Moyer v. Columbia State Bank

                                      393

    Argued and submitted January 17, 2020; limited judgment dismissing
    plaintiffs’ sixth claim for relief against defendant Columbia State Bank
  reversed and remanded, otherwise affirmed December 15, 2021; petition for
                      review denied May 5, 2022 (

)


                     Thomas P. MOYER, Jr.;
                Colleen Moyer Thrift; Ian Moyer;
                 Patrick Moyer; Michael Thrift;
                       and Ashley Craven,
                      Plaintiffs-Appellants,
                                 v.
                  COLUMBIA STATE BANK,
                 a Washington chartered bank;
               Miller Nash Graham & Dunn LLP,
             an Oregon limited liability partnership;
                      and Duffy Kekel LLP,
             an Oregon limited liability partnership,
                    Defendants-Respondents,
                               and
                   FIRST REPUBLIC BANK,
                  a California chartered bank,
               dba First Republic Trust Company,
                           Defendant.
                Multnomah County Circuit Court
                      16CV39229; A168182
                                   

     Plaintiffs appeal from a limited judgment dismissing their third amended
complaint against defendants Columbia State Bank (Columbia State), Miller
Nash Graham & Dunn LLP (Miller Nash), and Duffy Kekel LLP (Duffy Kekel).
Plaintiffs raise 10 assignments of error, all contending that the trial court erred
as a matter of law when it concluded that plaintiffs had not stated ultimate facts
sufficient to constitute their claims. Held: The trial court erred in dismissing
plaintiffs’ sixth claim for relief for breach of contract against Columbia State,
because plaintiffs sufficiently alleged ultimate facts constituting a claim for
relief to survive a motion to dismiss. However, the trial court did not err in dis-
missing any of the other claims for relief against either Columbia State or the law
firm defendants, Miller Nash and Duffy Kekel.
   Limited judgment dismissing plaintiffs’ sixth claim for relief against defen-
dant Columbia State Bank reversed and remanded; otherwise affirmed.



    Leslie G. Bottomly, Judge.
394                        Moyer v. Columbia State Bank

   John W. Stephens argued the cause for appellants. Also
on the briefs was Esler Stephens & Buckley LLP.
   Paul Southwick argued the cause for respondent Columbia
State Bank. Also on the brief were John F. McGrory, Jr.,
Ashlee Aguiar, and Davis Wright Tremaine LLP.
   Peter R. Mersereau argued the cause for respondent
Miller Nash Graham & Dunn LLP. Also on the brief were
Blake H. Fry and Mersereau Shannon LLP.
  Brian R. Talcott argued the cause for respondent Duffy
Kekel LLP. Also on the brief were Elizabeth C. Knight and
Dunn Carney Allen Higgins & Tongue LLP.
  Before Ortega, Presiding Judge, and DeHoog, Judge, and
Shorr, Judge.
  SHORR, J.
   Limited judgment dismissing plaintiffs’ sixth claim for
relief against defendant Columbia State Bank reversed and
remanded; otherwise affirmed.
Cite as 

 (2021)                                              395

           SHORR, J.
          Plaintiffs appeal from a limited judgment dismiss-
ing their third amended complaint against defendants
Columbia State Bank (Columbia State), Miller Nash
Graham & Dunn LLP (Miller Nash), and Duffy Kekel LLP
(Duffy Kekel). Plaintiffs raise 10 assignments of error. For
the reasons discussed below, we agree with plaintiffs on
their first assignment of error, which contends that the trial
court erred in dismissing plaintiffs’ breach of contract claim
against Columbia State. As we discuss, however, we reject
plaintiffs’ second through eighth assignments of error.
Finally, we reject plaintiffs’ ninth and tenth assignments
of error without discussion. As a result, we reverse the
limited judgment to the extent that it dismisses plaintiffs’
sixth claim for relief for breach of contract against Columbia
State and remand for further proceedings on that claim, but
we otherwise affirm the limited judgment’s dismissal of all
other claims.
         When we review a trial court’s decision to dismiss
a complaint for failure to state ultimate facts sufficient to
constitute a claim pursuant to ORCP 21 A(8), “we assume
that all well-pleaded facts are true and give plaintiff the
benefit of all favorable inferences that reasonably may be
drawn from those factual allegations.” Piazza v. Kellim, 

, 

 (2016).1 We state the facts in accor-
dance with that standard.
   I. THE BACKGROUND TO THIS DISPUTE AND
 PLAINTIFFS’ ALLEGATIONS AGAINST DEFENDANTS
A. Proceedings Leading to the Stipulated Limited Judgment
   Resolving the Thomas P. Moyer Sr. Conservatorship
   Litigation
        This case is one of a number of disputes involving
family members of the late Thomas P. Moyer Sr. that relate
to his or various family trust assets. See, e.g., Hawkins v.
    1
      The complaint in this case was attached to, and incorporated by reference,
a number of letters and filings related to a conservatorship proceeding involving
Thomas P. Moyer Sr. All parties treat those documents as part of the complaint.
As a result, our standard of review also applies to the documents incorporated
into the complaint. Kutz v. Lee, 

, 

 (2018).
396                            Moyer v. Columbia State Bank

1000 Limited Partnership, 

, 

 (2016), rev den, 

 (2017) (describing an “inter-
family dispute” regarding the ownership and management
of the 1000 Broadway Building, developed by Moyer Sr.).
During his lifetime, Moyer Sr. was a real estate developer in
the Portland area. 

.

         Plaintiffs are several (but not all) of Moyer Sr.’s chil-
dren and grandchildren. The current litigation arose after
Moyer Sr. was diagnosed with advanced Alzheimer’s disease
in 2010. Moyer Sr. had previously established a trust, the
Thomas P. Moyer Revocable Living Trust, dated July 25,
2007 (Trust). Plaintiffs allege that the Trust was to be
administered for the benefit of Moyer Sr. during his lifetime,
and then, following his death, for his four children and 13
grandchildren. The Trust was revocable during Moyer Sr.’s
lifetime but became irrevocable upon his death. In July 2010,
Moyer Sr. resigned as trustee of the Trust and appointed
First Republic Trust Co. (First Republic) as the new trustee.

         In 2012, two of the plaintiffs to this dispute, Thomas
Moyer Jr. and Colleen Moyer Thrift, as well as a third
child of Moyer Sr., Tim Moyer, petitioned the Multnomah
County Circuit Court for appointment of a conservator and
a guardian for Moyer Sr. due to his Alzheimer’s diagnosis.
They claimed that a conservator was necessary to “evaluate
whether any actions can be taken to minimize [the estate’s]
tax burden, and to take such actions if deemed appropri-
ate.” Plaintiffs ultimately wanted a third-party professional
to oversee gifts that could also reduce the tax burden on
Moyer Sr.’s estate upon his death. Moyer Sr. and his daugh-
ter Kimberly Moyer filed objections to the petition. First
Republic, the trustee to the Trust, also filed an objection.

         As part of a process to resolve the conservatorship
petition, John Draneas, the attorney for, among others,
plaintiffs Thomas Moyer Jr. and Colleen Thrift, engaged in
deliberations with the attorneys for the various interested,
but not all named, parties to that proceeding. Draneas
engaged in substantive exchanges about the conservator-
ship proceeding with the attorney for Moyer Sr., as well as
defendant Duffy Kekel, the law firm representing defendant
Cite as 

 (2021)                                                397

First Republic.2 Some of those exchanges were reflected in
various correspondence circulated among the attorneys.
Plaintiffs contend that defendant Miller Nash, the attor-
ney for Columbia State, was also provided with some of this
information, and that Miller Nash and Columbia State,
among others, were part of the discussions to resolve the
conservatorship proceeding.
         Ultimately, following a negotiation among the inter-
ested parties, defendant Columbia State was appointed by
the court, pursuant to a Stipulated Limited Judgment, as a
“Special Fiduciary” under ORS 125.010(3)(d) and a “Special
Representative” under ORS 130.120 on behalf of Moyer Sr.
The Stipulated Limited Judgment empowered Columbia
State to “make gifts * * * and otherwise engage in estate
planning on behalf of Mr. Moyer [Sr.]” and provided that
the “aggregate gifts made by the Special Fiduciary shall not
exceed $60,000,000 in value” without prior court approval.
It authorized First Republic to make distributions from the
Trust for estate planning and gifting purposes. It also pro-
vided that Columbia State would be paid out of the Trust
and that Columbia State would engage Miller Nash to pro-
vide legal services to it in its capacity as special representa-
tive and special fiduciary.
B.    Plaintiffs allege defendants directly promised plaintiffs
      that defendants would carry out estate planning propos-
      als to reduce Moyer Sr.’s estate taxes and direct gifts for
      the benefit of the Trust beneficiaries.
         Plaintiffs contend that in the course of negotia-
tions that led to that Stipulated Limited Judgment, and as
reflected in that judgment, defendants made certain direct
promises to plaintiffs. It is those direct promises that plain-
tiffs contend are the basis for their breach of contract claims
against defendants. The precise nature of some of those
alleged promises is hard to pin down. However, we under-
stand plaintiffs to allege certain express promises made by
First Republic, Columbia State, and Duffy Kekel to plain-
tiffs, which all boil down to the following allegation that is

    2
      First Republic was a named defendant in the trial court litigation but is not
a party to this appeal.
398                                   Moyer v. Columbia State Bank

repeated either verbatim or in similar form throughout plain-
tiffs’ complaint: namely, that those defendants had prom-
ised “to develop and carry out (implement) estate planning
proposals for Mr. [Moyer Sr.]’s estate with the objective (to
accomplish the result) of minimizing the transfer taxes that
might become due upon the death of Mr. Moyer [Sr.].”3 What
those specific proposals were to be is left somewhat vague
in the complaint. Plaintiffs contend that First Republic and
Columbia State purportedly promised to implement estate
planning proposals that would “involve aggregate taxable
gifts in an amount between $38 million to $60 million and
result[ ] in an estimated transfer tax savings of $9.6 million
to $20 million.” Plaintiffs then list general procedures that
First Republic and Columbia State promised to undertake,
such as engaging in a comprehensive review of Moyer Sr.’s
estate and then identifying and implementing estate plan-
ning techniques to accomplish those savings. Plaintiffs also
contend that those defendants were to work with plaintiffs’
attorney to accomplish the foregoing.
         In support of their “direct” breach of contract claims,
plaintiffs also generally rely on alleged “implied” promises
that plaintiffs claim defendants made in the course of and
perhaps following the negotiations that led to the resolu-
tion of the conservatorship proceeding that resulted in the
Stipulated Limited Judgment. Plaintiffs incorporate into
their complaint various correspondence between plaintiffs’
lawyer and either Moyer Sr.’s lawyer or First Republic’s law-
yers, Duffy Kekel. Plaintiffs do not allege any specific gifts
or tax savings measures that any defendant promised to
undertake or assist with.
         Plaintiffs point to an August 28, 2012, letter from
Duffy Kekel sent on behalf of its client First Republic to
plaintiffs’ lawyer that mentions that “we are considering
several possible transactions.” After listing those considered
transactions, the letter notes that, “[u]ltimately, the decision
to adopt one of these proposals, or to adopt other proposals,
lies with the parties who have previously been designated by
    3
      Duffy Kekel contends that plaintiffs never clearly allege that Duffy Kekel
made any express or implied promise to plaintiffs to implement estate planning
to minimize transfer taxes. However, as we discuss below, we do not need to
resolve that issue.
Cite as 

 (2021)                             399

Mr. Moyer [Sr.] to carry out his estate plan, but we neverthe-
less wish to receive your comments.” Plaintiffs allege that
the Stipulated Limited Judgment provided Columbia State
with the power to “make gifts, create trusts, and otherwise
engage in estate planning on behalf of Mr. Moyer [Sr.] * * *
consistent with Mr. [Moyer Sr.]’s existing estate plan as
embodied in the Trust.” The judgment provided that “[t]he
aggregate gifts made by [Columbia State] shall not exceed
$60,000,000 in value” and that First Republic was autho-
rized to make distributions from the Trust to Columbia
State for estate planning and gifting, subject to the consent
of Columbia State. In their briefing to us, plaintiffs acknowl-
edge that the judgment “did not specify specific actions to be
taken because it was up to First Republic/Duffy Kekel and
Columbia State/Miller Nash (not the Court) to develop and
implement the specific estate planning proposals, with the
assistance of plaintiff’s [sic] lawyers.”
         Plaintiffs allege that, after the entry of the judg-
ment, defendants “acted to develop and carry out (imple-
ment) only one estate planning proposal for Mr. [Moyer Sr.]’s
estate that had the objective of reducing the transfer taxes
that might become due upon the death of Mr. Moyer [Sr.],”
namely a proposal concerning a Moyer-related entity called
D. Park Corp. (Underscore in original.) We do not need to
explain that complex transaction in detail. In the end, some
“mirror-image trusts” that benefited Moyer Sr.’s children
and other beneficiaries were established and funded with
nonvoting shares of D. Park Corp. Plaintiffs allege that a
transfer of voting shares would have been more beneficial
towards reducing the estate taxes, and claim that they pro-
posed that to defendants. Plaintiffs claim that defendants
rejected that proposal, and allege that their “proposed
improvements by (on behalf of) plaintiffs were just that:
proposals.” Plaintiffs maintain that defendants “had prom-
ised and were under a duty, independent of any proposals by
plaintiffs, to develop and carry out (implement) estate plan-
ning proposals for Mr. [Moyer Sr.]’s estate with the objective
(to accomplish the result) of minimizing the transfer taxes
that might become due upon the death of [Moyer Sr.,] all for
the benefit of plaintiffs and of the other beneficiaries of the
Trust.” Ultimately, Moyer Sr. died on November 28, 2014,
400                           Moyer v. Columbia State Bank

when, plaintiffs allege, only two other proposals that reduced
transfer taxes had been completed. Plaintiffs assign blame
to defendants for not completing further transactions.
         Because it is relevant to our analysis below, we also
summarize the allegations that plaintiffs contend support
the consideration element of their direct breach of contract
claims. Plaintiffs allege that they agreed to the appoint-
ment of Columbia State as a special fiduciary and special
representative to Moyer Sr. in reliance on Columbia State’s
promises to develop and carry out estate planning proposals
that would minimize the transfer taxes owed by the estate.
Plaintiffs also allege that Columbia State accepted that
appointment contingent upon approval by the court. With
respect to defendants Columbia State and Duffy Kekel,
plaintiffs also allege, in general terms, that they “received
consideration for the promises” such that each was to be
compensated and was compensated by the Trust “for devel-
oping and carrying out (implementing) estate planning
proposals.”
C. Plaintiffs allege that they were the indirect beneficiaries
   of promises made by defendants to Moyer Sr. and others
   to reduce estate taxes and provide gifts for the benefit of
   the Trust beneficiaries.
          In addition to plaintiffs’ allegations that certain
defendants made direct promises to them, plaintiffs also
contend that they were the beneficiaries of indirect prom-
ises made by defendants to other parties as to which plain-
tiffs allege that they were the intended beneficiaries. As to
Columbia State, plaintiffs point to allegations that Columbia
State promised to Moyer Sr. (and perhaps to First Republic
as well) that it would “develop and carry out (implement)
estate planning proposals for [Moyer Sr.’s] estate with the
objective (to accomplish the result) of minimizing the trans-
fer taxes that might become due upon the death of [Moyer
Sr.].” As to Duffy Kekel, plaintiffs allege that the firm prom-
ised its client First Republic that Duffy Kekel would “pro-
vide legal services to assist First Republic in the discharge
of its promises and duties” to minimize taxes, such “prom-
ised performance being for the intended benefit of plaintiffs”
and other Trust beneficiaries. As to Miller Nash, plaintiffs
Cite as 

 (2021)                             401

similarly point to Miller Nash’s alleged promise to its client
Columbia State to provide legal services to assist Columbia
State in the discharge of its similar promises and duties
that were alleged to have been intended to benefit plaintiffs.
Plaintiffs contend that the law firms were to provide legal
services to assist their clients in implementing estate plan-
ning proposals that were to involve “aggregate taxable gifts
in an amount between $38 million to $60 million and result-
ing in an estimated transfer tax savings of $9.6 million to
$20 million.”
     II. THE PROCEDURAL HISTORY AND THE
              MOTIONS TO DISMISS
          Certain defendants moved to dismiss plaintiffs’
first, second, and third amended complaints. The trial court
granted the motions to dismiss the first and second amended
complaints, which initially only pleaded claims for negli-
gence, but permitted plaintiffs the opportunity to replead
each time. The trial court dismissed the complaints because
it concluded that plaintiffs had not alleged a specific enough
promise by defendants such that defendants had under-
taken a legal duty to protect plaintiffs for which they could
be held liable for negligence. Plaintiffs then filed a third
amended complaint that added the breach of contract claims
against defendants. As discussed above, plaintiffs asserted
breach of contract claims that alleged that defendants had
made direct promises to plaintiffs that defendants had
then breached. Plaintiffs also alleged that defendants had
entered into contracts with others for which plaintiffs were
the indirect but intended beneficiaries. Those claims largely
restated the same allegations that had formed the basis
for the previously dismissed negligence claims. Defendants
to this appeal moved to dismiss that third amended
complaint.
          The trial court granted the motion to dismiss the
third amended complaint with prejudice. The court did not
issue a ruling from the bench or write an opinion. Rather,
the trial court issued an order generally dismissing plain-
tiffs’ third amended complaint against defendants Columbia
State, Miller Nash, and Duffy Kekel with prejudice, and then
later entered a limited judgment dismissing the defendants
402                                    Moyer v. Columbia State Bank

to this appeal.4 As noted, plaintiffs appeal from that limited
judgment.
                       III.    LEGAL ANALYSIS
        “We review the trial court’s grant of the motion to
dismiss for failure to state a claim for legal error.” Skille
v. Martinez, 

, 210, 

, adh’d to as
modified on recons, 

, 

 (2017). The
Oregon Rules of Civil Procedure require only that a com-
plaint contain a “plain and concise statement of the ulti-
mate facts constituting a claim for relief.” ORCP 18 A.
         We divide our legal analysis into two primary sec-
tions. First, we address what we have referred to as the
direct breach of contract claims, which were based on prom-
ises that plaintiffs claim were made directly to them. Those
claims relate to plaintiffs’ first and second assignments of
error. Second, we discuss together the third-party benefi-
ciary contract and negligence claims, which are all primar-
ily based on the notion that defendants made promises to
third parties that were intended to benefit plaintiffs such
that the promises created a legal duty that defendants then
owed to plaintiffs. Those claims relate to plaintiffs’ third,
fourth, fifth, and seventh assignments of error. We also
briefly address plaintiffs’ sixth and eighth assignments of
error, which involve claims based on an alleged “special
relationship” between plaintiffs and Columbia State and
Duffy Kekel, within that second section.
A.    The Direct Breach of Contract Claims: Plaintiffs’ First
      and Second Assignments of Error
         “To state a claim for breach of contract, plaintiff
must allege the existence of a contract, its relevant terms,
plaintiff’s full performance and lack of breach[,] and defen-
dant’s breach resulting in damage to plaintiff.” Slover v.
State Board of Clinical Social Workers, 

,
    4
      Plaintiffs’ nearly identical claims against defendant First Republic contin-
ued to be litigated through summary judgment. The trial court later granted
summary judgment to First Republic and dismissed those claims as well. We
recently affirmed that grant of summary judgment in Moyer v. Columbia State
Bank, 

, 

 (2021). A more extensive background
of the facts relating to the overall dispute, albeit in the context of a summary-
judgment motion, is set forth in that opinion.
Cite as 

 (2021)                             403

 (1996) (internal quotation marks omitted). A
contract is “most commonly formed by an offer, an accep-
tance of that offer, and an exchange of consideration.” Moro
v. State of Oregon, 

, 

 (2015). A plain-
tiff must plead consideration. See Kornbrodt v. Equitable
Trust Co., 

, 

 (1931) (stating that
“consideration must be proved, and consequently it should
be stated”). “A claim will survive a motion to dismiss if the
complaint contains even vague allegations of all material
facts.” Slover, 

 (internal quotation marks
omitted). Plaintiffs contend that their sixth and eighth
claims pleaded sufficient ultimate facts to state breach of
contract claims against Columbia State and Duffy Kekel,
respectively, to survive the motions to dismiss.

          We address the allegations as to defendants
Columbia State and Duffy Kekel separately, because the
alleged contracts, while sharing some general terms, are
distinct. Columbia State, for its part, contends that plain-
tiffs’ breach of contract claim fails to allege that there was
any offer and acceptance communicated between the par-
ties, any consideration exchanged, or any contention that
Columbia State caused plaintiffs any damages. We address
each argument in turn and ultimately conclude that plain-
tiffs have sufficiently alleged the elements of a breach of
contract claim against Columbia State. Any further dispute
about the evidence in support of that contract is an issue of
fact that can be addressed in further proceedings.

         Columbia State first contends that plaintiffs do not
allege that Columbia State made a promise or offer that
plaintiffs accepted. Plaintiffs’ response is two-fold. Plain-
tiffs contend that they must only plead the existence of a
contract and not the underlying elements of contract forma-
tion such as offer and acceptance. Alternatively, plaintiffs
contend that they have alleged an offer and acceptance. On
the first point, the parties do not direct us to any case law
that clearly decides whether a plaintiff, in alleging the exis-
tence of a contract, also has to allege an underlying offer
and acceptance that led to the contract’s formation. We
need not address that question here, because we agree with
plaintiffs’ alternative argument that they have sufficiently
404                                   Moyer v. Columbia State Bank

alleged that Columbia State made promises to plaintiffs
that plaintiffs accepted. Plaintiffs allege that:
   “Columbia State expressly and impliedly promised to * * *
   plaintiffs Tom Moyer, Jr. and Colleen Thrift * * * to develop
   and carry out (implement) estate planning proposals for
   Mr. [Moyer Sr.]’s estate with the objective (to accomplish
   the result) of minimizing the transfer taxes that might
   become due upon the death of Mr. Moyer [Sr].”
Plaintiffs further allege that they accepted that offer and
agreed in exchange to the appointment of Columbia State as
a special fiduciary and special representative:
      “In reliance upon First Republic and Columbia State’s
   promises to develop and carry out (implement) estate plan-
   ning proposals for Mr. [Moyer Sr.]’s estate to minimize the
   transfer taxes that might become due upon the death of
   Mr. Moyer [Sr.] (all for the benefit of plaintiffs and the other
   beneficiaries of the Trust), plaintiffs agreed to the entry of
   the Limited Stipulated Judgment, [and] the appointment
   of Columbia State Bank as Special Fiduciary and Special
   Representative of the Trust.”5
Plaintiffs allege that they accepted Columbia State’s offer
by resolving the conservatorship litigation and accepting
Columbia State’s appointment and its corresponding duty,
at least as alleged by plaintiffs, to develop and carry out
certain estate proposals to benefit the estate and plaintiffs.
Plaintiffs also allege that Columbia State “accepted the
nomination as Special Representative and Special Fiduciary
and consented to serve if appointed by the Court.”
          Columbia State contends that plaintiffs do not suf-
ficiently allege the details of the formation of that contract,
arguing, among other things, that the documents attached
to the complaint do not prove any direct or even implied
promises made from Columbia State to plaintiffs. Columbia
State also notes that it was not even alleged to have been
a party to the conservatorship litigation between plaintiffs

    5
      Plaintiffs often refer to Columbia State in its complaint as the special
representative and special fiduciary “of the Trust,” but they also attach docu-
ments from the conservatorship proceeding, including the Stipulated Limited
Judgment, that refer to Columbia State as the special representative and special
fiduciary for Moyer Sr.
Cite as 

 (2021)                            405

and Moyer Sr. nor an entity directly involved with plaintiffs
in the negotiated resolution of that litigation. Ultimately,
however, we understand Columbia State’s argument to
contend that plaintiffs must plead further evidence to sup-
port the breach of contract claim. We conclude that no such
further detail nor supporting evidence was required at the
pleading stage of these proceedings. Plaintiffs must plead
ultimate facts, as they do here, and not merely state legal
conclusions. Fearing v. Bucher, 

, 

 (1999). But they are not required under ORCP 18 A
to allege evidence. See ORCP 18 A (requiring only a “plain
and concise statement of the ultimate facts constituting the
claim”).
         For similar reasons, we also conclude that plaintiffs
have alleged sufficient consideration exchanged between
the parties. Consideration is “some right, interest, profit or
benefit or some forbearance, detriment, loss or responsibil-
ity given, suffered or undertaken by the other.” Homestyle
Direct, LLC v. DHS, 

, 

 (2013);
see also Restatement (Second) of Contracts § 71(2) (1981)
(defining “consideration” as a performance or return prom-
ise “sought by the promisor in exchange for his promise”
and “given by the promisee in exchange for that promise”).
Consideration is “the basis for a bargain that two parties
reach; it is what is sought by the promisor in exchange for
a promise and given by the promisee in exchange for the
promise.” State v. Villagomez, 

, 

(2018).
         Although the allegations are not clear as to any pre-
cise conversations between plaintiffs and Columbia State,
we must draw all reasonable inferences in favor of plaintiffs
at this stage. We conclude that plaintiffs have adequately
alleged consideration based on the allegations discussed
above—namely, that Columbia State promised to under-
take certain tax saving measures for the Trust that would
benefit plaintiffs in exchange for plaintiffs’ acquiescence
to Columbia State’s appointment as a fiduciary and repre-
sentative for Moyer Sr. Further, plaintiffs’ allegations can
reasonably be understood to contend that Columbia State,
in turn, agreed to accept that appointment under those con-
ditions. Plaintiffs also allege that Columbia State was to be
406                           Moyer v. Columbia State Bank

compensated for that work, alleging that Columbia State
was “to be compensated and [was] compensated from the
Trust for developing and carrying out (implementing) the
estate planning proposals.”
         Plaintiffs further allege that they were damaged by
Columbia State’s breach to the extent that Columbia State
(and First Republic) breached the promise to develop and
carry out estate planning proposals and caused the estate
to pay higher taxes that reduced the ultimate distributions
to plaintiffs and all beneficiaries. Plaintiffs allege that the
estate planning proposals had been intended to “involve
aggregate taxable gifts in an amount between $38 million
to $60 million * * * resulting in an estimated transfer tax
savings of $9.6 million to $20 million.” Whether plaintiffs
can ultimately present evidence in support of their claim
is not before us. See Moyer v. Columbia State Bank, 

, 

 (2021) (affirming the grant
of summary judgment against plaintiffs’ nearly identical
breach-of-contract claims against First Republic). However,
plaintiffs have sufficiently alleged ultimate facts to support
the elements of a breach of contract claim against Columbia
State to survive a motion to dismiss. The trial court erred
in concluding otherwise and in dismissing plaintiffs’ sixth
claim for relief for breach of contract.
        We turn to plaintiffs’ allegations in their eighth
claim for relief that contended that Duffy Kekel similarly
breached its contract with plaintiffs. Duffy Kekel raises
some of the same arguments raised by Columbia State. We
address only one of those arguments, namely that plaintiffs
did not sufficiently allege consideration as to its purported
contract with Duffy Kekel. We agree and conclude that that
argument is dispositive. Unlike the inferences that may
reasonably be drawn from the complaint as to Columbia
State, we conclude that there are no ultimate facts alleged,
nor any favorable inferences that can be reasonably drawn
from those facts, that support an exchange of consideration
between plaintiffs and Duffy Kekel.
         Plaintiffs direct us to the following as the pivotal
allegation in support of Duffy Kekel’s direct promise to
plaintiffs:
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 (2021)                                                  407

        “In 2012, to resolve a controversy that had arisen with
    respect to the appointment of a conservator or other repre-
    sentative to engage in estate planning for Mr. [Moyer Sr.]’s
    estate, Duffy Kekel expressly and impliedly promised to,
    at the very least, First Republic, in its capacity as Trustee
    for the Trust, and plaintiffs Tom Moyer, Jr. and Colleen
    Thrift[,] to provide legal services to assist First Republic in
    the discharge of its promises and duties all with the objec-
    tive of minimizing the transfer taxes that might become
    due upon the death of Mr. Moyer [Sr.]”
Setting aside whether plaintiffs have alleged a contract
based on Duffy Kekel’s alleged promise to plaintiffs to pro-
vide legal services to its client First Republic, plaintiffs
fail to allege any consideration that Duffy Kekel sought or
received in support of that purported contract. As discussed,
consideration is “the basis for a bargain that two parties
reach; it is what is sought by the promisor in exchange for
a promise and given by the promisee in exchange for the
promise.” Villagomez, 

.
         Plaintiffs point to their allegation that Duffy Kekel
was to be paid and was paid from the Trust “for developing
and carrying out (implementing) estate planning propos-
als.” However, plaintiffs do not allege anywhere that Duffy
Kekel bargained with plaintiffs for that exchange. Nor could
that be a reasonable inference based on the other allega-
tions in the complaint. Indeed, unlike the allegations with
respect to Columbia State, that is not a reasonable inference
that we can draw, and it is contradicted by the rest of the
complaint. Plaintiffs make clear in both their allegations
and attachments to the complaint that Duffy Kekel was
already serving as the law firm for its client First Republic,
the trustee for the Trust, when plaintiffs started to pursue
resolution of the conservatorship proceeding.6 Duffy Kekel
was already retained by the trustee for its work, and there
is no allegation or reasonable inference that it continued to
be paid for that work based on any consideration negotiated
or exchanged with plaintiffs.
    6
      Plaintiffs’ allegations make clear that, while Columbia State was brought
on as a special fiduciary and special representative as part of the resolution of the
conservatorship proceeding, First Republic was already serving as trustee to the
Trust at that point and Duffy Kekel was already serving as First Republic’s law
firm.
408                           Moyer v. Columbia State Bank

         Plaintiffs also contend on appeal that their resolu-
tion of the conservatorship proceeding itself provided con-
sideration to Duffy Kekel. But plaintiffs point to no allega-
tion that Duffy Kekel, which, again, was already acting as
lawyers for the trustee, sought from plaintiffs for its benefit
the dismissal of the conservatorship proceeding or received
any benefit as a result of the resolution of that proceeding.
Even giving plaintiffs the benefit of all reasonable infer-
ences that may be drawn from their complaint, plaintiffs
do not allege any consideration that Duffy Kekel bargained
for that would support plaintiffs’ alleged contract with that
law firm. As a result, the trial court did not err in dismiss-
ing plaintiffs’ eighth claim for relief for breach of contract
against Duffy Kekel.
B.    The Indirect Third-Party Beneficiary Contract and
      Negligence Claims: Plaintiffs’ Third through Eighth
      Assignments of Error
         As noted earlier, in addition to the claims based on
direct promises made to plaintiffs, plaintiffs also contend
that they were the intended third-party beneficiaries of
promises that each defendant made to other parties, such as
Moyer Sr., or, in the case of the law firm defendants, to their
clients Columbia State and First Republic. Plaintiffs contend
that those allegations support claims against defendants for
both breach of a third-party beneficiary contract and negli-
gence. That is, plaintiffs contend that defendants’ promises
to third parties that were intended to benefit plaintiffs both
created a contractual duty and a duty for which defendants
may be liable in negligence when they negligently failed to
perform those promises. In plaintiffs’ third, fourth, fifth,
and seventh assignments of error, plaintiffs contend that
the trial court erred in dismissing those third-party benefi-
ciary contract and negligence claims.
          The parties agree on what law applies here but
disagree on the effect of that law on the viability of plain-
tiffs’ claims. As a general rule, a defendant is not ordinarily
liable in negligence for causing purely economic losses to a
stranger without injury to the stranger’s person or property.
Hale v. Groce, 

, 

 (1987).
In Hale, the Oregon Supreme Court considered whether a
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plaintiff, an intended beneficiary of a will and trust, could
bring a claim against a lawyer when the lawyer allegedly
failed to follow his client’s direction to include a bequest of
a specific sum, $300,000, to the plaintiff in the client’s tes-
tamentary instruments. Id. at 283, 288. Were the general
rule to apply, the plaintiff could not state a claim against
the lawyer, because the plaintiff was not a client of and
was essentially a stranger to the lawyer. Id. at 283-84. The
court, however, recognized an exception where the stranger
is a “classic ‘intended’ third-party beneficiary of the lawyer’s
promise to his client.” Id. at 286. The liability, depending
on the nature of the claim alleged, might be in contract for
breach of the promise or in negligence for the negligent per-
formance that failed to fulfill the promise. Id. That promise,
however, must be “sufficiently specific to go beyond a general
promise by defendant to use [the defendant’s] professional
skills to carry out the assigned project,” which the court
called “a matter for proof.” Id. at 289. As a general matter,
“[w]hen an alleged contract does not lend itself to incorpo-
ration of a writing in the complaint, the issue at least may
have to await affidavits and possible counteraffidavits on
motion for summary judgment.” Id.
         In Hale, the court concluded that the plaintiff had
alleged that the defendant lawyer had made a specific prom-
ise to his client “that defendant would prepare a trust docu-
ment wherein [the client] and plaintiff would be co-trustees
and through which plaintiff would receive the gift [that the
client] intended her to have.” Id. at 288. Specifically, the
defendant promised his client that he would prepare “a trust
document with plaintiff’s [$300,000] gift in it.” Id. The court
concluded that such a promise was specific enough to bring
plaintiff within the status of an intended third-party bene-
ficiary and sufficient to state contract and negligence claims
that should not have been resolved by a motion to dismiss.
Id. at 289.
         In Caba v. Barker, the plaintiffs, who were resid-
ual legatees of a will, alleged that the defendant lawyer had
impliedly promised his client that he would make his cli-
ent’s will “invulnerable to a will contest.” 

, 536-
37, 

 (2006). After the client’s death, the will was
successfully contested, and the plaintiffs contended that the
410                            Moyer v. Columbia State Bank

settlement of that contest reduced their share of the estate
by $103,569.50. 

. The plaintiffs filed breach of con-
tract and negligence claims against the lawyer, contending
that they were the intended beneficiaries of the implied con-
tract between the lawyer and his client to make the will
invulnerable to contest and were damaged as a result of
the lawyer’s breach of that promise. 

 That claim was dis-
missed by the trial court on a motion to dismiss. 

.
         The Supreme Court affirmed that decision. 

. It held that an implied in fact or law contract could be
the basis for an intended third-party beneficiary claim, but
that the plaintiffs had not alleged such implied facts or iden-
tified an implied-in-law contract. 

. The court
concluded, “[w]e hold that plaintiffs’ allegation of an implied
promise to make the will invulnerable to a will contest did
not constitute a legally sufficient source of duty and breach
to enable plaintiffs to bring their breach of contract and neg-
ligence claims.” 

.
         In Deberry v. Summers, we applied Hale and Caba
in the context of another case involving breach of contract
and legal malpractice claims. 

, 

 (2013). We said that “[t]he lawyer’s promise must
be more specific than a general obligation to use his or her
best professional efforts with the skill and care customary
among lawyers in the relevant community; the lawyer must
have agreed to accomplish specific results or objectives for
the client.” 

. We noted that Hale
   “distinguished between a promise to make a particular dis-
   position or to accomplish an intended gift by means spec-
   ified by the client or by the lawyer’s own choosing and a
   promise to abide by a general standard of skill and care to
   which the lawyer would be bound independent of the con-
   tract. The court held that the former could give rise to a
   breach of contract by an intended third party beneficiary.
   By contrast, the latter, sounding in negligence, arises only
   from the professional’s obligation to the client.”

. We summarized the rule we understood from
Hale and Caba:
   “Taken together, Hale and Caba stand for the proposi-
   tion that an essential element of a breach of contract or
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 (2021)                                    411

   negligence claim by a nonclient plaintiff against an attor-
   ney who prepared a testamentary instrument is the exis-
   tence of a promise by the attorney—either express or
   implied—to include specific provisions to satisfy certain
   objectives of the client for the benefit of the plaintiff.”
Id. at 161.
         We also applied Hale and Caba in a case where a
nephew claimed that he was the intended beneficiary of a
promise by an estate attorney to a client, the nephew’s aunt,
to “perfect, protect, and effectuate” the client’s intent to cre-
ate an estate plan that passed on her portion of the estate to
her nephew. Frakes v. Nay, 

, 

 (2012), rev den, 

 (2013). We held that, although
it presented a “close question,” the “allegations and evidence,
when viewed in the light most favorable to [the nephew],
established that [the attorney] agreed to create an estate
plan to carry out [the client’s] testamentary intent * * * to
leave nearly all of her estate to * * * the nephew.” Id. at 268
(footnote omitted); see also Sherertz v. Brownstein Rask, 

, 724, 726, 

 (2017) (noting that, for
these claims, the “nature, and specificity, of the promise is
important” and that “the plaintiffs could only establish duty
by showing that a specific result had been” promised by the
attorney to the testator).
         We apply those principles to the allegations at issue
here. As noted, plaintiffs claim that two law firms, defen-
dants Duffy Kekel and Miller Nash, made promises to their
clients, the trustee of the Trust and the court-appointed
special fiduciary and special representative to Moyer Sr.,
respectively. As to Duffy Kekel, plaintiffs primarily rely on
the following allegation:
   “Duffy Kekel expressly and impliedly promised to, at the
   very least, First Republic, in its capacity as Trustee of the
   Trust * * * to provide legal services to assist First Republic
   in the discharge of its promises and duties all with the objec-
   tive of minimizing the transfer taxes that might become
   due upon the death of Mr. [Moyer Sr.], and the promised
   performance being for the intended benefit of plaintiffs and
   of the other beneficiaries of the Trust. The estate planning
   proposals were to involve aggregate taxable gifts in an
   amount between $38 million to $60 million and resulting
412                             Moyer v. Columbia State Bank

   in an estimated transfer tax savings of $9.6 million to $20
   million. * * * Duffy Kekel expressly or impliedly promised,
   and were under a duty, to use their best professional efforts
   to develop and carry out (implement) the estate planning
   proposals and to accomplish the transfer tax minimization
   objective with the skill and care customary among estate
   planning lawyers.”
Plaintiffs go on to list various general estate planning steps
that the trustee of the Trust allegedly promised to under-
take, including to review the Moyer Sr. estate and tax sit-
uation and then engage in “estate planning techniques” to
“generate estate tax savings.” Plaintiffs’ allegations against
Miller Nash allege identical promises that the firm allegedly
made to its client Columbia State to assist that entity in
the same efforts of minimizing transfer taxes that might
become due upon the death of Moyer Sr.
         As we discussed above, plaintiffs do not identify in
their complaint any specific gifts or tax-saving measures
that defendants had promised to ensure occurred for the
benefit of plaintiffs. No doubt, plaintiffs allege that there
were discussions among attorneys about considered estate-
planning proposals both before and after the Stipulated
Limited Judgment. However, plaintiffs do not allege that
any defendant made a promise to plaintiffs to ensure any
specific gift was made from the Trust or to ensure that any
specific tax-saving measure would be accomplished to ben-
efit plaintiffs. On appeal, plaintiffs in their briefing also do
not direct us to any allegation of a specific gift or tax-saving
measure that any defendant had promised to advise on or
undertake for their clients.
         Applying the rule announced in Hale, we conclude
that, even when properly viewing the allegations in the light
most favorable to plaintiffs, plaintiffs have not alleged that
defendant law firms made promises to their clients that
were “sufficiently specific to go beyond a general promise
by defendant to use [the defendant’s] professional skills to
carry out the assigned project” to, as plaintiffs allege here,
“develop and carry out (implement) estate planning propos-
als for Mr. [Moyer Sr.]’s estate with the objective (to accom-
plish the result) of minimizing the transfer taxes that might
become due upon the death of Mr. Moyer [Sr].” Hale, 304
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Or at 289. As plaintiffs acknowledge in their briefing, the
Stipulated Limited Judgment that resolved the dispute
over the conservatorship proceeding “did not specify spe-
cific actions to be taken because it was up to [defendants]
(not the Court) to develop and implement the specific estate
planning proposals, with the assistance of plaintiff’s [sic]
lawyers.” An attorney’s general promise to provide legal ser-
vices to a trustee or professional fiduciary to assist those
parties in minimizing an estate’s transfer taxes for the
benefit of the trust beneficiaries is not a sufficiently specific
promise to create a duty to the beneficiaries. In other words,
plaintiffs fail to identify a promise by the lawyer to its client
“to include specific provisions to satisfy certain objectives
of the client for the benefit of the plaintiff.” Deberry, 

. That is so even when couched as a promise by
each lawyer to assist its client in developing and carrying
out “proposals [that] were to involve aggregate taxable gifts”
within a wide $22 million range of $38 to $60 million.
         Our courts have concluded that a promise is suf-
ficiently specific to be enforced by a third party where an
attorney promised to assist a client in including a specific
monetary sum in a will or trust document for the benefit of a
particular person, as in Hale, or where the attorney agreed
to assist the client in passing the balance of her estate to her
nephew, as in Frakes. Those cases may not define the outer
limits of specificity. Nevertheless, general promises by law
firms to assist their clients, as alleged here, in “carrying out
* * * proposals” for entirely unspecified gifts to “minimize”
an estate’s transfer taxes are not specific enough to create
a duty to the third-party beneficiaries. The breach of that
alleged duty would not be judged by the failure to provide a
particular gift or to follow a client’s specific direction as to
a provision in the client’s estate plan; rather, a court would
be left with the general negligence duty of care that Hale
concluded was not a proper basis for a law firm’s liability to
nonclients.
        We acknowledge that Hale stated that whether the
alleged promise by the attorney in that case—to include a
$300,000 gift to the client’s intended beneficiary through
testamentary documents—was sufficiently specific to create
a duty to that beneficiary “is a matter for proof.” 

                            Moyer v. 

. Hale then stated that the claims in that case would
have to await summary judgment, and that the same could
also be true for other cases where the alleged contract “does
not lend itself to incorporation of a writing in the complaint.”

 However, we do not understand Hale to conclude that a
complaint will survive a motion to dismiss and must await
further factual development even if the complaint alleges
only general promises to accomplish broad objectives for
a client, because proof of those allegations would still fall
short of the specificity that the law requires. Accordingly,
the trial court did not err in dismissing the claims against
the law firm defendants Duffy Kekel and Miller Nash.

         We now turn to plaintiffs’ similar allegations
against Columbia State, the special fiduciary and special
representative to Moyer Sr., and conclude that those allega-
tions are indistinguishable from their allegations against
the law firms. Plaintiffs allege that Columbia State prom-
ised to Moyer Sr. and, perhaps, to First Republic, that it
would develop and carry out the same general estate plan-
ning and tax-saving proposals set forth above with respect
to the law firms. Plaintiffs do not argue that those claims
should be judged by a different standard than those applied
to plaintiffs’ identical claims against the defendant law
firms. For the same reasons discussed above, we conclude
that the same alleged general promises by Columbia State
to Moyer Sr. or First Republic are not sufficient to state
either a breach of contract or negligence claim for breach of
a duty to an intended third-party beneficiary. As a result,
we reject plaintiffs’ third, fourth, fifth, and seventh assign-
ments of error that contend that the trial court erred in dis-
missing their third-party beneficiary breach-of-contract and
negligence claims.

         Finally, we turn to plaintiffs’ sixth and eighth assign-
ments of error. In those assignments, plaintiffs contend that
the trial court erred in dismissing their negligence claims
against Duffy Kekel and Columbia State that were based
on plaintiffs’ “special relationship” with those entities.
Plaintiffs contend that they stated claims for relief against
those defendants for negligence based solely on defendants’
status as a law firm to the trustee of the Trust, or, in the
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case of Columbia State, as the special fiduciary and spe-
cial representative to Moyer Sr. Plaintiffs contend that
they were in a “special relationship” of dependence on those
entities. However, plaintiffs develop no argument in their
opening brief that allows us to analyze this complex issue,
and we express no opinion on the merits of the issue. Of
course, a law firm and a special fiduciary and special rep-
resentative have their own duties to their clients that could
be in conflict with a duty they might owe plaintiffs under
plaintiffs’ special-relationship theory of liability. Because
plaintiffs have not developed any argument in their open-
ing brief that allows us to evaluate this complex issue, we
decline to address it and reject the sixth and eighth assign-
ments of error. See Cunningham v. Thompson, 

, 297 n 2, 

 (2003), rev den, 

 (2004)
(“Ordinarily, the appellate courts of this state will decline to
address an undeveloped argument.”).
         In sum, we reverse the trial court’s decision to dis-
miss plaintiffs’ sixth claim for relief for breach of contract
against Columbia State. We conclude that the trial court
erred in dismissing that claim because plaintiffs sufficiently
alleged ultimate facts constituting a claim for relief to sur-
vive a motion to dismiss. However, we conclude that the trial
court did not err in dismissing any of the other claims for
relief against either Columbia State or the law firm defen-
dants. As a result, we affirm the trial court’s dismissal of
those other claims.
          Limited judgment dismissing plaintiffs’ sixth claim
for relief against defendant Columbia State Bank reversed
and remanded; otherwise affirmed.