Spivak v. Marriott

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Brewer
• Citation: Spivak v. Marriott, 159 P.3d 1192, 213 Or. App. 1 (Or. App. 2007)
• Decision Date: 23 May 2007
• Docket Number: 040100327.,A126249.
• Parties: James SPIVAK and Gary Spivak, co-personal representatives for the Estate of Henry Spivak, deceased, dba Mr. Car Wash, Plaintiffs-Appellants, v. Dean C. MARRIOTT and City of Portland Bureau of Environmental Services, Defendants-Respondents.

159 P.3d 1192

213 Or. App. 1

James SPIVAK and Gary Spivak, co-personal representatives for the Estate of Henry Spivak, deceased, dba Mr. Car Wash, Plaintiffs-Appellants, v. Dean C. MARRIOTT and City of Portland Bureau of Environmental Services, Defendants-Respondents.

040100327.

A126249.

Court of Appeals of Oregon.

Argued and Submitted August 21, 2006.

Decided May 23, 2007.

Lindsey H. Hughes, Portland, argued the cause for appellant. With her on the briefs was Keating Jones Bildstein & Hughes, P.C.

Harry Michael Auerbach, Chief Deputy City Attorney, argued the cause and filed the brief for respondents.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and WOLLHEIM, Judge.^*

BREWER, C.J.

James and Gary Spivak, personal representatives of the estate of Henry Spivak, dba Mr. Car Wash, appeal from a judgment that dismissed plaintiff's¹ petition for a writ of review and his constitutional, conversion, and contract claims against defendants City of Portland Bureau of Environmental Services (the city) and Dean C. Marriott, the Bureau's director. We reverse and remand.

The trial court granted defendants' motion under ORCP 21 A to dismiss plaintiff's petition for a writ of review and thereafter granted defendants' motion for summary judgment on the remaining claims. We therefore accept as true all of the well-pleaded allegations in the petition for a writ of review and give appellants the benefit of all favorable inferences that may flow from the facts that plaintiff alleged in that petition. Granewich v. Harding, 329 Or. 47, 51, 985 P.2d 788 (1999); Carvalho v. Wolfe, 207 Or. App. 175, 177, 140 P.3d 1162 (2006). On the remaining claims, we state the facts most favorably to appellants, the nonmoving parties, drawing all reasonable inferences in their favor. ORCP 47 C; Schaff v. Ray's Land & Sea Food Co., Inc., 334 Or. 94, 98-99, 45 P.3d 936 (2002).

The dispute between plaintiff and the city arose from a disagreement over the city's charges for plaintiff's use of the city's sewer at plaintiff's car wash. The city normally bases its charges for sewer use on the amount of water that the customer purchases; it assumes that every unit of water coming into the business goes out through the sewer system. The city code, however, permits a customer to have a "sub-meter" installed to measure actual sewer usage and to have the charges based on what that meter shows. Plaintiff believed that his car wash recycled most of its water and that only a relatively small portion of the amount of water that came into the car wash system actually went out through the sewer. In 1994, plaintiff and James Spivak, his son, had a number of conversations and meetings with employees of the city's Bureau of Environmental Services about the situation. Plaintiff later alleged that the city misled him at that time into believing that it was not possible to install a sub-meter. The city did not inform plaintiff of his right to appeal that decision, and plaintiff did not pursue the subject.

In 2001, believing that the law had changed, plaintiff again raised the issue of sewer usage with the city. On that occasion, plaintiff received permission to install a sub-meter and did so. He then requested a refund of alleged sewer overpayments dating back to 1994. The city refused, and plaintiff appealed the refusal to Marriott, the head of the Bureau. Over plaintiff's objections, Marriott limited the hearing on plaintiff's appeal to the issue of whether the city had correctly calculated the sewer bills. Mariott refused to consider either the issue of a refund dating to 1994 or plaintiff's constitutional and common-law challenges to the city's refusal to permit plaintiff to install a sub-meter at that time. On January 13, 2003, Marriott denied plaintiff's appeal, finding instead that plaintiff owed additional amounts to the city. When plaintiff attempted to appeal, the city's Code Hearing Officer denied that he had jurisdiction over the matter.

Plaintiff filed a petition for a writ of review within 60 days of Marriott's decision. In his complaint, he also included constitutional, conversion, and contract claims,² and a claim under 42 U.S.C. section 1983. The city removed the case to federal court based on the section 1983 claim. On November 21, 2003, that court dismissed one count of the section 1983 claim, held the other two counts in abeyance, and dismissed the state law claims without prejudice. It also dismissed the claim against Marriott in his official capacity with prejudice but permitted plaintiff to sue Marriott in his personal capacity. In dismissing the claims, the federal court noted that the version of ORS 12.220 in effect when plaintiff filed the complaint would permit him to refile the case within a year from the dismissal.³ The federal court did not explain why it dismissed the claims rather than remanding them to the state court.

Plaintiff filed this action on January 14, 2004. The claims in his complaint are identical to the state claims that the federal court dismissed except that, in accordance with that court's ruling, plaintiff asserts claims against Marriott in his personal rather than official capacity. Although the complaint included a petition for a writ of review, plaintiff did not file the undertaking that ORS 34.050 requires, and the trial court did not issue the writ. In April 2004, defendants filed a motion to dismiss all of plaintiff's claims under ORCP 21 A(8) for failure to state ultimate facts sufficient to state a claim and to dismiss the constitutional, conversion, and contract claims under ORCP 21 A(9) as untimely.⁴ In their argument supporting their motion to dismiss, defendants pointed out plaintiff's procedural failures and argued that, as a result, there was nothing for the court to review.

"In this case, plaintiff has failed to obtain the necessary writ and has not provided any evidence of a bond to defendants as required by ORS 34.050, 34.060, 34.080. These are essential jurisdictional requirements without which there is simply no action for the court to review. Shevchynski v. City of Eugene, 157 Or.App. 355, 360-61, 970 P.2d 237 (1998)."

Defendants also challenged the legal sufficiency of the petition. They did not argue that the court should dismiss the case because plaintiff had failed to serve the writ that he had not obtained.

In response to defendants' motion, plaintiff defended the sufficiency of his pleading, but he did not refer to his failure to file an undertaking or to have the court issue the writ. On June 17, 2004, the trial court granted the motion to dismiss the petition for a writ of review on the ground that plaintiff had failed to serve the writ on the city. It described service as a jurisdictional requirement:

"The Writ of Review under ORS 34.010 is a special statutory proceeding, providing for judicial review of quasi-judicial functions. Jurisdictional requirements are to be strictly construed. Car Wash concedes that it failed to serve City with a certified copy of the writ as required by ORS 34.080. Thus, the court does not have jurisdiction and the motion to dismiss is granted as to this claim."

The court did not explain how plaintiff could have served the writ on the city when the court had not yet issued it. At the same time, the court denied the city's motion to dismiss plaintiff's remaining claims.

On July 1, 2004, the city filed a motion for summary judgment on the constitutional, conversion, and contract claims. It argued, among other things, that the writ of review was the exclusive method for reviewing the city's actions and that that method of review therefore preempted those claims. The trial court agreed that the writ of review was exclusive and granted the motion for summary judgment. It then entered a general judgment dismissing the entire case, and plaintiff appealed. We first consider the issues concerning the dismissal of the writ of review and then discuss the remaining claims.

The difficulty with the trial court's rationale for granting the motion to dismiss the petition for a writ of review is that the court assumed that something had happened that, in fact, had not happened—that there was a writ that plaintiff could have served. Because the trial court never issued the writ, plaintiff never had the ability to serve it on the city or on anyone else. The court raised that issue sua sponte; neither plaintiff nor defendants had notice that it would be an issue. Defendants did not rely on lack of service to support their motions to dismiss. Although defendants mentioned the requirement of serving the writ in their background discussion, in their arguments they emphasized that plaintiff had not obtained a writ. The specific procedural grounds on which defendants sought dismissal were that plaintiff had not filed the necessary undertaking and that he had not obtained the writ.

The trial court's reliance on a ground of which no party had notice raises the question of how we review the trial court's decision. In their opening brief, appellants stated that we should review the dismissal of their petition for review for error apparent on the face of the record. They then argued that their substantive arguments on appeal—that failure to serve the writ is not jurisdictional and that defendants waived any defect by not raising the issue themselves—satisfied that standard of review. After appellants filed their opening brief, but before they filed their reply brief, we decided Wetherell v Douglas County, 204 Or.App. 732, 132 P.3d 41 (2006), aff'd in part, rev'd in part, and rem'd, 342 Or. 666, ___ P.3d ___ (2007). In Wetherell, the Land Use Board of Appeals (LUBA) based its decision on an administrative rule that no party had mentioned during the course of the proceeding. As a result, the party that lost before LUBA had not previously discussed the proper construction of the rule or contended that the rule was invalid. We held that the losing party,...