Olson v. Wheelock, 8106-03404

• Decision Date: 09 May 1984
• Docket Number: No. 8106-03404,8106-03404
• Citation: 680 P.2d 719,68 Or.App. 160
• Parties: , 1984-1 Trade Cases P 66,061 Charles H. OLSON, dba C & B Olson Construction Company, Appellant, v. C.E. WHEELOCK and William C. Ogilvy, Respondents. ; CA A27165.
• Court: Oregon Court of Appeals

Page 719

680 P.2d 719

68 Or.App. 160, 1984-1 Trade Cases P 66,061

Charles H. OLSON, dba C & B Olson Construction Company, Appellant, v. C.E. WHEELOCK and William C. Ogilvy, Respondents.

No. 8106-03404; CA A27165.

Court of Appeals of Oregon.

Argued and Submitted Jan. 16, 1984.

Decided May 9, 1984.

C. Douglas Oliver, Portland, argued the cause and filed the brief for appellant.

Thomas Sauberli, Portland, argued the cause for respondents. With him on the brief were Walter H. Sweek and Vergeer, Roehr & Sweek, Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Plaintiff appeals a judgment entered in favor of defendants in this action for legal malpractice. The complaint alleges that defendants were negligent in allowing plaintiff's underlying claim for violation of Oregon's Anti-trust Law, ORS 646.725, ¹ to be dismissed for want of prosecution. The trial court granted defendants' motion for summary judgment on the ground that plaintiff's only evidence of the alleged violation of ORS 646.725 was inadmissible hearsay.

Defendants argue for the first time on appeal that plaintiff's anti-trust complaint did not state facts sufficient to constitute a claim for relief. See Adair, Adm'x v. Valley Flying Service, 196 Or. 479, 485, 250 P.2d 104 (1952); Demars v. Erde, 55 Or.App. 863, 866, 640 P.2d 635, rev. den. 293 Or. 146, 651 P.2d 143 (1982). We agree and therefore affirm, albeit for reasons different from those relied on by the trial court.

The malpractice complaint incorporates by reference the underlying anti-trust complaint, which alleged that the defendants in that case had engaged in conduct on or about October 23, 1973, in violation of ORS 646.725, which is part of the state's "Anti-trust Law," which was not enacted until 1975, Or.Laws 1975, ch. 255, § 4, and did not become effective until September 12, 1975. That law does not contain an express direction that it be applied retroactively. See Hall v. Northwest Outward Bound School, 280 Or. 655, 660, 572 P.2d 1007 (1977). It does not address matters of a remedial or procedural nature only, see Joseph v. Lowery, 261 Or. 545, 495 P.2d 273 (1972); it creates a new statutory civil remedy authorizing the recovery of treble damages by persons injured by a violation. ORS 646.780. Violations of the statute may result in criminal prosecutions. ORS 646.815. For those reasons, we conclude that the legislature intended the statute to apply prospectively only. See Hemstreet v. Warlick, 281 Or. 579, 586 n. 3, 576 P.2d 1 (1978), citing Perkins v. Williamette Industries, Inc., 273 Or. 566, 570-71, 542 P.2d 473 (1975).

It appears, therefore, from the face of the malpractice complaint that, as a matter of law, plaintiff could not have prevailed on the anti-trust claim alleged. ² Because plaintiff could not have prevailed on the anti-trust complaint and because the only specification of negligence alleged in the malpractice complaint is the defendants' allowing the underlying case to be dismissed for want of prosecution, summary judgment in favor of defendants was proper. Chocktoot v. Smith, 280 Or. 567, 571 P.2d 1255 (1977).

Affirmed.

1 ORS 646.725 provides:

"Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is declared to be illegal."

2 Plaintiff conceded during oral argument that the anti-trust complaint did not state a claim under the ...