SCHUMAN, P.J.
Plaintiffs brought this action against two defendants, Martin L. Hudler and Charles R. Markley, who allegedly defrauded them by means of an investment scheme. The trial court granted summary judgment in favor of Markley on all of plaintiffs' claims, and refused to allow plaintiffs to amend their complaint to allege a racketeering claim
We begin with plaintiffs' contentions regarding the trial court's grant of summary judgment on their claims against Markley. In reviewing the grant of such a motion, "[w]e take the facts from the summary judgment record and view those facts and all reasonable inferences that may be drawn from them in the light most favorable to plaintiff[s], the nonmoving party." Morehouse v. Haynes, 350 Or. 318, 320, 253 P.3d 1068 (2011).
Plaintiffs Tyrone and Jacqueline Cruze
On May 30, 2007, Tyrone Cruze sent Jay to Reno on his behalf to see the real estate projects and gauge how successful they were. Hudler and Markley met Jay in Reno and showed him eight real estate projects. Jay gave a positive report of the visit, and over the summer Tyrone Cruze met with Hudler and Markley at Hudler's office. During that meeting, Hudler explained that Markley, his partner, was an owner of one of the biggest law firms in Portland. Hudler also told Cruze about other successful projects that Hudler and Markley were working on, including a development with Robert Praegitzer, a businessman Cruze respected. Markley "heard everything [Hudler] said as he was sitting in the same room."
Hudler visited plaintiffs several more times in the fall of 2007 and ultimately convinced them to form a joint venture with Bridgeport Communities, LLC (Bridgeport), a limited liability company owned by Hudler and Markley, to develop plaintiffs' Oregon property.
Bridgeport, meanwhile, also owned all of the membership interests in Covenant Partners, LLC, a company that served as the "operations manager" for Keycom, a company that, in turn, was to develop a parcel of property in Nevada known as the "Keystone Property." In March 2008, Hudler approached Tyrone Cruze about investing in Covenant. On March 19, Markley prepared a First Amended and Restated Operating Agreement of Covenant Partners, LLC, which Hudler then took to plaintiffs' home in order to finalize the investment. Hudler represented to plaintiffs that the investment was needed immediately because two loans related to and secured by the Keystone Property were in default. While at plaintiffs' home, Hudler spoke with Markley by phone and made changes to the operating agreement.
The following day, Hudler and plaintiffs executed the Covenant Operating Agreement, whereby plaintiffs purchased half of Bridgeport's interest in Covenant. In Section 2.1.2 of the Agreement, Bridgeport warranted that it had previously "contributed cash to or on behalf of Covenant in the
Shortly after executing the Covenant Operating Agreement, plaintiffs paid the agreed $513,149 to Bridgeport. Hudler then requested a capital contribution of $160,000 to Covenant, pursuant to the agreement, and plaintiffs made that additional capital contribution the next day. Near the end of April 2008, plaintiffs also loaned just over $3 million to Keycom.
According to plaintiffs, their investment in Covenant was actually part of a fraudulent "Ponzi-like scheme" whereby Hudler and Markley operated businesses without profit, commingled funds of related companies, and raised new funds to repay earlier investors and hide the lack of profits. Companies owned by Hudler and Markley were, indeed, shuffling money among themselves. One of those companies, Mill Creek Equities, LLC (Mill Creek), owned by Hudler and Markley and their wives, in turn owned a minority interest in LMA Northwest Fitness LLC and LMA Northwest Retail LLC (the LMA companies). Hudler and Markley had access to the bank accounts of the LMA companies, and Mill Creek took nearly $800,000 from those companies without their controlling shareholders' knowledge or permission. Meanwhile, Hudler was using money from other companies—such as Keystone's loan proceeds—to borrow himself or to pay Bridgeport. (By way of example: Two days after receiving loan proceeds from Keystone, Bridgeport deposited $500,000 into an account for one of the LMA companies, which was then credited to Mill Creek.) Hudler later took $99,885.00 of an earnest money deposit to Keycom and put that deposit in Bridgeport's bank account as well.
At the same time, Hudler was diverting money from Bridgeport Construction Group, yet another company that Hudler and Markley formed in connection with their property development efforts. Bridgeport Construction Group was the general contractor for a townhome project that Bridgeport was developing with Chris and Heather Harrell. Between December 2007 and March 2008, Hudler had diverted more than $250,000 in construction loan proceeds to himself and other entities that he and Markley owned or controlled. In mid-March 2008, Chris Harrell confronted Hudler and demanded that the money be returned and threatened to contact the police.
Those convoluted intercompany dealings (and the fact that Hudler and Markley's various development companies were operating with very little cash), coupled with Harrell's demands, created an immediate need for a further influx of capital to Hudler and Markley's operations. The Cruzes were one potential source. On March 19, 2008—the day that Hudler arrived at plaintiffs' house to finalize the Covenant Operating Agreement—Bridgeport's bookkeeper e-mailed Hudler a list of the balances in the accounts of Hudler and Markley's limited liability companies (as well as other accounts) showing just over $5,000. The e-mail states, "Here are the current balances in the accounts. Am robbing Peter to pay Paul when necessary. Any update on Cru[z]e Wire?" (Emphasis added.)
Plaintiffs were not told that their investment was needed, in part, to pay off Bridgeport Construction Group, but that is what happened, albeit in a roundabout way. On March 25, 2008, the same day that plaintiffs wired $513,149 to Covenant's bank account, Covenant transferred $331,000 to Hudler's personal bank account and another $7,200 to Bridgeport Construction Group. Also that day, from his personal account, Hudler transferred another $81,000 to Bridgeport Construction Group, and approximately $90,000 to other companies. Those other companies, still on March 25, used the money they received from Hudler to pay Bridgeport Construction
Plaintiffs later discovered that, in addition to failing to disclose that their investment in Covenant would be used to pay off Bridgeport Construction Group, Hudler had made a number of inaccurate representations while courting plaintiffs. Those misrepresentations included (1) that a businessman plaintiffs respected, Robert Praegitzer, was an investor with Hudler and Markley, despite the fact that that investment relationship with Praegitzer had already been severed; (2) that Hudler and Markley owned or were in the process of acquiring certain properties in Reno that they had never owned or had been forced to sell; (3) that Hudler and Markley had contributed $1,026,298 to Covenant for entitlement costs, as represented in Section 2.1.2 of the Covenant Agreement, when that figure was actually closer to $430,000; (4) that the plaintiffs' loan of more than $3 million to Covenant would be secured by a first priority trust deed on 40 acres of the Keystone Property; and (5) that Hudler and his wife had a net worth in excess of $30 million, as shown on a financial statement that Hudler faxed to plaintiffs.
Plaintiffs' operative complaint alleged various claims against both Hudler and Markley, four of which are relevant to plaintiffs' first assignment of error: (1) common-law fraud against both defendants; (2) Oregon securities law violations against both defendants; (3) a "joint liability" claim against Markley based on Hudler's conduct; and (4) elder abuse claims against both defendants.
Defendants separately moved for summary judgment on all claims. The trial court, in a written opinion, denied Hudler's motion for summary judgment but granted Markley's. As to Markley, the trial court ruled that plaintiffs had failed to demonstrate a genuine issue of material fact on any of the claims. Specifically, the trial court ruled, as to the fraud claim, that
The court granted Markley's motion for summary judgment on the other claims (securities law, joint liability, and elder abuse) for similar reasons—broadly, that there was no evidence that Markley himself made any misrepresentations to plaintiffs.
In their first assignment of error, plaintiffs argue that the trial court erred in failing to give them the benefit of all available inferences regarding Markley's knowledge of and involvement in the scheme to defraud them. For the reasons that follow, we agree with plaintiffs and therefore reverse the trial court's grant of summary judgment on their claims against Markley.
We begin with plaintiffs' common-law fraud claim, because the facts relevant to that claim govern our analysis with respect to the others. In order to recover on a common-law fraud claim, a plaintiff must prove that the defendant made a misrepresentation "intended to deceive the victim or acted in reckless disregard for the truth." Riley Hill General Contractor v. Tandy Corp., 303 Or. 390, 407, 737 P.2d 595 (1987). That is,
Id. at 406, 737 P.2d 595.
Although the bulk of plaintiffs' evidence, which is described above, pertains to misstatements made by Hudler, plaintiffs also alleged that Markley, as the drafter of the Covenant Agreement, affirmatively misrepresented the amount that Bridgeport had contributed to or on behalf of Covenant in Section 2.1.2 of that agreement. That section of the Covenant Agreement states, in part:
(Emphasis added.) Plaintiffs presented evidence that the $1,026,298 figure was inaccurate, and that the actual contributions were significantly lower—closer to $430,000. Markley, for his part, did not dispute that there was evidence in the record that the representation was false; instead, relying on averments in his own declaration, he contended that the evidence nonetheless was "undisputed" that he was merely a scrivener who had received the number from Hudler. Specifically, in support of his motion for summary judgment, Markley offered his own declaration, in which he averred,
Markley also offered the declaration of Karen Harris, a former bookeeper for Hudler and Markley's businesses, who averred that "Mr. Markley did not participate in the compiling or calculating of the expended dollar amounts."
The trial court apparently accepted Markley's and Harris's declarations as "uncontroverted evidence" that "Markley received the figure in question from others and acted as a scrivener as to that number." That involvement, the court concluded, was insufficient to give rise to a fraud claim, and so the court granted Markley's motion for summary judgment. That ruling was erroneous, however, because the evidence was indeed controverted as to whether Markley acted as a "mere scrivener" in preparing Section 2.1.2. of the Covenant Agreement.
As we explained in Worman v. Columbia County, 223 Or.App. 223, 231-32, 195 P.3d 414 (2008), a party need not "specifically refute" adverse testimony in order to create a genuine issue of material fact. Rather, it was plaintiffs' burden on summary judgment to produce evidence in support of their theory of recovery—namely, that Markley made a fraudulent misrepresentation. On that point, plaintiffs presented evidence that Markley, who directly or indirectly owned or managed Bridgeport and Covenant, drafted an agreement that significantly misrepresented the amount of money that Bridgeport had previously invested in Covenant. Plaintiffs also presented evidence from Harrell, who worked for Bridgeport Construction Group, that Markley had actual knowledge that his partner, Hudler, was "stealing" from others. According to Harrell, in July 2008, Markley told him, "Out of all the people that [Hudler] has been stealing from I can't believe he would steal from you." Markley then reportedly said to Harrell, "I was wondering how Bridgeport was staying afloat during this last winter."
Contrary to Markley's and the trial court's reasoning, neither the self serving testimony of Markley, nor the declaration of his former bookkeeper, operates to defeat plaintiffs' claims as a matter of law. See Worman, 223 Or.App. at 233 n. 5, 195 P.3d 414 ("[A] jury is always entitled to disbelieve a witness who has an interest in the outcome of the litigation. * * * If that is the case at trial, the burden should not be any higher for a plaintiff at the summary judgment stage."). Indeed, if it were otherwise—that is, if a defendant could defeat a fraud claim at the summary judgment stage simply by filing a declaration disclaiming any knowledge that the alleged misrepresentation was false—it would be virtually impossible to get such a claim to the jury based on circumstantial evidence; that is not the law. The trial court erred in granting Markley's motion for summary judgment on the fraud claim.
We turn next to the trial court's grant of summary judgment on plaintiffs' second claim for relief, captioned "Joint Liability of Markley." That claim alleged that Markley acted in concert with Hudler and provided "substantial assistance" to Hudler's efforts to fraudulently induce plaintiffs' investment. The claim is premised on the principle in the Restatement (Second) of Torts (1979), section 876, which "reflect[s] the common law of Oregon" with respect to the circumstances in which a person who assists another in committing a tort may be liable to the third party. Granewich v. Harding, 329 Or. 47, 54, 985 P.2d 788 (1999). Section 876 provides:
In Reynolds v. Schrock, 341 Or. 338, 350, 142 P.3d 1062 (2006), the Supreme Court explained:
One such privilege is that between attorney and client; thus, "for a third party to hold a lawyer liable for substantially assisting in a client's breach of fiduciary duty, the third party must prove that the lawyer acted outside the scope of the lawyer-client relationship." Id. at 350-51, 142 P.3d 1062.
The trial court, relying on Reynolds, ruled that plaintiffs' claims related only 13 to Markley's
(Emphasis omitted.)
The rule in Reynolds does not, on this record, entitle Markley to judgment as a matter of law. Reynolds involved an attorney (the same Markley) who was sued based on advice he provided to Schrock concerning a settlement agreement that Schrock executed with Reynolds. Markley did not have an equity interest in the client in Reynolds and was not wearing two different hats—that of investor and attorney for the company— when participating in the alleged breach of duty. Here, however, there is evidence that Markley stood to benefit from the Cruzes' investment given his ownership and management involvement in the company for which he was drafting the Covenant Agreement.
As previously discussed, the trial court erred in granting the motion for summary judgment on plaintiffs' common-law fraud claim against Markley. That being the case, Reynolds does not provide sanctuary at the summary judgment stage for Markley's participation in what a juror could conclude was a concerted effort by Hudler and Markley to defraud plaintiffs of their investment in Covenant. Reynolds itself recognizes that the rule "protects lawyers only for actions of the kind that permissibly may be taken by lawyers in the course of representing their clients," and common-law fraud is not among the acts that an attorney is privileged to commit. 341 Or. at 351, 142 P.3d 1062. Thus, as was the case with plaintiffs' common-law fraud claim, the trial court erred in granting summary judgment on plaintiffs' claim that Markley is jointly liable for Hudler's misrepresentations.
Plaintiffs' third claim against Markley, also decided on summary judgment, was for securities law violations. ORS 59.115(1)(b) imposes liability on a seller of a security if that person
That liability extends, under subsection (3) of the statute, beyond just the "seller":
ORS 59.115(3) (emphasis added).
The trial court ruled that Markley was "entitled to summary judgment on plaintiffs' claims for securities violations for the same reasons Markley was entitled to summary judgment on the common-law fraud claims." The court continued, "I conclude as a matter of law Markley was neither a `control person' [n]or a person who materially aided in the sale."
On appeal, plaintiffs argue that the trial court's conclusions that Markley was not a "control person" and did not materially aid in the sale were beside the point, because Markley was a manager of Bridgeport, the limited liability company that sold the investment in Covenant. Limited liability managers, plaintiffs point out, are separately covered by subsection (3), whether or not they also "directly or indirectly control" the seller or "materially aid in the sale." ORS 59.115(3). Markley, for his part, does not appear to dispute that he is a manager of Bridgeport—for summary judgment purposes, at least,
According to Markley, the trial court's reasoning, particularly when viewed in light of the court's ruling on the fraud claim, was premised on the fact that Markley did not know and could not have known that the representation in Section 2.1.2 of the Covenant Agreement was false. Markley submits that, as a matter of law, he "could not have learned of the alleged misrepresentation under the circumstances" because, in essence, he was rushed:
Once again, we disagree with Markley's premise that the evidence in the record is susceptible only to the inference that he was a scrivener to the Covenant Agreement. Markley was a manager of Bridgeport, and, under the totality of the circumstances, a juror could infer that, at the very least, he turned a blind eye to Hudler's dealings and misrepresentations. Moreover, Bridgeport was the sole owner of Covenant; a trier of fact could certainly find that Markley, a manager of Bridgeport, "in the exercise of reasonable care" could have known of the contributions made by Bridgeport to Covenant, a company wholly owned by Bridgeport, and could have therefore determined that the representation in Section 2.1.2 was false.
In short, there are genuine issues of material fact as to whether Markley was a manager of a seller, Bridgeport, and whether Markley is liable for securities law violations. The trial court erred in concluding otherwise.
Consequently, the trial court also erred with respect to plaintiffs' claim based on financial elder abuse, ORS 124.110. The trial court reasoned, "Since defendant Markley is entitled to summary judgment on the common-law fraud claim, securities claim, and joint liability claim, he is also entitled to summary judgment on the elder law claim." Presumably, the court determined that there were no genuine issues of fact as to whether Markley acted wrongfully. See ORS 124.110(1)(a) (authorizing action for financial abuse where "a person wrongfully takes or appropriates money or property of a vulnerable person, without regard to whether the person taking or appropriating the money or property has a fiduciary relationship with the vulnerable person"). For the reasons previously discussed, however, the record is susceptible to competing inferences with regard to whether Markley made a fraudulent misrepresentation to plaintiffs; we therefore reverse the trial court's grant of summary judgment on the elder abuse claim. See Church v. Woods, 190 Or.App. 112, 118, 77 P.3d 1150 (2003) (conduct is "wrongful" under ORS 124.110 if it is carried out by improper means, including deceit and misrepresentation).
Plaintiffs next contend that the trial court erred in refusing to allow them to amend their complaint to add claims against Hudler and Markley under the Oregon Racketeer Influenced and Corrupt Organizations Act
On appeal, plaintiffs argue that their proposed ORICO claims alleged three incidents of a forgery-related offense, albeit in the context of securities transactions, and that the ORICO statutes do not require a predicate conviction for civil claims based on that particular racketeering activity. See ORS 166.725(7)(a)(B) (aggrieved person may bring a civil ORICO claim for damages "[i]f the violation is based on racketeering activity as defined in" ORS 166.715(6)(P) (referring to forgery and related offenses)). Defendants Hudler and Markley, meanwhile, argue that plaintiffs' construction of ORS 166.725 is implausible because it would create a statutory loophole that would allow plaintiffs to cleverly plead their way around the requirement of a predicate conviction for securities fraud simply by styling the racketeering activity as the "forgery" of securities documents, thereby frustrating obvious legislative intent.
"`Although we generally review a court's denial of a motion to amend only for abuse of discretion, when the denial results from a substantive legal conclusion, we review the correctness of that conclusion' for errors of law." Cowan v. Nordyke, 232 Or.App. 384, 386, 222 P.3d 1093 (2009), rev. den., 348 Or. 114, 228 P.3d 1213 (2010) (quoting Wallace v. Hinkle Northwest, Inc., 79 Or.App. 177, 179, 717 P.2d 1280 (1986)). In this case, the trial court's rulings on plaintiffs' motions to amend were predicated on its interpretation of ORS 166.725, an issue of law.
Plaintiffs' proposed ORICO claims against Hudler and Markley alleged a violation of ORS 166.720(3), which makes it "unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt." A "pattern of racketeering activity" is defined as "engaging in at least two incidents of racketeering activity" that share intents, results, accomplices, victims, methods of commission, or are otherwise interrelated by distinguishing characteristics. ORS 166.715(4). "Racketeering activity," in turn, includes "conduct that constitutes a crime" as enumerated in a long list of statutes, ORS 166.715(6)(a)(A)-(CCC).
Before 1995, a civil claim for racketeering could be brought based on a pattern of any of the racketeering activities enumerated in ORS 166.715(6). However, that year the legislature amended ORS 166.725 to forestall certain civil racketeering claims until criminal proceedings have had an opportunity to run their course. As amended, ORS 166.725(7)(a) provides:
The effect of the 1995 amendments is that, unless the violation is based on racketeering activity specifically listed in subparagraph (B), a plaintiff now cannot bring an ORICO claim until a criminal conviction for the underlying racketeering activity has been obtained and any rights of appeal have expired.
The issue in this case stems from what is and is not listed in subparagraph (B). Securities fraud, a racketeering activity under
There is no dispute that plaintiffs, in their proposed ORICO claims, allege that Hudler and Markley engaged in a pattern of racketeering activity that included multiple "incidents" involving violations of ORS 165.042, which is among the racketeering activity listed in subparagraph (B). ORS 165.042 makes it a crime to "fraudulently obtain[] a signature if, with intent to defraud or injure another, the person obtains the signature of a person to a written instrument by knowingly misrepresenting any fact." Plaintiffs' proposed ORICO claims allege that Hudler fraudulently obtained a signature on a deed by making misrepresentations, and that both defendants fraudulently obtained the signatures of Tyrone and Jaqueline Cruze on various LLC operating agreements and closing documents by way of misrepresentation.
Plaintiffs submit that, under the plain language of ORS 166.725(7)(a)(B), they therefore have a cause of action "based on racketeering activity as defined in ORS 166.715(6)(a)(P)"—i.e., fraudulently obtaining a signature. In their view, the fact that the alleged violations might also be racketeering under other provisions that are not listed in subparagraph (B) is immaterial; the legislature expressly carved out an exception for civil claims based on a pattern of forgery-related offenses, and that is what they pleaded.
Defendants, meanwhile, maintain that cannot be the case because the 1995 amendments reflect "clear legislative intent to bar acts related to securities law violations from being civil ORICO predicate acts." Defendants rely extensively on the legislative history of those amendments, which indicates that one of the motivating forces behind the statutory changes was concern about the prevalence of civil ORICO claims in the business context, particularly with regard to alleged securities law violations. In light of that "clear legislative intent," defendants contend that "[w]hen the same facts allegedly support both a securities violation and a civil ORICO violation, those facts cannot form the basis of a civil ORICO claim in the absence of a criminal conviction." Otherwise, they argue, the statute would include an "immense gap" that "would allow plaintiffs to creatively recast any securities-related claim as simply a tort involving its constituent elements."
Defendants' view of ORS 166.725 is long on generalized intent but short on textual or contextual support. Defendants do not offer any plausible construction of the text of ORS 166.725(7)(a)(B) that would suggest that conduct that falls within its enumerated list nevertheless is disqualified from subparagraph (B) if it could also be categorized as another non-enumerated racketeering activity. Nor do defendants muster any persuasive contextual support for their construction; indeed, the textual clues point in the other direction.
As part of the same 1995 amendments, the legislature enacted ORS 166.725(13). Or. Laws 1995, ch. 619, § 13. That subsection of the statute provides,
(Emphasis added.) Thus, the legislature plainly understood that the same conduct might violate more than one statutory provision and dealt with that possibility expressly as part of the same amendment. If the legislature had intended the same type of limitation in subsection (7) of the 1995 amendments, it easily could have said so.
In contrast to the federal racketeering statutes, nothing in the text or context of ORICO suggests that ORS 166.725(7)(a)(B) means anything other than what it says: A plaintiff has a cause of action if the "violation is based on racketeering activity as defined in * * * ORS [166.715(6)(a)](P)." Nor does the legislative history of the 1995 amendments alert us to any latent ambiguity in the statute. State v. Gaines, 346 Or. 160, 172-73, 206 P.3d 1042 (2009) (Although a party "may use legislative history to attempt to convince a court that superficially clear language actually is not so plain at all—that is, that there is a kind of latent ambiguity in the statute[,]" if the "text of a statute is truly capable of having only one meaning, no weight can be given to legislative history that suggests—or even confirms—that legislators intended something different.").
We thus apply the statute as it is written. Plaintiffs have alleged a violation of ORICO based on a pattern of falsely obtaining signatures, racketeering activity as defined in ORS 166.715(6)(a)(P). The trial court therefore erred in denying plaintiffs' motions to amend based on an overly narrow construction of ORICO; on remand, the court should reconsider whether to allow plaintiff to proceed on an amended complaint that includes ORICO claims based on racketeering activity of fraudulently obtaining signatures.
Reversed and remanded.
