BEYERLEIN v. WOLF CREEK GROW LLC (2026)

Plaintiff filed an action against defendant Wolf Creek Grow, LLC, and its members asserting claims arising from an alleged oral partnership agreement to operate a business to grow and sell marijuana. In his second amended complaint, plaintiff alleged six claims for relief, five based on the alleged partnership agreement and one based on defendants’ alleged interference with plaintiff's economic relations with a third party. In their answer, defendants denied plaintiff's claims and asserted a number of defenses, including a defense of accord and satisfaction.

Defendants moved for summary judgment on plaintiff's claims, based principally on the contention that, although the parties had jointly engaged for a number of months in a business to grow and sell marijuana, they had failed to reach agreement on the essential terms of the parties’ purported partnership agreement and, hence, plaintiff could not prevail on his claims based on the purported partnership. In their motion, defendants also asserted that they were entitled to summary judgment on four of plaintiff's five partnership-related claims under their accord-and-satisfaction defense.

Plaintiff opposed defendants’ motion, arguing, among other things, that the evidence in the summary judgment record would support a finding that plaintiff and defendants had entered into an association to operate, for profit, a business to grow and sell marijuana, thereby establishing that there were triable issues of fact on plaintiff's partnership-related claims. Plaintiff further contended that the terms that defendants identified on which the parties had not reached agreement were not terms essential to the formation of an enforceable partnership agreement. Plaintiff also argued that the defense of accord and satisfaction presented factual issues that could not be resolved on summary judgment.

The trial court granted defendants’ motion for summary judgment on all of plaintiff's claims. As to plaintiff's five partnership-related claims, the court agreed with defendants that the record established that the parties had failed to reach agreement on the essential terms of the purported partnership agreement and, hence, plaintiff could not prevail on those claims. The court also concluded that defendants were entitled to summary judgment on plaintiff's five partnership-related claims on the alternative ground that a $431,000 payment from defendant Wolf Creek Grow, LLC, to plaintiff when defendants terminated their business relationship with plaintiff constituted an accord and satisfaction of those claims.¹ Finally, the court granted summary judgment to defendants on plaintiff's claim for interference with plaintiff's economic relations with a third party. The court thereafter entered a limited judgment dismissing plaintiff's claims, from which plaintiff appealed.²

In his opening brief on appeal, plaintiff assigns error to the grant of summary judgment on his partnership-related claims but not on his claim for interference with economic relations. As he did below, he argues that the record established that there were triable issues of fact on whether the parties had entered into an enforceable partnership agreement to operate a business to grow and sell marijuana and, hence, that the trial court had erred in granting summary judgment to defendants on those claims. However, plaintiff did not acknowledge in his opening brief that the trial court had granted summary judgment on those claims on the alternative ground that the parties had entered into an accord and satisfaction on the claims, and he makes no argument that the court erred in granting summary judgment on that basis.

In their responsive brief on appeal, defendants first argue that plaintiff's failure to challenge in his opening brief the alternative ground on which the trial court had granted summary judgment on plaintiff's partnership-related claims—viz, that defendants were entitled to summary judgment on those claims based on their defense of accord and satisfaction—means that we are required to affirm the grant of summary judgment on those claims. See, e.g., City of Troutdale v. Palace Construction Corp., 293 Or App 785, 788, 429 P3d 1042 (2018); Federal National Mortgage Association v. Goodrich, 275 Or App 77, 86, 364 P3d 696 (2015); Belgarde v. Linn, 205 Or App 433, 438, 134 P3d 1082, rev. den., 341 Or 197 (2006); Roop v. Parker Northwest Paving Co., 194 Or App 219, 236, 94 P3d 885, rev. den., 338 Or 374 (2004). They also argue that the trial court correctly concluded that the record established that the parties had failed to reach agreement on the essential terms of their purported partnership agreement and, hence, that the court had correctly granted summary judgment to defendants on plaintiff's partnership-related claims.

In his reply brief, plaintiff acknowledges that he did not expressly challenge in his opening brief the trial court's alternative ruling that defendants were entitled to summary judgment based on the defense of accord and satisfaction, but he presents arguments against the alternative ruling that he contends can be considered by us notwithstanding his failure to raise them in his opening brief. We are not persuaded. The arguments raised by plaintiff in his reply brief against the alternative ruling are arguments that could have been and, under our case law, had to have been raised in his opening brief for us to consider them. Plaintiff's failure to challenge in his opening brief the court's alternative basis to grant summary judgment to defendants requires us to affirm the grant of summary judgment. See, e.g., City of Troutdale, 293 Or App at 789-90; Federal National Mortgage Association, 275 Or App at 86.

Affirmed.

FOOTNOTES

1.   Defendants moved for summary judgment on their defense of accord and satisfaction on four of plaintiff's five partnership-based claims, but, in granting summary judgment, the court stated that it was granting summary judgment on that defense on all five of the partnership-based claims.

2.   The court entered a limited judgment because defendant Wolf Creek Grow, LLC, had filed a counterclaim against plaintiff that remained to be tried and, hence, prevented the entry of a general judgment in the case.

ARMSTRONG, S. J.