Rowden v. Hogan Woods, LLC

658

Argued and submitted October 30, 2018, reversed and remanded

September 30, 2020

Darin ROWDEN;

Natalie Rowden, individually and as

guardian ad litem on behalf of her minor children

Terra Rowden, Myka Rowden, and Hans Rowden;

and Hailey Rowden,

Plaintiffs-Appellants,

v.

HOGAN WOODS, LLC,

an Oregon limited liability company;

James P. McNutt; Robert E. McNutt; Michael W. McNutt;

and The Ronald E. McNutt Family Trust,

Defendants-Respondents.

Multnomah County Circuit Court

15CV09483; A165292

476 P3d 485

Plaintiffs Darin and Natalie Rowden worked as property managers at apart-

ments owned by defendant Hogan Woods, LLC, and they lived on site with their

four children, who are also plaintiffs in this case. All of the plaintiffs experi-

enced health issues that they attributed to mold in the apartments, and Darin

and Natalie filed occupational disease claims, which the Workers’ Compensation

Board rejected on the ground that neither of them proved the “existence of an

occupational disease related to claimant’s alleged work exposure.” Thereafter,

plaintiffs brought this civil action against Hogan Woods, LLC, and its members

and their family trust, alleging various claims arising out of the mold issues.

The trial court granted summary judgment on all claims against Hogan Woods,

LLC, largely on the ground that the board’s decision had preclusive effect, and it

further concluded that efforts to pierce the corporate veil of Hogan Woods, LLC,

and hold its members and the trust liable were not ripe because there was not

yet a judgment against the company. On appeal, plaintiffs argue that the trial

court erred in giving the board’s decision such sweeping effect and in dismissing

claims against the members and the trust as unripe. Defendants respond that

the trial court’s rulings were correct and argue, as alternative bases for affirming

part of the judgment, that Darin and Natalie’s work as managers of the Hogan

Woods apartments was not “inherently dangerous” for purposes of imposing lia-

bility under the Employer Liability Act (ELA) and that their claims under the

Residential Landlord Tenant Act (RLTA) fail as a matter of law because they fall

within a statutory exception for “[o]ccupancy by an employee of a landlord whose

right to occupancy is conditional upon employment in and about the premises,”

ORS 90.110(7). Held: The trial court erred in granting summary judgment on

the basis of issue preclusion, because it is impossible to discern from the board’s

orders whether a finding of “no exposure” to mold and toxins was made sepa-

rately from the claimants’ burden under the major contributing cause standard

or was somehow essential to the board’s analysis. Defendants’ arguments con-

cerning the RLTA and ELA claims did not provide an alternative basis on which

Cite as 306 Or App 658 (2020) 659

to affirm the court’s dismissal of those claims, because they presented factual

disputes that could not be resolved at the summary judgment stage. The trial

court also erred in concluding that plaintiffs’ Unlawful Fraudulent Transfer Act

claim and veil-piercing theory were unripe; plaintiffs were not required to have

a judgment in hand against Hogan Woods, LLC, before pursuing a fraudulent

transfer claim or veil-piercing theory.

Reversed and remanded.

Thomas M. Christ, Judge pro tempore. (Limited Judg-

ment)

Nan G. Waller, Judge. (General Judgment)

Adam S. Heder argued the cause for appellants. Also on

the briefs was Roger K. Harris.

Lori K. DeDobbelaere argued the cause for respondents.

Also on the brief was Heinson & DeDobbelaere LLC.

Before Lagesen, Presiding Judge, and DeVore, Judge, and

James, Judge.

JAMES, J.

Reversed and remanded.

DeVore, J., concurring in part, dissenting in part.

660 Rowden v. Hogan Woods, LLC

JAMES, J.

Plaintiffs Darin and Natalie Rowden worked as

property managers at apartments owned by defendant

Hogan Woods, LLC, and they lived on site with their four

children, also plaintiffs in this case. All of the plaintiffs

experienced health issues that they attributed to mold in

the apartments, and Darin and Natalie filed occupational

disease claims, which the Workers’ Compensation Board

rejected on the ground that neither of them proved the

“existence of an occupational disease related to claimant’s

alleged work exposure.” Thereafter, plaintiffs brought this

civil action against Hogan Woods, LLC, and its members

and their family trust, alleging various claims arising out of

the mold issues. The trial court granted summary judgment

on claims against Hogan Woods, LLC, largely on the ground

that the decision of the Workers’ Compensation Board had

preclusive effect, and it further concluded that efforts to

pierce the corporate veil of Hogan Woods, LLC, and hold its

members and the trust liable were not ripe because there

was not yet a judgment against the company.

Plaintiffs now appeal, arguing that the trial court

erred in giving the board’s decision such sweeping effect and

in dismissing claims against the members and the trust as

unripe. For the reasons explained below, we conclude that

the trial court erred in giving preclusive effect to the board’s

decision and in dismissing the claims against the company’s

members and the trust as premature. We therefore reverse

and remand for further proceedings.

I. BACKGROUND

Because this appeal arises from the trial court’s

grant of summary judgment, we state the historical facts in

the light most favorable to plaintiffs, the nonmoving party.

Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608

(1997).

In 1998, Darin and Natalie Rowden were hired as

on-site managers of the Hogan Woods Apartments. At that

time, the apartment complex was owned and operated by

defendants James P. McNutt, Robert E. McNutt, Michael

Cite as 306 Or App 658 (2020) 661

McNutt, and the Ronald E. McNutt Family Trust (collec-

tively, “the McNutt family” or “McNutt defendants”). In

1999, the McNutt family transferred the apartments to

Hogan Woods, LLC.

Initially, Darin and Natalie were employed by a

third-party property manager, but, beginning in 2005, they

became employees of Hogan Woods, LLC. Their employment

duties included everything associated with managing and

leasing apartments, such as getting units ready for rental,

showing units and filling out leasing paperwork, managing

maintenance, and handling payroll, accounts payable, rent

collection, and deposits. They had an office at the apartment

complex and, as part of their compensation package, they

lived rent free with their four children in one of the apart-

ments, Unit 112.

After moving into that unit, Darin developed aller-

gies, skin rashes, and bronchitis, and he noticed mold in the

apartment. Between 2006 and 2007, Natalie experienced

fatigue, headaches, and other symptoms. She likewise

observed mold in the apartment and made some efforts to

remove it, including cleaning, painting, and using a dehu-

midifier, but the mold returned.

In February 2014, Darin and Natalie informed

defendants that they could no longer live at Hogan Woods

because of recurring mold problems there. The Rowden fam-

ily then moved out of Unit 112 to an off-site residence, but

for several months Darin and Natalie continued to work in

the office. Hogan Woods, LLC, reimbursed the Rowdens for

the cost of temporary motel housing and then signed a lease

on their behalf with another entity to meet its “compensa-

tion package” obligations as Darin and Natalie continued

to manage the Hogan Woods Apartments from the off-site

residence. In July 2014, Darin and Natalie informed defen-

dants that their doctor had advised them not to return to

Hogan Woods or come in contact with anything from Hogan

Woods, including mail and rent checks. A few months later,

on November 8, 2014, Michael McNutt, the managing mem-

ber of Hogan Woods, LLC, sent Darin and Natalie a letter

terminating their employment.

662 Rowden v. Hogan Woods, LLC

That same month, Darin and Natalie filed workers’

compensation claims for an occupational disease based on

“toxic exposure” during their employment for Hogan Woods,

LLC. Sedgwick Claims Management Services denied the

claims, and Darin and Natalie requested hearings before an

administrative law judge (ALJ). The ALJ upheld the deni-

als and Darin and Natalie then appealed those decisions to

the Workers’ Compensation Board.

The board issued its final order as to Natalie in July

2016 and as to Darin in August 2016. Those orders, which

we later discuss in greater detail, affirmed the ALJ’s orders.

With regard to Natalie, the board ultimately concluded that

the record before it did not “persuasively establish that

claimant’s apartment was ‘severely water damaged’ or that

there were ‘elevated levels’ of trichothecenes (mycotoxins)

in the apartment,” and, therefore, that “the record does not

persuasively establish the existence of an occupational dis-

ease related to claimant’s alleged work exposure to tricho-

thecenes/mycotoxins.” With regard to Darin, the board sim-

ilarly concluded that it was “not persuaded that this record

establishes the existence of an occupational disease related

to claimant’s alleged work exposure to mold/mycotoxins.”

Neither Darin nor Natalie sought judicial review of the

board’s orders.

Meanwhile, plaintiffs filed this civil action in April

2015 against Hogan Woods, LLC, and against the McNutt

family on the ground that the McNutt family had used

Hogan Woods, LLC, as their alter ego without regard to cor-

porate form.1 Specifically, Darin and Natalie alleged claims

against all defendants based on the Employer Liability Act

(ELA), the Oregon Safe Employment Act (OSEA), Oregon’s

Residential Landlord Tenant Act (RLTA), wrongful dis-

charge, unlawful employment discrimination, and breach of

contract; and, along with their four children, they alleged

1

Because Hogan Woods, LLC, was a noncomplying employer under the work-

ers’ compensation statutes, the exclusive remedy and timing restrictions on filing

a civil action under the workers’ compensation statutes were not applicable. See

ORS 656.020 (“Except for the provisions of ORS 656.578 to 656.593 and this sec-

tion, such noncomplying employer is liable as the noncomplying employer would

have been if this chapter had never been enacted.”).

Cite as 306 Or App 658 (2020) 663

negligence, conversion, and trespass-to-chattels claims against

defendants.

In May 2016, Hogan Woods, LLC, sold its only asset,

the Hogan Woods Apartments, and distributed the sale pro-

ceeds to its members, the McNutt family. Plaintiffs then

amended their complaint to add a claim that the distribu-

tion of proceeds violated the Uniform Fraudulent Transfer

Act (UFTA), ORS 95.200 to 95.310.

Thereafter, defendants filed motions for summary

judgment against the claims on various grounds, and the

McNutt family filed an additional motion directed at plain-

tiffs’ veil-piercing theory. As relevant to this appeal, defen-

dants argued that the Workers’ Compensation Board had

determined that plaintiffs had not suffered a toxic expo-

sure at the apartments—a determination that was entitled

to preclusive effect and prevented them from proving the

opposite in a civil action; that the RLTA claim failed as a

matter of law because Darin and Natalie fell within a statu-

tory exception for “[o]ccupancy by an employee of a landlord

whose right to occupancy is conditional upon employment

in and about the premises,” ORS 90.110(7); and that their

work as managers of the Hogan Woods Apartments was not

“inherently dangerous” for purposes of imposing liability

under the ELA. With regard to the veil-piercing theory, the

McNutt defendants argued that there was no evidence that

they had engaged in improper and deceitful behavior that

would justify the “extraordinary remedy” of piercing the

corporate veil of Hogan Woods, LLC.

At the outset of the hearing on the various motions,

the court sua sponte raised concerns that the veil-piercing

theory was premature because plaintiffs had not obtained a

judgment against the company that it was unable to satisfy.

The parties then turned to the other bases for defendants’

motions, including whether the Workers’ Compensation

Board’s decision was preclusive. Among other things, plain-

tiffs argued that the standard applied by the board, which

turned on causation under a “major contributing cause”

standard, was different from whether they could establish

toxic exposure for purposes of their civil claims.

664 Rowden v. Hogan Woods, LLC

After the hearing, the trial court issued a letter

opinion in which it ruled almost entirely in favor of defen-

dants. The court granted “summary judgment to defendants

on all claims and parts of claims that depend on a finding

that plaintiffs were injured by exposure to mycotoxins,

because the Workers’ Compensation Board found that plain-

tiffs Darin and Natalie Rowden were not exposed to them

and that finding is preclusive.” (Emphasis in original.) The

court explained that “[t]he Rowden children are precluded

too,” because they were in privity with their parents.

With regard to the UFTA claim and veil-piercing

theory, the court did not reach the parties’ arguments.

Instead, as it had signaled during the hearing, the court

was of the view that they were not justiciable “because

they depend on plaintiffs holding an uncollectible judgment

against the defendant company on one or more of the claims,

and plaintiffs don’t hold a judgment now.” The court stated

that its dismissal of those claims, on the basis of ripeness,

was without prejudice.

After the court’s ruling on the summary judgment

motions, plaintiffs moved to amend their complaint to omit

claims and references to injury caused by mycotoxins, assert-

ing that their claims alleged injuries resulting from toxic

exposure beyond mycotoxins. Defendants objected to the

proposed amendment, arguing that the summary judgment

ruling had disposed of plaintiffs’ claims in their entirety, not

merely allegations regarding mycotoxins.

The court then issued a letter opinion clarifying the

basis of its summary judgment ruling. The court explained

that it did not “share plaintiffs’ interpretation of the cur-

rent complaint, the Board’s orders, or [the] ruling.” The

court stated that it had intended to “dismiss all of, not just

parts of, the [RLTA], ELL, SEA, negligence, conversion, and

trespass-to-chattel claims, as well as paragraphs 55 a, b,

and d of the contract claim, which I construed to contain

allegations tied to the mycotoxin injuries.”

Defendants then submitted a limited judgment based

on that clarification, the court concluded that the motion to

amend was moot, and plaintiffs voluntarily dismissed the

Cite as 306 Or App 658 (2020) 665

balance of their claims, resulting in the entry of a general

judgment.2 Plaintiffs now appeal, assigning error to the

court’s summary judgment rulings.

II. ANALYSIS

A. Issue Preclusion

In their first assignment of error, plaintiffs argue

that the Workers’ Compensation Board applied the “major

contributing cause” standard, as it was required to do for

occupational diseases, and that the trial court therefore

erred in giving that decision preclusive effect. Plaintiffs

advance two distinct and independent arguments within the

assignment. First, they argue that the court’s application of

issue preclusion conflicts with the policy in ORS 656.019(1),

which provides that “[a]n injured worker may pursue a civil

negligence action for a work-related injury that has been

determined to be not compensable because the worker has

failed to establish that a work-related incident was the major

contributing cause of the worker’s injury only after an order

determining that the claim is not compensable has become

final.” Second, plaintiffs argue that the “purported finding

cited by the trial court—i.e., that Darin and Natalie Rowden

were not exposed to mycotoxins—was not essential to the

underlying question in front of the board; that is, whether

the Rowdens’ workplace exposure was the ‘major contrib-

uting cause’ of their injuries.” (Emphasis in original.) That

is important because a determination of causation under

the major contributing cause standard—a higher standard

than would apply under the common law—would not be

entitled to preclusive effect on the issue of causation in a

negligence action. Smothers v. Gresham Transfer, Inc., 332

Or 83, 134, 23 P3d 333 (2001), overruled on other grounds by

Horton v. OHSU, 359 Or 168, 376 P3d 998 (2016) (explaining

that, under the major contributing cause standard, work-

ers’ compensation law “does not provide compensation for a

work-related incident that was only a contributing cause of

the worker[’s] injury” and therefore is not coextensive with a

common-law negligence cause of action).

2

The summary judgment rulings were decided by Judge pro tempore

Thomas M. Christ, whereas the motion to amend was decided by Judge Leslie G.

Bottomly.

666 Rowden v. Hogan Woods, LLC

With respect to the first of those contentions, defen-

dants argue that plaintiffs did not rely on ORS 656.019(1)

below, so we should reject it on preservation grounds. With

regard to the second, they contend that the board’s decision

was not based on the major contributing cause standard but

instead on a determination that plaintiffs failed to show

they were exposed to mycotoxins at Hogan Woods.

For the reasons explained below, we agree with

plaintiffs that statements in the board’s orders regard-

ing exposure to mycotoxins were not factual findings that

were essential to its determinations. We therefore reverse

the trial court’s ruling on that basis and do not reach their

arguments regarding the legal effect of ORS 656.019(1).3

Although issue preclusion can have statutory or

constitutional sources, this case involves the common-law

doctrine of issue preclusion. See Nelson v. Emerald People’s

Utility Dist., 318 Or 99, 103-04, 862 P2d 1293 (1993) (explain-

ing that, “[b]ecause this case involves the preclusive effect of

an administrative proceeding, it is governed by the common

law”). As the court explained in Nelson, common-law issue

preclusion is a doctrine that promotes finality and judicial

economy by preventing parties from relitigating an issue of

law or fact that has been fully addressed in another pro-

ceeding. It applies only when (1) the issue in the two pro-

ceedings is identical; (2) the issue was actually litigated and

was essential to a final decision on the merits in the prior

proceeding; (3) the party sought to be precluded has had a

full and fair opportunity to be heard on that issue; (4) the

party sought to be precluded was a party or was in priv-

ity with a party to the prior proceeding; and (5) the prior

3

Plaintiffs’ alternative contention is premised on the view that ORS

656.019(1) “is the grant of a substantive right and remedy not a mere procedural

technicality.” But, as the Supreme Court observed in Bundy v. NuStar GP, LLC,

362 Or 282, 298, 407 P3d 801 (2017), the text is ambiguous on that point. The

court in Bundy declined to resolve that ambiguity, “reserv[ing] for another day

* * * the comprehensive statutory analysis needed to resolve whether the legisla-

ture intended ORS 656.019 to function as a substantive exception to the exclusive

remedy provision.” Id. Here, plaintiffs provide only a cursory statutory analysis

and do not address the textual ambiguity identified in Bundy. Even assuming

that plaintiffs did enough to put the issue before the trial court, we decline to

interpret ORS 656.019(1) where plaintiffs’ alternative argument provides an

independent basis for reversal.

Cite as 306 Or App 658 (2020) 667

proceeding was the type of proceeding to which this court

will give preclusive effect. 318 Or at 104.

Plaintiffs contend that defendants failed to prove

the second Nelson factor—that a finding that the plaintiffs

were not exposed to mycotoxins was essential to the board’s

orders denying compensation. That contention turns on the

nature of the board’s task in determining an occupational

disease, and on the specifics of the board’s orders concerning

Natalie and Darin.

Under the Workers’ Compensation Law, an “occu-

pational disease” means “any disease or infection arising

out of and in the course of employment caused by substances

or activities to which an employee is not ordinarily subjected

or exposed other than during a period of regular actual

employment therein, and which requires medical services or

results in disability or death * * *.” ORS 656.802(1) (empha-

sis added). ORS 656.802(2) imposes specific proof require-

ments for occupational disease claims, including that “[t]he

worker must prove that employment conditions were the

major contributing cause of the disease,” ORS 656.802(2)(a),

and that “[e]xistence of an occupational disease or worsen-

ing of a preexisting disease must be established by medical

evidence supported by objective findings.” (Emphases added.)

Thus, there are layered causation questions in play when

the board considers the compensability of an occupational

disease claim based on toxic exposure.

With that framework in mind, we turn to the

board’s orders concerning Natalie’s and Darin’s workers’

compensation claims. As noted above, their claims pro-

ceeded separately, and an ALJ, and then the board, issued

separate orders in each case. In Natalie’s case, the board’s

order begins by stating that the ALJ upheld the denial “of

claimant’s occupational disease claim for toxic exposure. On

review, the issue is compensability. We affirm.”

The order then includes a section titled “Findings of

Fact,” which begins by recounting mold inspection reports

and doctor consultations, including by Dr. Hope, that pre-

dated Natalie’s filing of an occupational disease claim for

“toxic exposure” in November 2014. It then recounts medical

evaluations performed by doctors after that point, including

668 Rowden v. Hogan Woods, LLC

Dr. Webb, a family practice specialist who diagnosed “mold

exposure,” and Dr. Bardana, a specialist in allergies and

clinical immunology who concluded that there was “no sci-

entific evidence supporting a diagnosis of mold (fungal)

allergy, mold-related infection (mycoses), or mycotoxicosis

as a result of [claimant’s] work and exposures at [the] apart-

ment complex.” The “Factual Findings” conclude with a rec-

itation of the competing medical views on toxic exposure,

including that “Dr. Hope disagreed with Dr. Bardana’s opin-

ion. Based on claimant’s history, ‘lab work,’ symptoms, and

three environmental evaluations, Dr. Hope concluded that

claimant’s work exposure was the major contributing cause

of her ‘mold/mycotoxin exposure’ and need for treatment.”

(Internal footnote omitted.)

The next section of the board’s order in Natalie’s

case, which is captioned “Conclusions of Law and Opinion,”

begins by characterizing the ALJ’s order and the issues

before the board. It states:

“[T]he ALJ concluded that there was insufficient evi-

dence to support a conclusion that claimant had suffered a

toxic exposure that would cause a disease resulting in med-

ical treatment and/or disability. On review, claimant con-

tends that the record establishes that she was exposed to

elevated levels of toxin-producing mold and that Dr. Hope’s

opinion establishes medical causation. For the following

reasons, we agree with the ALJ’s conclusion.”

The order then recounts a claimant’s burden under

ORS 656.802(1)(a) and (2)(a), and it links the major contribut-

ing cause standard, work exposure, and medical causation:

“Claimant bears the burden of proving that her work

exposure was the major contributing cause of her condition.

ORS 656.266(1); ORS 656.802(1)(a); ORS 656.802(2)(a).

Although she need not prove a specific diagnosis to prove

the compensability of an initial claim, she must prove the

existence of her occupational disease ‘by medical evidence

supported by objective findings.’ ORS 656.802(2)(d); see

Tripp v. Ridge Runner Timber Services, 89 Or App 355,

358, 749 P2d 586 (1988); Carl A. Lorenz, 59 Van Natta 1754,

1758 (2007) (compensability not proven where the exis-

tence of the claimed occupational disease was not estab-

lished). Claimant must prove legal and medical causation

Cite as 306 Or App 658 (2020) 669

by a preponderance of the evidence. See Harris v. Farmers’

Co-op Creamery, 53 Or App 618, 621, 632 P2d 1299 (1981).

‘Legal causation’ is established by showing that she was

exposed to employment conditions that were potentially

causal; whether that exposure caused her condition is a

question of medical causation. Darla Litten, 55 Van Natta

925, 926 (2003).

“Due to the conflicting medical opinions regarding

the nature and cause of claimant’s condition, these issues

present complex medical questions that must be resolved

by expert medical opinion. See Uris v. Compensation

Department, 247 Or 420, 426, 427 P2d 753 (1967); Barnett

v. SAIF, 122 Or App 279, 283, 857 P2d 228 (1993). We give

more weight to those opinions that are well reasoned and

based on complete information. See Somers v. SAIF, 77 Or

App 259, 263, 712 P2d 179 (1986).”

(Emphases added.)

From there, the board’s order discusses the evi-

dence, ultimately concluding with these two paragraphs:

“After completing our review, based on the aforemen-

tioned reasoning, we conclude that this record does not

persuasively establish that claimant’s apartment was

‘severely water damaged’ or that there were ‘elevated levels’

of trichothecenes (mycotoxins) in the apartment.

“In sum, the record does not persuasively establish

the existence of an occupational disease related to claim-

ant’s alleged work exposure to trichothecenes/mycotoxins.

Accordingly, we affirm.”

The board’s order concerning Darin’s claim is simi-

larly structured, but it differs in a few respects. For instance,

it describes the ALJ’s ruling in a way that explicitly ties the

ALJ’s and board’s ultimate decisions to the major contrib-

uting cause standard: “[T]he ALJ was not persuaded that

claimant’s exposure to mold or mycotoxins in his residence

was the major contributing cause of a disease resulting in

disability or the need for medical treatment. * * * For the

following reasons, we agree with the ALJ’s determination

that claimant has not established a compensable occupa-

tional disease.” (Emphasis added.) Later, the order states,

“For the following reasons, we are not persuaded that claim-

ant proved the existence of an occupational disease or that

670 Rowden v. Hogan Woods, LLC

he was exposed to employment conditions that caused the

disputed condition.” And the last paragraph of the order

states, “In sum, after conducting our review, based on the

aforementioned reasoning, we are not persuaded that this

record establishes the existence of an occupational dis-

ease related to claimant’s alleged work exposure to mold/

mycotoxins,” followed by a footnote explaining why it had

rejected Dr. Webb’s conclusion that “the workplace was the

major contributing cause of claimant’s mold exposure and

need for treatment.”

The trial court understood those two orders to be

based on “findings that Darin and Natalie were not exposed

to elevated levels of toxin-producing mold.” We reach a dif-

ferent conclusion. The question of toxic exposure was inex-

tricably linked to Darin’s and Natalie’s burden to prove com-

pensability under the major contributing cause standard,

and the board’s orders cannot be viewed as resting on an

essential finding that there was no exposure—as opposed to

their failure to prove, by medical evidence, that workplace

exposure was the major contributing cause of their need for

treatment.

First, as set out above, the board combined its dis-

cussion of the various causation standards, including the

“major contributing cause” standard and medical causation,

and it proceeded to analyze the compensability question

almost exclusively in terms of the medical evidence. In fact,

even the conclusions that defendants rely upon—for exam-

ple, the board’s conclusion that “this record does not per-

suasively establish that claimant’s apartment was ‘severely

water damaged’ or that there were ‘elevated levels’ of tricho-

thecenes (mycotoxins) in the apartment”—are directly tied

to medical evidence bearing on the “major contributing

cause” standard. The phrases in quotes in the board’s sum-

mation paragraph—“severely water damaged” and “elevated

levels”—refer to assessments by Dr. Hope, who opined that

toxic exposure was the major contributing cause of Natalie’s

occupational disease. She had “assessed [Natalie’s] symp-

toms as consistent with her ‘exposure to [a] severely water

damaged apartment with extensive visible mold found to

have very elevated levels of Stachybotrys and Aspergillus/

Penicillium mold in multiple locations throughout the unit’ ”

Cite as 306 Or App 658 (2020) 671

and “urine mycotoxin testing * * * positive for very elevated

levels of Trichothecenes * * * mostly likely secondary to

exposure.”

Second, we take the board at its word when it states

that it was agreeing with the ALJ’s conclusion that Darin

had not persuasively established “that claimant’s exposure

to mold or mycotoxins in his residence was the major con-

tributing cause of a disease resulting in disability or the

need for medical treatment.” That was the standard the

board was required to apply, and its later analysis and

conclusions—that “it was not persuaded that this record

establishes the existence of an occupational disease related

to claimant’s alleged work exposure to mold/mycotoxins”—is

consistent with the board having decided the matter under

that heightened causation standard. (Emphasis added.)

And, third, ambiguity in the orders about Darin’s

and Natalie’s critical failure of proof is itself a reason that

the doctrine of issue preclusion is inapplicable. One of the

key sentences relied upon by the trial court—“For the fol-

lowing reasons, we are not persuaded that claimant proved

the existence of an occupational disease or that he was

exposed to employment conditions that caused the disputed

condition”—itself provides two possible bases for the order

and can be understood different ways. On that point, the

Restatement (Second) of Judgments section 27 comment i

(June 2020 Update), provides a helpful discussion of some of

the prudential considerations underlying the application of

the common-law doctrine where ambiguity is present:

“Alternative determinations by court of first instance. If a

judgment of a court of first instance is based on determina-

tions of two issues, either of which standing independently

would be sufficient to support the result, the judgment is

not conclusive with respect to either issue standing alone.

* * *.

“* * * * *

“There are * * * persuasive reasons for analogizing the

case to that of the nonessential determination [discussed

in another comment]. First, a determination in the alter-

native may not have been as carefully or rigorously consid-

ered as it would have if it had been necessary to the result,

672 Rowden v. Hogan Woods, LLC

and in that sense it has some of the characteristics of

dicta. Second, and of critical importance, the losing party,

although entitled to appeal from both determinations,

might be dissuaded from doing so because of the likelihood

that at least one of them would be upheld and the other not

even reached. If he were to appeal solely for the purpose of

avoiding the application of the rule of issue preclusion, then

the rule might be responsible for increasing the burdens of

litigation on the parties and the courts rather than lighten-

ing those burdens.”

Here, in light of the ambiguity in the order as a whole

and the context of the references to “no exposure,” some of

those same prudential concerns are implicated. Under ORS

656.802, the question before the board was whether the

claimants proved, by medical evidence, that toxic exposure

was the major contributing cause of a disease resulting in

disability or the need for medical treatment. It is impossi-

ble to discern from the board’s order to what extent it was

making rigorous findings about specific problems with the

claimant’s evidence that it had identified in the record, or

whether it was assessing those failures cumulatively in

light of the claimants’ burden to “persuasively establish

the existence of an occupational disease related to claim-

ant’s alleged work exposure to trichothecenes/mycotoxins.”

And, in the absence of a clear indication that a finding of

“no exposure” was actually determined separately from the

burden under the major contributing cause standard or was

somehow necessary to the board’s analysis, the doctrine of

issue preclusion is inapplicable.4

For those reasons, we conclude that the trial court

erred in granting summary judgment on the basis of issue

preclusion, because the summary judgment record does not

4

If the order were clear that the board had decided the question of “no expo-

sure” as a factual matter separately from the major contributing cause standard,

our analysis might be different and the prudential considerations in Restatement

comment i might be inapplicable. Cf. Westwood Const. Co. v. Hallmark Inns &

Resorts, Inc., 182 Or App 624, 635-36, 50 P3d 238 (2002) (applying statutory issue

preclusion and explaining that, where it is clear from the face of a judgment or

order that a matter was actually determined in a prior case, it can be preclusive

under ORS 43.160 even if not strictly “essential” to the tribunal’s decision); see

also Harvey v. Getchell, 190 Or 205, 215, 225 P2d 391 (1950) (“Certainty is an

essential element, and unless it is shown that the judgment necessarily involved

a determination of the fact sought to be concluded in the second suit, there will

be no bar.” (Internal quotation marks and citations omitted.)).

Cite as 306 Or App 658 (2020) 673

establish as a matter of law that a finding of “no exposure”

was actually determined apart from the major contributing

cause standard and was essential to the board’s orders.5

B. Alternative Bases for Affirmance

Defendants request that, in the event that we reverse

the trial court’s ruling on issue preclusion, we consider, as to

two claims, two additional grounds that were raised in their

motion for summary judgment but not reached by the trial

court. We briefly address those contentions.

1. RLTA

Defendants’ first argument involves Darin and

Natalie’s RLTA claim. According to defendants, the Rowdens’

tenancy was not protected by the RLTA under the terms

of ORS 90.110(7). That statute provides, “Unless created to

avoid the application of this chapter, the following arrange-

ments are not governed by this chapter: * * * (7) Occupancy

by an employee of a landlord whose right to occupancy is

conditional upon employment in and about the premises.”

Defendants point to our decision in Montgomery v. Howard

Johnson Inn, Gresham, 228 Or App 315, 320, 208 P3d 503

(2009), in which we explained that the statute’s text “simply

refers to arrangements in which the employee’s occupancy

is ‘subject to’ or ‘depend[s] on’ the employee’s employment in

and around the employer’s premises.” In that case, we held

that a former hotel employee’s residence at the hotel was

dependent on her employment and therefore fell within ORS

90.110(7); here, defendants argue that, “[j]ust as the plaintiff

in Montgomery was living at defendant’s premises because

of her employment, Darin & Natalie Rowden were living at

Hogan Woods because they were the on-site managers.” As

we explain below, defendants misconstrue the nature of the

exception and our holding in Montgomery.

5

Our disposition of the first assignment of error obviates the need to address

plaintiffs’ second assignment, which asserts that parts of their complaint referred

to microbial contamination distinct from biotoxin contamination, and their third

assignment, which asserts that the trial court erred in concluding that issue

preclusion barred claims by the Rowden children. However, as to the latter, we

question how administrative proceedings involving injuries to parents could be

given preclusive effect with regard to claims by their children, where the chil-

dren’s harm from any levels of exposure was not at issue in the administrative

proceedings and would have involved different medical evidence.

674 Rowden v. Hogan Woods, LLC

The record in this case shows that Hogan Woods

Apartments, and Unit 112, are by their nature places that

are ordinarily rented to and occupied by tenants for pur-

poses of the RLTA. See ORS 90.100(47) (defining “tenant” to

include “a person, including a roomer, entitled under a rental

agreement to occupy a dwelling unit to the exclusion of oth-

ers, including a dwelling unit owned, operated or controlled

by a public housing authority,” but not a “guest or temporary

occupant”). Nothing in the record clearly establishes that

the “right to occupancy” of Unit 112 at Hogan Woods is lim-

ited to employees by virtue of their work at Hogan Woods.

That is in contrast to the room in Montgomery—a transient

hotel room afforded permanent occupancy only by virtue of

the employment arrangement.

As the party seeking to come within a statutory

exception to the RLTA, defendants would have the bur-

den of persuasion at trial on the applicability of that

exception—that is, the burden to prove that Darin and

Natalie’s right to occupancy was conditioned upon their

employment arrangement. See OEC 305 (“A party has the

burden of persuasion as to each fact the existence or non-

existence of which the law declares essential to the claim

for relief or defense the party is asserting.”); e.g., Johnson v.

O’Malley Brothers Corp., 285 Or App 804, 816, 397 P3d 554,

rev den, 362 Or 300 (2017) (explaining that the party seek-

ing to rely on a statutory exception has the burden of per-

suasion and production on its applicability). Consequently,

at the summary judgment stage, our task on appeal “is to

determine whether the uncontroverted evidence presented

by defendant[s] in support of [their] motion for summary

judgment is such that all reasonable factfinders would have

to find in defendant[s’] favor” on the applicability of the

exception. Wieck v. Hostetter, 274 Or App 457, 470, 362 P3d

254 (2015). We cannot say that on this record.

The question is whether defendants’ evidence com-

pels a conclusion that, despite the nature of the apartment

complex and its units, plaintiffs’ right to occupancy was con-

ditional on their employment rather than a landlord-tenant

relationship. The evidence proffered by defendants is the

employment agreements, the bottom of which state, “I also

understand that my apartment rent credit is a condition of

Cite as 306 Or App 658 (2020) 675

employment and that in the event that my employment ends

I may be required to vacate immediately.”

That term in the employment agreements is ambig-

uous as to whether it describes a conditional right to occu-

pancy as opposed to a conditional rent credit. The use of

“may be required to vacate” is consistent with defendants’

view that Darin and Natalie’s right to occupancy at Hogan

Woods was subject to the existence of the employment

relationship. On the other hand, the use of the conditional

phrase “may be required”—and the omission of any explicit

reference to the right to occupancy similarly being a “con-

dition of employment”—is also consistent with Darin and

Natalie’s understanding that they were occupying Hogan

Woods as apartment tenants separate and apart from any

conditions or terms of the employment agreements, and that

they simply received a rent credit for their apartment that

was conditional—one that could be used at any apartment

they chose.6

As far as the latter interpretation, there is extrin-

sic evidence that occupancy at Hogan Woods and the rent

credit were not intended by the parties to be coupled under

the agreements. Specifically, there is evidence that the com-

pany treated occupancy and employment as independent

issues: After Darin and Natalie moved out, they continued

to be employed by Hogan Woods, LLC, the company reim-

bursed them for their costs of obtaining a hotel, and the

company entered into a lease agreement on their behalf to

meet its “compensation package” obligations for continued

employment. Moreover, one of the members of Hogan Woods,

LLC, testified during his deposition that he would “agree

that for the time that the Rowdens were onsite managers

there at Hogan Woods, they were also tenants of Hogan

Woods, LLC.” Given that deposition testimony, the nature

of the apartment complex and its units, and the ambiguity

in the agreement as to whether their occupancy, as opposed

6

Contextually, there is no indication that severance would have automati-

cally resulted in a loss of the right to occupancy at Hogan Woods. The employ-

ment agreements make explicit reference to turning over “any master keys, office

keys, or any other property provided by Hogan Woods Apts, for use during the

term of such employment” upon termination but make no similar mention of

turning over keys to their residence as a consequence of termination.

676 Rowden v. Hogan Woods, LLC

to a rent credit, was a condition of employment, a factfinder

could reject defendants’ view that the Rowdens were con-

ditionally occupying the property as employees. In other

words, a reasonable factfinder could infer from the employ-

ment agreements that Darin and Natalie were allowed to

occupy the apartments only as a condition of employment,

but a factfinder would not be compelled to make that finding

on this record.

For that reason, the case is readily distinguish-

able from the circumstances in Montgomery, in which the

“[u]ndisputed evidence demonstrate[d] that plaintiff’s right

to occupancy on defendant’s premises was conditional on

her employment.” 228 Or App at 322. In that case, there

was not only testimony that the “plaintiff’s ability to use

the rooms at the hotel was conditioned on her continued

employment, but the employment termination notice pre-

sented to plaintiff stated that she would have to vacate

the premises following her last day of employment.” Id.

Moreover, the parties’ prior conduct demonstrated “that

plaintiff’s right to occupancy on the premises was condi-

tional on her employment. Two months before this dispute,

plaintiff’s first term of employment with defendant ended.

She was told that she would have to vacate the premises

and, although initially resistant, she eventually did so.” Id.

The evidence here does not similarly compel a conclusion

that the Rowdens would have been required to vacate the

premises—an apartment unit for tenants—had their

employment ended before they voluntarily left.

The dissent would reach a different conclusion on

that point. But its analysis fails to properly account for the

summary judgment standard and fails to properly account

for the evidentiary inferences available on this record that

would allow a reasonable factfinder to reject defendants’ con-

tention that their arrangement with plaintiffs falls within

an exception to the RLTA.

In the dissent’s view, there is no meaningful dis-

tinction between the inferences available regarding occu-

pancies at an apartment complex and occupancies at hotels

or motels, and the dissent points out that our decision in

Montgomery “made no mention of any requirement that the

Cite as 306 Or App 658 (2020) 677

rooms needed to have been limited to employees. See id. at

317-23. Presumably, under other circumstances, hotel guests

could have occupied the rooms, just as other tenants might

rent Unit 112 at other times.” 306 Or App at 690 (DeVore, J.,

concurring in part, dissenting in part). Our point is not that

the apartment rooms needed to be limited to employees, but

rather that apartment units are, by nature, typically occu-

pied by tenants. Even if hotel guests could have occupied the

rooms in Montgomery, the ordinary arrangement between

hotels and guests is explicitly not a landlord-tenant relation-

ship. See ORS 90.100(48) (defining “transient lodging”); ORS

90.100(49) (defining “transient occupancy”); ORS 90.110(4)

(excepting from the RLTA “[t]ransient occupancy in a hotel

or motel”).

Additionally, the rent credit does not have the con-

clusive weight that the dissent seems to place on it so as

to take defendants’ entitlement to the benefit of the excep-

tion away from a jury. A rent credit is evidence of a link

between employment and occupancy, but the existence of a

rent credit does not, by itself, transform every occupancy

into one that is conditional upon employment as a matter of

law. A tenant does not automatically lose the protections of

the RLTA by accepting, for example, a small rent credit for

mowing the lawn of an apartment complex or for receiving

rent checks on behalf of the landlord; there is no support for

such an expansive view of the statutory exception or treat-

ing the fact of a rent credit as dispositive.

As the party that carries the burden of proof and

persuasion at trial on the application of the exception, defen-

dants were required to do more at the summary judgment

stage than present evidence from which a factfinder could

find that employment was conditional; they were required to

present evidence from which no reasonable factfinder could

determine otherwise. Wieck, 274 Or App at 470. Given the

limited evidence presented by defendants concerning the

arrangement, and given the nature of the apartment com-

plex and its units, ambiguity in the employment agreement,

and the deposition testimony that the Rowdens were both

tenants and employees, defendants fell short of that stan-

dard. We therefore agree with plaintiffs that defendants’

678 Rowden v. Hogan Woods, LLC

arguments under ORS 90.110(7) do not provide an alterna-

tive basis on which to affirm the court’s grant of summary

judgment on the RLTA claim.7

2. ELA

Defendants’ second argument relates to Darin and

Natalie’s claim under the ELA; defendants argue that, as

a matter of law, working and breathing in an office is not

“inherently dangerous” for purposes of liability under the

ELA. See Miller v. Georgia Pacific Corp., 294 Or 750, 753,

662 P2d 718 (1983) (the ELA “requires a higher degree of

care for employers and others having charge of work involv-

ing risk or danger to employees”). We reject that argument

without extended discussion. The ELA claim is not based

on working and breathing in an office; Darin and Natalie

alleged that they were required to perform maintenance

and other work in a building that was growing various

forms of dangerous molds and toxins, that they repeat-

edly informed defendants about problem areas and their

concerns, and that defendants refused and failed to take

any action to investigate or remedy the causes of the pro-

liferation of mold despite the warnings. The record does

not present the type of “clear case” for the court to assess

the risk as a matter of law. See Snyder v. Prairie Logging

Co., Inc., 207 Or 572, 577, 298 P2d 180 (1956) (“Ordinarily,

the question of whether a particular employment is inher-

ently dangerous is for the jury to decide from the evidence

in the case, and it is only in clear cases that the court is

authorized to decide, as a matter of law, that the work

does not involve risk and danger within the meaning of

[ORS 654.305].”).

C. Claims Against the McNutt Family

Last, we address plaintiffs’ fourth assignment of

error, in which they contend that the trial court erred in dis-

missing their claim under the UFTA and their veil-piercing

7

The RLTA claim was brought only by Darin and Natalie, and plaintiffs

later moved to amend the complaint to add the Rowden children. They request

that, upon reversal of the summary judgment ruling, we “remand with instruc-

tions to allow the children to be added to the [RLTA] claim.” We decline that

request and leave any decision in that regard to the discretion of the trial court

in the first instance.

Cite as 306 Or App 658 (2020) 679

theory as premature. The trial court raised ripeness con-

cerns sua sponte, then concluded that the theories of recov-

ery against the McNutt family were not justiciable until

plaintiffs obtained an uncollectible judgment against Hogan

Woods, LLC. We agree with plaintiffs that the court erred in

concluding that those theories regarding the McNutt family

were brought prematurely.

Ripeness depends on “whether the controversy involves

present facts as opposed to hypothetical future events.”

Menasha Forest Products Corp. v. Curry County Title,

234 Or App 115, 120, 227 P3d 770 (2010), rev’d in part on

other grounds, 350 Or 81, 249 P3d 1265 (2011). As a prac-

tical matter, “ ‘[p]resent facts’ and ‘hypothetical future

events,’ * * * do not announce themselves as such,” and

“[r]ipeness is often a matter of degree.” Id. at 120-21.

In this case, the court determined that the claims

against the McNutt defendants were contingent on a hypo-

thetical future event—specifically, plaintiffs first obtain-

ing an uncollectible judgment against Hogan Woods, LLC.

Although the trial court employed the same rationale with

respect to both the UFTA claim and plaintiffs’ veil-piercing

theory, they present slightly different questions regarding

ripeness, and we therefore discuss them separately.

1. Veil-piercing theory

ORS 63.165(1) provides that “[t]he debts, obligations

and liabilities of a limited liability company, whether aris-

ing in contract, tort or otherwise, are solely the debts, obli-

gations and liabilities of the limited liability company,” and

that “[a] member or manager is not personally liable for a

debt, obligation or liability of the limited liability company

solely by reason of being or acting as a member or manager.”

Piercing the corporate veil is a court-made doctrine whereby

the corporate form is disregarded to avoid injustice, and it

can apply in the case of limited liability companies as well

as corporations. See Amfac Foods v. Int’l Systems, 294 Or 94,

104, 654 P2d 1092 (1982); Sterling Savings Bank v. Emerald

Development Co., 266 Or App 312, 341, 338 P3d 719 (2014)

(“In Oregon, the doctrine of corporate veil piercing applies to

LLCs in the same way that it does to corporations.”).

680 Rowden v. Hogan Woods, LLC

Amfac is the seminal Oregon decision on veil pierc-

ing. As articulated in that decision, a plaintiff seeking to

pierce the corporate veil must prove that a defendant had

control of the limited liability company, that the defendant

used that control to engage in improper conduct, and that, as

a result of the improper conduct, the plaintiff was harmed.

294 Or at 108-09; State ex rel Neidig v. Superior National

Ins. Co., 343 Or 434, 454-55, 173 P3d 123 (2007) (summa-

rizing the Amfac elements). As for the third element—harm

resulting from the improper conduct—Amfac explains:

“[T]he plaintiff must also demonstrate a relationship

between the misconduct and the plaintiff’s injury. If a

shareholder’s improper conduct causes no injury to a cor-

porate creditor, there is no basis for a recovery from the

shareholder. Consistent with the general policy of share-

holder immunity, a shareholder’s improper conduct does

not give a hunting license to a corporate creditor to redress

a general wrong.”

294 Or at 111 (footnote omitted).

In this case, plaintiffs alleged that, through a

series of actions, the McNutt family purposefully undercap-

italized Hogan Woods, LLC, “alienating and disposing of

the funds necessary to satisfy a judgment under this law-

suit.” Although that theory is contingent by nature—that

is, it requires a judgment that cannot be satisfied by the

company—we disagree that it involves the type of con-

tingency that renders it premature. As we explained in

Riverview Condo. Assn. v. Cypress Ventures (A149542), 266

Or App 612, 616, 338 P3d 755 (2014), “The fact that a contro-

versy might involve some unsettled questions or contingen-

cies does not, by itself, render the case ‘unripe’ or mean that

the controversy as a whole is ‘contingent’ and therefore not

justiciable.” In that case, we rejected an argument by third-

party defendants that contribution and indemnity claims

were not ripe until the third-party plaintiff’s underlying

liability had been determined and the judgment had been

paid. Id. at 615. We reasoned that the parties had a pres-

ent dispute about completed events, despite the contingency

concerning the discharge of the underlying liability:

“The parties have a present dispute about their respective

roles and responsibilities relating to the construction of the

Cite as 306 Or App 658 (2020) 681

Riverview Condominium, and the only true contingency—

discharge of the underlying liability—will flow directly

from the resolution of issues within the case itself.

We are not persuaded that such a minimal degree of

‘contingency’—given that the law presumes that Brookfield

will satisfy any obligation to the condominium association

and provides enforcement mechanisms if it does not—is

sufficient to render this controversy nonjusticiable, given

the parties’ present and competing interests in determin-

ing their respective fault based on completed events.”

Id. at 616-17 (footnote omitted).

The same can be said here. The parties have a

present dispute about past events, including past conduct

allegedly leaving the company unable to satisfy a judgment

against it. If plaintiffs prove their case, then the only true

contingency—that the judgment remains unsatisfied—will

flow directly from resolution of the issues in the case. That

is not the type of contingency that will render this contro-

versy nonjusticiable, given the parties’ present and compet-

ing interests in determining their respective liabilities for

already completed events.8 Defendants have not supplied,

and we are not aware of, any contrary, persuasive authority

on that point. Accord Wachovia Sec., LLC v. Neuhauser, No

04 C 3082, 2004 WL 2526390 at *10 (ND Ill, Nov 5, 2004)

(“A plaintiff may prove that a corporation will not be able

8

The trial court analogized the case to one requesting a declaration of rights

to recover against a defendant’s insurance company:

“The claims are the equivalent of a claim by the plaintiff in a tort action for

a judicial declaration that a judgment against the defendant, if obtained,

would be covered by the defendant’s insurer. The Supreme Court has said

that such a claim is not ripe for adjudication—and, hence, not justiciable—

because the plaintiff ‘may never win a judgment in the tort action.’ ”

(Quoting Hale v. Fireman’s Fund Ins. Co. et al, 209 Or 99, 113, 302 P2d 1010

(1956)).

We are not persuaded that the comparison is apt. In that circumstance, “[t]he

defendant insurance companies are not required to do anything concerning the

plaintiff until a judgment is entered in his favor against the [insured tortfeasor]

and remains unsatisfied for thirty days,” which the court determined did not

reveal “a controversy ‘of sufficient immediacy and reality to warrant the issuance

of a declaratory judgment.’ ” 209 Or at 113. Here, by contrast, defendants’ alleged

conduct giving rise to the injury has already occurred, and all that remains is for

plaintiffs to prove what they alleged: that, as a result of the McNutt family’s past

conduct, they have been harmed in their ability to recover from Hogan Woods,

LLC. Considering that ripeness involves matters of degree, we conclude that the

immediacy of the dispute is more like Riverview Condo. Assn. than Hale.

682 Rowden v. Hogan Woods, LLC

to make good on a debt without first successfully bringing

a separate lawsuit against the corporation and waiting for

that judgment to go unpaid. No case has been found which

supports the [individual defendants’] contention that a

piercing claim is not ripe until a separate lawsuit is first

brought and fully adjudicated as against the corporation

that is being pierced.”). Accordingly, we reverse the trial

court’s ruling with regard to plaintiffs’ veil-piercing theory.

2. UFTA claim

Plaintiffs’ UFTA claim presents a slightly different

question because it is a statutory rather than court-created

basis for recovery. ORS 95.260 provides:

“(1) In any action for relief against a transfer or obliga-

tion under ORS 95.200 to 95.310 [comprising the UFTA], a

creditor, subject to the limitations provided in ORS 95.270,

may obtain:

“(a) Avoidance of the transfer or obligation to the

extent necessary to satisfy the creditor’s claim.

“(b) An attachment or other provisional remedy

against the asset transferred or other property of the

transferee in accordance with the procedure prescribed by

any applicable provision of any other statute or the Oregon

Rules of Civil Procedure.

“(c) Subject to applicable principles of equity and in

accordance with applicable rules of civil procedure:

“(A) An injunction against further disposition by the

debtor or a transferee, or both, of the asset transferred or of

other property;

“(B) Appointment of a receiver to take charge of the

asset transferred or of other property of the transferee; or

“(C) Any other relief the circumstances may require.

“(2) If a creditor has obtained a judgment on a claim

against the debtor and if the court so orders, the creditor

may levy execution on the asset transferred or its proceeds.”

The terms “creditor” and “claim” are defined in

ORS 95.200. “ ‘Claim’ means a right to payment, whether

or not the right is reduced to judgment, liquidated, unliq-

uidated, fixed, contingent, matured, unmatured, disputed,

Cite as 306 Or App 658 (2020) 683

undisputed, legal, equitable, secured or unsecured.” ORS

95.200(3). “ ‘Creditor’ means a person who has a claim

against a debtor,” ORS 95.200(4), and “debtor,” in turn,

“means a person against whom a creditor has a claim,” ORS

95.200(6).

Defendants argue that plaintiffs do not have a “right

to payment” under the UFTA because, “[a]s things stand

right now, plaintiffs are not entitled to any payments from

defendants.” That argument ignores the broad text of the

UFTA, which encompasses a right to payment “whether or

not the right is reduced to judgment,” “unliquidated,” “con-

tingent,” and even “disputed.” ORS 95.200(3). The alleged

right to payment in this case—the right to recover in a pend-

ing tort action—falls squarely within the plain text of the

statute. Defendants have not provided any textual, contex-

tual, or legislative history to suggest that, despite the broad

definition of “claim,” the legislature nevertheless intended

to require a tort claimant to have a judgment in hand before

pursuing a fraudulent transfer claim.

We further observe that, when enacting the UFTA,

the legislature provided that “ORS 95.200 to 95.310 shall

be applied and construed to effectuate its general purpose

to make uniform the law with respect to the subject of ORS

95.200 to 95.310 among states enacting it.” ORS 95.300.

Other courts have universally rejected the narrow view of

“right to payment” and ripeness advocated by defendants.

See, e.g., Friedman v. Heart Inst. of Port St. Lucie, Inc.,

863 So 2d 189, 192 (Fla 2003) (explaining that, under the

UFTA, “ ‘claim’ is broadly constructed” and “as is univer-

sally accepted, as well as settled in Florida, ‘A “claim” under

the Act may be maintained even though “contingent” and

not yet reduced to judgment’ ”); Curtis v. James, 459 SW3d

471, 475 (Mo Ct App 2015) (explaining that, “under the plain

language of the statute, a creditor is not required to obtain a

judgment in order to pursue an action under the Act and the

circuit court misapplied the law in requiring otherwise”);

accord Foisie v. Worcester Polytechnic Inst., 967 F3d 27, 36 (1st

Cir 2020) (“[T]he controversy between the parties is of suffi-

cient immediacy and reality to warrant the issuance of the

judicial relief sought. The plaintiff’s underlying civil claims

684 Rowden v. Hogan Woods, LLC

are actively being litigated and, if she successfully prose-

cutes her fraudulent conveyance claims, various remedies

could be crafted to redress her injury regardless of whether

her civil claims have been reduced to judgment by that

time.” (Internal quotation marks and citations omitted.));

DFS Secured Healthcare Receivables Tr. v. Caregivers Great

Lakes, Inc., 384 F3d 338, 352 (7th Cir 2004), certified ques-

tion accepted sub nom DFS Secured Health Care Receivables

Tr. v. Caregivers Great Lakes, Inc., No 94S00-0410-CQ-447,

2004 WL 2307967 (Ind, Oct 14, 2004) (explaining that “the

fact that the appellants may dispute the claim would not

change DFS’s status as a ‘creditor’ ” under the plain text of

the UFTA); Nikko Materials USA, Inc. v. Navcom Def. Elecs.,

Inc., No CV054158JFWVBKX, 2014 WL 12700714 at *4 (CD

Cal, Jan 22, 2014) (rejecting a ripeness argument under the

UFTA and explaining that “there is no requirement under

the UFTA or case law that requires Gould to wait to pur-

sue its UFTA claim until its ‘right to payment’ is reduced to

judgment, liquidated, fixed, or mature, or until NDE fails

to make a payment”); Wells Fargo Bank, Nat. Assn. v. Iny,

No 2:13-CV-01561-MMD, 2014 WL 5364120 at *4 (D Nev,

Oct 21, 2014) (“By virtue of the clear language of the UFTA

provision in Nevada, the existence of a ‘disputed’ claim does

not bar this Court’s ability to consider Plaintiff’s fraudulent

transfer claims to allow Plaintiff to protect its ability to

recover once the disputed claim is resolved in its favor.”).

Based on the plain text of the statute, we conclude

that the UFTA recognizes a party’s right to seek relief when

a fraudulent transfer is made in the midst of dispute over

the right to payment, and the trial court therefore erred

in concluding that an unsatisfied judgment against Hogan

Woods, LLC, was a necessary precursor to plaintiffs’ UFTA

claim. Because the UFTA claim, together with the underly-

ing dispute between the parties, involves present facts and a

live controversy, we reverse the grant of summary judgment

on that claim.9

Reversed and remanded.

9

We express no opinion on the merits of the UFTA claim or veil-piercing

theory; the only issue before us is the trial court’s conclusion that they were

premature.

Cite as 306 Or App 658 (2020) 685

DeVORE, J., concurring in part, dissenting in

part.

Defendants contend that ORS 90.110(7) of the

Residential Landlord Tenant Act (RLTA) excepted plaintiffs

as resident employees from coverage of the act, citing our

decision in Montgomery v. Howard Johnson Inn, Gresham,

228 Or App 315, 322-23, 208 P3d 503 (2009). The majority

opinion responds that “defendants misconstrue the nature

of the exception and our holding in Montgomery.” 306 Or

App at 673. Defendants stress that plaintiffs were resident

managers at all times during their occupancy and that, as a

consequence of their employment and occupancy, plaintiffs

received rent credits and free electrical service under the

conditions of their employment compensation agreement.

No one disputes those facts. Yet, the majority opinion con-

cludes that this record does not permit the court to deter-

mine that the resident employee exception applies to these

resident managers. I disagree.

POINTS OF DISAGREEMENT

The majority opinion makes several statements on

its way to reaching its conclusion. Those statements posit

unresolved factual questions and presume the legal mean-

ing of ORS 90.110(7). I believe that those statements war-

rant examination.

First, the majority opinion observes, “Nothing in

the record clearly establishes that the ‘right to occupancy’ of

Unit 112 at Hogan Woods is limited to employees by virtue

of their work at Hogan Woods.” 306 Or App at 674. That fact,

according to the majority opinion, distinguishes this case

from Montgomery where the statutory exception applied.

Next, the majority opinion makes statements that

presuppose a keenly narrow view of the statutory exception.

The majority opinion posits that a factfinder might find

that plaintiffs rented, or perhaps could be deemed to have

rented, as ordinary tenants. 306 Or App at 674-75 (“The

question is whether defendants’ evidence compels a conclu-

sion that * * * plaintiffs’ right to occupancy was conditional

on their employment rather than a landlord-tenant relation-

ship.” (Emphasis added.)). The majority opinion declares

686 Rowden v. Hogan Woods, LLC

that defendants failed to show, as a matter of law, that

plaintiffs, after leaving employment, could not have stayed

on the property to rent just like ordinary tenants. Id. at

676 (“The evidence here does not similarly compel a conclu-

sion that the Rowdens would have been required to vacate

the premises—an apartment unit for tenants—had their

employment ended before they voluntarily left.”). The major-

ity opinion requires defendants to have shown, as a matter

of law, that plaintiffs would have been automatically evicted

when employment ended. Id. at 675 n 6 (“Contextually,

there is no indication that severance would have automat-

ically resulted in a loss of the right to occupancy at Hogan

Woods.”). Because defendants failed to rule out that possi-

bility, the majority opinion decides that defendants failed

to show, as a matter of law, that plaintiffs’ occupancy was

conditioned on their employment.

The majority opinion adds that plaintiffs’ employ-

ment agreement is “ambiguous as to whether it describes

a conditional right to occupancy as opposed to a conditional

rent credit.” Id. (emphasis added). The majority concedes a

rent credit is relevant but does not recognize the rent credit

nor other conditioned terms of plaintiffs’ employment agree-

ment to show that plaintiffs’ right to occupancy was con-

ditioned on their employment within the meaning of ORS

90.110(7).

RESIDENT EMPLOYEE EXCEPTION

The terms of the statute’s exception are straight-

forward and its purpose is easily discovered. In material

part, ORS 90.110(7) provides, “[T]he following arrange-

ments are not governed by this chapter: * * * (7) Occupancy

by an employee of a landlord whose right to occupancy is

conditional upon employment in and about the premises.”

Together with other listed exceptions, ORS 90.110 defines

the scope of Oregon’s RLTA.

To find the purpose of the resident employee excep-

tion, we may look to the commentary found in a model statute.

That is because Oregon’s RLTA is drawn from the Uniform

Residential Landlord and Tenant Act (URLTA). See Bellikka

v. Green, 306 Or 630, 637-38, 762 P2d 997 (1988) (referring to

the habitability provision of the URLTA, 7B Uniform Laws

Cite as 306 Or App 658 (2020) 687

Annotated, URLTA § 2.104); Montgomery, 228 Or App at 320

(referring to URLTA § 1.202). In Montgomery, we quoted the

exception’s purpose as expressed in that commentary:

“ ‘[The URLTA] regulates landlord-tenant relations in

residential properties. It is not intended to apply where res-

idence is incidental to another primary purpose such as res-

idence in a prison, a hospital or nursing home, a dormitory

owned and operated by a college or school, or residence by

a landlord’s employee such as a custodian, janitor, guard

or caretaker rendering services in or about the demised

premises.’ ”

228 Or App at 320 (quoting URLTA § 1.202 cmt (1972)

(emphases added)). In other words, the exception’s purpose

is to define the scope of the RLTA by distinguishing between

an ordinary tenant and the landlord’s employee, who resides

on the property.

In Montgomery, we referred to a dictionary for the

meaning of the particular term, “conditional,” when con-

sidering whether occupancy is “conditional” on occupancy

within the meaning of ORS 90.110(7). 228 Or App at 320.

We noted, “That adjective means among other things,

‘1: Containing, implying, subject to, or depending on a condi-

tion.’ ” Id. (quoting Webster’s Third New Int’l Dictionary 473

(unabridged ed 2002)). To explain that, we should now add

that, among other things, a “condition” is defined to mean

“something that exists as an occasion of something else” or

as “something that limits or modifies the existence or char-

acter of something else.” Webster’s at 473.

Before rushing to a conclusion about the meaning of

“conditional,” we should add that,

“[i]n construing statutes, we do not simply consult dictio-

naries and interpret words in a vacuum. Dictionaries, after

all, do not tell us what words mean, only what words can

mean, depending on their context and the particular man-

ner in which they are used.”

State v. Cloutier, 351 Or 68, 96, 261 P3d 1234, 1249 (2011)

(emphasis in original). Dictionaries do not “reveal what the

legislature in fact meant in the absence of some evidence

that the legislature consulted and relied on a particular defi-

nition of a particular dictionary at the time of enactment.”

688 Rowden v. Hogan Woods, LLC

State v. Holloway, 138 Or App 260, 265, 908 P2d 324 (1995).

Accordingly, we look for meaning in the wording, the context,

and the purpose of provision at issue. Cloutier, 351 Or at 96;

Holloway, 138 Or App at 265; see also State v. Ziska / Garza,

355 Or 799, 805, 334 P3d 964 (2014) (for the “sense the leg-

islature had in mind * * * we look to the terms of the statute

and how the words in dispute are used in context”).

Fortunately, we can know the sense in which

the legislature phrased the resident employee exception

because we know that Oregon’s RLTA “is a codification of

the URLTA,” Montgomery, 228 Or App at 320, and we have

the commentary to the exception. It explains that the act

“ ‘is not intended to apply where residence is incidental to

another primary purpose such as residence * * * [as a] care-

taker rendering services in or about the demised premises.’ ”

Id. (quoting URLTA § 1.202 cmt (emphasis added)). That

is the intended sense in which ORS 90.110(7) provides an

exception to the act’s coverage when the “right to occupancy”

of the premises by a landlord’s employee is “conditional upon

employment.” The occupancy is “something that exists as

an occasion of something else,” which is the employment.

Webster’s at 473. Put another way, employment is “some-

thing that limits or modifies the existence or character of

something else,” which is the occupancy. Id. The statutory

exception applies when occupancy “is incidental” to the

primary purpose as a “ ‘caretaker rendering services in or

about the demised premises.’ ” Montgomery, 228 Or App at

320 (quoting URLTA § 1.202 cmt).

With that understanding, the facts that are undis-

puted should be enough to apply ORS 90.110(7) as a matter

of law. We know that plaintiffs occupied the premises at all

times while serving as property managers. Each plaintiff

had an employment compensation agreement. The agree-

ments engaged each plaintiff as a “property manager” for

a stated salary plus “rent credit” in a stated figure and fur-

ther provided that the utility expense of electricity would be

paid by the employer. The agreements described the “duties

of personnel,” which included collecting rents and caring for

the property. Shunning a landlord-tenant relationship, the

agreements here declared, “Nothing herein shall be deemed

Cite as 306 Or App 658 (2020) 689

to create any relationship between the parties other that

[sic] an employment relationship, terminal at will by either

party.” In making the agreements, plaintiffs subscribed to

the following statement:

“I understand and agree to the above compensa-

tion package for the position I have been hired for. I also

understand that my apartment rent credit is a condition of

employment and that in the event that my employment ends

[sic] may be required to vacate immediately.”

(Emphases added.) We refer to this quoted provision as the

“condition term” of the employment agreement.

Recalling the terms of the statutory exception,

we should recognize that the “condition term” of plaintiffs’

employment agreement described their right to occupancy as

“something that exists as an occasion of something else,” i.e.,

their employment. Webster’s at 473. Considering the employ-

ment agreement as a whole, their occupancy was “inciden-

tal” to their primary purpose as a “ ‘caretaker rendering

services in or about the demised premises.’ ” Montgomery,

228 Or App at 320 (quoting URLTA § 1.202 cmt). Without

doubt, plaintiffs’ occupancy was tied to their employment.

Thus, their occupancy was “conditional” on their employ-

ment within the meaning of ORS 90.110(7).

COUNTERPOINTS

The majority opinion avoids that conclusion based

on the statements noted at the outset. I worry that the state-

ments may assume a misconception about ORS 90.110(7)

and the scope of the RLTA. I address them each in turn.

No doubt a genuine issue of material fact could pre-

clude summary judgment. ORCP 47 C. But it is immaterial

to say, as the majority opinion does, that “[n]othing in the

record clearly establishes that the “right to occupancy” of

Unit 112 at Hogan Woods is limited to employees by virtue

of their work at Hogan Woods.” 306 Or App at 674. Given the

purpose of the statutory exception, we should have agreed

that the exception serves to make a distinction between

ordinary tenants, who are covered by the RLTA, and res-

ident employees, who are excepted from the act. The stat-

ute’s focus is on the person in question. The focus is not on

690 Rowden v. Hogan Woods, LLC

any particular rental unit. In Montgomery, the resident

employee took two rooms in the Howard Johnson Inn—one

in which to live and one for storage. 228 Or App at 317. We

held that the resident employee exception applied, although

our decision there made no mention of any requirement that

the rooms needed to have been limited to employees. See

id. at 317-23. Presumably, under other circumstances, hotel

guests could have occupied the rooms, just as other tenants

might rent Unit 112 at other times.1

Of greater concern are statements of the majority

opinion that defendants failed to show, as a matter of law,

that plaintiffs’ right to occupancy was “conditional” on their

employment, because they failed to show that they could

not have stayed to rent like ordinary tenants. The majority

opinion assumes that defendants were required to show that

plaintiffs’ occupancy would have automatically and neces-

sarily ended with their employment. 306 Or App at 674-75,

676.

Surely it is not a genuine issue of material fact to

ask whether plaintiffs might have been able to arrange

to stay and rent the unit as ordinary tenants after their

employment terminated.2 That does not tell us whether

their occupancy at the relevant time was conditional on

employment. To pose a hypothetical question about a dif-

ferent set of facts is immaterial. The statute asks about the

arrangement at the time plaintiffs actually occupied the

premises. The statute asks whether the present occupancy

is “by an employee of a landlord whose right to occupancy is

conditional upon employment in and about the premises.”

ORS 90.110(7).

1

If the majority opinion intends to distinguish between an apartment and a

motel, I would agree that a guest in a motel does not fall within the ambit of the

RLTA, ORS 90.110(4), and that plaintiffs might have arranged to have been ordi-

nary tenants of an apartment. Yet, regardless whether the property is a motel

or apartment, it is plaintiffs’ role as “property managers” that matters to the

resident employee exception of ORS 90.110(7). It is a question of the relationship

between employment and occupancy, not a question about the nature of the prop-

erty. Consequently, Montgomery is not so easily distinguished.

2

As to that possibility, we observed in Montgomery, 228 Or App at 322:

“Nothing in ORS 90.110(7) itself suggests that an employer may not collect

rent from an employee who resides on the employer’s premises, and plaintiff

has not identified any other provision of the RLTA or any principle of Oregon

law that would prevent an employer from doing so.”

Cite as 306 Or App 658 (2020) 691

The employment agreement answers that question.

As we will see, the quoted provision makes the right to occu-

pancy “conditional” on employment, regardless whether the

termination of occupancy is automatic or elective. In rele-

vant part, plaintiffs subscribed to the term, providing “my

apartment rent credit is a condition of employment and that

in the event that my employment ends [sic] may be required

to vacate immediately.” In the absence of argument that the

term is ambiguous or evidence to respond to ambiguity, our

task to construe the condition term is a matter of law. See

Yogman v. Parrott, 325 Or 358, 361, 937 P2d 1019 (1997)

(determining whether a contract is ambiguous is a question

of law, and, when it is not ambiguous, construction of a con-

tract is a matter of law).

We should determine that the agreement provides

a condition that automatically terminates the “right” to

continued occupancy upon termination of employment. The

majority opinion acknowledges that the statement, “my

apartment rent credit is a condition of employment,” makes

a rent credit conditioned on employment. The clause about

a rent credit and the clause about vacating are part of the

same sentence. As such, they should be construed the same

way.

Even viewed in isolation, the clause about vacat-

ing indicates that plaintiffs’ “right to occupancy” is auto-

matically affected by termination of employment. That is so

because plaintiffs have agreed that they may be required to

vacate immediately. The phrase “may be required to vacate”

does not introduce uncertainty about the legal effect of that

term of the agreement. (Emphasis added.) They no longer

have a “right” to remain because they may be directed to

“vacate immediately.” Staying longer would only make

them the equivalent of a holdover tenant after expiration of

a lease. Their “right to occupancy” under the employment

agreement would have ended.

Even if plaintiffs’ occupancy did not terminate auto-

matically upon termination of employment, the “condition

term” indicates that the employer has reserved the right to

require plaintiffs to “vacate immediately” when employment

ends. At the least, that statement means that the employer

692 Rowden v. Hogan Woods, LLC

can decide that the end of employment means the end of

occupancy. That statement means that the plaintiffs’ “right

to occupancy” is gone and their ability to continue occu-

pancy is subject to a discretionary decision of the employer.

As a result, plaintiffs’ occupancy is no less conditioned than

if the occupancy ended automatically. The factual matter

whether the employer exercises the election does not change

the legal significance that such a condition exists. At the

least, it is a condition that is subject to being exercised, and,

even if the condition waits to be exercised, plaintiffs’ right

to occupancy is undeniably “conditional” on employment all

the same. In short, there is a condition tied to employment,

no matter how the quoted provision is construed.

The law of future estates provides an analogy to

show that occupancy is “conditional” on employment,

regardless which view of the “condition term” is taken—

whether automatic or elective. The majority view, requiring

an express and automatic termination of tenancy, is like

a devise of an estate in “fee simple determinable” where a

defeasible fee ends automatically on the happening of the

stated event. See Restatement (First) of Property § 44 (1936)

(In relevant part, a fee simple determinable “provides that

the estate shall automatically expire upon the occurrence of

a stated event.”). If, as the majority reads it, the employment

agreement only provides that the employer may require

plaintiffs to vacate when employment ends, then that is like

a “fee simple subject to a condition subsequent.” Restatement

§ 45 (In relevant part, a fee simple subject to a condition

subsequent “provides that upon the occurrence of a stated

event the conveyor or his successor in interest shall have

the power to terminate the estate so created.”). A fee sim-

ple subject to a condition subsequent requires a grantor to

act to exercise the condition; the grantor must “re-enter” to

end the present interest. Magness v. Kerr et al., 121 Or 373,

379, 254 P 1012 (1927); see also Wagner v. Wallowa County,

76 Or 453, 464, 148 P 1140 (1915) (a condition subsequent

requires “some affirmative act of the grantor or those who

represent him”). That is like the employer’s act to elect to

evict.

Even assuming that the employer must act to exer-

cise the “condition term,” it is still a condition that limits

Cite as 306 Or App 658 (2020) 693

plaintiffs’ “right to occupancy.” It does not matter whether

plaintiffs might have happened to have stayed on to rent as

ordinary tenants after their employment terminated. Given

the legal effect of their employment agreement, defendants

did not need to show that plaintiffs’ physical occupancy

would have terminated or that their employer would not

have acquiesced to allow them to stay to rent after employ-

ment ended. No matter how construed, their employment

agreement showed that their right to occupancy was “condi-

tional” on employment.

Finally, the majority opinion indicates that the

“condition term” of the employee agreement “is ambiguous

as to whether it describes a conditional right to occupancy

as opposed to a conditional rent credit.” 306 Or App at 675

(emphasis added). That statement suggests more of a dis-

tinction than a relationship between occupancy and a rent

credit. To clarify, the majority opinion adds, “A rent credit is

evidence of a link between employment and occupancy, but

the existence of a rent credit does not, by itself, transform

every occupancy into one that is conditional upon employ-

ment as a matter of law.” Id. at 677. I welcome the recognition

of the relevance of a rent credit as a condition of occupancy,

and I would agree that, standing alone, a rent credit might

not itself be dispositive,3 but I disagree with the majority

opinion’s isolation of the rent credit, rather than recognition

of it as part of the circumstances by which employment con-

ditioned plaintiffs’ occupancy.

Rent credits cannot be irrelevant to the question

whether occupancy is tied to the employment of resident

employees under ORS 90.110(7). Rent credits are likely the

financial means and the administrative device by which

resident employees become engaged as resident employ-

ees. For example, in Montgomery, the plaintiff was charged

for her rooms but received “an employee discount,” which

was calculated as earned by three eight-hour workdays for

each two-week pay period. 228 Or App at 317. And, when

3

I certainly agree that not every situation in which a tenant trades labor

for a rent discount makes a tenant a resident employee within the meaning of

ORS 90.110(7). Such an incidental arrangement would stand alone free of any

condition whereby the landlord reserves the right to require the tenant to vacate

immediately upon termination of the tenant’s services.

694 Rowden v. Hogan Woods, LLC

employment ended, the employer charged her the full costs

of her rooms. Id. at 318. Her employee discount was part

of the complex of facts, including the plaintiff’s termination

and ejection, by which we determined that the employee

exception applied.4 Id. at 317-21. The plaintiff argued that,

because she paid some rent, the statutory exception should

not apply. Id. at 321-22. We rejected the argument that pay-

ing partial rent (subject to a discount) avoided the resident

employee exception. We held that the trial court did not err

when dismissing plaintiff’s claim under ORCP 54 B(2) for

failure to present a prima facie case. Id. at 317, 322-23. The

case was resolved, not as a dispute of fact, but as a matter of

law under ORS 90.110(7).

In our case at hand, the majority opinion concedes

that the rent credit is relevant. After all, evidence of a rent

credit is evidence that has a tendency to show how employ-

ment relates to occupancy. See OEC 401 (evidence having

any tendency to make the existence of a fact more or less

probable is relevant); OEC 402 (relevant evidence is admis-

sible). It helps to show “something that limits or modifies the

existence or character of something else.” Webster’s at 473.

However, evidence of the rent credit does not stand alone; it

is part and parcel of an employment agreement that condi-

tions the right to occupancy on employment.

Even if considered alone, the rent credit and free

electrical service are significant because they were explicitly

conditioned upon employment. As such, they were financial

devices used to further plaintiff’s occupancy and employ-

ment as property managers. Therefore, the statement—“my

rent credit is a condition of employment”—is undeniable evi-

dence that plaintiffs’ occupancy was “conditional” on their

employment.

Critically, the rent credit was one part of the

employment agreement that did not stand alone. It was part

of a statement that provided: “I also understand that * * *

in the event that my employment ends [sic] may be required

4

The fact that, in our case, plaintiffs moved out before employment ended,

whereas the plaintiff in Montgomery was locked out when employment ended, is

a factual distinction in the tales of the two cases, but it should make not a legal

difference due to the terms of plaintiffs’ employment agreement.

Cite as 306 Or App 658 (2020) 695

to vacate immediately.” As discussed, the second part of the

statement also imposed a condition. That second part of

the statement was in effect the moment plaintiffs signed

the agreement; the effect of the statement was triggered

by termination of employment; it ended any prior “right”

to continued occupancy; and it permitted the employer

to elect to force plaintiffs to vacate “immediately.” Taken

together, the rent credit and the employer’s option to oust

served, from the outset, to condition occupancy on employ-

ment, as a matter of law. Thus, the employment agreement

is a condition on the “right to occupancy” no matter how

construed.

In my opinion, the conclusion that the employee

exception governs here is inescapable. Construction of

the employment agreement is a matter of law, not a gen-

uine dispute of material fact. See Yogman, 325 Or at 361

(absent offering of evidence on ambiguous terms, a contract

is construed as a matter of law). As a result, ORS 90.110(7)

provides an alternate basis for the trial court’s dismissal

of plaintiffs’ RLTA claims—one that defendants urged in

the trial court but the court did not reach. See Brewer v.

Dept. of Fish and Wildlife, 167 Or App 173, 180-81, 2 P3d

418 (2000) (an appellate court may affirm a ruling of the

trial court on grounds different from those on which the

court relied, provided there is evidence in the record to

support the alternative ground); see also State v. Lovaina-

Burmudez, 257 Or App 1, 14, 303 P3d 988 (2013) (no

remand for issue presented below if the remand would be

gratuitous).

CONCURRENCE

The majority opinion makes substantial develop-

ments in Oregon law. Among them, I concur in the rejec-

tion of issue preclusion because the causation standard of

workers’ compensation is distinguishable. I concur in the

major development allowing plaintiffs’ claim to pierce the

corporate veil at the same time as the underlying, princi-

pal claims. And, I concur in the easier determination that

plaintiffs may do the same with their fraudulent trans-

fer claim. The majority opinion will guide many cases to

follow.

696 Rowden v. Hogan Woods, LLC

CONCLUSION

Because I fear that the majority opinion miscon-

strues the resident employee exception of the RLTA, I dis-

sent. I concur in all other aspects of the opinion of this court.