Riddle v. Eugene Lodge No. 357 of Benev. and Protective Order of Elks of U.S.

• Decision Date: 08 February 1989
• Citation: 95 Or.App. 206,768 P.2d 917
• Parties: Jerry M. RIDDLE, Appellant, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF the UNITED STATES of America, a corporation, John Feuerbach, William Coons, Terry Brandt, John Hulsey, James Tapp, Nathan Rubenstein, Lawrence Minturn, George Dobson, Ted Hurd, Glen Hirschey, and Arthur Nance, Respondents, John Reiley, Earl Nyberg, and Hainline & Pope, P.C., a corporation, Defendants. Jerry M. RIDDLE, Respondent, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF the UNITED STATES of America, a corporation, John Feuerbach, William Coons, Terry Brandt, John Hulsey, James Tapp, Nathan Rubenstein, Clyde Pierce, Lawrence Minturn, George Dobson, John Reiley, Ted Hurd, Glen Hirschey and Arthur Nance, Defendants, Earl Nyberg, Appellant, Alvis L. ORTON, Appellant, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF the UNITED STATES of America, a corporation, John Feuerbach, William Coons, Terry Brandt, John Hulsey, James Tapp, Nathan Rubenstein, Lawrence Minturn, George Dobson, Ted Hurd, Glen Hirschey, and Arthur Nance, Respondents, Clyde Pierce, John Reiley, Earl Nyberg, Hainline & Pope, P.C., a corporation, Defendants. Alvis L. ORTON, Respondent, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF the UNITED STATES of America, a corporation, John Feuerbach, William Coons, Terry Brandt, John Hulsey, James Tapp, Nathan Rubenstein, Clyde Pierce, Lawrence Minturn, George Dobson, John Reiley, Ted Hurd, Glen Hirschey, and Arthur Nance, Defendants, Earl Nyberg, Appellant. Lola Arlene JENSEN, Appellant, v. EUGENE LODGE NO. 357 OF THE BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE UNITED STATES of America, a corporation, Grand Lodge, Benevolent and Protective Order of Elks of the United States of America, a corporation, Hainline & Pope, P.C., a corporation, John Feuerbach, William Coons, Terry Brandt, John Hulsey, James Tapp, Nathan Rubenstein, Clyde Pierce, Lawrence Minturn, George Dobson, John R
• Court: Oregon Court of Appeals

Page 917

768 P.2d 917

95 Or.App. 206

Jerry M. RIDDLE, Appellant, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER

OF ELKS OF the UNITED STATES of America, a corporation, John

Feuerbach, William Coons, Terry Brandt, John Hulsey, James

Tapp, Nathan Rubenstein, Lawrence Minturn, George Dobson,

Ted Hurd, Glen Hirschey, and Arthur Nance, Respondents,

John Reiley, Earl Nyberg, and Hainline & Pope, P.C., a

corporation, Defendants.

Jerry M. RIDDLE, Respondent, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER

OF ELKS OF the UNITED STATES of America, a corporation, John

Feuerbach, William Coons, Terry Brandt, John Hulsey, James

Tapp, Nathan Rubenstein, Clyde Pierce, Lawrence Minturn,

George Dobson, John Reiley, Ted Hurd, Glen Hirschey and Arthur Nance, Defendants, Earl Nyberg, Appellant, Alvis L. ORTON, Appellant, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER

OF ELKS OF the UNITED STATES of America, a corporation, John

Feuerbach, William Coons, Terry Brandt, John Hulsey, James

Tapp, Nathan Rubenstein, Lawrence Minturn, George Dobson,

Ted Hurd, Glen Hirschey, and Arthur Nance, Respondents,

Clyde Pierce, John Reiley, Earl Nyberg, Hainline & Pope,

P.C., a corporation, Defendants.

Alvis L. ORTON, Respondent, v. EUGENE LODGE NO. 357 OF the BENEVOLENT AND PROTECTIVE ORDER

OF ELKS OF the UNITED STATES of America, a corporation, John

Feuerbach, William Coons, Terry Brandt, John Hulsey, James

Tapp, Nathan Rubenstein, Clyde Pierce, Lawrence Minturn,

George Dobson, John Reiley, Ted Hurd, Glen Hirschey, and

Arthur Nance, Defendants,

Earl Nyberg, Appellant.

Lola Arlene JENSEN, Appellant, v. EUGENE LODGE NO. 357 OF THE BENEVOLENT AND PROTECTIVE ORDER

OF ELKS OF THE UNITED STATES of America, a corporation,

Grand Lodge, Benevolent and Protective Order of Elks of the

United States of America, a corporation, Hainline & Pope,

P.C., a corporation, John Feuerbach, William Coons, Terry

Brandt, John Hulsey, James Tapp, Nathan Rubenstein, Clyde

Pierce, Lawrence Minturn, George Dobson, John Reiley, Ted

Hurd, Earl Nyberg, Glen Hirschey, Arthur Nance, Steven Van

Nuys, as personal representative of the Estate of William

Van Nuys, Deceased, Sidney Nicholson, Jackson Link, Wally

Grove, John Nelson, Roger Cleland, James Horton, Richard

Heyman and Lee Smoot, Respondents,

BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF the UNITED STATES

of America, Sidney Nicholson, Jackson Link and Earl Nyberg, Third-Party Plaintiffs, v. Leonard JENSEN, William H. Menlow, Alvis L. Orton and Jerry

M. Riddle, Third-Party Defendants.

16-85-09583; 16-85-09466; 16-86-06929; CA A43857;

A43858; A46098.

Court of Appeals of Oregon.

Argued and Submitted May 20, 1988.

Decided Feb. 8, 1989.

Bernie M. Ryan and Ridgway K. Foley, Jr., Portland, argued the cause for appellant Earl Nyberg. On the brief were Cecilia Lee, Donald Joe Willis and Schwabe, Williamson & Wyatt, Portland.

Claud A. Ingram, Eugene, argued the cause for appellant and respondent Alvis L. Orton and appellant and respondent Jerry M. Riddle. With him on the brief was Bick & Monte, Eugene.

Diane W. Spies, Portland, filed the brief for respondents Eugene Lodge No. 357 of the Benevolent and Protective Order of Elks of the U.S., a corporation, John Feuerbach, William Coons, Terry Brandt, John Hulsey, James Tapp, Nathan Rubenstein, Lawrence Minturn, George Dobson, Ted Hurd, Glen Hirschey, Arthur Nance, Steven Van Nuys, personal representative of the Estate of W. Van Nuys, Wally Grove, John Nelson, Roger Cleland, James Horton, Clyde Pierce, John Reiley, Richard Heyman and Lee Smoot. With her on the brief were Diane W. Spies & Associates, Ridgway K. Foley, Jr., Donald Joe Willis, Bernie M. Ryan and Schwabe, Williamson & Wyatt, Portland.

Bernie M. Ryan and Ridgway K. Foley, Jr., argued the cause for respondents Grand Lodge, Benevolent and Protective Order of Elks of the U.S., a corporation, Earl Nyberg, Jackson Link and Sidney Nicholson. With them on the brief were Donald Joe Willis, Schwabe, Williamson & Wyatt, Diane W. Spies and Diane W. Spies & Associates, Portland.

Before WARREN, P.J., and DEITS and RIGGS, JJ.

RIGGS, Judge.

These consolidated appeals ¹ arise from losses allegedly sustained by plaintiffs Orton, Riddle and Jensen in gambling games operated on the premises of the Eugene Lodge of the Benevolent and Protective Order of Elks (Lodge). Orton and Riddle alleged claims for gambling losses, and all plaintiffs alleged violations of the Oregon Racketeer Influence and Corrupt Organization Act (ORICO). ORS 166.715 et seq. The trial court struck the unlawful gambling claims that arose more than three years before the filing of the complaint and granted defendants' motions to dismiss plaintiffs' ORICO claims. It also denied defendant Nyberg's motion to amend his pleading to claim attorney fees under ORS 20.105. Plaintiffs and Nyberg appeal. We affirm in part and reverse in part.

We turn first to a procedural matter. ORS 19.033(2)(a) provides:

"The following requirements of ORS 19.023, 19.026 and 19.029 are jurisdictional and may not be waived or extended:

"(a) Service of the notice of appeal on all parties identified in the notice of appeal as adverse parties or, if the notice of appeal does not identify adverse parties, on all parties who have appeared in the action, suit or proceeding, as provided in ORS 19.023(2)(a), within the time limits prescribed by ORS 19.026." (Emphasis supplied.)

Jensen's ORCP 67 B judgment specifically excludes her claim against Hainline & Pope, P.C. The record does not show that Hainline was ever served or that it ever appeared in trial proceedings. ² Nonetheless, Jensen named it as an adverse party on appeal but did not serve it with a copy of the notice of appeal.

Before 1985, ORS 19.033(2) provided that a notice of appeal must be served on all parties who have appeared in the action. The statute was amended in 1985 to provide for service only on named adverse parties in order to end the practice of dismissing timely appeals because of a failure to serve parties who had been dismissed earlier in an action and who had no active interest in the litigation. Rhodes v. Eckelman, 302 Or. 245, 249, 728 P.2d 527 (1986); Maduff Mortgage Corp. v. Deloitte Haskins & Sells, 83 Or.App. 15, 22, 730 P.2d 558 (1986), rev. den. 303 Or. 74, 734 P.2d 354 (1987).

It would be contrary to the legislative purpose to dismiss Jensen's entire appeal because of her failure to serve Hainline when Hainline has never appeared in the action, is specifically excluded from the judgment and has no interest in the appeal. We do not believe that the statutes command such a result. ORS 19.033(2)(a) requires service on all parties who appeared in the action, if adverse parties are not named, and refers to ORS 19.023, ORS 19.026 and ORS 19.029 for the requirements that are jurisdictional. None of those statutes requires service of the notice of appeal on a party who has not appeared in the action. It would be anomalous for the statute to require dismissal of Jensen's entire appeal because Hainline was inadvertently named as an adverse party. We decline to do so. However, because the appeal against Hainline has not been perfected, we dismiss the appeal as to it. We decline to dismiss Jensen's appeal against the other parties and turn to the merits.

Plaintiffs Riddle and Orton assign error to the trial court's striking of the claims for gambling losses that occurred more than three years before the complaints were filed. They argue that the statutory basis for their claims is ORS 30.780:

"Any person violating ORS 167.117 to 167.162 [criminal gambling statutes] shall be liable in a civil suit for all damages occasioned thereby."

They argue that the applicable limitation is six years under ORS 12.080(2), which provides that an

"action upon a liability created by statute, other than a penalty or forfeiture * * * shall be commenced within six years."

Plaintiffs are not correct. Even if a claim under ORS 30.780 is subject to the six-year limitation of ORS 12.080(2), they did not bring their claims under that statute. Their complaints seek double damages under ORS 30.740, ³ which provides for a penalty or forfeiture, see Mozorosky v. Hurlburt, 106 Or. 274, 198 P. 556, 211 P. 893 (1923); therefore, on its face, ORS 12.080(2) does not apply.

The trial court held that the applicable Statute of Limitations is ORS 12.100(2), which provides:

"An action upon a statute for penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state, excepting those actions mentioned in ORS 12.110, shall be commenced within three years."

Although defendants did not assign error to the trial court's determination, at oral argument they postulated that the applicable provision is ORS 12.130:

"An action upon a statute for a penalty given in whole or in part to the person who will prosecute for the same, shall be commenced within one year after the commission of the offense * * *." ⁴

We conclude that the limitation is three years under ORS 12.100(2). The distinction between earlier versions of ORS 12.100(2) and ORS 12.130 was pointed out by the Supreme Court in Howe v. Taylor, 6 Or. 284, 294 (1877):

"[W]hen the action is given to the party aggrieved to recover a forfeiture under a statute or to the state, with such party three years is the limitation, and when it is given generally to an informer, one year is the limitation."

Riddle and Olson alleged that they sustained gambling losses. They are "aggrieved" parties who may seek to recover twice their losses within three years. See Mozorosky v. Hurlburt, supra, 106 Or. at 290, 211 P. 893. The trial court properly struck the claims for losses sustained earlier than that time.

Plaintiffs assign error to the trial court's ruling that their complaints failed to state ultimate facts sufficient to state a claim under ORICO. ORCP 21 A(8). At the pretrial hearing, defendants moved to dismiss on that...