Porter v. Oba, Inc.

EDMONDS, P. J.,

concurring in part, dissenting in part.

I agree with the majority that, even when parol evidence of the circumstances of the contract is considered, there is no evidence that plaintiffs employment relationship with Oba, Inc. (Oba) was other than an at-will relationship. However, for the reasons that follow, I disagree with the majority’s ruling that plaintiffs claim for intentional interference with economic relations against McLain is legally cognizable. I would hold that, without accompanying evidence of tortious conduct, McLain’s alleged motive is not actionable, and I would affirm the trial court’s summary judgment ruling.

The majority perceives that the issue before the trial court was limited to whether McLain was a third party to the employment contract between Oba and plaintiff and that the issue of “improper motive” was not raised below. The majority holds that the trial court cannot be affirmed on an alternative basis that was not before the trial court. It says that, “|h]ad defendants asserted that summary judgment was appropriate on the grounds that McLain was not a third party and that his motive was proper, plaintiff might have presented argument and developed a different factual record concerning the propriety of McLain’s motive, or plaintiff might have asserted a reason other than greed to demonstrate that McLain was a third party.” 180 Or App at 221 (emphasis in original). It concludes that, “[u]nlike the dissent, we do not decide whether greed satisfies the improper means or motive element of the tort because, even if it does not, this is not an appropriate case for us to exercise our discretion and affirm the trial court on an alternative basis.” 180 *224Or App at 219. The record and the law as applied to the record do not support the majority’s assertion that the only issue before us is McLain’s third-party status.

The elements of a claim for intentional interference with economic relations include an intentional interference by a third party, accomplished by improper means or for an improper motive. McGanty v. Staudenraus, 321 Or 532, 535, 901 P2d 841 (1995). Proof of an interference by a third party with an economic relationship without accompanying proof of improper means or an improper motive will not suffice to make out the claim. In accordance with the elements of the test, defendants moved for summary judgment in the trial court

“on the grounds that McLain was not a third party to any alleged agreement for employment or stock ownership which Porter claims was breached, and further McLain did not act solely for his personal benefit, and did not act without any intent to benefit OBA in terminating Porter.” (Emphasis added.)

In their memorandum in support of their motion for summary judgment, defendants explained,

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

Also, in support of their summary judgment motion, defendants offered evidence regarding McLain’s motivation in an affidavit by Stephen Gomez. Gomez and McLain were the only shareholders in Oba at the time of plaintiffs termination. Gomez averred that, throughout plaintiffs tenure as *225restaurant manager, plaintiff “did not adequately understand the financial aspects of running the restaurant and did not achieve the company’s financial goals.” Gomez also stated that:

“[p]rior to terminating Bruce Porter, McLain informed me of his decision to terminate Porter, and I supported McLain in his decision. At all times, McLain was acting within the course and scope of his duties as a corporation officer and employee of Oba, Inc. and to benefit Oba’s interests, and in fact Oba’s interests were benefitted by the termination of Porter.”

Gomez’s and McLain’s statements about their personal beliefs regarding McLain’s authority to discharge plaintiff and plaintiffs work performance are not controverted in the record. Thé majority disagrees. 180 Or App at 216-17. But the “controverting” evidence that the majority refers to is plaintiffs testimony that he performed his duties adequately and the inference that plaintiff draws from the fact that McLain’s ownership interest in OBA would have been diluted if plaintiff had been made a shareholder. The question in this case is whether that evidence suffices to preclude summary judgment by creating issues of fact as to McLain’s third-party status and about whether he had an improper motive when he fired plaintiff.

In substance, defendants’ motion sought summary judgment on the grounds that two of the elements of the tort of interference with economic relations (McLain’s third-party status and McLain’s “improper” motive) cannot be proved by plaintiff on this record. As we recognized in Kaelon v. USF Reddaway, Inc., 180 Or App 89, 98 n 1, 42 P3d 344 (2002), the same evidence can establish both an improper purpose and that a defendant was not acting in the scope of employment, i.e., the third-party element.1 The evidence offered in the summary judgment proceeding, to establish both elements, is *226the inference that plaintiff draws that McLain acted for his self-interest, so that his stock ownership would not be diluted.

Plaintiff alleged that “Defendant McLain terminated plaintiffs employment to deprive plaintiff of his ownership interest in defendant Oba” and “Defendant McLain acted, not to benefit OBA, but solely for his own benefit or to injure plaintiff.” Defendants, in their written motion and accompanying memorandum, first pointed out that, even viewed in the light most favorable to plaintiff, the inference that he acted to protect his own stock interests would prove only that his motives were “mixed,” and he therefore could not be a third party to the employment contract. Second, defendants anticipated in their motion and accompanying memorandum that plaintiff would argue that a jury could reasonably infer that McLain terminated plaintiffs employment to avoid a reduction in his stock ownership (an allegedly improper motive), thereby implicitly, if not expressly, creating an issue of material fact as to the improper motive element. To forestall that argument, defendants argued'that, even if McLain had been motivated to protect his own stock ownership, such an allegedly improper motive has “no legal consequence,” in light of the uncontroverted evidence that McLain was acting within his authority as general manager consistently with the wishes of Gomez, the other shareholder, and that he was motivated, at least in part, to benefit Oba.9 In other words, there is no legal consequence, insofar as the tort of intentional interference with an economic relationship is concerned, unless plaintiffs inference suffices to establish both the third-party and tortious motive elements. Under defendants’ arguments, the tort elements of third-party status and tortious means/motive are interrelated, and both elements are in issue because their fulfilment depends on the same evidentiary inference under plaintiffs argument.

*227In response, plaintiff was left to argue to the trial court that a jury could infer that McLain’s sole motive was self-interest and that that possible inference from the evidence was sufficient to preclude summary judgment. But under defendants’ interpretation of the law, McLain’s desire to protect his own stock interest is not an improper motive and therefore has no legal consequence of liability. Thus, plaintiff’s response to defendants’ motion, evidence, and arguments also puts both elements squarely into issue as a matter of law: (1) whether plaintiffs evidence that McLain acted solely for his benefit established the third-party element and (2) whether plaintiff’s inference that McLain acted to protect his own stock interests is an improper motive. Because defendants’ summary judgment motion is based on the claimed inability of plaintiff to prove both elements and plaintiff has the burden of persuasion as to those elements, plaintiff must offer evidence in the summary judgment proceeding that, if believed, will satisfy those elements and will give rise to a cognizable claim under the law. ORCP 47 C. In the absence of proof of an improper motive, McLain is entitled to summary judgment as a matter of law, regardless of whether plaintiff can establish that McLain was a third party to the contract.3

The majority also says that “[t]he parties do not raise on appeal nor do they expressly discuss the improper means or purpose element of the tort.” 180 Or App at 220. On *228appeal, plaintiffs opening brief assigns as error the dismissal of his intentional interference with economic relations claim. In support of his assignment of error, he argues in his brief, in part:

“The reason for the discharge is clear — greed. McLain did not want to dilute or share his ownership interest. The trial court erred because it took away the issue of McLain’s intent and dismissed the case without the jury having rendered its finding.”

In response, defendants argue in their brief, in their summary of argument, that, “[b]ecause McLain undisputably had a legitimate basis for terminating Porter on behalf of Oba and was acting within the scope of his authority, McLain could not be liable as a matter of law for intentional interference with the purported contract between plaintiff and Oba.” Later, defendants note in their brief, “[P]laintiffs only argument on appeal is that McLain was motivated by purported ‘greed’ in terminating plaintiff.” Defendants counter, “[A]s discussed above, McLain presented overwhelming and undisputed evidence below (including undisputed third-party affidavits and deposition testimony) that the termination of plaintiff was necessary to address the legitimate business concern that plaintiff was negatively impacting Oba’s business and staff morale.” In sum, both the issue of whether McLain was a third party to the contract, and whether he acted with an improper motive, were before the trial court and are raised on appeal, notwithstanding the majority’s attempt to conflate the arguments of the parties into a third-party status issue only.

In addition to the above comments, I take exception to the majority’s rationale for policy reasons. The majority cleverly but improperly characterizes my reasoning as a “right for the wrong reason” analysis to avoid deciding an issue of law regarding a necessary element of the tort. I suggest that, when the issue is whether the parties raised a particular argument below, the majority’s “scalpel” approach is not warranted. In my experience, the reality of the practice of law is that parties make arguments on issues in the trial court that often are not as focused or as sharp as appellate judges would prefer. Nonetheless, our approach on this court *229has generally been to take a broader view than that employed here by the majority. For instance, for purposes of preservation of error under ORAP 5.45, our focus is on the “issue” raised, not the argument or the source of authority relied on in the trial court. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988). There has been no suggestion in this case, either in the record below, in the briefs, or in oral argument that plaintiff has any other evidence to submit to a jury. Plaintiff’s claim is based solely on the inference that he draws from the fact that McLain was a shareholder. Moreover, there has been no suggestion by the parties that the issue of whether McLain had an improper motive is not properly before this court. The majority’s decision not to decide whether plaintiff has offered sufficient evidence on the improper motive element of an intentional interference with economic relations claim has been made sua sponte. Given that the parties have always viewed the issues on summary judgment as being interrelated, it is only fair to them, and consistent with principles of judicial economy, that we consider the entire issue of whether McLain is entitled to summary judgment based on the elements of the tort. As explained below, we should affirm the trial court’s grant of summary judgment because plaintiff’s evidence that McLain acted for his self-interest does not constitute evidence that he acted with an improper motive, as required by the elements of the tort.

Under the majority’s holding on the parol evidence issue, plaintiff’s employment agreement was an at-will agreement. Plaintiff had no contractual right to be employed for 18 months. Rather, plaintiff had a mere expectancy of receiving stock in the company, that could ripen into a contract right in the future, based on the contingency that he remain employed. That fact is the beginning point of the analysis because it comments significantly on whether McLain acted with an improper motive when he fired plaintiff.

Because plaintiff’s employment contract with Oba was terminable at will, it is important to understand what role that kind of relationship plays in the context of the tort of intentional interference with economic relations. It is correct that generally an employment contract terminable at will is a *230contractual relationship that could be, but is not necessarily, subject to protection against tortious interference by a third person.4 Lewis v. Oregon Beauty Supply Co., 302 Or 616, 620, 733 P2d 430 (1987). In Lewis, the son of the principal owner of the defendant corporation supervised a warehouse where the plaintiff worked. The plaintiff and the son had dated, but when the plaintiff started dating other men the son became jealous and started to harass her at work. Eventually, the plaintiff quit as a result of the harassment. The court upheld a jury verdict for damages against the son based on the theory of intentional interference with a contractual relationship in light of the plaintiffs demonstration that the defendant’s conduct did not serve any legitimate purpose. The court held that the son’s conduct of physically and verbally intimidating the plaintiff by threatening her and defaming her to other employees constituted the kind of improper motives at which the tort remedy of intentional interference with economic relations is aimed. Lewis is an example of when an action for intentional interference with a contractual interest will lie because of the tortious conduct of a third party to the employment relationship.

The issues in this case differ from the issues in Lewis in significant ways. In contrast to the constructive discharge because of verbal and physical intimidation in Lewis (an improper means case), plaintiff asserts that his discharge was based on McLain’s improper motive to deprive him of his ability to exercise his stock option. In response, McLain argues that he fired plaintiff because of his inadequate performance as the general manager of Oba (in other words, that his motive was not tortious). Although the evidentiary record on summary judgment is subject to competing inferences as to McLain’s motivation in firing plaintiff, the legal question presented by the summary judgment motion is whether *231plaintiff can make out a legally cognizable claim for intentional interference with economic relations, in light of the facts most favorable to plaintiff, when the employment relationship was at will, and when the only “improper motive” claimed is that McLain acted to protect his own stock interest. ORCP 47 C. To do so, plaintiff must establish

“[n]ot only * * * that defendant intentionally interfered with his business relationship but also that defendant had a duty of non-interference; i.e., that he interfered for an improper purpose rather than for a legitimate one * * *. Therefore, a case is made out which entitles plaintiff to go to the jury only ‘when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.’ ” Straube v. Larson, 287 Or 357, 361, 600 P2d 371 (1979) (emphasis added).

In Uptown Heights Associates v. Seafirst Corp., 320 Or 638, 891 P2d 639 (1995), the court focused on the need of a plaintiff to demonstrate that the interference, to be actionable, must be wrongful beyond the fact of the interference itself. In that case, real estate developers sued their lender, a bank, for wrongful interference with an economic relationship with a potential buyer of the plaintiffs’ apartment complex. The bank, acting in its self-interest, refused to postpone its foreclosure proceeding against the plaintiffs, causing them to lose their interest in the property. After the foreclosure, the bank entered into a sale agreement for the property with the potential buyer. As in this case, the plaintiffs in Uptown Heights Associates alleged only an improper motive.5 The court rejected the plaintiffs’ argument, reasoning that:

*232“The essence of Uptown’s argument is that a party who invokes an express contractual remedy by proper means may still be liable for intentional interference with economic relations if that party simply has a malevolent reason for enforcing its written contract. We disagree. When a party invokes an express contractual remedy in circumstances specified in the written contract — conduct that reflects by definition, the reasonable expectations of the parties — that party cannot be liable for intentional inference with economic relations based solely on that party’s reason for invoking the express contractual remedy. That is because, if the defendant has interfered with the plaintiffs economic relations, the defendant has done so for a ‘legitimate’ purpose — invocation of an express, written contractual remedy — in such circumstances.
“A contrary ruling would contravene public policy and undermine the stability of contractual relations. As this court’s decision in Pacific First Bank [v. New Morgan Park Corp., 319 Or 342, 876 P2d 761 (1994),] made clear, courts will not read implied terms into a contract if those terms would contradict the express terms of the contract. It would be anomalous to hold that a party to a contract nonetheless must defend a tort claim when a complaint shows that the party did precisely what the party was entitled to do under the contract.” Uptown Heights Associates, 320 Or at 651-52 (citations and footnote omitted; emphasis added).

In this case, plaintiffs claim for intentional interference with economic relations is based on a pleading that alleges an employment agreement for a term of at least 18 months. The majority determines correctly that there is no evidence of an agreement that plaintiffs employment would continue until he is able to exercise a stock option, and that should be the end of plaintiffs assignment of error. But even if plaintiffs theory is based on an at-will employment agreement, he could be fired for any reason at any time. Plaintiffs only interest that could be interfered with was a personal, noncontractual expectancy that was subject to Oba’s contractual right to terminate his employment relationship arbitrarily. It follows that plaintiff did not have a cognizable, economic relationship (an employment for a term) that could be interfered with by a termination before the 18-month period expired. When McLain, as Oba’s managing shareholder, fired plaintiff, he did for Oba precisely what Oba’s principals *233desired and what he was entitled to do under Oba’s employment contract with plaintiff. In other words, plaintiff offers no evidence on those facts that McLain’s interference with his employment contract was wrongful by some measure beyond the fact of the interference itself.

Instead of focusing on both the issue of the tortious nature of the interference and the third-party issue, the majority’s analysis focuses only on whether McLain was a “third party’ to the contract between Oba and plaintiff. The “third-party’ element in the tort of intentional interference with an economic relationship exists because a party to a contract cannot be liable in tort for interfering with its own contract. However, an agent of a party, usually a supervisor or corporate manager, can become a third party when, instead of acting as an agent, the agent causes the principal to breach the contract. See, e.g., Welch v. Bancorp Management Services, 296 Or 208, 214-15, 675 P2d 172 (1983); Walsh v. Consolidated Freightways, 278 Or 347, 356-57, 563 P2d 1205 (1977); Wampler v. Palmerton, 250 Or 65, 73, 439 P2d 601 (1968).

When the supervisor acts within the scope of authority granted to him by the employer, there is no “third-party’ interference. In the eyes of the law, the supervisor is the employer. However, the privilege granted to the supervisor by the terms of the employment contract is lost if the supervisor did not intend, at least in part, to benefit the employer, or if he or she was acting outside the scope of his or her authority. Welch, 296 Or at 25. The question of the supervisor’s motive can be pivotal to whether the supervisor is a third party to the contract. Thus, a claim for intentional interference with an at-will employment contract exists where a supervisor induced the employer to fire the plaintiff in retaliation for the plaintiff’s criticism of the defendant’s affair with an employee of a customer,6 where the plaintiff alleged that the defendants induced the plaintiff’s employer to fire him in retaliation for his attempted exercise of his right as a stockholder to inspect corporate records,7 and *234where the chief operating officer of the employer created false information about the employee to justify the employer’s firing of him.8 In each of the above examples, the supervisor or coemployee acted contrary to the employer’s interests and beyond the authority granted by the employer. Each agent therefore became a “third party” to the contract for purposes of the tort.

We followed that rule in Boers v. Payline Systems, Inc., 141 Or App 238, 918 P2d 432 (1996). In that case, we held that the plaintiff could recover on a theory of intentional interference with an employment contract against a supervisor who fired him for reporting another corporate agent’s misconduct to the members of the board of directors of the employer. The issue was whether the plaintiff alleged a third-party interference and turned on the defendant’s authority as an agent for the corporation in light of his motivation for firing the plaintiff. Holding for the plaintiff, we reasoned:

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

The defendant in Boers acted to cover up the fact that a former employee had transferred money belonging to the employer into the account of his current employer. That kind of conduct clearly violated an established standard of business and may have constituted an embezzlement or conversion of the employer’s property. Because the underlying conduct was tortious in nature, a claim for intentional interference with an economic relationship existed.

*235Here, we are faced with a different issue from that in Boers. Assuming without deciding that McLain is a third party to plaintiffs employment relationship because he was prompted to fire plaintiff to protect the value of his own stock, plaintiff must still prove a tortious interference with a cognizable economic interest arising from his relationship with Oba. Because he cannot prove tortious conduct or “means” on the part of McLain, he must prove a “tortious motive.” That requires proof that the motive is wrongful beyond the fact of the interference itself. That requirement means that the third party’s motive must be contrary to “a statute or other regulation, or recognized rule of common law, or perhaps an established standard of a trade or a profession.” Top Service Body Shop v. Allstate Ins. Co., 283 Or 201, 209-10, 582 P2d 1365 (1978). “Improper means” commonly include violence, threats, intimidation, deceit, fraud, bribery, unfounded litigation, defamation and using disparaging falsehoods. Id. at 210 n 11. The proof of an improper or wrongful motive must be of a similar nature to demonstrate the “tortiousness” of the interference. Ultimately, the test for whether a motive is tortious is to ask whether the motive “would be tortious on the part of an unprivileged defendant.” Id. at 210. The facts in Uptown Heights Associates illustrate a motive that was not tortious in nature. The bank interfered in a manner permitted by its contract with the plaintiffs, and with a motive that was nontortious, i.e., self-interest in asserting its contractual rights. In contrast, the facts in Boers illustrate a tortious motive, i.e., to cover up wrongdoing against the employer, which is a motive contrary, at a minimum, to “an established standard of a trade or profession” and which may have been a motive contrary to law or other regulation.

Here, as in Uptown Heights Associates, there is nothing tortious about McLain’s motive in acting for his self-interest. McLain was plaintiffs supervisor and acted within the authority granted to him by Oba when he fired plaintiff. There is no evidence that Oba disapproved of McLain’s action. Moreover, the fact that McLain’s action was based on self-interest, as plaintiff asserts, does not make his conduct tortious. Selfish motives, even if morally reprehensible, are commonplace in the business world. For instance, the bank *236in Uptown Heights Associates acted in its self-interest, but it was held not to have acted tortiously.2 In my view, plaintiff cannot make out a claim for intentional interference with economic relations on these facts, even in light of McLain’s allegedly selfish motivations. It may be that a trier of fact could conclude that plaintiff was performing his employment duties properly, but pursuant to his at-will employment agreement, he was subject to termination regardless of the adequacy of his performance. Said another way, because the conduct of firing plaintiff did not violate a statute, an administrative rule, a recognized rule of common law, or a recognized business or trade standard, and the motive for firing plaintiff also did not violate any standard derived from the above sources, the interference was not wrongful beyond the fact of the interference itself.

For these reasons, I dissent from the majority’s decision to reverse the trial court’s summary judgment ruling on the intentional interference with economic relations claim.

In Kaelon, we distinguished the facts in that case from the facts in Sims v. Software Solutions Unlimited, Inc., 148 Or App 358, 939 P2d 654, rev den 326 Or 57 (1997). The issue in both cases was whether the defendants were “third parties” to the economic relationships allegedly interfered with by the defendants. We pointed out that, in Sims the plaintiffs own evidence demonstrated a mixed motive for purposes of the third-party element. The holdings in Sims and Kaelon do not turn on the issue of whether the defendants acted with an improper or tortious motive.

In contrast to Uptown Heights Associates and this case, the employer in Nees acted with a motive that violated an established standard of public policy (firing employees for serving on jury duty), and its motive therefore was actionable even though the employee’s employment was at will and its “means” of discharging the plaintiff was therefore lawful. Nees, 272 Or at 219.

The majority says, “The fact that there is evidence that may be used to establish both elements of the tort does not necessarily mean that, when a party raises one element of the tort, the party automatically raises the other. In this case, the parties raised only the third-party element.” 180 Or App at 222. The majority misunderstands my position. There is no “automatic” principle at work in the analysis. When, as in this case, a party (here, defendants) moves for summary judgment and offers evidence that it claims is uncontroverted and that evidence operates to defeat two elements of the tort, the party opposing summary judgment must offer controverting evidence that creates a genuine issue of material fact on both elements. In order to prevail in this case on McLain’s summary judgment motion, plaintiff must offer evidence that creates triable issues of fact on both the elements of third-party status and improper motive. While plaintiffs inference that McLain acted for his self-interest raises an issue of fact on the third-party status element, it does not, under the circumstances of this case (where McLain’s termination of plaintiff was fully authorized by the only shareholders in the corporation and did not violate any statute, administrative regulation, recognized rule of common law, or business or trade standard), create a genuine issue of fact that he acted with an improper motive.

In Nees v. Hocks, 272 Or 210, 216, 536 P2d 512 (1975), the court held that an employer could be held liable for wrongful discharge for discharging an at-will employee for serving on jury duty. The court said:

“[I)n the absence of a contract or legislation to the contrary, an employer can discharge an employee at any time and for any cause. Conversely, an employee can quit at any time and for any cause. Such termination by the employer or employee is not a breach of contract and ordinarily does not create a tortious cause of action.” See also Sheets v. Knight, 308 Or 220, 233-34, 779 P2d 100 (1989), abrogated by McGanty, 321 Or 532.

The majority says that Uptown Heights Associates is inapposite. See 180 Or App at 217-18 n 4. The majority is correct in only one respect. The bank in Uptown Heights Associates was exercising its own contractual right, and McLain has no contractual right to terminate plaintiff except as authorized by Oba. What Uptown Heights Associates teaches is that the reasonable expectations of the parties, as defined by their contractual relationship, are the standard against which to measure the wrongfulness of an interference. In this case, there is no allegation and no evidence that McLain acted with improper means. The only reasonable expectation plaintiff could have under his contract with Oba was continued employment at will. Plaintiffs discharge from employment was not outside his reasonable expectations as defined by his employment contract. Thus McLain’s conduct was not wrongful. Secondly, Uptown Heights Associates is instructive because in it, as here, the plaintiffs alleged that the actor’s selfish motives were tortious. Thus, the import of Uptown Heights Associates to this case is that it instructs us to focus the inquiry on the necessity of evidence of an improper motive where there is no evidence of improper means.

Huston v. Trans-Mark Services, 45 Or App 801, 609 P2d 848, rev den 289 Or 587 (1980).

Campbell v. Ford Industries, Inc., 274 Or 243,546 P2d 141 (1976).

. Giordano v. Aerolift, Inc., 109 Or App 122, 818 P2d 950 (1991).

Defendants’ argument is based, in part, on our statement in Sims, 148 Or App at 364-65, in which we said, “[S]o long as the actor’s actions are within the scope of his authority and are undertaken as least in part to further the best interests of the employer, it is immaterial that the actor has additional motives.” Sims involved the issue of whether the third-party element of the tort was met. In that case, the plaintiff s own evidence demonstrated that she was terminated, at least in part, because she was a troublemaker at work. There was no evidence that the alleged third party acted solely for his own interest. The uncontroverted evidence in the summary judgment record in this case is that McLain acted within the scope of his authority as the managing shareholder and at least in part for the interests of Oba when he fired plaintiff. Defendants argued to the trial court that that evidence disposed of the improper motive issue as well as the third-party issue.