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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 802

## Text

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,

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(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

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(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.

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(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-

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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.

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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

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3
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0055%3A2. Public record. Not legal advice.