Appendix — Rocky B. Fisheries, Inc. v. North Bend Fabrication & Machine, Inc.

ee Office - Supreme Court, US

ILED ©

84-15% ¥

In the Supreme

nf the United States

OCTOBER TERM, 1983

ROCKY B. FISHERIES, INC.,

an Oregon Corporation,

JOHNNIE BROWN and DAVID BROWN,

Appellants,

v.

NORTH BEND FABRICATION & MACHINE, INC.,

an Oregon Corporation;

JOHN DUDREY with his law firm partners

FLOYD A, FREDRICKSON, LLOYD W.

WEISENSEE, PETER C. McCORD and JAY M.

FOUNTAIN; LAWRENCE F. FINNERAN with

his law firm partners JERRY O. LESAN and

KIRK JOHANSEN,

Appellees.

ON APPEAL FROM THE

OREGON CouRT OF APPEALS

APPENDIX TO

JURISDICTIONAL STATEMENT

JOAN L. VOLPERT *

JOHN L. LANGSLET

2908 First Interstate Tower

Portland, Oregon 97201

Telephone: (503) 224-3113

Counsel for Appellants

7/20/84 * Counsel of Record

——————— te tee

STEVENS-NESS LAW PUB.CO., PORTLAND, OR. 97204 7-64

APPENDIX INDEX

Appendix

Page(s)

A. Opinion of Oregon Court

of Appeals (66 Or. App.

625, 676 P.2d 319 (1984)) ... A-1

B. Denial of Petition for

Review by Oregon Supreme

Court (297 Or. 82 (1984)) ... A-38

C. Order of Coos County Circuit

Court Judge Richard L. Barron

Sitting by designation in

Multnomah County Circuit

Court, dated June 14, 1982 .. A-39

D. Judgment of Coos County

Circuit Court Judge Richard L.

Barron sitting by designation

in Multnomah County Circuit

Court, dated June 14, 1982 .. A-44

E. Notice of Appeal eoeoereeeee eevee A-47

F. Statutes Involved ........ «ee A-50

Or. Rev. Stat. 783.010 to

783.170 ceoeceoeereeeer eee ee eee ee A-50

Or. Rev. Stat. 29.020 to

29.075 (now Or. R. Civ. P.

81-85) coeoereoeeeeee ee eee ee eee A-55

Or. R. Civ. P. 83-84 eoeeeeeves A-64

A-1

APPENDIX

Appendix A

Opinion of

Oregon Court of Appeals

No. CA A25230

IN THE COURT OF APPEALS Of THE

STATE OF OREGON

ROCKY B. FISHERIES, INC. et al,

Appellants,

Ve

NORTH BEND FABRICATION & MACHINE,

INC. et al,

Respondents.

Appeal from Circuit Court, Multnomah

County.

Richard L. Barron, Judge.

Argued and submitted July 8, 1983.

Barbara J. Gazeley, Portland, argued

the cause for appellants. With her on

the briefs were John L. Langslet and

Martin, Bischoff, Templeton, Biggs &

Ericsson, Portland.

J. P. Graff, Portland, argued the

cause for respondents. With him on the

brief was Schwabe, Williamson, Wyatt,

Moore & Roberts, Portland.

A-2

Before Buttler, Presiding Judge, and

Warren and Rossman, Judges.

BUTTLER, P.J.

Affirmed.

Filed January 25, 1984

BUTTLER, P.J.

This action at law for damages arose

out of the in rem seizure of a fishing

vessel, the Rocky B, ompursuant to ORS

783.010 et seg. Plaintiffs contend that

defendants are liable under 42 £42USC

§ 1983, because the seizure was accom-

plished without/ due process of law, and

are also liable for failure to comply

with the requirements for issuance of

provisional process specified in ORS

29.020 et seq (now codified in ORCP

81-85). They also seek recovery under

theories of conversion, abuse of process

and interference with contractual rela-

tions. The trial court granted defendant

North Bend's motion for summary judgment

A-3

and the individual defendants' motion to

dismiss; plaintiffs appeal from the re-

Sulting judgment dismissing all claims

except one, which was added as a separate

Claim after the court had ruled on the

motions. |

In May, 1979, plaintiffs Brown, now

the sole shareholders of plaintiff Rocky

B. Fisheries, Inc., began construction of

a fishing vessel, the Rocky B. Construc-

tion was financed by Southern Oregon Pro-

duction Credit Association (PCA), which

secured its loan of more than $427,000

with what plaintiffs characterize as

lthe remaining claim alleges that

the seizure of the vessel was illegal,

because the Oregon court lacked jurisdic~

tion and that jurisdiction vested exclu-

sively in the federal court. The judg-

ment, pursuant to ORCP 67B, articulates

reasons for determining that there is no

just reason for delay.

A-4

"preferred ship's mortgages." Defendant

North Bend supplied services and materi-

als on an open account for the construc-

tion, fitting, furnishing and equipping

of the vessel. An outstanding balance of

$5,410.04 was due when North’ Bend,

through its attorneys, defendants

Finneran and Dudrey, claimed a nonmari-

time lien on the vessel in that amount

pursuant to ORS 743.010(2).

On August 1, 1980, North Bend filed

an action against the Rocky B, seeking a

judgment against it for the balance due,

and moved for an order authorizing the

arrest of the Rocky B. On August 5,

1980, after requiring North Bend to post

a bond, a circuit court judge ordered the

clerk of the court to issue a warrant for

the seizure of the vessel. The warrant

was issued by the clerk, and the vessel

A-5

waS seized by the sheriff. Plaintiffs

learned of the seizure immediately and

demanded that defendants release it.

Because the seizure of the vessel consti-

tuted a default on the mortgage, PCA com-

menced an action in federal district

court to foreclose its mortgage. The

marshal, acting pursuant to an order of

that court, seized the vessel and cur-

rently holds it under arrest.

Under ORS 783.010, every boat or

vessel used2 in the waters of, or

2To the extent that ORS ch 783

purports to authorize state court actions

with respect to maritime liens, it con-

flicts with the exclusive admiralty jur-

isdiction of the United States District

Courts. Therefore, in The Victorian, 24

Or 121, 32 P 1040 (1893), the Supreme

Court construed the provisions of ORS ch

783 to apply only to nonmaritime liens,

i.e., liens with respect to labor and

materials used in the original construc-

tion of ships.

a a

A-6

constructed in, the state is liable and

subject to a lien, so far as relevant:

"(1) For wages due to persons em-

ployed, for work done or services

rendered on board such boat or ves-

sel.

"(2) For all debts due to persons

by virtue of a contract, expressed

or implied, with the owners of a

boat or vessel, or with the agents,

contractors or subcontractors of

such owner, or with any person hav-

ing them employed to construct, re-

pair or launch such boat or vessel,

on account of labor done or materi-

als furnished by mechanics, trades-

men or others in the building, re-

pairing, fitting and furnishing or

equipping such boat or vessel, or on

account of stores and supplies fur-

nished for the use thereof, or on

account of premiums for insurance

placed on or with respect to such

poat or vessel, or on account of

launchways constructed for the

launching of such boat or vessel."

Under ORS 783.030 and 783.040, a

creditor claiming a lien under ORS

783.010 may commence an in rem state

court action directly against a vessel by

filing a complaint setting forth his de-

mand in all its particulars in the cir-

A-7

cuit court of the county in which the

vessel is located. ORS 783.050 provides

that when the complaint is filed, the

clerk of the court shall issue a warrant

commanding the sheriff to seize the ves-

sel named in the complaint. Seizure of

the vessel under that statutory procedure

is a prerequisite to the perfection of a

lien under ORS 783.010. Paddack v.

Rasmussen, 294 Or 599, 604, 660 P2da 677

(1983).

On return of the warrant for the

arrest of the vessel, "proceedings shall

be had in circuit court against the boat

or vessel seized, in the same manner as

if the action had been commenced against

the person on whose account the demand

accured." ORS 783.060. The master,

Owner, agent or consignee of the vessel

may appear and answer the complaint, ORS

a

A-8

783.070, but if no appearance is made,

the plaintiff may obtain a defauit judg-

ment against the vessel, which is the

defendant. ORS 783.080. ORS 783.090

provides that the master or other inter-

ested person may have the vessel released

prior to adjudication of the underlying

claim by entering into an undertaking in

favor of the plaintiff, with sufficient

security to be approved by the judge or

clerk of the court.

Plaintiffs contend that the prejudg-

ment seizure of the Rocky B under chapter

783 violated their due process rights

under the Fourteenth Amendment to the

United States Constitution, giving rise

to a claim under 42 USC § 1983. Their

catalog of perceived constitutional

defects in chapter 783 is drawn from the

deficiencies exposed in four Supreme

A-9

Court cases that dealt with the constitu-

tionality of state laws governing the

seizure of a debtor's property before

judgment: Sniadach v. Family Finance

Corp., 395 US 337, 89 S Ct 1820, 23 L kad

2d 349 (1969); Fuentes v. Shevin, 407 US

67, 92 S Ct 1983, 32 L Ed 2d 556 (1972);

Mitchell v. W. T. Grant Co., 416 US 600,

40 L Ed 2d 406, 94 S Ct 1895 (1974), and

North Georgia Finishing, Inc. v. Di-Chen,

Inc., 419 US 601, 95 S Ct 719, 42 L Ed 2a

751 (1975).

In Sniadach v. Family Finance Corp.,

Supra, the Court invalidated a Wisconsin

garnishment statute which allowed a cred-

itor, without prior notice or hearing, to

attach the wages of a debtor pending the

outcome of the creditor's claim. Simi-

larily, in Fuentes v. Shevin, supra, the

Court struck down Florida and Pennsyl-

A-10

vania prejudgment replevin procedures

that allowed creditors to seize goods in

which they claimed an interest without

providing the debtor with prior notice or

an opportunity to be heard. The general

rule to be gleaned from these cases is

that, except in “extraordinary situa-

tions," whenever an owner is to be de-

prived of the use of his property during

the pendency of litigation, due process

requires notice and opportunity for an

early hearing before a judicial officer.

In Mitchell v. W. T. Grant Co.,

supra, and North Georgia Finishing, Inc.

v. Di-Chen, Inc., supra, the Court

expanded that rule by holding that offi-

cial seizures without prior notice and

hearing or other safeguards against mis-

take violate due process. Mitchell up-

held a Louisiana sequestration statute

A-11

which provided for the judicial issuance

of a writ on the ex parte application of

a creditor who claimed an interest in the

Property to be sequestered. Although no

notice or opportunity for hearing was

required prior to the issuance of the

writ, the statute afforded other safe-

guards by requiring: (1) a sworn affida-

vit showing the creditor's claim and the

right to repossession; (2) issuance of a

writ authorizing the seizure by a judge

rather than a court clerk; (3) a bond

sufficient to compensate the debtor for

damages caused by a wrongful seizure, and

(4) an opportunity for the debtor to seek

"immediate" dissolution of the writ,

which must be ordered unless the creditor

"proves the grounds upon which the writ

was issued." 416 US at 606. In North

Georgia, the court’ relied mainly on

A-12

Mitchell in invalidating a Georgia gar-

nishment statute which authorized a court

clerk to issue a writ of impoundment

based on an affidavit containing only

conclusory allegations. The statute

attacked in North Georgia had none of the

"saving" characteristics emphasized in

Mitchell.

Relying on those precedents, plain-

tiffs here claim that the seizure of the

Rocky B was deficient in several re-

spects: (1) no pre-seizure notice or

hearing was afforded plaintiffs; (2) the

complaint filed by defendants consisted

of bare conclusory allegations’ unsup-

ported by an affidavit containing facts

to support the claim; (3) there was no

meaningful judicial participation in the

issuance of the writ; (4) no “extraordin-

ary situation" existed which would justi-

A- 13

fy summary seizure,3 and (5) no oppor-

Pin Fuentes v. omevin, supra, tne

DUpreme VCOUTT OUCTLiueu CHE ext raorasahary

situatios" exception:

"There are ‘extraordinary situa-

tions' that justify postponing no-

tice and opportunity for a hearing.

Boddie v. Connecticut, 401 US [371],

at 379 [91 S Ct 780, at 786, 26 L Ed

2d 113]. These situations, however,

must be truly unusual. Only in a

few limited situations’ has this

Court allowed outright seizure with-

out opportunity for a prior hearing.

First, in each case, the seizure has

been directly necessary to secure an

important governmental or general

public interest. Second, there has

been a special need for very prompt

action. Third, the State has kept

strict control over its monopoly of

legitimate force: the person initi-

ating the seizure has been a govern-

ment official responsible for deter-

mining, under the standards of a

narrowly drawn statute, that it was

necessary and justified in the par-

ticular instance." 407 US at 90-91.

(Footnotes omitted. )

Several federal courts have relied on

this exception in upholding maritime sei-

zures. See, e.g., Merchant's National

Bank v. Dredge General G. F. Gillespie,

663 F2d 1338 Cth Cir 1981); Central Soya

A-14

tunity for a post-seizure hearing was

provided.

The question is whether that line of

cases applies to a chapter 783 proceed-

ing, where the purpose of the statutory

scheme is to permit the perfection of a

Statutory lien against a specific vessel

and where any judgment that may be

entered is against that vessel only and

may be collected, if at all, from the

Sale of the vessel. ORS 783.110. The

Situation presented is somewhat analogous

to a construction lien claimed by a

materialman who provides material to a

contractor in the construction of a

commercial building. The owner may have

Co., auc. vo Ox toW1ns, 417 F Supp 658

(ND Miss 1976); Olyesha Pipeline Service

Co. v. Bay Ridge, 509 F Supp 115 (D Ala

1981), appeal dismissed 703 F2d 381 (9th

Cir 1983); Karl Senner, Inc. v. M/V

Acodian Valor, 485 F Supp 287 (ED La

1980).

A-15

paid the contractor in full, but the con-

tractor may not have paid the laborers or

materialmen. Those unpaid suppliers are

entitled to a lien against the building,

even though they have no claim against

the owners. The lien may be perfected by

a filing within the time permitted by ORS

87.035, and no notice is required either

before or after filing, although failure

to give the post-filing notice specified

in ORS 87.039 precludes the lien claimant

from recovering costs and attorney fees.

It is true that filing a _ lien

against real property is not quite as

drastic as seizing a vessel. However,

the filing of a lien constitutes a

restraint on the alienation of the pro-

perty and may cause irreparable harm to

the owner; for that reason, the lien

A-16

expires six months after it is filed,

unless an action is commenced to fore-

close it. ORS 87.055. MThere is no fil-

ing procedure under chapter 783, the

statutory lien being perfected only by

seizure, which must be accomplished with-

in one year after the cause of action has

accrued.

The analogy is by no means complete,

but it suggests that in the context of

due process there may be a weighing of

the rights of the parties to determine

whose due process has been denied. Under

chapter 783, as in maritime liens, the

concept that the vessel, apart from its

owner, has incurred a liability is funda-

mental in the context of the arrest or

seizure of vessels. Merchant's National

Bank v. Dredge General G. F. Gillespie,

A-17

663 F2d 1338, 1345 (5th Cir 1981).4 In

Cordrey v. Steamship "Bee," 102 Or

636, 651, 201 P 202 (1921), the court

quoted from Keating v. Spink, 3 Ohio St

105, 62 AD 214 (1893):

"This statute, then, as stated by

the court in the Canal-Boat Huron v.

Simmons, 11 Ohio [459, 461 (1642)],

"treats the boat as a person, and

makes it responsible in its own name

for all debts contracted for its

use, and for all injuries committed

against persons or _ property’ on

board, by her officers or crew."

The liability is upon the craft--the

Proceeding is against the craft--and

the judgment operates alone upon the

craft. Its seizure is indispensable

to the jurisdiction of the court,

and its continued custody, unless

released upon bond and security,

indispensably necessary to the

further proceedings, after final

judgment."

4although federal cases ruling on

the constitutionality of procedures em-

ployed in maritime seizures are not

authoritative in the context of a non-

maritime seizure, they delineate the his-

torical and practical distinctions be-

tween admiralty and common law and, by

analogy, aid in determining the due pro-

cess required in the present context.

A-18

The doctrine of the ship's liabil-

ity, apart from that of its owner, and

the concept that the lien creates an

interest in the vessel do not immunize

the procedure from the constraints of due

process. However, as the Supreme Court

observed in Mitchell v. W. T. Grant Co.,

supra, 416 US 610:

"x * * [The] requirements of due

process of law ‘are not technical,

nor is any particular form of proce-

dure necessary.' Due process of law

guarantees 'no particular form of

procedure; it protects substantial

rights.' 'The very nature of due

process negates any concept of in-

flexible procedures universally

applicable to any imaginable situa-

tion.' (Citations omitted.)"

The fundamental requisites of due

process are adequate notice and an oppor-

tunity to be heard. Mullane v. Central

Hanover Bank & Trust Co., 339 US 306,

313-16, 70 S Ct 652, 94 L Ed 865 (1970).

If the procedures provided by chapter 783

A-19

meet those fundamental requirements, they

should be upheld. Although there is no

Statutory requirement that the owner of

the vessel be given notice of its sei-

zure, in Cordrey v. Steamship "Bee,"

Supra, 102 Or at 650, the court said that

"seizure of one's property is notice to

him of an invasion of his rights, calling

upon him to defend." It held that fail-

ure to require written notice did not

offend due process. Despite the fact

that notice by seizure has been criti-

cized of late, it is particularly appro-

priate in the seizure of a seagoing ves-

sel, the identity or whereabouts of whose

Owners may be unknown, or whose owners

may be outside the jurisdiction.

As the court stated in Cordrey v.

Steamship "Bee," supra, 102 Or at 653:

A-20

"* * * In the case of a seagoing

vessel especially, which is _ con-

stantly in charge of a master or

other representative of the owner,

or of the owner himself, the mere

taking is such an invasion of pro-

perty rights as to notify the owner

as a practical matter, that he must

defend. * * *"

It is reasonable to assume that the mas-

ter of a vessel will notify the owner or

the owner's insurer in the event of sei-

zure. We cannot say that the notice pro-

vided by chapter 783 is inadequate be-

cause it is not provided prior to the

seizure of the vessel. There is no lien

prior to seizure and, if prior notice

were required, it would in many instances

enable the owner to frustrate the perfec-

tion of the lien and its priority by put-

ting out to sea or alienating the vessel.

The lien provided by ORS 783.010 gives a

lienor a sufficient interest in the ves-

sel to detain it so that the lien can be

A-21

perfected and judicially enforced. For

those reasons, we conclude that neither

pre-seizure notice nor hearing is consti-

tutionally required.

Plaintiffs challenge the statute's

lack of a statutory provision for a

prompt post-seizure hearing, but they ig-

nore ORS 783.090. Although that section

may not articulate the procedure to be

followed as completely as_ we might

desire, it expressly allows an owner,

agent or consignee to secure the immedi-

ate release of a vessel by entering into

"an undertaking in favor of plaintiff,

with sufficient security, to be approved

by the judge or clerk of the court in

which the action is pending." We are

bound to uphold the constitutionality of

legislation when it is reasonably suscep-

tible to an interpretation that will per-

A-22

mit it. City of Portland v. Welch, 229

Or 308, 316, 364 P2d 1009, 367 P2d 403

(1961). Just as the court in The

Victorian, supra, n 2, limited the appli-

cation of what is now ORS ch 783 to non-

maritime liens in order to avoid conflict

with the Congressionally mandated exclu-

sive federal jurisdiction over maritime

liens, we should construe ORS 783.090 to

comport with due process requirements, if

it is susceptible to such a construc-

tion.

It is clear that the statute permits

the owner, after seizure, to request the

judge to approve the security he must

post in order to obtain the release of

the vessel. Given that express statutory

procedure, we construe the statute to

permit the owner to obtain a post-seizure

hearing to challenge the legality of the

A-23

seizure, the validity of the claim or the

amount claimed in order to fix the amount

of the undertaking necessary to release

the vessel. Accordingly, the statutory

scheme is not invalid on its’ face.

Neither was it unconstitutionally applied

in this case. Here, plaintiffs did not

attempt to avail themselves of that pro-

cedure. Therefore, we hold that the pro-

visions of ORS chapter 783 and the pro-

cedures employed in the seizure of the

Rocky B did not violate plaintiffs' due

process rights. The trial court did not

err in dismissing plaintiffs' claim under

42 USC § 1983.°

942 USC § 1983 provides:

"Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of Colum-

bia, subjects, or causes to be sub-

A-24

Plaintiffs also contend that the re-

quirements for issuance of provisional

process set forth in ORS 29.020 et seq

(now codified in ORCP 81-85) apply to the

seizure of a vessel pursuant to chapter

783 and that defendants are liable for

failure to follow those procedures. As

we stated in Huntington v. Coffee

Associates, 43 Or App 595, 603 P2d 1183

(1979):

"ORS 29.020 to 29.075 were enacted

in 1973 in response to the U.S.

Supreme Court decisions in Fuentes

v. Shevin, 407 US 67, 92 S Ct 1983,

32 L Ed 2d 556 (1972), and Sniadach

v. Family Finance Corp., 395 US 337,

B95 S Ct 1820, 23 L Ed 2d 349 (1969),

which invalidated statutory provi-

sional remedies in many states, in-

jected, any citizen of the United

States or other person within the

jurisdiction thereof to the depriva-

tion of any rights, privileges, or

immunities secured by the Constitu-

tion and Laws, shall be liable to

the party injured in an action at

law, suit in equity, or other proper

proceeding for redress. * * *"

A-25

cluding Oregon, as not meeting the

requirements of due process because

they permitted prejudgment attach-

ment, garnishment or repossession

provisional processes without a

prior hearing.

"In adopting ORS 29.020 to 29.075,

the legislature established proce-

dural requirements for all types of

provisional process, with respect to

all of which judicial intervention

is necessary and, except for extra-

ordinary circumstances, notice and

hearing are required. * * *"

ORS ch 783 provides a complete set

of procedures whereby a creditor may

acquire, perfect and enforce a lien in a

narrowly defined and historically unique

area of law. The Sniadach line of cases,

in response to which ORS 29.020 et seg

were enacted, are inapposite to the sei-

zure of a vessel under ORS 783.030 et

seg, where seizure is necessary both to

perfect a creditor's interest in the pro-

perty and to invoke the court's jurisdic-

tion. Moreover, the provision for pre-

A-26

seizure notice and hearing mandated by

Oregon's provisional process statutes

might defeat a creditor's ability to per-

fect and enforce a statutory lien against

the vessel by providing an opportunity

for the vessel to abscond from the

court's jurisdiction. Given those statu-

tory purposes for the seizure of a ves-

sel, the process does not appear to be

provisional in the ordinary sense of that

term any more than does the filing of a

construction lien. ® For these reasons,

6prejudgment seizures of property

to which the requirements for provisional

process apply are limited by the defini-

tion of "provisional process." Former

ORS 29.020(5) (repealed by Or Laws 1981,

ch 898, § 53) defined “provisional pro-

cess" to mean:

"(1] attachment under ORS 29.110

to 29.400, [2] garnishment’ under

such attachment, [3] replevin or

claim and delivery under ORS 29.080

to 29.095 or [4] any other legal or

A-27

we conclude that the procedures set forth

in ORS 29.020 et seq are inapplicable to

the seizure of a vessel pursuant to ORS

783.010 et seq.

Plaintiffs' reliance on Lent Ve

Robinson, 47 Or App 579, 615 P2d 338

(1980), is misplaced. In Lent, we indi-

cated that the plaintiffs, who =_— had

equitable judicial process or remedy

which before final judgment enables

a plaintiff, or the court on behalf

of the plaintiff, to take possession

Or control of, or restrain use or

disposition of, property in which

the defendant claims an interest."

(Emphasis supplied. )

The defendant in an action under ORS

783.030 is the vessel, not its owners.

The emphasized language in the quoted

Statute suggests that the legislature

intended the requirements of provisional

process to apply only to in personam or

quasi in rem proceedings against 4

debtor, not to strictly in rem proceed-

ings against property. We express no

Opinion as to the effect of those sta-

tutes when the owners of the vessel are

parties defendant and a judgment is

sought against them personally.

A-28

obtained a prejudgment attachment and

garnishment, were required to comply with

the 1973 statutory requirements for pro-

visional process, even when the claimed

purpose of the attachment was to obtain

quasi in rem jurisdiction. The question

presented in Lent was whether the trial

court's order quashing the writ of

attachment was appealable. We held that

it was not, because the trial court was

without authority to issue the writ in

the first place. The plaintiffs contend-

ed that the court had authority, because

it was necessary for the court's juris-

diction. The record revealed, however,

that the defendant had been served by

substituted service, sufficient to obtain

jurisdiction over him, but not sufficient

to give him the personal notice required

by the provisional process” statutes.

A-29

Former ORS 20.065(2) (repealed by Or Laws

1981, ch 898, § 53). The plaintiffs

relied on the pre-1973 statutes authoriz-

ing prejudgment attachment without notice

(former ORS 29.110, repealed by Or Laws

1981, ch 898, § 53), which had not been

expressly repealed by the 1973 legisla-

tion. We concluded, however, that, be-

cause the 1973 legislation conflicted

with the prior legislation, it controlled

to the extent that it conflicted with the

earlier statutory scheme. See Davis v.

Wasco IED, 286 Or 261, 272, 593 P2d 1152

(1979). Attachment and garnishment are

clearly provisional processes covered by

the 1973 statutory scheme; seizure of a

vessel to perfect a statutory lien is

not. We find no conflict between the

provisional process statutes and chapter

783.

A-30

Plaintiffs contend that the "wrong-

ful" seizure of the Rocky B constituted

conversion and that defendants are liable

to plaintiffs for the full value of the

vessel. Because we have concluded that

the defendants were within their rights

in seizing the vessel, plaintiffs have

not stated a claim for conversion.

Plaintiffs further contend that

defendants' conduct in causing the sei-

zure of the Rocky B constituted an abuse

of process. Abuse of process is the per-

version of a legal procedure to accom-

plish an ulterior purpose when the proce-

dure is commenced in proper form and with

probable cause. Larsen v. Credit Bureau,

279 Or 405, 408, 568 P2d 657 (1977);

Kelly v. McBarron, 258 Or 149, 154, 482

P2d 187 (1971). Dean Prosser identified

the essential elements of the tort:

A-31

“se * © [P)}irst, an ulterior sur-

pose, and second, a wilful act in

the use of the process not proper in

the regular conduct of the proceed-

ing. Some definite act or threat

not authorized by the process, or

aimed at an objective not legitimate

in the use of the process, is re-

quired; and there is no liability

where the defendant has done nothing

more than carry out the process to

its authorized conclusion, even

though with bad intentions. The im-

proper purpose usually takes’ the

form of coercion to obtain a collat-

eral advantage, not properly in-

volved in the proceeding itself,

such as the surrender of property or

the payment of money, by the use of

the process as a threat or a club. *

e Rt Prosser, Law of Torts 857,

§ 121 (1971). (Footnotes omitted. )"

Quoted in Larson v. Credit Bureau,

Supra, 279 Or at 408.

Plaintiffs appear to argue that

defendants asserted the priority of North

Bend's lien over PCA's mortgage in order

to coerce PCA to pay plaintiffs' indebt-

edness to North Bend. Taking those alle-

gations as true, however, they fail to

state a claim for abuse of process.

A-32

North Bend had the right to attempt to

collect the amount owed it and had the

right to assert and perfect its lien by

seizing the vessel. It was also entitled

to a judicial determination whether its

lien was prior to that of PCA. If its

lien was not prior to PCA's mortgage,

there was no way it could “coerce” the

latter into paying North Bend, unless PCA

preferred to pay it rather than have the

vessel sold subject to its mortgage. If,

on the other hand, North Bend had prior-

ity, PCA would be required to pay off

that lien in order to protect its junior

lien. If threats by North Bend to fore-

close constitute coercion, that is part

of the process, not an abuse of it.

There is nothing unusual about hold-

ers of liens commencing foreclosure pro-

ceedings in the hope that they may per-

A-33

suade another lienor that may have prior-

ity so that the other lienor will buy

them out. The commencement of such pro-

ceedings does not become an abuse of pro-

cess merely because the initiator hopes

to obtain a benefit short of a foreclo-

Sure sale. Restatement (Second) of

Torts, 475, § 682, comment b (1977). It

is absurd to say, then, that a lienor

claiming priority has acted improperly in

doing what the law requires to effectuate

its rights--seizing the vessel and

asserting its priority.

Although defendants are willing to

"concede" that it might be an abuse of

process if defendants had seized the ves-

sel to acquire a lien they knew was in-

ferior to PCA's and had falsely asserted

priority in order to compel PCA to pay

off plaintiffs' debt, plaintiffs have not

A-34

alleged that defendants asserted the

priority of North Bend's lien in the

knowledge or reasonable belief that it

was inferior to that of PCA. /

7in plaintiffs' third claim for

relief, they assert:

"In furtherance of defendants'

improper purpose, defendants claimed

an illegal and wrongful lien on the

"Rocky B' which defendants asserted

was superior to the Preferred Ships

Mortgage of PCA, which forced PCA to

file its own foreclosure action on

the 'Rocky B' in order to protect

its interests. Further, defendants

told PCA that they would harass and

annoy it and plaintiffs with their

wrongful lien claim until PCA paid

the claimed debt, and would persist

in their wrongful claim of lien even

though they were told their lien was

wrongful, and their procedures were

improper. After PCA filed its fore-

closure action, which foreclosure

was solely and exclusively caused by

defendants' wrongful seizure, defen-

dants persisted in their claim of

lien."

We have already concluded that the proce-

dure whereby the lien was claimed was not

wrongful or illegal. As asserted in this

A-35

Defendants' motions for dismissal and

Summary judgment on this claim were pro-

perly granted.

Under the terms of the mortgage be-

tween plaintiffs and PCA, the seizure of

the Rocky B constituted an act of

default. Plaintiffs allege that before

the seizure of the vessel they and PCA

had agreed that, although the first pay-

ment on the mortgage was due in October,

1980, PCA would not foreclose, but would

allow plaintiffs to make payments from

their profits in the 1980-81 fishing sea-

son, which commenced in December, 1980.

Defendants’ actions in causing the sei-

zure of the Rocky B allegedly interfered

context, we conclude that the words

“wrongful and illegal" must refer to the

Status of the lien itself and not to the

fact that defendants have asserted a

superior lien.

A-36

with those agreements, to plaintiffs'

detriment.

In order to state a claim for inten-

tional interference with a business rela-

tionship, facts must be alleged that show

an intentional interference with’ the

plaintiff's business relationship, that

the interference was for an improper pur-

pose or was by improper means and that,

as a result, the plaintiff was injured

beyond the fact of the interference it-

self. Straube v. Larson, 287 Or 357,

361, 600 P2d 371 (1979); Erlandson v.

Pullen, 45 Or App 467, 471, 608 P2d 1169

(1980).

Plaintiffs have failed to allege

sufficient facts to entitle them to

relief under this theory. In Straube v.

Larson, supra, 287 Or at 361, the court

stated:

A-37

“* * * [T]o be entitled to go to a

jury, plaintiff must not only prove

that defendant intentionally inter-

fered 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, or

that defendant used improper means

which resulted in injury to plain-

tife. & & ©

In support of this claim for relief,

plaintiffs allege only that the seizure

of the Rocky B was “wrongful and ille-

gal," as a result of which PCA "was

forced to" foreclose its lien. We have

already decided that defendants' seizure

was authorized, and there is no allega-

tion that defendants seized the vessel

for the purpose of causing PCA to com-

mence foreclosure proceedings. In the

absence of an allegation that defendants

sought to accomplish the seizure for

other than a legitimate purpose, e.g., to

enforce its lien pursuant to ORS 783.010,

A-38

jefendants' motions for dismissal and

summary judgment were properly granted.

The trial court did not err in

granting the individual defendants" mo-

tion to dismiss or North Bend's motion

for summary judgment.

Affirmed.

Appendix B

Denial of Petition for

Review by Oregon Supreme Court

CA A25230

SC $30477

IN THE SUPREME COURT

OF THE STATE OF OREGON

ROCKY B FISHERIES INC

BROWN, JOHNNIE

BROWN, DAVID

Petitioners

A-39

NORTH BEND FABRIC & MACHINE

DUDREY , JOHN

FREDRICKSON,FLOYD A

WIESENSEE,LLOYD W

MCCORD, PETER C

FOUNTAIN, JAY M

FINNERAN,LARENCE &E

LESAN, JERRY O

JOHANSEN, KIRK

Respondents

ORDER DENYING REVIEW

IT IS HEREBY ORDERED that petitioner's

petition for review is denied.

DATE: April 24, 1984.

/s/EDWIN J. PETERSON

CHIEF JUSTICE

Appendix C

Order of Coos County Circuit

Court Judge Richard L. Barron

sitting by designation in Multnomah

County Circuit Court, dated June 14,

1982

A-40

No. A8110-06552

IN THE CIRCUIT COURT

OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

ROCKY B. FISHERIES, INC.,

an Oregon corporation; JOHNNY

O. BROWN and DAVID BROWN,

Plaintiffs,

VS «

NORTH BEND FABRICATION &

MACHINE, INC., an Oregon

corporation; JOHN DUDREY

with his law firm partners,

FLOYD A. FREDRICKSON, LLOYD

‘I, WEISENSEE, PETER C. McCORD

and JAY M. FOUNTAIN; LAWRENCE

F. FINNERAN with his law firm

partners JERRY O. LESAN and

KIRK JOHANSEN,

Defendants.

ORDER ON MOTIONS TO

DISMISS/STRIKE AND

FOR SUMMARY JUDGMENT

The motions of defendants North Bend

Fabrication & Machine, Inc., and defen-

dants John Dudrey, et al., having come on

regularly to be heard April 28, 1982,

A-41

before the Honorable Ricnard L. Barron,

Judge of the Circuit Court of the State

of Oregon for the County of Coos sitting

in Multnomah County by designation, said

motions being (1) by North Bend Fabrica-

tion for an Order granting summary judg-

ment against portions of plaintiffs' com-

plaint and (2) by defendants John Dudrey,

et al., for an Order dismissing and/or

striking portions of plaintiffs' com-

plaint; plaintiffs appearing by Barbara

J. Gazeley, of their attorneys, defendant

North Bend Febrication appearing by Kent

C. Whitaker, of its attorneys, and defen-

dants John Dudrey, et al., appearing by

Kenneth E. Roberts and Jonn J. Fennerty,

of their attorneys, and the court having

examined the records, files and all of

the memoranda submitted by the parties,

and being fully advised,

NOW,

DERED:

l.

A-42

THEREFORE, IT IS HEREBY OR-

Defendant North Bend Fabrication

& Machine, Inc. is granted sum-

mary judgment with respect to

plaintiffs' Second, Third,

Fourth and Fifth Claims’ for

Relief.

Defendant North Bend Fabrication

& Machine, Inc. is granted pear-

tial summary judgment with

respect to subparagraphs: a, b,

c, and e, of Paragraph X of

plaintiffs' First Claim for

Relief.

Defendant North Bend Fabrication

& Machine, Inc.'s Motion for

Summary Judgment is denied with

respect to subparagraph d of

Paragraph X of plaintiffs' First

Claim for Relief.

Defendants' John Dudrey, et al.,

Motions to Dismiss/Strike are

granted with respect to plain-

tiffs' Second, Third, Fourth,

and Fifth Claims for Relief.

Defendants' John Dudrey, et al.,

Motions to Strike are granted

with respect to subparagraphs:

a, b, c and e, of Paragraph X of

plaintiffs' First Claim for

Relief.

A-43

6. Defendants' John Dudrey, et al.,

Motions to Strike are denied

with respect to subparagraph d

of Paragraph xX of plaintiffs'

First Claim for Relief.

IT IS FURTHER ORDERED that plain-

tiffs shall have twenty (20) days in

which to further plead, and that subpara-

graph X (d) shall be segregated into a

separate claim for relief, but that

plaintiffs shall not have leave to

replead any facts or issues relating to

the constitutionality of ORS Chapter 783

or the constitutionality or propriety of

the seizure instituted under Chapter 783,

with the exception of the jurisdictional

question raised under Paragraph X (d) of

plaintiffs' First Claim for Relief.

DATED this 14th day of June, 1982.

/s/Richard L. Barron, JUDGE

|

APPENDIX D

Judgment of Coos County Circuit

Court Judge Richard L. Barron

sitting by designation in

Multnomah County Circuit

Court, dated June 14, 1982

No. A8110-06552

IN THE CIRCUIT COURT

OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

ROCKY 8B. FISHERIES, INC.,

an Oregon corporation;

JOHNNY O. BROWN and

DAVID BROWN,

Plaintiffs,

vs.

NORTH BEND FABRICATION &

MACHINE, INC., an Oregon

corporation; JOHN DUDREY

with his law firm partners,

FLOYD A. FREDRICKSON, LLOYD

W. WELSENSEE, PETER C. McCORD

and JAY M. FOUNTAIN; LAWRENCE

F. FINNERAN with his law firm

partners JERRY O. LESAN and

KIRK JOHANSEN,

Defendants.

JUDGMENT

A-45

Defendants North Bend Fabrication 4%

Machine, Inc.'s Motion for Summary Judg-

ment, defendants' John Dudrey, et al.,

Motions to Dismiss and Strike were grant-

ed with respect to plaintiffs' Second,

Third, Fourth, and Fifth Claims for

Relief, and with respect to subparagaphs

a, b, c, and e of Paragraph X of Plain-

tiffs' First Claim for Relief pursuant to

court order of June 14, 1982. A copy of

the order granting defendants' motions is

attached hereto as Appendix "A",

This court has expressly determined

that because of the complexity of the

case with respect to the multiple claims

against the multiple defendants, final

judgment on the essential legal issues

decided by this court should be rendered

forthwith in order to expedite the pro-

ceedings now before this court and mini-

mize the prejudice to all the parties.

tial

A-46

Pursuant to court order and by stip-

ulation of all the parties, plaintiff

Filed an amended complaint which is iden-

tical to plaintiffs' complaint except

that the allegation previously contained

in subparagraph X (d) of the First Claim

for Relief in plaintiffs' complaint was

segregated into a separate claim, plain-

tiffs' sixth claim in plaintiffs' Amended

Complaint would be subject to its previ-

ous order, and plaintiffs having con-

sented thereto; now, therefore,

IT IS HEREBY ORDERED AND ADJUDGED

that pursuant to ORCP 67B and in the

interests of judicial efficiency and in

Order to minimize the prejudice to all

the parties, as well as to expedite and

Simplify the proceedings and to avoid the

multiplicity of lawsuits, this court

expressly determines that there is no

just reason for delay, and that judgment

is hereby rendered against plaintiffS and

A-47

in favor of all defendants as to plain-

tiffs' First, Second, Third, Fourth and

Fifth Claims for Relief in plaintiffs

Amended Complaint.

DATED this 14 day of June, 1982.

/s/Richard L. Barron, JUDGE

APPENDIX E

Notice of Appeal

No. A 25230

IN THE COURT OF APPEALS FOR THE

STATE OF OREGON

ROCKY B. FISHERIES, INC., an Oregon

corporation, JOHNNIE BROWN and

DAVID BROWN,

Appellants,

Vv.

NORTH BEND FABRICATION & MACHINE,

INC., an Oregon corporation;

JOHN DUDREY with his law firm partners

FLOYD A. FREDRICKSON, LLOYD W.

WEISENSEE, PETER C. MCCORD and JAY M.

FOUNTAIN; LAWRENCE F. FINNERAN with

his law firm partners JERRY O.

LESAN and KIRK JOHANSEN,

Respondents.

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Rocky B.

Fisheries, Inc., an Oregon corporation,

Johnnie Brown and David Brown, the appel-

lants above-named, hereby appeal to the

Supreme Court of the United States from

the final judgment of the Court of

Appeals of the State or Oregon, affirming

the granting of the individual defen-

dants' motion to dismiss and affirming

the granting of North Bend's motion for

summary judgment, entered in this action

on January 25, 1984. The Oregon Court of

Appeals was the highest court in which a

decision could be had by virtue of the

Oregon Supreme Court's denial of appeal-

lants' petition for review on April 24,

1984.

A-49

This appeal is taken pursuant to 28

U.8.C. § 1257(2).

Dated this 20th day of June, 1984.

Respectfully submitted,

MARTIN, BISCHOFF, TEMPLETON,

BIGGS & ERICSSON

/s/ John L. Langslet

Attorneys for Appellants

(Certificate of Service)

APPENDIX F

Statutes Involved

Or. Rev. Stat. 783.010 to 783.170

783.010 Claims for which liens

accorded. Every boat or vessel used in

navigating the water of this state or

constructed in this state is liable and

subject to a lien:

(1) For wages due to persons employ-

ed, for work done or services rendered on

board such boat or vessel.

(2) For all debts due to persons by

virtue of a contract, expressed oor

implied, with the owners of a boat or

vessel, or with the agents, contractors

Or subcontractors of such owner, or with

any person having them employed to con-

struct, repair or launch such boat or

vessel, on account of labor done or

materials furnished by mechanics, trades-

men or others in the building, repairing,

fitting and furnishing or equipping such

boat or vessel, or on account of stores

and supplies furnished for the use there-

of, or on account of premiums for insur-

ance placed on or with respect to such

boat or vessel, or on account of launch-

ways constructed for the launching of

such boat or vessel.

(3) For all sums’ for’ wharfage,

anchorage or towage of such boat or

vessel within this state.

i ee ee ee

A=-51

(4) For all demands or damages accru-

ing from the nonperformance or malperfor-

mance of any contract of affreightment,

or of any contract touching the transpor-

tation of persons or property, entered

into by the master, owner, agent or con-

Signee of the boat or vessel on which

such contract is to be performed, and for

damages or injuries done to persons or

property, by such boat or vessel, and for

damages or injuries by such boat or

vessel resulting in the death of any

person.

783.020 Lien Priority. (1) The

classes of claims specified in ORS

783.010 shall have priority according to

the order in which they are enumerated.

(2) The liens under ORS 783.010 shall

have precedence over all other liens and

claims against such boat or vessel, ex-

cept the following liens, claims and

security interests, whether or not the

following liens, claims or _ security

interests have arisen or been perfected

before or after liens under ORS 783.010:

(a) Liens and claims arising under

those portions of the Ship Mortgage Act,

1920, that appear in sections 921 to 954

and 971 to 975 of title 46 of the United

States Code.

(b) Security interests perfected

under ORS chapter 79.

(c) Security interests on certifi-

cates of title perfected under’ ORS

chapter 488.

783.030 Right to proceed against

boat or vessel directly. Any person

having a demand as mentioned in ORS

a

783.010, instead of proceeding for recov-

ery thereof against the master, owner,

agent or consignee of the boat or vessel,

may at his option commence an action

against such boat or vessel by name.

783.040 Complaint; jurisdiction

and venue. Any person wishing to com-

mence an action against a boat or vessel

shall file his complaint against such

boat or vessel by name with the clerk of

the circuit court of the county in which

the boat or vessel may lie or be. The

complaint shall set forth the plaintiff's

demand in all its particulars, and on

whose account the same accrued, and shall

be verified by the plaintiff or some

credible person for him.

783.050 Issuance of warrant for

seizure of boat oor vessel. Whenever

the complaint is filed, the clerk shall

issue a warrant thereon, commanding the

sheriff to seize the boat or vessel men-

tioned in the complaint, with her tackle,

apparel, and furniture and retain the

same until discharged from such custody

by due course of law.

783 .060 Procedure after return of

warrant. Upon the return of any war-

rant issued as prescribed in ORS 783.050,

proceeding shall be had in the circuit

court against the boat or vessel seized,

in the same manner as if the action had

been commenced against the person on

whose account the demand accrued.

783.070 Persons authorized to

appear for boat or vessel; answer. The

master, owner, agent or consignee of the

boat or vessel may appear on behalf of

the boat oor vessel and answer’ the

complaint.

an~S3

783.080 Judgment by default; pro-

ceedings on issue of fact. If in any

action commenced under ORS 783.030 anda

783.040 the master, owner, agent or con-

Signee does not appear and answer the

complaint, the plaintiff may proceed to

take judgment in the same manner anda

under the same restrictions as ina civil

action against a natural person. If an

issue of fact is joined, the same pro-

ceeding shall be had as in other

actions.

783.090 Discharge of boat or

vessel on giving of undertaking. If

the master, owner, agent or consignee,

before final judgment in any action con-

menced in pursuance of ORS 783.030 and

783.040, enters into an undertaking in

favor of the plaintiff, with sufficient

security, to be approved by the judge or

clerk of the court in which the action is

pending, conditioned to satisfy the

amount which is adjudged due and owing to

the plaintiff on determination of the

action, together with all costs accruing,

such boat or vessel, with its tackle,

apparel and furniture, shall be dis-

charged from further detention by the

sheriff.

783.100 Retention of deposit; dis-

position of balance. If judgment is

for the defendant, any deposit in lieu of

an undertaking shall be returned to the

person making the same; or if a balance

remains after satisfying any judgment in

favor of the plaintiff and costs of suit,

the balance shall be so returned.

783.110 Order for sale on judg-

ment. If judgment is rendered against

any boat or vessel in favor of the

A-54

plaintiff, the court shall make = an

order directed to the sheriff, commanding

him to sell the boat or vessel, together

with its tackle, apparel and furniture,

to satisfy the judgment and costs which

may have accrued in the cause, which

order shall be executed and returned in

the same manner as other executions.

783.120 Judgment of undertaking;

issuance of execution. If an undertak-

ing with surety was given according to

ORS 783.090 and judgment rendered in

favor of the plaintiff, a judgment shall

also be rendered upon the undertaking,

and execution issued for the amount of

judgment and costs in favor of the plain-

tiff, against the principal and security

in such undertaking.

783.130 Bill of sale of boat or

vessel; effect of previous liens. When

any boat or vessel is sold in pursuance

of ORS 783.110 to 783.160, the officer

making the sale shall execute to the

purchaser a bill of sale therefor, and

such boat or vessel shall, in the hands

of the purchaser and his assigns, be free

and discharged from all previous liens

and claims under this title.

783.140 Rights of other lien

claimants. Any other person having or

claiming a lien against any boat or

vessel in pursuance of ORS 783.010 may,

at any time after the sale upon execution

and before payment over of any surplus in

the hands of the sheriff, commence an

action against such boat by name, as if

the same had not been sold, and serve

notice thereof upon the former master,

owner, agent or consignee. While such

action is pending, the sheriff shall not

pay over any surplus that may be in his

fea. peli Mn

A-55

hands to such master, owner, agent or

consignee.

783.150 Distribution of proceeds

of sale. In the distribution of the

proceeds of sale, claims of a prior class

Shall be paid entire before any payment

shall be made upon claims of a subsequent

class. When the money to be applied to

any class is insufficient to pay all the

claims of that class, it shall be appor-

tioned ratably among the claims of that

class.

783.160 Sale of appurtenances for

fractional share of boat or vessel. If

it appears to the court in which the

action is pending, or the judge thereof,

that the liens against the boat or vessel

can be satisfied by a sale of the tackle,

apparel and furniture, or a part thereof,

Or a fractional share in such boat or

vessel, the court or judge may modify the

order of sale accordingly. If in pursu-

ance of such order a sale is made of a

fractional share in such boat or vessel,

the purchaser shall hold such_ share

jeintly with the other owners.

783.170 Limitation of actions.

All actions against a boat or vessel

under ORS 783.010 to 783.160 shall be

commenced within one year after the cause

of action has accrued.

Or. Rev. Stat. 29.020 to 29.075

(now Or. R. Civ. P. 81-85)

29 .020 Definitions for ORS 29.020 to

A-56

29.075. As used in ORS 29.020 to

29.075, unless the context requires

otherwise:

(1) "Consumer goods" means consumer

goods as defined in ORS 79.1090.

(2) "Consumer transaction" means a

transaction in which the defendant obli-

gates himself to pay for goods sold or

leased, services rendered or moneys loan-

ed, primarily for purposes of the defen-

dant's personal, family or household

use.

(3) "Issuing officer" means any per-

son who on behalf of the court is author-

ized to issue provisional process.

(4) "Property" means a present or

future legal or equitable, vested or con-

tingent, interest in money, documents,

instruments, accounts, chattel paper,

general intangibles, contract rights,

choses in action, goods or other real or

personal property.

(5) "Provisional process" means

attachment under ORS 29.110 to 29.400,

garnishment under such attachment,

replevin or claim and delivery under

ORS 29.810 to 29.910 or any other legal

Or equitable judicial process or remedy

which before final judgment enables a

plaintiff, or the court on behalf of the

plaintiff, to take possession or control

of, or to restrain use or disposition of,

property in which the defendant claims an

interest.

29 .025 Requirements for issuance

of provisional process. To obtain an

order for issuance of provisional process

the plaintiff shall file with the clerk

A-597

of the court from which such process is

sought an affidavit or sworn petition

requesting specific provisional process

and showing, to the best’ knowledge,

information and belief of the plaintiff:

(1) The name and residence or place

of business of the defendant;

(2) Whether the underlying claim is

based on aA _ consumer transaction and

whether provisional process in a consumer

good is sought;

(3) Description of the claimed

property in particularity sufficient to

make possible its identification, and the

plaintiff's estimate of the value and

location of the property;

(4) Whether the plaintiff's claim to

provisional process is based upon owner-

ship, entitlement to possession, a secu-

rity interest or otherwise;

(5) A copy or verbatim recital of any

writing or portion of a writing which

evidences the origin or source of the

plaintiff's claim to provisional

process;

(6) Whether the claimed property is

wrongfully detained by the defendant or

another person;

(7) Whether the claimed property has

been taken by public authority for a tax,

assessment or fine;

(8) Whether the claimed property is

held under execution, garnishment’ or

other legal or equitable process or, if

it is so held, either that the plaintiff

has a superior right to provisional pro-

A-58

cess in the property or that the property

is exempt from such execution, garnish-

ment or process;

(9) If the plaintiff claims that the

defendant has waived his right to be

heard, a copy of the writing evidencing

such waiver and a statement of when and

in what manner the waiver occurred;

(10) If provisional process is based

on notice of a bulk transfer under ORS

chapter 76 or a similar statute or pro-

vision of law, a copy of the notice;

(11) Facts, if any, which tend to

establish that there is a _ substantial

danger that the defendant or another per-

son is engaging in, or is about to engage

in, conduct which would place the claimed

property in danger of destruction, seri-

ous harm, concealment, removal from this

state or transfer to an innocent pur-

chaser;

(12) Facts, if any, which tend to

establish that without restraint immedi-

ate and irreparable injury, damage, or

loss will occur;

(13) Facts, if any, which tend to

establish that there is substantial

danger that the defendant or another

person probably would not comply with a

temporary restraining order; and

(14) That there is no reasonable prob-

ability that the defendant can establish

a successful defense to the underlying

claim.

29 .030 Provisional process prohib-—

ited in certain consumer transactions.

(1) Except under ORS 29.040, no court

Dat Uae: eel Bt ie ees Oh a we Re Lise

A-59

shall order issuance of provisional

process to effect attachment of a con-

Sumer good or to effect attachment of any

property if the underlying claim is based

On a consumer transaction.

(2) In absence of finding described

in subsection (2) of ORS 29.035 the court

shall not order issuance of provisional

process.

(3) In absence of specific applica-

tion by the plaintiff the court shall not

Order issuance of provisional process.

29 .035 Evidence admissable; choice

of remedies available to court. (1)

The court shall consider the effidavit or

petition filed under ORS 29.025 and may

consider other evidence, including, but

not limited to, an affidavit, deposition,

exhibit or oral testimony.

(2) If from the affidavit or petition

Or other evidence, if any, the court

finds that a complaint on the underlying

claim has been filed and that there is

probable cause for sustaining the valid-

ity of the underlying claim, the court

shall consider whether it skall order

issuance of provisional process, a

restraining order or a show cause order.

The finding under this subsection is sub-

ject to dissolution upon hearing.

29 .040 Jurisdiction quasi in rem.

Subject to ORS 29.030, where provi-

sional process is sought to acquire quasi

in rem jurisdiction of the defendant, if

the court finds that the defendant

neither resides in nor maintains an

office or place of business in this state

or that with use of reasonable diligence

the defendant in the proceeding on the

underlying claim cannot be served within

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this state in a manner sufficient to

effect in personam jurisdiction of the

defendant, the court shall order issuance

of provisional process.

29 .045 Effect of notice of bulk

transfer. Subject to ORS 29.030, if

the court finds that with respect to

property of the defendant notice of bulk

transfer under ORS chapter 76 or a

similar statute or provision of law has

been given and that the time for posses-

sion by the transferee has not passed,

the court shall order issuance of provi-

sional process.

29 .050 Effect of waiver of right

to notice and hearing. Subject to

ORS 29.030, if the court finds:

(1) That the defendant, by conspicu-

ous words in a writing executed by or on

behalf of the defendant before filing of

the affidavit or petition under ORS

29.025 or by handwriting of the defendant

or the defendant's agent executed before

filing of the affidavit or petition under

ORS 29.025 has declared substantially

that he is aware of his right to notice

and hearing on the question of the proba-

ble validity of the underlying claim

before he can be deprived of his property

in his possession or control or in the

possession or control of another and that

he waives that right and agrees that the

creditor, or one acting on behalf of the

creditor, may employ provisional process

to take possession or control of the

property without first obtaining a final

judgment or giving notice and opportunity

for hearing on the probable validity of

the underlying claim,

A-61

(2) That there is no reason to

believe that the waiver or agreement is

invalid, and

(3) That the defendant has’ volun-

tarily, intelligently and knowingly

waived that right,

the court shall order issuance of provi-

sional process in property to which the

waiver and agreement apply.

29 .055 Issuance of provisional

process where damage to property threat-

ened. Subject to ORS 29.030, if the

court finds that before hearing on a show

cause order the defendant or other person

in possession or control of the claimed

property is engaging in, or is about to

engage in, conduct which would place the

claimed property in danger of destruc-

tion, serious harm, concealment, removal

from this state or transfer to an inno-

cent purchaser or that the defendant or

other person in possession or control of

the claimed property would not comply

with a temporary restraining order, the

court shall order issuance of provisional

process in property which probably would

be the subject of such destruction, harm,

concealment, removal, transfer or viola-

tion.

29 .060 Restraining order to pro-

tect property. Subject to ORS 29.030,

where hearing on a show cause order is

pending or where the court finds that

because of impending injury, destruction,

transfer, removal or concealment of the

property in which provisional process is

sought there is probable cause to believe

that immediate and irreparable injury,

damage or loss to the plaintiff is immi-

nent, if an undertaking has been filed by

A-62

the plaintiff in accordance with ORS

chapter 32, the court, in its discretion,

may issue a temporary order directed to

the defendant and each other person in

possession or control of the claimed

property restraining the defendant and

each such other person from injuring,

destroying, transferring, removing or

otherwise disposing of property and

requiring the defendant and each such

other person to appear at a time and

place fixed by the court and show cause

why such restraint should not continue

during pendency of the proceeding on the

underlying claim.

29 .065 Appearance; hearing; ser-

vice of show cause order; content; effect

of service on person in possession of

property. (1) Subject to ORS 29.030,

the court shall issue an order directed

to the defendant and each person having

possession or control of the claimed

property requiring the defendant and each

such other person to appear for hearing

at a place fixed by the court and at a

fixed time after the third day after

service of the order and before the

seventh day after service of the order to

show cause why provisional process should

not issue.

(2) The show cause order issued under

subsection (1) of this section shall be

served personally on the defendant and on

each other person to whom the order is

directed.

(3) The order shall:

(a) State that the defendant may

file affidavits with the court and may

present testimony at the hearing; and

A-63

(5) State that if the defendant

fails to appear at the hearing the court

will order issuance of the specific pro-

visional process sought.

(4) If at the time fixed for hearing

the show cause order under subsection (1)

of this section has not been served on

the defendant but has been served on a

person in possession or control of the

property, the court may restrain the per-

son so served from injuring, destroying,

transferring, removing or concealing the

property pending further order of the

court.

29.070 Waiver; order without hear-

ing. If after service of the order

issued under subsection (1) of ORS 29.065

the defendant by a writing executed by or

on behalf of the defendant after service

of the order expressly declares that he

is aware that he has the right to be

heard, that he does not want to be heard,

that he expressly waives his right to be

heard, that he understands that upon his

Signing the writing the court will order

issuance of the’ provisional process

sought so that the possession or control

of the claimed property will be taken

from the defendant or another person, the

court, subject to ORS 29.030, without

hearing shall order issuance of oprovi-

Sional process.

29 .075 Authority of court on sus-

taining validity of underlying claim.

(1) Subject to ORS 29.030, if the

court on hearing on a show cause order

issued under ORS 29.065 finds that there

is probable cause for sustaining the

validity .of the underlying claim, the

court shall order issuance of provisional

process.

4-64

(2) Subject tc ORS 29.030, if the

court on hearing on a show cause order

issued under ORS 29.065 finds that there

is probable cause for sustaining the

validity of the underlying claim but that

the provisional process sought cannot

properly be ordered, the court in its

discretion may continue or issue a

restraining order.

Or. R. Civ. P. 83-84

PROVISIONAL PROCESS

RULE 83

A. Requirements for issuance.

To obtain an order for issuance of pro-

visional process the plaintiff shall

cause to be filed with the clerk of the

court from which such process is sought a

sworn petition and any necessary supple-

mentary affidavits requesting specific

provisional process and showing, to the

best knowledge, information, and belief

of the plaintiff or affiant, that the

action is one in which’ provisional

process may issue, and:

A.(1) The name and residence or place

of business of the defendant;

A.(2) Whether the underlying claim is

based on a consumer transaction = and

whether provisional process in a consumer

good is sought;

A.(3)(a) If the provisional process

sought is claim and delivery, a descrip-

i ii casa AL PF xoe pepihsy hide wets

A-65

tion of the claimed property in particu-

larity sufficient to make possible its

identification, and the plaintiff's esti-

mate of the value and location of the

property;

A.(3)(b) If the provisional process

sought is a restraining order, a state-

ment of the particular acts sought to be

restrained;

A.(4) Whether the plaintiff's claim

to provisional process is based upon own-

ership, entitlement to possession, a

security interest or otherwise;

A.(5) A copy or verbatim recital of

any writing or portion of a writing, if

plaintiff relies upon a writing, which

evidences the origin or source of the

plaintiff's claim to provisional

process;

A.(6) Whether the claimed property is

wrongfully detained by the defendant or

another person;

A.(7) Whether the claimed property

has been taken by public authority for a

tax, assessment, or fine;

A.(8) If the plaintiff claims that

the defendant has waived the right to be

heard, a copy of the writing evidencing

such waiver and a statement of when and

in what manner the waiver occurred;

A.(9) If provisional process is based

On notice of a bulk transfer under ORS

chapter 76 or a similar statute or pro-

vision of law, a copy of the notice;

A.(10) Facts, if any, which tend to

establish that there is a substantial

A-66

danger that the defendant or another per-

son is engaging in, or is about to engage

in, conduct which would place the claimed

proverty in danger of destruction, seri-

ous harm, concealment, removal from this

state, or transfer to an innocent pur-

chaser.

A.(1l1) Facts, if any, which tend to

establish that without restraint immedi-

ate and irreparable injury, damage, or

loss will occur;

A.(12) Facts, if any, which tend to

establish that there is substantial dan-

ger that the defendant or another person

probably would not comply with a tempor-

ary restraining order; and

A.(13) That there is no reasonable

probability that the defendant can estab-

lish a successful defense to the under-

lying claim.

B. Provisional process prohibited

in certain consumer transactions. No

court shall order issuance of provisional

process to effect attachment of a con-

sumer good or to effect attachment of any

property if the underlying claim is based

On a consumer transaction. Provisional

process authorized by Rule 85 may issue

in consumer transactions.

es. Evidence admissable; choice of

remedies available to court.

C.(1) The court shall consider the

affidavit or petition filed under section

A. of this rule and may consider other

evidence including, but not limited to,

an affidavit, deposition, exhibit, or

oral testimony.

viiive emuauailit

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A-67

C.(2) If from the affidavit or peti-

tion or other evidence, if any, the court

finds that a complaint on the underlying

claim has been filed and that there is

probable cause for sustaining the valid-

ity of the underlying claim, the court

shall consider whether it shall order

issuance of provisional process, as pro-

vided in Section D. or E. of this rule,

Or a restraining order, as provided in

section F. of this rule, in addition to a

show cause order. The finding under

this subsection is subject to dissolution

upon hearing.

D. Effect of notice of bulk trans-

fer. Subject to section B. of this

rule, if the court finds that with

respect to property of the defendant

notice of bulk transfer under - ORS

chapter 76 or a similar statute or provi-

sion of law has been given and that the

time for possession by the transferee has

not passed, the court shall order issu-

ance of provisional process.

E. Issuance of provisional process

where damage to property threatened.

Subject to section B. of this rule,

if the court finds that before hearing on

a show cause order the defendant or other

person in possession or control of the

claimed property is engaging in, or is

about to engage in, conduct which would

place the claimed property in danger of

destruction, serious harm, concealment,

removal from this state, or transfer to

an innocent purchaser or that the defen-

dant or other person in possession or

control of the claimed property would not

comply with a temporary’ restraining

order, and if Rule 82 A. has been com-

plied with, the court shall order issu-

ance of provisional process in property

A-68

which probably would be the subject of

such destruction, harm, concealment,

removal, transfer, or violation.

F. Restrai*ing order to _ protect

property. Subject to section B. of

this rule, where hearing on a show cause

order is pending or where the court finds

that because of impending injury,

destruction, transfer, removal, or con-

cealment of the property in which provi-

sional process is sought there is proba-

ble cause to believe that immediate and

irreparable injury, damage, or loss to

the plaintiff is imminent, and if Rule 82

A. has been complied with, the court in

its discretion may issue a_ temporary

order directed to the defendant and each

other person in possession or control of

the claimed property restraining’ the

defendant and each such other person from

injuring, destroying, transferring,

removing, or otherwise disposing of prop-

erty and requiring the defendant and each

such other person to appear at a time and

place fixed by the court and show cause

why such restraint should not continue

during pendency of the proceeding on the

underlying claim. Such order shall con-

form to the requirements of Rule 79 D. A

restraining order under this section does

not create a lien.

G. Appearance; hearing; service of

show cause order; content; effect of ser-

vice on person in possession of

property.

G.(1) Subject to section B. of this

rule, the court shall issue an order

directed to the defendant and each person

having possession or control of the

claimed property requiring the defendant

and each such other person to appear for

A-69

hearing at a place fixed by the court ana

at a fixed time after the third day

after service of the order and before the

seventh day after service of the order to

show cause why provisional process should

not issue. Upon request of the plaintiff

the hearing date may be set later than

the seventh day.

G.(2) The show cause order issued

under subsection (1) of this section

shall be served on the defendant and on

each other person to whom the order is

directed.

G.(3) The order shall:

G.(3)(a) State that the defendant may

file affidavits with the court and may

present testimony at the hearing; and

G.(3)(b) State that if the defendant

fails to appear at the hearing the court

will order issuance of the specific pro-

visional process sought.

G.(4) If at the time fixed for hear-

ing the show cause order under subsection

(1) of this section has not been served

on the defendant but has been served on a

person in possession or control of the

property, and if Rule 82 A. has been

complied with, the court may restrain the

person so served from injuring, destroy-

ing, transferring, removing, or conceal-

ing the property pending further order of

the court or continue a temporary

restraining order issued under section F.

of this rule. Such order shall conform

to the requirements of Rule 79 D. Any

restraining order issued under this sub-

section does not create a lien.

H. Waiver; order without hearing.

A-70

If after service of the order issued

under subsection G.(1) of this rule, the

defendant by a writing executed by or on

behalf of the defendant after service of

the order expressly declares that defen-

dant is aware of the right to be heard

and does not want to be heard, that

defendant expressly waives the right to

be heard, that defendant understands that

upon signing the writing the court will

order issuance of the provisional process

sought so that the possession or control

of the claimed property will be taken

from the defendant or another person, the

court, subject to section B. of this

rule without hearing shall order issuance

of provisional process.

ke Authority of court on sustain-

ing validity of underlying claim; provi-

sional process; restraining order.

I.(1) Subject to section B. of this

rule, if the court on hearing on a show

cause order issued under section G. of

this rule finds that there is probable

cause for sustaining the validity of the

underlying claim and if Rule 82 A. has

been complied with, the court shall order

issuance of provisional process. The

order shall describe with particularity

the provisional process which may be

issued.

I.(2) Subject to section B. of this

rule, if the court on hearing on a show

cause order issued under section G. of

this rule finds that there is probable

cause for sustaining the validity of the

underlying claim but that the provisional

process sought cannot properly be order-

ed, and if Rule 82 A. has been complied

with, the court in its discretion may

continue or issue a restraining order of

A-71

the nature described in section F. of

this rule. If a restraining order is

issued, it shall conform to the require-

ments of Rule 79 D. A restraining order

under this subsection does not create a

lien.

ATTACHMENT

RULE 84

A. Actions in which attachment

allowed.

A.(1) Order for provisional pro-

cess. Before a writ of attachment may

be issued or any property attached by any

means provided by this rule, the plain-

tiff must obtain an order under Rule 83

that provisional process may issue.

A.(2) Actions in which attachment

allowed. The plaintiff, at the time of

issuing the summons or any time after-

wards, may have the property of the

defendant attached, as security for the

satisfaction of any judgment that may be

recovered, in the following cases:

A.(2)(a) An action upon a contract,

expressed or implied, for the direct pay-

ment of money, when the contract is not

secured by mortgage, lien, or pledge, or

when it is so secured but such security

has been rendered nugatory by act of the

defendant.

A.(2)(b) An action against a defen-

dant not residing in this’ state to

recover a sum of money as damages for

breach of any contract, expressed or

implied, other than a contract of mar-

riage.

A.(2)(c) An action against a defen-

A-72

dant not residing in this state to

recover a sum of money as damages for

injury to property in this state.

A. (3) Exception for’ bank. Not-

withstanding subsection (2) of this sec-

tion, no attachment shall be issued

against any bank or its property before

final judgment as security for the satis-

faction of any judgment that may be

recovered against such bank.

B. Property that may be attached.

Only the following kinds of property

are subject to lien or levy before final

judgment:

B.(1) In actions in circuit court,

real property;

B.(2) Tangible personal property,

including negotiable instruments and

securities as defined in ORS 78.1020

except a certificate of an account or

obligation or interest therein of a sav-

ings and loan institution;

B.(3) Debts; and

B.(4) The interest of a distributee

of a decedent's estate.

C. Attachment by claim of lien.

C.(1) Property subject to claim of

lien. When attachment is authorized,

the plaintiff may attach the defendant's

real property by filing a claim of lien.

C.(2) Form of claim; filing.

C.(2)(a) Form. The claim of lien

must be signed by the plaintiff or plain-

tiff's attorney and must:

C.(2)(a)(i) Identify the action by

d

3

(

A-73

names of parties, court, docket number,

and judgment demanded;

C.(2)(a)(ii) Descrive the particular

property attached in a manner sufficient

to identify it;

C.(2)(a)(iii) Have a certified copy

of the order authorizing the claim of

lien attached to the claim of lien.

C.(2)(a)(iv) State that an attachment

lien is claimed on the property.

C.(2)(b) Piling. A claim of

attachment lien in real property shall be

filed with the clerk of the court that

authorized the claim and with the county

clerk of the county in which the property

is located. The county clerk shall

certify upon every claim of lien so filed

the time when it was received. Upon

receiving the claim of lien, the county

clerk shall immediately file such claim

of lien in the county clerk's office, and

record it in a book to be kept for that

purpose. When the claim of lien is so

filed for record, the lien in favor of

the plaintiff attaches to the real

property described in the claim of lien.

Whenever such lien is discharged, the

county clerk shall enter upon the margin

of the page on which the claim of lien is

recorded a minute of the discharge.

D. Writ of attachment.

D.(1) Issuance; contents; to whom

directed; issuance of several writs.

If directed by an order authorizing pro-

visional process under Rule 83, the clerk

shall issue a writ of attachment. The

writ shall be directed to the sheriff of

any county in which property of the

A-74

defendant may be, and shall require the

sheriff to attach and safely keep all the

property of the defendant within the

county not exempt from execution, or so

much thereof as may be sufficient to

satisfy the plaintiff's demand, the

amount of which shall be stated in con-

formity with the complaint, together with

costs and expenses. Several writs may be

issued at the same time to the sheriffs

of different counties.

D.(2) Manner of executing writ.

The sheriff to whom the writ is directed

and delivered shall note upon the writ

the date of such delivery, and shall exe-

cute the writ without delay, as follows:

D.(2)(a) Personal property not in

possession of third party. Tangible

personal property not in the possession

of a third person shall be attached by

taking it into the sheriff's custody. If

any property attached is perishable, or

livestock, where the cost of keeping is

great, the sheriff shall sell the same in

the manner in which property is sold on

execution. The proceeds thereof and

other property attached shall be retained

by the sheriff to answer any judgment

that may be recovered in the action,

unless sooner subjected to execution upon

another judgment. Plaintiff's lien shall

attach when the property is taken into

the sheriff's custody.

D.(2)(b) Other personal property.

Tangible and intangible personal

property in the possession, control or

custody of or debts or other monetary

obligations owing by a third person shall

be attached as provided in ORS 29.125 to

29.375.

laws ene!

A-75

D.(3) Return of writ; inventory.

When the writ of attachment has been

fully executed or discharged, the sheriff

shall return the same, with the sheriff's

proceedings indorsed thereon, to’ the

clerk of the court where the action was

commenced, and the sheriff shall make a

full inventory of the property attached

and return the same with the writ.

D.(4) Indemnity to sheriff. When-

ever a writ of attachment is delivered to

the sheriff, if the sheriff has actual

notice of any third party claim to the

personal property to be levied on or is

in doubt as to ownership of the property,

or of encumbrances thereon, or damage to

the property held that may result by rea-

son of its perishable character, such

sheriff may require the plaintiff to file

with the sheriff a surety bond, indemni-

fying the sheriff and the sheriff's

bondsmen against any loss or damage by

reason of the illegality of any holding

or sale on execution, or by reason of

damage to any personal property held

under attachment. Unless a lesser amount

is acceptable to the sheriff, the bond

shall be in double the amount of the

estimated value of the property to be

seized.

E. Disposition of attached

property after judgment.

E.(1) Judgment for plaintiff. If

judgment is recovered by the plaintiff

against the defendant, and it shall

appear that property has been attached in

the action, and has not been sold as

perishable property or discharged froin

the attachment, the court shall order the

property to be sold to satisfy the plain-

A-76

tiff's demands, and if execution issue

thereon, the sheriff shall apply the

property attached by the sheriff or the

proceeds thereof, upon the execution, and

if any such property or proceeds remain

after satisfying such execution, the

sheriff shall, upon demand, deliver the

same to the defendant; or if the property

attached has been released from attach-

ment by reason of giving of the undertak-

ing by the defendant, as provided by sec-

tion F. of this rule, the court shall

upon giving judgment against the defen-

dant also give judgment in like manner

and with like effect against the surety

in such undertaking.

E.(2) Judgment not for plaintiff.

If judgment is not recovered by the

plaintiff, all the property attached, or

the proceeds thereof, or the undertaking

therefor, shall be returned to the defen-

dant upon service upon the sheriff of a

certified copy of the order discharging

the attachment.

F. Redelivery of attached

property.

F.(1) Order and _ bond. If an

attachment deprives the defendant or any

other person claiming the property of the

possession or use of the property, the

defendant or such person may obtain

redelivery or possession thereof upon a

court order authorizing such redelivery

Or possession. The moving party shall

file a surety bond undertaking, in an

amount fixed by the court, to pay the

value of the property or the amount of

plaintiff's claim, whichever is less, if

the same is not returned to the sheriff

upon entry of judgment against the defen-

dant. A motion seeking an order author-

A-77

izing such redelivery or possession must

state the moving party's claim of the

value of the attached property and must

be served upon plaintiff as provided in

Rule 9 at least five days prior to any

hearing on such motion, unless the court

orders otherwise. The property shall be

released to the defendant upon the filing

of the bond.

F.(2) Defense of surety. In an

action brought upon such undertaking

against the principal or the sureties, it

shall be a defense that the property for

which the undertaking was given did not,

at the execution of the writ of attach-

ment, belong to the defendant against

whom the writ was issued.