be November pletely integrated writing, writing partially integrated or a agreement, alleged Sierra which oral tract, the entire is to mine asserts an exclusive Cascade “utterly Plaintiffs also contend with that deed. inconsistent” agreement alleged prior partnership was not that, if the even parol quitclaim deed, evidence rule inconsistent with agreement it because is evidence of that would still bar “clearly writing.” ‘naturally parties have reduced would one dispute parties not that the November The do integrated quitclaim it final as to its terms —that is deed is inquiry, agreement. dis- therefore, is directed towards Our agreement partial integrated cerning or is whether light integration. Again, complete the facts in the we view ORCP 47 C. To reiterate to defendants. See most favorable partially integrated Abercrombie, rule oí the deed will be (1) alleged prior partnership is a consistent if the (2) by separate supported considera- additional term and might naturally omitted from the deed tion or is a term as be under the circumstances. alleged prior partnership
First, we conclude agreed-upon term that does not is an additional express quitclaim negate term of the deed. or contradict an quitclaim conveys min- deed title to the The November 2001 exchange rights parcel in a 180-acre of the tract eral eight given royalty percent, $3,000, and other value alleged partnership agreement promised. does not con- tradict those terms because it is not offered as evidence agreed present to a transfer of title to the mineral parcel royalty rights greater- or that the in a or lesser-sized something eight percent. paid than was other be any partnership agreement contradict other Nor does the *29 simply quitclaim quitclaim deed. The deed could terms of the be, argued, partial implementation have a as defendants agreement. the broader separate Second, consideration we conclude supports alleged prior partnership and the alleged partnership quitclaim deed. As consideration for 774 (1)
agreement, agreed provide Sierra Cascade investment money pay development purchase equipment costs, and machinery, litigation initiate to clear and confirm title to the attorney plaintiffs, pay probat- in tract ing fees associated with pay plaintiffs percentage gross tract, and of the (2) pumice tract; sales of the mined from the and agreed Cascade, to transfer to Sierra in future, their in interest sections of the tract as those sections became By comparison, needed. as consideration for the November (1) quitclaim agreed pay plain- deed, Sierra Cascade royalty eight percent gross $3,000, tiffs sales of pumice parcel, mined from the 180-acre and other value (2) given promised; plaintiffs agreed to transfer to present, Cascade, Sierra in the their interest in the 180-acre parcel.15
Thus, that, we conclude under our standard of summary judgment, quitclaim review on November partially integrated agreement parol deed is a and the evi- inapplicable alleged prior dence rule is to bar evidence of the partnership agreement. holding The trial court erred in otherwise. foregoing
For all of the reasons, the trial court erred granting plaintiffs summary judgment on their declara- tory judgment given Further, claim. the trial court’s errors in granting summary judgment plaintiffs’ declaratory judg- on eight claim, ment was the dismissal of defendants’ counterclaims grant likewise error. We therefore reverse the of sum- mary judgment plaintiffs declaratory judgment claim and eight the dismissal of defendants’ counterclaims.
Reversed and remanded. concurring.
WOLLHEIM, J.,P. majority opinion’s holding I concur with the granting plaintiffs’ summary trial court erred motion for judgment. genuine The trial court erred because there are prior alleged partnership agreement Because we sup conclude that the was ported by separate consideration, we need not determine whether that that, circumstances, parties might naturally is a term under the have omitted quitclaim from the November 2001 deed. *30 by a fact- that must be determined material fact issues of genuine example, material fact issues of there are For finder. regarding of an oral the existence oral and, if an and defendants between between included of acres exists, the number genuine fact, I of material are issues Because there therein. opinion’s majority limited conclusion concur with judgment and remanded. must be reversed