Nelson v. Lane County, 16-83-05689

CourtCourt of Appeals of Oregon
Citation79 Or.App. 753,720 P.2d 1291
Docket NumberNo. 16-83-05689,16-83-05689
PartiesLynda NELSON, Appellant, v. LANE COUNTY, David Burks, Department of State Police, John C. Williams, K.E. Chichester and Richard Geistwhite, Respondents. ; CA A32607.
Decision Date11 June 1986

Page 1291

720 P.2d 1291
79 Or.App. 753
Lynda NELSON, Appellant,
LANE COUNTY, David Burks, Department of State Police, John
C. Williams, K.E. Chichester and Richard
Geistwhite, Respondents.
No. 16-83-05689; CA A32607.
Court of Appeals of Oregon.
Argued and Submitted April 25, 1985.
Decided June 11, 1986.

Page 1292

[79 Or.App. 754] Robert D. Durham, Portland, for appellant. With him on briefs were Kulongoski, Durham, Drummonds & Colombo, Portland, American Civil Liberties Union, and Harry T. Carp as co-counsel with Robert D. Durham.

John F. Kilcullen, Eugene, for respondents Lane County and David Burks. With him on brief was Flinn, Brown & Roseta, Eugene.

Richard D. Wasserman, Asst. Atty. Gen., Salem, for respondents Department of State Police, John C. Williams, K.E. Chichester, and Richard Geistwhite. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before RICHARDSON, P.J., JOSEPH, C.J., and GILLETTE, J. Pro Tem.

[79 Or.App. 755] JOSEPH, Chief Judge.

Plaintiff was stopped and detained at a police roadblock that was conducted to apprehend persons driving under the influence of intoxicants (DUII). She brought

Page 1293

this action for damages and injunctive and declaratory relief, contending that the stop and detention violated her statutory and federal and state constitutional rights. The trial court allowed defendants' 1 motions for summary judgment. Plaintiff appeals, and we reverse.

Two preliminary questions must be addressed. First, the county defendants move to dismiss the appeal as to them. The county and state defendants moved for summary judgment separately and at different times. Consequently, judgment was entered for the former on June 21, 1984, and for the latter on August 10, 1984. Pursuant to ORCP 67 B, the trial court stated in the earlier judgment:

"[The Court] now being of the express opinion that there is no just reason for delay;

"IT IS HEREBY ORDERED and ADJUDGED that judgment be entered against Plaintiff and in favor of Defendants Lane County and David Burks * * *."

Plaintiff filed a notice of appeal from that judgment within 30 days after its entry, naming the county defendants as respondents. Within 30 days after the later judgment in the state defendants' favor was entered, plaintiff filed a separate notice of appeal from it, naming all defendants as adverse parties. The county defendants contend that the first judgment--which their attorney prepared--was not appealable, because it did not comply with ORCP 67 B, and that plaintiff "did not file a second Notice of Appeal of the judgment in favor of" the county defendants after the judgment for the state defendants was entered. We do not agree that the first judgment failed to meet the requirements for finality prescribed by ORCP 67 B.

The county defendants rely on Hale v. County of [79 Or.App. 756] i Multnomah, 298 Or. 141, 144, 689 P.2d 1290 (1984), where the court said:

"Although in this case the trial court made an express determination that there was no just reason for delay, the document entitled 'Final Judgment' signed by the trial court does not contain an 'express direction for the entry of judgment' and thus does not track the language of ORCP 67 B. Even though it is implicit that the trial court intended that the judgment be entered immediately, and not at the conclusion of the entire action, we hold that the absence of an express direction to enter judgment is fatal. We read the plain language of ORCP 67 B. as requiring such an express direction."

The county defendants argue that here, as in Hale, "the judgment does not make an express direction for the entry of judgment." It is true that the judgment does not contain the words "express direction for the entry of judgment," but it is not correct that the judgment does not contain an express direction that it be entered. The fact that the trial court "ordered" that the judgment be entered instead of "expressly directing" its entry is inconsequential. The words "it is ordered" in that context constitute an "express direction." We are confident that the Supreme Court did not intend in Hale for jurisdiction to turn on choices between synonymous words or senses, and we deny the county's motion.

The disposition of the jurisdictional issue raised by the county leads to another question that should be answered. ORS 19.033(1) provides, in relevant part:

"When the notice of appeal has been served and filed * * *, the Court of Appeals shall have jurisdiction of the cause, * * * but the trial court shall have such powers in connection with the appeal as are conferred upon it by law and shall retain jurisdiction for the taxation of attorney

Page 1294

fees, costs and disbursements or expenses pursuant to rule or statute." (Emphasis supplied.)

If the emphasized language refers to and encompasses the whole action, then the effect of the notice of appeal from the June judgment was to deprive the trial court of jurisdiction to enter the August judgment. The August judgment would be void, and we would be required to dismiss the appeal from that judgment. That would leave only the judgment for the county in issue before us.

[79 Or.App. 757] Neither Hale v. County of Multnomah, supra, nor May v. Josephine Memorial Hospital, 297 Or. 525, 686 P.2d 1015 (1984), the leading cases on the interpretation and application of ORCP 67 B, resolves the question. In May, the court said:

"In construing ORCP 67 B., we note that federal caselaw has not developed a precise test, for determining when there is no just reason to delay the entry of judgment * * *. [Citations omitted.] We, too, decline to enunciate a precise test but the following factors, whenever relevant, should be considered: * * * any prejudice caused to a party by postponing trial on the other claims or interests of other parties while the appeal is pending * * *." 297 Or at 531, 686 P.2d 1015.

On its face, that language suggests that the court recognized that an appeal from a "67 B judgment" prevents the trial court from continuing with any aspect of the case. However, in context, there is nothing in the language that compels us to apply it in its most literal way. Although there seems no reason to doubt that a trial court could, as a matter of discretion, refuse to continue with the trial of the residuum of a case in which there has been a judgment and an appeal under ORCP 67 B, it seems contrary to the policy of the rule to forbid a trial court to proceed. Therefore, we read "cause" in the statute to refer only to the matter encompassed by the judgment from which the appeal is taken, and we hold that the trial court had jurisdiction to enter the August judgment and that all parties and issues are properly before us.

The second preliminary issue arises from the state defendants' motion--made for the first time at the oral argument in this court--to dismiss the claim for damages under plaintiff's state law theories on the ground that there cannot be an award of damages that is based solely on a violation of state constitutional rights. Stated otherwise, the state defendants assert that a violation of a state constitutional right is not in itself an actionable tort. But see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); State v. Davis, 295 Or. 227, 666 P.2d 802 (1983); Urban Renewal Agency v. Lackey, 275 Or. 35, 549 P.2d 657 (1976).

The traditional rule is that a motion to dismiss for failure to state a claim can be made at any time during the proceedings, including appeal. See Telford v. Clackamas [79 Or.App. 758] iCounty, 44 Or.App. 399, 605 P.2d 1365 (1980), and authorities cited there. However, the motion is not dispositive here: it pertains only to plaintiff's claim for damages on her state law theories and cannot affect her right to seek declaratory and injunctive relief under those theories or to seek relief under her federal theories. In short, the state defendants make no contention here that the complaint fails to state any claim. Their motion is effectively to strike plaintiff's prayer for certain damages and her allegations that relate only to those damages. The appropriate place for the motion to be considered in the first instance would have been the trial court. We decline to address the issue at this stage of the litigation. Even if the motion were meritorious, the trial court would nevertheless have discretion to permit plaintiff to attempt to plead a common law claim for damages, e.g., for invasion of privacy, false arrest or false imprisonment. ORCP 23 A. 2

Page 1295

We turn now to the merits. Plaintiff's threshold argument on appeal is that the roadblock could not lawfully be conducted without statutory or regulatory authorization and that none existed. See State v. Lowry, 295 Or. 337, 343, 667 P.2d 996 (1983); State v. Atkinson, 298 Or. 1, 6-9, 688 P.2d 832 (1984). We conclude, however, that plaintiff did not adequately plead her authority theory. We turn to the theories that are well-pleaded.

Plaintiff contends that the stop and detention exceeded the limitations prescribed by ORS 131.615. 3 She explains:

"Either the officers were searching for drunken drivers [79 Or.App. 759] committing a crime, in which case ORS 131.615 applies, or they were searching for evidence of drunk drivers committing an infraction, in which case [former ] ORS 484.353(2)(b) 4 applies. In either case, it is clear that plaintiff was not stopped because she had committed a traffic infraction or because any officer reasonably believed that she had committed a crime. The violation of such statutory limitations operates to invalidate the roadblock to the same extent as would violations of the applicable roadblock procedure, or the substantive provisions of the state or federal constitution."

ORS 131.615 appears on its face clearly to prohibit officers from stopping a person in order to search for evidence of a crime...

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