Porter v. Oba, Inc.

42 P.3d 931, 180 Or. App. 207, 2002 Ore. App. LEXIS 473

• Court: Court of Appeals of Oregon
• Decided: March 20, 2002
• Docket: 9902-01426; A109420
• Status: Published

Opinions

DEITS, C. J.

Defendants, Oba, Inc. (Oba) and Steven McLain, moved for summary judgment on plaintiffs claims for breach of contract and intentional interference with economic relations. The trial court granted their motion, and plaintiff appeals from the resulting judgment. Viewing the facts and all reasonable inferences that may be drawn from them in favor of plaintiff, the nonmoving party, summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C.¹ Based on that standard of review, we affirm in part and reverse in part.

Plaintiff and McLain, an officer, board member and majority shareholder of Oba, completed the ground work for Oba Restaurant, which opened in November 1997. Before the restaurant opened, the parties negotiated for plaintiff to serve as general manager. On June 15,1997, plaintiff sent a letter to McLain that stated, in part:

“This letter serves as a written commitment to you as regards my employment with, and partnership in Oba[,] Inc. * * *

“* * * I commit to serve in the capacity of General Manager of Oba, for an unspecified period of time — as long as I am needed — starting June 23, 1997. I will serve in that capacity until such time as I am able to benefit the company by moving to another location, or a new capacity. I commit to being open to the knowledge you provide, making use of the tools that you give me, and striving for excellence in all aspects of my job. I will set an example through leadership, and at all times represent the company in a manner that reflects the culture you have successfully created. I commit to the values we share. I commit to the growth of our company.

“For these commitments, I will receive my annual salary, a bonus package as yet to be determined, Health Insurance coverage to be determined, and a 10% share of the business. My percentage ownership will not become active until June 22, 1998, one full year of employment. My ownership offer may be rescinded prior to that date, at the Board [’]s sole discretion. * * *

“This letter in no way seeks to bind either party in any way, it just seems right to put this in writing for you, both to insure your confidence in my commitments, and to insure that my expectations are well founded and clear.”

McLain responded with a letter that was dated June 30, 1997. That letter stated, in part: “An option for ownership (10% of stock) after the first 18 months of employment at Oba[,] Inc. (stock options to be determined).”² Plaintiff began work as an employee of Oba in the summer of 1997. McLain terminated plaintiffs employment on November 12,1998.

In plaintiffs claim for breach of contract, he alleges that “ [defendant Oba breached the contract by terminating plaintiffs employment or by refusing to grant plaintiff his ownership interest.” In his claim for intentional interference with economic relations, he alleges that “[defendant McLain terminated plaintiffs employment to deprive plaintiff of his ownership interest in defendant Oba” and “acted, not to benefit defendant Oba, but solely for his own benefit or to injure plaintiff.” The trial court granted defendants’ summaryjudgment motion on the breach of contract claim

“on the ground that the contract is not one for employment but rather one setting out certain agreed terms during an at-will employment relationship. The contract is unambiguous as to whether it constituted an employment agreement which varied from the at-will employment relationship; therefore!,] the court has not considered parol evidence on this issue. The other terms of the contract do not survive the termination of employment and therefore are not enforceable.”

The trial court also granted defendants’ motion on the intentional interference with economic relations claim, stating that “there is no enforceable contractual term which has been breached and thus no illegal interference has occurred and * * * defendant McLain was acting within the scope of his employment as an officer and director of the corporation.”

In plaintiffs first assignment of error, he argues that the trial court erred by failing to consider extrinsic evidence when determining whether the contract was ambiguous. According to plaintiff, consideration of that evidence is required by case law and ORS 42.220, which provides that, “[i]n construing an instrument, the circumstances under which it was made, including the situation of the subject and of the parties, may be shown so that the judge is placed in the position of those whose language the judge is interpreting.” Consequently, plaintiff argues that the trial court erred by determining that the contract was unambiguous and that no breach of that contract had occurred. Defendants counter that the trial court properly granted summary judgment on plaintiffs breach of contract claim because, “[e]ven if the court had looked at evidence outside that memorandum, plaintiff presented no evidence of an employment contract for eighteen months or any other period.”

In OTECC v. Co-Gen, 168 Or App 466, 474-75, 7 P3d 594 (2000), rev den 332 Or 137 (2001), we described the general principles of contract interpretation:

“In the absence of an ambiguity, the trial court in the first instance, and this court on appeal, determines the meaning of a contract as a matter of law. See Eagle Industries, Inc. v. Thompson, 321 Or 398, 405, 900 P2d 475 (1995). A contract provision is legally ambiguous if it has no definite significance or if it is capable of more than one reasonable and sensible construction in the context of the agreement as a whole. See Heinzel v. Backstrom, 310 Or 89, 96, 794 P2d 775 (1990); Quality Contractors, Inc. v. Jacobson, 139 Or App 366, 370, 911 P2d 1268, rev den 323 Or 691 (1996). In deciding whether an ambiguity exists, the court is not limited to mere text and context but may consider parol and other evidence. Abercrombie v. Hayden Corp., 320 Or 279, 292, 883 P2d 845 (1994). Likewise, if the contract is ambiguous, the trier of fact may consider other evidence of the parties’ intentions and construe the language of the agreement accordingly. Anderson v. Divito, 138 Or App 272, 277-78, 908 P2d 315 (1995). * * * Our review otherwise is for legal correctness, which means that we determine, as though in the first instance, how the contract should be construed. Stevens v. Foren, 154 Or App 52, 57, 959 P2d 1008, rev den 327 Or 554 (1998).”

We begin by examining the text of the disputed provision in the context of the entire agreement. Yogman v. Parrott, 325 Or 358, 361, 937 P2d 1019 (1997); OTECC, 168 Or App at 477. The June 30 contract provision, “[a]n option for ownership (10% of stock) after the first 18 months of employment at Oba[,] Inc. (stock options to be determined),” is unambiguous. It provides for an option for stock ownership after the first 18 months of employment. Furthermore, there is nothing in the text of the provision or in the agreement as a whole that indicates a commitment to employ plaintiff for a definite term of 18 months. Thus, we agree with the trial court that the provision is unambiguous based on the text in the context of the entire agreement.

Plaintiff argues, however, that the trial court cannot rely solely on the text and context and should have considered evidence of the circumstances under which the contract was made. Specifically, plaintiff argues that the contract reflects a series of negotiations and that,

“[i]n exchange for later vesting (18 months or December 1998), McLain gave up the right to terminate employment for the first 18 months or to revoke the ownership interest. [Plaintiff] gained a definite vesting date, but had to settle for vesting six months later than was contemplated in the earlier agreement.”

We will assume, without deciding, that the trial court was required to consider the circumstances under which the contract was made and that evidence of such circumstances includes evidence of the parties’ negotiations. However, while there is evidence in this record about the parties’ negotiations concerning plaintiff’s ownership interest, there is no evidence in the record concerning negotiations for a definite term of employment. Thus, even if the trial court had considered the evidence in the record of the circumstances under which the contract was made, there is no evidence from which to conclude that the contract is ambiguous. Consequently, the trial court did not err in granting defendants’ summary judgment motion on plaintiff s breach of contract claim.

In plaintiffs second assignment of error, he argues that the trial court erred in granting defendants’ summary judgment motion concerning plaintiffs claim for intentional interference with economic relations. As the Supreme Court explained in McGanty v. Staudenraus, 321 Or 532, 535, 901 P2d 841 (1995),

“ [t] o state a claim for intentional interference with economic relations, a plaintiff must allege each of the following elements: (1) the existence of a professional or business relationship (which could include, e.g., a contract or a prospective economic advantage), (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and damage to the economic relationship, and (6) damages.”

The parties’ arguments before the trial court and on appeal concern the first and third elements described in McGanty. As stated above, the trial court granted defendants’ motion on the grounds that “there is no enforceable contractual term which has been breached and thus no illegal interference has occurred and * * * defendant McLain was acting within the scope of his employment as an officer and director of the corporation.” Specifically, on appeal, plaintiff asserts that an economic or business relationship existed between him and Oba and that there was a genuine issue of material fact concerning whether McLain was a third party to the relationship because there was evidence that McLain acted solely for personal reasons when he terminated plaintiff. Defendants make two arguments to counter plaintiffs assertions. First, they contend that, because plaintiff was an at-will employee, there was no business expectancy with which McLain could interfere. Second, and alternatively, defendants assert that, because McLain was acting within the course and scope of his employment, he was not a third party.

We begin by determining whether there was an economic or business relationship for purposes of the tort of intentional interference with economic relations. Defendants assert that there was no such relationship because plaintiffs employment was at will. However, “[t]he parties to an at-will employment relationship have no less of an interest in the integrity and security of their contract than do any other contracting parties” and, “until such a contract is terminated!,] ‘[the] contract is valid and subsisting, and the defendant may not [improperly interfere with it.’ ” Lewis v. Oregon Beauty Supply Co., 302 Or 616, 620-21, 733 P2d 430 (quoting Restatement (Second) of Torts § 766, cmt g, 10-11 (1979)).³ Therefore, we reject defendants’ argument.

We now turn to the issue of whether McLain was a third party. This court and the Supreme Court have addressed the third-party issue in numerous cases. In McGanty, the Supreme Court reasoned:

“[W]hen an employee is acting in the scope of the employee’s employment, the employee is acting as the employer, and not as an independent entity. Accordingly, when an employee is acting within the scope of the employee’s employment, and the employer, as a result, breaches a contract with another party, that employee is not a third party for the tort of intentional interference with economic relations.” 321 Or at 538.

The court held that the plaintiff in that case had not stated a claim for intentional interference with economic relations because she had alleged that the defendant Staudenraus, the president and owner of the defendant collection agency and the plaintiff’s immediate supervisor, acted within the course and scope of his employment at all times; thus, Staudenraus was not a third party and could not be liable for intentional interference with economic relations between the plaintiff and the collection agency.

In Boers v. Payline Systems, Inc., 141 Or App 238, 242, 918 P2d 432 (1996), the defendant “Pease assert[ed] that, because he acted as president of [the defendant] Payline rather than as a third party who was a stranger to the contract when he fired plaintiff, he c[ould not] have tortiously interfered with Payline’s contractual relationship with plaintiff.” We reasoned:

“A corporate agent who induces a corporation to breach a contract with another party cannot be liable for intentional interference with that contract if the agent acted in the scope of the agent’s employment. In that situation, the agent is the corporation. While a party to a contract may breach it, it is logically impossible for a party to interfere tortiously with its own contract. However, if the agent’s sole purpose is one that is not for the benefit of the corporation, the agent is not acting within the scope of employment and may be liable.” Boers, 141 Or App at 242-43 (emphasis in original).

In Sims v. Software Solutions Unlimited, Inc., 148 Or App 358, 939 P2d 654, rev den 326 Or 57 (1997), the plaintiff asserted a claim for intentional interference with economic relations against Rodenbeck, the president of Software Solutions. The defendants moved for summary judgment and argued “that Rodenbeck, as an employee of Software, could not interfere with plaintiffs economic relations with Software as a matter of law, because he was acting within the scope of his employment.” Id. at 360. The trial court granted the defendants’ motion. On appeal, we reasoned:

“In the context of the tort of intentional interference with an economic relationship, * * * the employer’s interests are not intended to be benefitted by the interference. Thus, so long as the actor’s actions are within the scope of his authority and are undertaken at least in part to further the best interests of the employer, it is immaterial that the actor has additional motives. In contrast, when the actor acts against the best interests of the employer or solely for his own benefit, he could be held liable in tort for the harm done to the other contracting party.” Id. at 364-65 (emphasis in original).

Ultimately, we held that the trial court properly granted summary judgment:

“[T]he evidence that Rodenbeck had a ‘personal vendetta’ against plaintiff from which the act of terminating plaintiffs employment flowed is of no legal consequence. His actions according to plaintiffs own evidence, were done, at least in part, to benefit Software by terminating the employment of an at-will employee who was deemed a ‘troublemaker.’ There is no evidence that Rodenbeck acted solely for his own interests. Therefore, Rodenbeck cannot be a ‘third party to the employment relationship between plaintiff and Software as a matter of law .’’Id. at 365 (emphasis in original; footnote omitted).

Here, plaintiff asserts:

“On summary judgment, the evidence must be construed in plaintiffs favor. The evidence shows that, under plaintiffs stewardship, Oba was extremely successful, financially and otherwise. It also shows that, in June 1998, McLain rated plaintiffs work performance satisfactory, gave plaintiff [a] * * * raise, and reiterated that plaintiff would receive his ownership interest in six (6) months. Five (5) months [ ] later, however, and just six (6) weeks short of the date upon which plaintiff was to have obtained his ownership interest, McLain fired plaintiff.”

Even though there is evidence to support defendants’ theory that McLain terminated plaintiff to benefit Oba, a trier of fact reasonably could infer from the evidence to which plaintiff points that McLain fired plaintiff solely for a personal reason — to deprive plaintiff of his ownership interest in Oba. Thus, this case is unlike Sims because the trier of fact could infer from plaintiffs evidence that McLain acted solely for his own interests and not to benefit Oba.

The dissent, however, states that “Gomez’s and McLain’s statements about their personal beliefs regarding McLain’s authority to discharge plaintiff and plaintiffs work performance are not controverted in the record,” 180 Or App at 225 (Edmonds, P. J., concurring in part, dissenting in part), and that “[t]he uncontroverted evidence in the summary judgment record in this case is that McLain acted within the scope of his authority as the managing shareholder and at least in part for the interests of Oba when he fired plaintiff,” id. at 226 n 2 (Edmonds, P. J., concurring in part, dissenting in part). Specifically, the dissent relies on deposition testimony and on the affidavit of Gomez, Oba’s other shareholder at the time of plaintiffs termination. That evidence is not the only evidence in the record. As we have already stated, plaintiff points to evidence in the record— including evidence that he produced such as his affidavit and exhibits — from which a trier of fact reasonably could infer that McLain fired plaintiff solely for a personal reason — to deprive plaintiff of his ownership interest in Oba. See Kaelon v. USF Reddaway, Inc., 180 Or App 89, 102, 42 P3d 344 (2002) (reasoning that, in Sims, “[w]e did not hold that a plaintiffs evidence of personal motive for interference with an employment contract becomes legally inconsequential whenever the record contains other evidence that the defendant’s actions were done at least in part to serve the employer”). Therefore, the trial court erred in granting summary judgment on plaintiffs intentional interference with economic relations claim.

The dissent disagrees. It asserts that, to the extent that plaintiffs claim for intentional interference with economic relations is based on an at-will employment contract, the trial court properly granted defendants’ summary judgment motion because McLain’s motive in terminating plaintiffs employment was not improper as a matter of law. Specifically, we understand the following to be the dissent’s position: (1) In order to demonstrate that McLain was a third party, plaintiff asserted that McLain’s sole motivation, intent or reason for terminating plaintiff was personal — to protect the value of McLain’s stock in Oba. (2) Even if a genuine issue of material fact exists concerning whether McLain was a third party for the reason that plaintiff identified, defendants are entitled to summary judgment if that reason is not improper as required by the improper means or motive element of the tort. (3) As a matter of law, greed is not an improper motive.⁴

The primary problem with the dissent’s position is that this is not an issue that defendants raise on appeal nor one that they raised in the trial court. As discussed above, their position here is that, because plaintiff was an at-will employee, plaintiff did not have an economic or business relationship with which McLain could interfere and that McLain was not a third party to the contract because he was acting within the course and scope of his employment. Based on our view of this case, the gravamen of the dissent’s position is that, even though the trial court did not address the issue of whether greed satisfies the improper means or motive element of the tort of intentional interference with economic relations, we should affirm on the basis that the trial court was right for the wrong reason. For reasons that we will discuss, this is not an appropriate case in which to do so.

In Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001), the Supreme Court discussed the right for the wrong reason doctrine:

“As developed by this court’s decisions, the ‘right for the wrong reason’ principle permits a reviewing court — as a matter of discretion — to affirm the ruling of a lower comb on an alternative basis when certain conditions are met. The first condition is that, if the question presented is not purely one of law, then the evidentiary record must be sufficient to support the proffered alternative basis for affirmance. That requires: (1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance. The second condition is that the decision of the lower court must be correct for a reason other than that upon which the lower court relied. Third, and finally, the reasons for the lower court’s decision must be either (a) erroneous or (b) in the reviewing court’s estimation, unnecessary in light of the alternative basis for affirmance.” (Emphasis in original.)

Unlike the dissent, we do not decide whether greed satisfies the improper means or motive element of the tort because, even if it does not, this is not an appropriate case for us to exercise our discretion and affirm the trial court on an alternative basis. In plaintiffs claim for intentional interference with economic relations, he alleges, in part, that McLain: “intentionally interfered with plaintiffs contract or economic relationship with * * * Oba by terminating plaintiffs employment”; “terminated plaintiffs employment to deprive plaintiff of his ownership interest in * * * Oba”; and “acted, not to benefit * * * Oba, but solely for his own benefit or to injure plaintiff.”

In defendants’ memorandum in support of their summary judgment motion, the only issue raised concerning the intentional interference with economic relations claim was that the “claim fails as a matter of law because McLain’s conduct is not considered the conduct of a third party.” (Emphasis in original.) Defendants’ theory was that McLain was not a third party because he acted within the course and scope of his employment. In plaintiffs memorandum in opposition to defendants’ summary judgment motion, he responded to defendants’ third-party argument by asserting that McLain acted as a third party outside of the scope of employment and “for a reason entirely personal: Greed.” In defendants’ reply, they summarized their argument concerning the intentional interference with economic relations claim:

“Likewise, the interference claim against McLain fails as a matter of law. An interference claim requires action by a third party or outsider to a contract who improperly disrupts or causes its termination. Summary judgment is appropriate because there is no third party or outsider involved.” (Boldface in original.)

Similarly, on appeal, the parties focus on the issues of whether plaintiff had an economic or business relationship with which McLain could interfere and whether McLain terminated plaintiff for solely personal reasons or to benefit Oba. The parties do not raise on appeal nor do they expressly discuss the improper means or purpose element of the tort.⁵

Here, in order to respond to defendants’ contention that McLain was not a third party, plaintiff developed a record to support his argument that McLain acted for a solely personal reason, greed, and did not act to benefit Oba. Had defendants asserted that summary judgment was appropriate on the grounds that McLain was not a third party and that his motive was proper, plaintiff might have presented argument and developed a different factual record concerning the propriety of McLain’s motive, or plaintiff might have asserted a reason other than greed to demonstrate that McLain was a third party. See Zerba v. Ideal Mutual Ins. Co., 96 Or App 607, 611, 773 P2d 1333 (1989) (“Defendants raise several additional arguments on appeal that were not presented to the trial court. Plaintiff has had no opportunity to present evidence pertaining to those issues, and we decline to address them now.”).⁶

The dissent asserts that, “[u]nder defendants’ arguments, the tort elements of third-party status and tortious means/motive are interrelated, and both elements are in issue because their fulfilment depends on the same evidentiary inference under plaintiffs argument,” 180 Or App at 226 (Edmonds, P. J., concurring in part, dissenting in part), and that, “[g]iven that the parties have always viewed the issues on summary judgment as being interrelated, it is only fair to them, and consistent with principles of judicial economy, that we consider the entire issue of whether McLain is entitled to summary judgment based on the elements of the tort[,]” id. at 229 (Edmonds, P. J., concurring in part, dissenting in part). As the dissent notes, we recognized in Kaelon that the same evidence can be used to establish both the third-party and improper means or motive elements of the tort. However, significantly, in Kaelon, we also said that third-party status and improper means or motive “are discrete elements.” 180 Or App at 98 n 1. The fact that there is evidence that may be used to establish both elements of the tort does not necessarily mean that, when a party raises one element of the tort, the party automatically raises the other. In this case, the parties raised only the third-party element.

In sum, defendants did not raise the issue of whether greed can satisfy the improper motive element of the tort of intentional interference with economic relations, and this is not an appropriate case to affirm the trial court on the ground that it was right for the wrong reason because, had defendants raised that issue below, the factual record might have been developed differently. Therefore, we conclude that the trial court improperly granted defendants’ summary judgment motion on plaintiffs claim for intentional interference with economic relations.

Judgment on plaintiffs fourth claim for intentional interference with economic relations reversed; otherwise affirmed.

1 ORCP 47 C was amended in 1999. Or Laws 1999, ch 815. This case was pending in the trial court when those amendments became effective. The amendments to the rule do not affect our analysis in this case.

2 McLain signed the letter after plaintiffs termination.

3 The bracketed material in the quotation from the Restatement (Second) of Torts comports with the language of the Restatement.

4 In support of that proposition, the dissent makes three arguments. First, the dissent argues that McLain’s action was based on a self-serving motivation and that, as in Uptown Heights Associates v. Seafirst Corp., 320 Or 638, 891 P2d 639 (1995), a self-serving motive is not tortious. In Uptown Heights Associates, however, the third party had a contract with the plaintiff. That contract was different from the contracts or relationships with which the third party allegedly interfered. The contract between the plaintiff and the third party established their reasonable expectations, and conduct in conformity with that contract was legitimate regardless of the motivation for the conduct. Here, the contract with which McLain is alleged to have interfered is between plaintiff and Oba. Unlike in Uptown Heights, there is no alleged contract between McLain and plaintiff. Thus, if McLain is a third party, he did not do what he was permitted to do under a contract between himself and plaintiff, and Uptown Heights Associates is inapposite.

Second, the dissent argues that, “[w]hen McLain, as Oba’s managing shareholder, fired plaintiff, he did for Oba precisely what Oba’s principals desired and what he was entitled to do under Oba’s employment contract with plaintiff.” 180 Or App at 232-33 (Edmonds, P. J., concurring in part, dissenting in part). We disagree, however, that an individual who acts solely for personal reasons and not to benefit the employer, in other words a third party, can take advantage of the at-will employment doctrine to avoid liability under the tort. Thus, if McLain is a third party, he cannot take advantage of the at-will employment doctrine to avoid liability.

Finally, the dissent argues that, “because the conduct of firing plaintiff did not violate a statute, an administrative rule, a recognized rule of common law, or a recognized business or trade standard, and the motive for firing plaintiff also did not violate any standard derived from the above sources, the interference was not wrongful beyond the fact of the interference itself.” Id. at 236 (Edmonds, P. J., concurring in part, dissenting in part) (emphasis in original). Although, as we will discuss, we do not decide in this case whether greed is an improper motive for purposes of the improper means or motive element of the tort, we disagree with the dissent that that legal issue has been clearly resolved. See Boers, 141 Or App at 244-45 (“If a jury believes that a defendant acted to injure the plaintiff, it can find that the defendant acted with an improper purpose. A corporate officer acts with an improper purpose in firing an employee when the officer’s sole purposes were ‘not to benefit the corporation’s interest, but were instead self-serving or vindictive’ and when the officer’s purposes ‘are not intended to serve the principal.’ ”) (citations omitted).

5 The dissent argues that the record demonstrates that the improper means or motive element of the tort is at issue in this case. In support of that argument, the dissent points to defendants’ summary judgment motion, which provides, in part, that defendants moved for summary judgment

“on the grounds that McLain was not a third party to any alleged agreement for employment or stock ownership which [plaintiff] claims was breached, and further McLain did not act solely for his personal benefit, and did not act without any intent to benefit Oba, in terminating [plaintiff].”

That entire paragraph from defendants’ summary judgment motion deals with the issue of whether McLain acted to benefit Oba — that is, whether he was a third party. In addition, defendants’ motion should be viewed in the context of the arguments that defendants made in their memorandum. Defendants argued, in part:

“[Plaintiff] cannot prove the third-party element of the tort.

“First, [plaintiff] testified that, under their alleged employment contract, McLain personally promised to give [plaintiff] 10% of his own 65% shares of Oba stock. That means the alleged agreement for stock ownership, which [plaintiff] claims was breached, was between [plaintiff] and McLain, since Oba would have no interest in the private transfer of McLain’s personal shares. If the stock agreement was between [plaintiff] and McLain, as [plaintiff] admits, then, as a matter of law, McLain cannot be a third party to his individual contractual obligation, and he cannot be liable for intentional interference.

“Second, when an employee is acting within the scope of his employment, the employee is acting as the employer and is not a third party for the tort of intentional interference with economic relations. [Plaintiff] alleges, in his first claim, that he had an employment contract with Oba and that Oba breached that contract by terminating him. * * *

******

“[Plaintiff] will argue that McLain terminated [plaintiff] in order to avoid having to give [plaintiff] a percentage of Oba stock, which would have reduced McLain’s ownership interest in the restaurant. Even if this were true, such alleged personal motive is of no legal consequence in light of evidence that McLain’s actions were done, at least in part, to benefit Oba by terminating the employment of a general manager who failed to meet stated company standards. Any personal motive that [plaintiff] may introduce is, at best, evidence of a mixed motive. Based on the evidence stated above, no jury could reasonably infer that any alleged improper motive was McLain’s sole motive for terminating [plaintiff], and summary judgment is proper.

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“* * * [T]he record establishes irrefutably that McLain acted, at least in part, to serve Oba’s interests and, therefore, acted within the scope of his employment in terminating [plaintiff]. Because, under Oregon law, an employee acting within the scope of his employment cannot be liable for interference with a contract involving the employer, McLain cannot be liable for intentional interference with economic relations, and [plaintiffs] second claim for relief should be dismissed. Likewise, as a matter of law, McLain cannot interfere with any alleged promise to deliver his own stock to [plaintiff].” (Citations and footnotes omitted; emphasis in original.)

Thus, the language in defendants’ summary judgment motion that “McLain was not a third party to any alleged agreement for employment or stock ownership which [plaintiff] claims was breached” reflects defendants’ argument that McLain could not interfere with a contract to which he was a party. Additionally, the language in defendants’ motion that “McLain did not act solely for his personal benefit, and did not act without any intent to benefit Oba, in terminating [plaintiff]” reflects defendants’ argument that McLain is not a third party because he acted to benefit Oba. In sum, defendants’ motion raised only the issue of whether McLain was a third party.

Additionally, the dissent points to statements in plaintiffs and defendants’ appellate briefs that refer to McLain’s intent or motivation in terminating plaintiff and argues that those references indicate that both the third-party and improper means and motive elements of the tort are at issue. Those references, however, refer to the third-party element of the tort or, in other words, to whether McLain’s motive or intent in terminating plaintiff was solely personal as opposed to whether any personal motive was improper for purposes of the improper means and motive element of the tort.

6 The dissent states that “[tjhere has been no suggestion in this case, either in the record below, in the briefs, or in oral argument that plaintiff has any other evidence to submit to a jury.” 180 Or App at 229 (Edmonds, P. J., concurring in part, dissenting in part). Contrary to the dissent’s position, because plaintiff had no reason to anticipate that this court would examine sua sponte the applicability of the right for the wrong reason doctrine to this case, plaintiff had no reason to suggest that the record would have been developed differently had the improper means or motive element been raised to the trial court. As the Supreme Court stated in Outdoor Media Dimensions Inc., “if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance.” 331 Or at 660 (first and third emphasis added; second emphasis in original).