687
Argued and submitted October 28, 2019; on appeal, reversed and remanded as
to plaintiffs’ ORICO claim, otherwise affirmed, cross-appeal dismissed as moot
September 22, 2021
Henry W. WILLMS
and Dolly G. Willms,
Plaintiffs-Respondents
Cross-Appellants,
v.
AMERITITLE, INC.,
a Delaware corporation,
converted from an Oregon corporation by
Articles of Conversion dated January 15, 2016,
Defendant-Appellant
Cross-Respondent.
Deschutes County Circuit Court
13CV0719; A165216
499 P3d 79
Defendant AmeriTitle, Inc., appeals from a judgment in favor of plaintiffs
Henry Willms and Dolly Willms for $3,225,000, which was entered after a
jury found for plaintiffs on their claims for fraud and violations of the Oregon
Racketeer Influenced and Corrupt Organizations Act (ORICO). Plaintiffs cross-appeal a supplemental judgment that denied their request for attorney fees that
was made pursuant to the prevailing-party attorney fee provision in ORICO.
Defendant raises nine assignments of error involving the trial court’s denial of its
directed-verdict motion, the court’s jury instructions, the court’s award of punitive damages, and the court’s statute of limitations rulings. Among numerous
arguments, defendant contends that the trial court erred in denying its directed-verdict motion by mistakenly concluding that the six-year statute of limitations
in ORS 12.080(3) applied to plaintiffs’ fraud claim, and in rejecting defendant’s
arguments that plaintiffs had not presented evidence of a “pattern of racketeering” activity as required under ORICO because all of plaintiffs’ claims of illegal
conduct revolved around a single escrow transaction. Defendant also argues that
the trial court erred at the jury-instruction phase when it concluded that a six-year statute of limitations applied to both plaintiffs’ fraud and ORICO claims.
Held: The trial court did not err in denying defendant’s directed-verdict motion
based on the contention that the statute of limitations had run on the fraud claim,
because plaintiffs presented a claim for interference with “any interest in property” subject to the six-year limitations period in ORS 12.080(3). Likewise, the
trial court did not err in denying defendant’s directed-verdict motion that contended plaintiffs had not presented evidence of a “pattern of racketeering” activity, because plaintiffs had presented such evidence. However, the trial court did
err in instructing the jury that a six-year statute of limitations applied to both
plaintiffs’ fraud and ORICO claims, because, in fact, a five-year limitation period
applied to plaintiffs’ ORICO claim. That error was not harmless. Plaintiffs’ cross-appeal was dismissed as moot.
688 Willms v. AmeriTitle, Inc.
On appeal, reversed and remanded as to plaintiffs’ ORICO claim, otherwise
affirmed; cross-appeal dismissed as moot.
Stephen P. Forte, Judge.
Duane A. Bosworth argued the cause for appellant-cross-respondent. Also on the briefs were Chris Swift and Davis
Wright Tremaine LLP.
Kathryn H. Clarke argued the cause for respondentscross-appellants. Also on the briefs was D. Zachary Hostetter.
Jon W. Monson and Cable Huston LLP filed the brief
amicus curiae for Oregon Land Title Association, Inc.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
SHORR, J.
On appeal, reversed and remanded as to plaintiffs’
ORICO claim, otherwise affirmed; cross-appeal dismissed
as moot.
Cite as 314 Or App 687 (2021) 689
SHORR, J.
Defendant AmeriTitle, Inc., appeals from a judgment
in favor of plaintiffs Henry and Dolly Willms for $3,225,000,
which was entered after a jury found for plaintiffs on their
claims for fraud and violations of the Oregon Racketeer
Influenced and Corrupt Organizations Act (ORICO), ORS
166.715 to 166.735.1 Plaintiffs cross-appeal a supplemental judgment that denied their request for attorney fees
that was made pursuant to ORS 166.725(14), the prevailing-party attorney fee provision in ORICO. Defendant raises
nine assignments of error. For the reasons discussed below,
we affirm the judgment on plaintiffs’ common law fraud
claim and reverse the judgment on plaintiffs’ ORICO claim
because the trial court erred when it prevented defendant
from arguing to the jury that plaintiffs’ claims were time
barred under the five-year limitations period provided by
ORS 166.725(11)(a).
In plaintiffs’ cross-appeal, they contend that the
trial court erred in failing to make findings of fact when
exercising its discretion to reject plaintiffs’ attorney-fee
request. Because we reverse the judgment in favor of plaintiffs on their ORICO claim, there is no basis for an award of
attorney fees on that claim. As a result, we dismiss plaintiffs’ cross-appeal as moot.
Because much of our opinion is directed at defendant’s assignments of error relating to the trial court’s
denial of defendant’s motion for a directed verdict, we begin
our opinion by stating the facts of the underlying dispute in
the light most favorable to plaintiffs, the nonmoving parties.
See MAT, Inc. v. American Tower Asset Sub, LLC, 312 Or
App 7, 10,
493 P3d 14 (2021) (doing same in appeal involving multiple legal issues but focusing primarily on the trial
court’s denial of a directed verdict motion). Where additional
substantive or procedural facts relate to other assignments
of error, we state those facts separately below, consistently
with the corresponding standard of review.
1
Certain ORICO provisions have been amended since the relevant events in
this case. However, those amendments do not affect our analysis, and we cite to
the current statutory provisions throughout this opinion.
690 Willms v. AmeriTitle, Inc.
I. FACTS
A. The Facts Giving Rise to This Dispute
The disputes that gave rise to this lawsuit between
plaintiffs and defendant AmeriTitle, Inc., a title company,
arise from different sets of agreements, loans, and payments
that were made, or not made, under those agreements. There
are multiple individuals and entities involved in the various
agreements and loans, including several who are not parties
to this appeal. We parse those out as best we can to set the
stage for this dispute.
Plaintiff Henry Willms and his wife, plaintiff Dolly
Willms, acquired a 524-acre property in Anderson, California
(the Anderson property) that they intended to develop.
Mr. Willms was introduced to Rowe Sanderson, a developer
in Bend who had an interest in developing California property. Sanderson was a principal in Sanderson Company, Inc.
(SCI) and a company called Sanderson Communities, Inc.
1. The original option agreement on the Anderson
property
In 2002, the Willms Family Trust and SCI entered
into an option agreement that gave SCI the option to purchase the Anderson property. The agreement also effectively
permitted SCI to finance the development of the Anderson
property by taking loans out against the Anderson property.
In 2005 and 2006, SCI or Sanderson caused to be borrowed
nearly $8 million from a bank and opened a revolving line of
credit for $2 million more that were both either secured by
the Anderson property or guaranteed by Willms himself.
2. The LPV property and LPV note
Separately, in late November 2005, SCI sold real
property in central Oregon (the LPV property) to LaPine
Village LLC (LPV). As part of that transaction, LPV agreed
to pay $1.5 million to SCI by making a promissory note (the
LPV note) payable to SCI. The LPV note was secured by
a trust deed to the LPV property and named defendant as
the trustee. The LPV note was signed by LPV’s managing
member, Dominic Chan. Payments were to be made directly
to SCI’s office in Bend. The LPV note contemplated a quick
Cite as 314 Or App 687 (2021) 691
repayment with monthly payments commencing in January
2006 and the balance paid in full by November 2006.
3. SCI borrows $500,000 from plaintiffs in October 2006
and provides them with the LPV note as security
In the fall of 2006, Sanderson approached
Mr. Willms for a $550,000 loan, stating that he was in need
of operating capital. In October 2006, SCI issued a note (the
SCI note) in which it promised to pay plaintiffs $550,000
with 10 percent interest. Although not memorialized in the
SCI note, Mr. Willms testified that plaintiffs ended up loaning only $500,000 to SCI because plaintiffs did not have
the other $50,000 available. Mr. Willms understood from
Sanderson that SCI was due to be paid back on the LPV
note in late November 2006 and that plaintiffs would be
paid out of those loan proceeds.
SCI provided a formal security agreement by which
plaintiffs were given a security interest in the LPV note
and could enforce the LPV note. As security for the loan,
SCI agreed to transfer the LPV note to plaintiffs upon their
request. The agreement provided that, upon the request of
plaintiffs, “Sanderson will … assist [plaintiffs] in taking
possession of the LPV Note” and deliver the note “with one
or more assignments indorsed in blank.” The LPV note was
transferred to Mr. Willms, although it was not indorsed.
The security agreement also stated that the LPV note was
secured by a deed of trust. As noted, the LPV note was, in
fact, secured by a trust deed to the LPV property in central
Oregon.
4. The security agreement is placed in escrow with
defendant
As part of the loan from plaintiffs to SCI, plaintiffs
required that the security agreement, granting plaintiffs
an interest in the LPV note, be placed in escrow. SCI’s controller delivered the security agreement to Libby Hervey at
defendant in November 2006. The SCI controller included
a cover note with the delivery that stated, “Hi Libby, here
is the Security Agreement for the [SCI] Note. So we owe
Hank [Willms] $500,000 plus interest @ 14% when the
[LPV] Note from Dominic [Chan at LPV] is paid in full.”
692 Willms v. AmeriTitle, Inc.
The correspondence, which attached the security agreement, caused Hervey to open up the escrow file. Hervey
knew Sanderson because he was a client for whom she had
closed numerous transactions over the years. Hervey also
knew Mr. Willms through a prior escrow transaction.
Significant to this dispute, Mr. Willms testified
that he had informed Hervey that he was in possession of
the LPV note.2 Mr. Willms believed that he had had that
conversation with Hervey “more than once.” Mr. Willms and
his daughter, Catherine Locke, also testified that they discussed with Hervey that plaintiffs were to be paid funds
from the payments made by LPV into escrow. Mr. Willms
understood from Hervey that she would pay plaintiffs out of
that escrow.
Mr. Willms also spoke with Hervey around the time
that the LPV note was due at the end of November 2006.
Hervey stated that Chan, LPV’s principal, was sick and that
LPV could not pay back the note. When the Willms’s daughter followed up later in March 2007, Hervey again stated
that Chan was sick, that the escrow had not closed, and that
Hervey understood that plaintiffs were anxious. Hervey further stated that she would “definitely let [plaintiffs] know
the minute she had heard anything different.”
5. The increasing SCI debt and the modified option
agreement between SCI and plaintiffs
Following the opening of the escrow, Sanderson borrowed additional money directly from plaintiffs, including
additional loans of $125,000 and $375,000 in December 2006.
By July 2007, plaintiffs faced a threat of foreclosure of the
Anderson property due to the unpaid loans that Sanderson
or SCI had caused to be incurred against the property. To
avoid foreclosure, plaintiffs were required to obtain a $10.2
million loan to refinance the debt that encumbered plaintiffs’
property. As a result, in July 2007, plaintiffs and Sanderson
entered into a modified option agreement. Among other
things, the modified option agreement provided for certain
2
At trial there was a factual dispute regarding this point. However, we must
state the facts in the light most favorable to plaintiffs. MAT, Inc., 312 Or App at
10.
Cite as
314 Or App 687 (2021) 693
payments to be made in July and August 2007 and beyond.
On August 27, 2007, Sanderson Communities, Inc., made
a payment of $507,117.33 to Mr. Willms. Mr. Willms testified that this was a “benchmark payment[ ]” that had been
made under the modified option agreement. Mr. Willms testified that this was not a payment for the SCI note.3 The
modified option agreement and correspondence from Locke
to Sanderson anticipated a payment due of over $500,000
on August 25, 2007, that would be applied against the
“Willms debt.” The Willms debt was defined in the modified option agreement to encompass several different loans
from plaintiffs to Sanderson including the October 2006
loan of $500,000 and the December 2006 loans of $125,000
and $375,000, respectively. Locke also wrote that the LPV
note would not be returned until plaintiffs were “free of the
Bank’s lien on our property.”
6. LPV’s delayed payment of the LPV note and defendant’s representations made during escrow
As set out above, the LPV note was due in November
2006, but defendant had informed Mr. Willms and Locke, as
late as March 2007, that LPV could not pay the LPV note.
Mr. Willms later learned that Chan was, in fact, having
LPV make payments during this period through Hervey to
pay down the LPV note and that she had been arranging
to pay SCI with those funds. In January 2007, LPV made
a payment of $250,000 to SCI, which was handled through
an escrow by defendant and acknowledged by Hervey. Two
more payments of $205,000 and $300,000 were made to SCI
in March 2007 through a similar escrow process. On August
27, 2007, a subsequent payment of $500,000 was made by
LPV through the escrow handled by defendant and Hervey
and paid to SCI.
On October 26, 2007, LPV was prepared to pay off
the LPV note. Defendant did not have the original LPV
note to return to LPV and did not have the LPV trust deed.
Hervey drafted a Letter of Indemnity for SCI that stated,
3
Defendant contends that the August 2007 payment paid off the $500,000
SCI note, which was secured by the LPV note. Although that is a reasonable
inference from the evidence, we must view the evidence in the light most favorable to plaintiffs. MAT, Inc., 312 Or App at 10.
694 Willms v. AmeriTitle, Inc.
incorrectly, that the original LPV note and trust deed had
been “Lost/Misplaced/Destroyed.” It further provided that
SCI held defendant harmless for any and all loss resulting
from the reconveyance of the trust deed to LPV. As mentioned earlier, Mr. Willms testified that he had told Hervey
that he, in fact, had possession of the LPV note.
Defendant reconveyed the LPV trust deed to LPV
in late October or early November 2007. Defendant did
not request any instructions from Mr. Willms regarding
the trust deed. A year later in October 2008, plaintiffs
requested information from defendant about the LPV escrow.
Mr. Willms learned from defendant that defendant had no
instructions from Sanderson to pay any funds to plaintiffs.
In November 2008, Willms also learned from defendant that
the LPV trust deed had been reconveyed to LPV.
B. The Relevant Procedural Facts
Plaintiffs proceeded to file a claim against Sanderson,
although Sanderson was in bankruptcy proceedings. Plaintiffs also sued LPV for $500,000 plus interest and obtained
a default judgment of over $721,000. Plaintiffs allege that
they were not successful in recovering any of this money.
On May 9, 2013, plaintiffs filed this lawsuit against
defendant. The relevant complaint at the time of trial
alleged one claim for fraud and one claim for various violations of ORICO. As will be significant later, plaintiffs’
initial complaint was filed more than five years after LPV
had been expected to pay off the LPV note and had, in fact,
paid off the LPV note, but less than five years from when
Mr. Willms learned that the funds to pay off the LPV note
had been paid to SCI.
As noted, a jury found for plaintiffs on their fraud
and ORICO claims. It awarded plaintiffs $721,095.89 in economic damages and $278,904.11 in noneconomic damages,
together equaling exactly $1 million. The damages for the
ORICO claim were trebled under the relevant ORICO provision to $3 million, effectively adding $2 million in additional damages. The jury also awarded $750,000 in punitive
Cite as 314 Or App 687 (2021) 695
damages, $525,000 of which was directed to the Department
of Justice under ORS 31.735(1).
We do not further describe here the many motions
and legal issues that arose before, during, and after trial.
Instead, we address relevant motions and issues below when
we address particular legal issues raised by defendant’s
assignments of error.
II. ANALYSIS
A. The Trial Court’s Denial of Defendant’s Directed Verdict
Motion
We turn to defendant’s first through fourth assignments of error in which defendant contends in a combined
argument that the trial court erred in denying its motion for
a directed verdict.4 In reviewing the denial of defendant’s
directed-verdict motion, “we consider the evidence, including any inferences, in the light most favorable to the party
that obtained a favorable verdict”—here, plaintiffs. Najjar v.
Safeway, Inc., 203 Or App 486, 489-90,
125 P3d 807 (2005).
“[W]e will not set aside a jury verdict ‘unless we can affirmatively say that there is no evidence from which the jury could
have found the facts necessary to establish the elements of
[plaintiffs’] cause of action.’ ” Conway v. Pacific University,
324 Or 231, 235,
924 P2d 818 (1996) (quoting Brown v. J. C.
Penny Co.,
297 Or 695, 705,
688 P2d 811 (1984)).
Within its first four assignments of error, defendant
raises a slew of arguments to support its contention that the
trial court erred in denying its directed-verdict motion. We
conclude that only four of those specific arguments were presented to the trial court and preserved for our review, and
do not address those arguments that were not preserved.
In two of the four preserved arguments, defendant contends
4
Defendant also contends that the trial court erred in denying its motion
for a new trial and, “[i]n an abundance of caution,” assigns error to the denial
of its motion for judgment notwithstanding the verdict. After trial, defendant
moved both for judgment notwithstanding the verdict and a new trial. The trial
court denied both. We recently reiterated that “orders that deny both new trial
and [judgment notwithstanding the verdict] motions are not appealable.” Golik
v. CBS Corp., 306 Or App 202, 223,
472 P3d 778 (2020); see also Boers v. Payline
Systems, Inc.,
141 Or App 238, 247,
918 P2d 432 (1996) (“As a general rule, a party
may not assign the denial of a motion for new trial as error.”).
696 Willms v. AmeriTitle, Inc.
that no reasonable juror could find that plaintiffs presented
clear and convincing evidence to support (1) the elements of
plaintiffs’ fraud claim or (2) their claim for punitive damages. Having reviewed the record under the appropriate
standard of review, we conclude that there is sufficient evidence from which the jury could have found for plaintiffs on
their fraud and punitive damage claims, and we reject those
arguments without further discussion.
We turn to defendant’s two preserved arguments
that we substantively address. Defendant contends that the
trial court should have granted it a directed verdict because
the statutes of limitations had run on plaintiffs’ ORICO and
fraud claims. It also contends that plaintiffs failed to present evidence to support “a pattern of racketeering activity”
because, at most, plaintiffs had presented evidence relating to a single escrow transaction. As explained below, we
conclude that the court applied the correct statutes of limitations to plaintiffs’ claims at the directed-verdict stage of
trial and, thus, did not err in denying defendant’s directed-verdict motion on that basis. Further, with respect to plaintiffs’ ORICO claim, we conclude that plaintiffs presented
sufficient evidence to survive a directed verdict.
1. Statutes of limitations issues
We first address defendant’s arguments regarding
the statutes of limitations in the context of its directed-verdict motion. Defendant contends that the trial court
erred in denying its directed-verdict motion by mistakenly
concluding that a six-year statute of limitations applied to
plaintiffs’ claims. Instead, defendant contends, the court
should have applied a two-year statute of limitations to
plaintiffs’ fraud claim and a five-year statute of limitations to plaintiffs’ ORICO claim. Defendant argues that
the escrow transaction that gave rise to plaintiffs’ claims
fully concluded on or before October 30, 2007, and that
plaintiffs filed their complaint on May 9, 2013, which was
more than five years later. Defendant maintains that the
court applied an incorrect six-year statute of limitations
to both the ORICO and fraud claims, which prevented
defendant from prevailing on its statutes of limitations
defenses.
Cite as 314 Or App 687 (2021) 697
Plaintiffs initially respond with procedural arguments that they contend barred the trial court’s review and
subsequently bar our review of the underlying statutes of
limitations issues. We reject those arguments without further discussion. On the merits, plaintiffs contend that the
court did not err in denying the directed-verdict motion and
applied the proper statutes of limitations to the relevant
claims. As we discuss below, we agree with plaintiffs and
conclude that the court did not err in denying defendant’s
directed-verdict motion by applying the wrong statutes of
limitations to plaintiffs’ claims.5
The record of defendant’s directed-verdict motion
is muddled, in part, because defendant’s arguments to the
trial court were sometimes inconsistent. Regardless, there is
no support for defendant’s contention that the court applied
a six-year limitations period to plaintiffs’ ORICO claim at
the directed-verdict stage. In moving for a directed verdict,
defendant argued that the ORICO statute of limitations
was either four or five years and ran from the last claimed
racketeering conduct. Plaintiffs responded that the ORICO
limitations period was five years and ran from the date of
plaintiffs’ reasonable discovery of any racketeering conduct.
No one argued for a six-year ORICO limitations period,
and, at the directed-verdict stage of the proceedings, the
court never referenced a six-year ORICO limitations period.
We reject defendant’s argument that the court applied an
improper six-year limitations period to the ORICO claim
when it denied defendant’s directed-verdict motion.
With respect to plaintiffs’ fraud claim, the trial
court applied, as it had at summary judgment, the six-year
limitations period in ORS 12.080(3). As we discuss below,
we conclude that the six-year limitations period does apply
to plaintiffs’ fraud claim, because plaintiffs maintained that
defendant committed a fraud that interfered with or injured
plaintiffs’ interest in real property under ORS 12.080(3).
At the directed-verdict stage of trial, defendant
contended that the statute of limitations for fraud is two
5
As we discuss below, however, the court erred later in the trial when it concluded, before instructing the jury, that a six-year statute of limitations period,
rather than a five-year period, applied to plaintiffs’ ORICO claim.
698 Willms v. AmeriTitle, Inc.
years, which is the limitations period provided under ORS
12.110(1), and that that period began to run from when
plaintiffs discovered any fraud. Defendant argued that
plaintiffs conceded that they discovered any claimed fraud
no later than November 2008, meaning that the statute of
limitations ran, at the latest, as of November 2010, which
was long before plaintiffs filed their initial complaint in
May 2013. In response, plaintiffs argued that their fraud
claim alleged that defendant had made a misrepresentation
that damaged or interfered with plaintiffs’ interest in real
property, namely misrepresentations regarding the LPV
note and the reconveyance of the LPV trust deed that was
security for the LPV note. Accordingly, plaintiffs contended,
the correct statute of limitations was six years, which is
the period provided by ORS 12.080(3) “for interference with
or injury to any interest of another in real property.” As
the parties understand it, and we agree with their understanding, the trial court denied defendant’s directed-verdict
motion because it concluded that the six-year limitations
period under ORS 12.080(3) applied.
On appeal, the parties reprise their arguments
made in the trial court. Defendant contends that the court
erred in applying the six-year limitations period in ORS
12.080(3) because, as a matter of law, any misrepresentations made by defendant in connection with defendant’s
reconveyance of the LPV trust deed was not an interference
with or injury to any interest of plaintiffs in real property.
Defendant contends that ORS 12.080(3) “applies to common
law torts arising from invasions of interests in real property, such as waste, trespass, nuisance, and inverse condemnation” and not to claims of fraud that allege damage to
an interest in a trust deed. Thus, the legal issue before us
is whether interference with or injury to a party’s interest
in a trust deed is “interference with or injury to any interest of another in real property.” ORS 12.080(3). This raises
an issue of statutory interpretation for which we apply our
usual rules of interpretation. State v. Gaines, 346 Or 160,
171-72,
206 P3d 1042 (2009).
We start with the relevant text in the context of
the statute. The “catch-all” limitations period for actions
that are neither contract actions nor actions “especially
Cite as 314 Or App 687 (2021) 699
enumerated” in ORS chapter 12 is two years. ORS 12.110(1);
see also Goodwin v. Kingsmen Plastering, Inc.,
359 Or 694,
700,
375 P3d 463 (2016) (stating same). That catch-all captures claims for fraud generally, and further provides that
the limitations period for fraud or deceit “commence[s] only
from the discovery of the fraud or deceit.” ORS 12.110(1); see,
e.g., Burgdorf v. Weston,
259 Or App 755, 768,
316 P3d 303
(2013), rev den,
355 Or 380 (2014) (applying ORS 12.110(1)
to a claim of fraud based on the defendant’s misrepresentations that induced the plaintiff to loan the defendant money
and pay expenses associated with real property).
ORS 12.080, however, defines one of the especially
enumerated limitations periods for other particular actions.
It provides a six-year limitations period for contract actions,
ORS 12.080(1), among other actions, and further states that
“[a]n action for waste or trespass upon or for interference
with or injury to any interest of another in real property,
excepting those mentioned in [certain statutes not relevant
here] shall be commenced within six years.”
ORS 12.080(3), (4) (emphasis added). The statute expressly
applies to claims for interference with or injury to “any interest of another in real property.” (Emphasis added.) Because
the Supreme Court in Goodwin addressed the meaning of
the term “interest” in that statute, we turn to that case for
guidance.
In Goodwin, the Supreme Court noted the distinction between an action for injury to an interest in real property and an action for injury to the property itself; although
the former is covered by ORS 12.080(3), the latter is not. 359
Or at 701. “[A]n injury to an ‘interest’ in property would be
something distinct from an injury or damage to the property itself.”
Id. Goodwin noted that an “interest” in real
property is a legal term of art, which was defined in Black’s
Law Dictionary at the time that language was added to the
statute as “ ‘a right to have the advantage accruing from
anything; any right in the nature of property, but less than
title; a partial or undivided right; a title to [a] share.’ ”
Id.
(quoting Black’s Law Dictionary 950 (4th ed 1968)). Goodwin
ultimately concluded that a claim for negligent construction that damaged a home was not a claim for injury to an
700 Willms v. AmeriTitle, Inc.
interest in real property subject to the six-year limitations
period in ORS 12.080(3), but was a claim for damage to the
property itself covered by the two-year limitations period in
ORS 12.110(1).
Id. at 703.
The court’s conclusion in Goodwin was compatible
with its conclusion in Beveridge v. King, 292 Or 771, 773,
643 P2d 332 (1982). In Beveridge, the plaintiffs entered into
a contract to purchase a residential home that the defendant
was building on the property.
Id. After completion of the
home, the defendant retained title to the property as security for the payment of the purchase price.
Id. at 778. The
plaintiffs brought a complaint more than two years later
that alleged that the defendant failed to “construct the house
in a workmanlike manner,” and listed 18 particular examples of that failure.
Id. at 773. The defendant contended that
either the two-year limitations period under ORS 12.135(1)
(1971),6 which applied to construction defect claims, or the
two-year limitations period under ORS 12.110(1), applying
to fraud claims generally, barred the plaintiffs’ claim.
Id. at
774-76. The Supreme Court concluded that ORS 12.135(1)
(1971) did not apply, because that statute applied to physical
injury to property, among other things, but not to financial
losses resulting from the inadequate services described in
that statute.
Id. at 775. The court further concluded that,
even assuming that the plaintiffs had not alleged a claim
for breach of contract, ORS 12.110(1) did not apply, because
the plaintiffs had alleged an injury to their interest in real
property—namely, the contractual interest that the plaintiffs had in purchasing the property—and therefore the
especially enumerated six-year limitations period under
ORS 12.080(3)7 applied to the plaintiffs’ claim. See
id. at
778-79 (stating that “[a]n action for damages for injury to
any interest of plaintiffs in the real property which was
the subject of this sale is ‘especially enumerated’ in ORS
12.080(3)”). In Goodwin, the court summarized Beveridge:
6
ORS 12.135(1) has been amended numerous times since Beveridge. See Or
Laws 1983, ch 437, § 1; Or Laws 1991, ch 968, § 1; Or Laws 2009, ch 715, § 1.
7
ORS 12.080(3) has also been amended a number of times since Beveridge.
See ORS 12.080(3) (1973), amended by Or Laws 1983, ch 437, § 2; Or Laws 1987,
ch 705, § 3; Or Laws 1991, ch 968, § 2. Those amendments do not affect our discussion of Beveridge or our analysis of the instant case.
Cite as 314 Or App 687 (2021) 701
“The court noted that [ORS 12.080(3)] applied when an
action is one for interference or injury to ‘any interest of
another in real property.’ In Beveridge, the court observed,
the plaintiffs did not have title to the property, but they
nevertheless had an ‘interest’ in the property by virtue of
their contract [to purchase the property].”
Goodwin, 359 Or at 706 (quoting Beveridge,
292 Or at 777-78).
Keeping in mind that law regarding the meaning
of “any interest of another in real property” under ORS
12.080(3), we return to the question of whether plaintiffs’
claim that defendant misrepresented the payments on the
LPV note and the circumstances regarding the reconveyance of the LPV trust deed is an action that falls within the
six-year statute of limitations in ORS 12.080(3). Applying
Beveridge and Goodwin, we conclude that it is.
Here, in their case-in-chief, plaintiffs presented
evidence that Sanderson physically transferred the LPV
note to plaintiffs as security for the SCI note. Sanderson
also provided plaintiffs with a security agreement that
granted plaintiffs a security interest in the LPV note and
expressly provided that the LPV note was further secured
by a deed of trust. In fact, the LPV note was secured by
a trust deed to real property. As a result, plaintiffs had a
perfected security interest in the LPV deed of trust under
the provisions of ORS chapter 79.8 In addition, the security
agreement between Sanderson and plaintiffs demonstrates
that it was the intent of Sanderson and plaintiffs for plaintiffs to have a security interest in the LPV deed of trust.
The security agreement provided that, upon the request of
plaintiffs, “Sanderson will … assist [plaintiffs] in taking
possession of the LPV Note” and deliver the note “with one
8
See ORS 79.0109 (ORS chapter 79 applies to a security interest given in a
note, secured by a deed of trust or mortgage, as security for another obligation);
ORS 79.0203(7) (“The attachment of a security interest in a right to payment
or performance secured by a security interest or other lien on personal or real
property is also attachment of a security interest in the security interest, mortgage or other lien.”); ORS 79.0313(1) (“Except as otherwise provided in subsection
(2) of this section, a secured party may perfect a security interest in tangible
negotiable documents, goods, instruments, money or tangible chattel paper by
taking possession of the collateral.”); ORS 79.0308(5) (“Perfection of a security
interest in a right to payment or performance also perfects a security interest in
a security interest, mortgage or other lien on personal or real property securing
the right.”).
702 Willms v. AmeriTitle, Inc.
or more assignments indorsed in blank” (although the note
was ultimately never indorsed). Through the security agreement, plaintiffs held an interest in the LPV note that was
secured by the LPV deed of trust, and it gave the right to
plaintiffs to, upon request, obtain possession of the indorsed
note, which would have also transferred the LPV deed of
trust directly to plaintiffs for enforcement. See Deutsche
Bank Trust Co. Americas v. Walmsley, 277 Or App 690,
696-97,
374 P3d 937 (2016) (stating conditions under which
the holder of a negotiable note may enforce the note and
deed of trust, even though that person was not the original
payee on the note, if they are a holder of an indorsed note).
Although not a direct ownership of real property, it is “any
interest” in real property that is at least comparable to the
Beveridge plaintiffs’ contractual interest in acquiring real
property that was not title but was still an interest in real
property. We need not define precisely what plaintiffs’ interest is, because, in any event, it is “any right in the nature
of property.” Goodwin,
359 Or at 701 (citing Black’s at 950).
Plaintiffs claimed and presented evidence of interference
with that interest by pointing to defendant’s misrepresentations that LPV had not been making payments on the LPV
note, and misrepresentations to effect the reconveyance of
the LPV deed of trust, that prevented plaintiffs from seeking payment from Sanderson of those loan proceeds, or from
seeking an indorsement on the LPV note from Sanderson
and then enforcing the note and deed of trust against LPV
directly, before the trust deed was returned to LPV.
Defendant nevertheless contends that the statute
of limitations in ORS 12.080(3) does not apply because, it
argues, “purely economic harm does not fall within the scope”
of that statute. For that proposition, defendant relies upon
case law from our court, including Morrison v. Ardee Pest
Control, 62 Or App 506,
661 P2d 576 (1983), and Riverview
Condo. Assn. v. Cypress Ventures (A150586),
266 Or App 574,
339 P3d 447 (2014). With regard to Morrison, defendant misreads that case. In that case, we held that ORS 12.080(3)9
did not apply, because the plaintiffs’ claim did not allege a
harm to their interest in real property. Morrison,
62 Or App
9
As in our discussion of Beveridge, amendments to ORS 12.080(3) since our
decision in Morrison are not relevant here.
Cite as 314 Or App 687 (2021) 703
at 510. The claimed negligence—an improperly conducted
inspection of a residence that failed to find dry rot while the
plaintiffs were under contract to purchase the residence—
did not cause harm to the plaintiffs’ interest in the real
property, because that interest remained the same both
before and after the inspection: an interest in a property
with dry rot.
Id. That case does not stand for the proposition that physical harm to real property is required for ORS
12.080(3) to apply.
Our application of ORS 12.080(3) in Riverview
Condo. Assn., on the other hand, was clearly rejected by
the Supreme Court in Goodwin. Our opinion in Goodwin
expressly relied upon our decision in Riverview Condo.
Assn., which held that ORS 12.080(3) applied to a construction defect claim. Goodwin v. Kingsmen Plastering, Inc., 267
Or App 506, 510,
340 P3d 169 (2014), aff’d on other grounds,
359 Or 694,
375 P3d 463 (2016). The Supreme Court then
rejected that proposition. Goodwin,
359 Or at 703. Thus, in
any event, to the extent that either Morrison or Riverview
Condo. Assn. stand for the proposition advanced by defendant, they are clearly inconsistent with the Supreme Court’s
decision in Goodwin and are no longer good law. See
id. at
696 (concluding that ORS 12.080(3) “does not apply to actions
for damage to property itself, which are subject to the two-year statute of limitations”).
To the extent that defendant argues that our case
law requires proof of damage to a property and not solely
to the plaintiff’s “pocketbook” for the statute of limitations
in ORS 12.080(3) to apply, that law has been set aside by
Goodwin. We conclude that plaintiffs presented a claim for
“interference with or injury to any interest of another in real
property” subject to the six-year limitations period in ORS
12.080(3). Defendant makes no attempt to argue that, if that
period applies, the trial court erred in denying its directed-verdict motion argument that the statute of limitations had
run on the fraud claim. As a result, we conclude that the
trial court did not err on that basis.
2. ORICO pattern of racketeering issue
We turn to defendant’s argument that the trial
court erred when it denied its directed-verdict motion that
704 Willms v. AmeriTitle, Inc.
contended plaintiffs had not presented evidence of a “pattern of racketeering activity” as required under ORICO.10
Defendant contended in the trial court and contends now
again before us that, as a matter of law, plaintiffs did not
present evidence of a “[p]attern of racketeering activity”
under ORS 166.715(4) because all of plaintiffs’ claims of illegal conduct involved a single escrow transaction. Plaintiffs
respond that there were multiple separate incidents that
formed a pattern of racketeering throughout that escrow
transaction. Plaintiffs claimed, among other things, that
defendant’s misrepresentations to plaintiffs hid the fact
that LPV had been making payments during the escrow
period in January and March 2007. Plaintiffs also claimed
that defendant’s representative later prepared documents in
October 2007 that falsely stated that the LPV note had been
lost, misplaced, or destroyed. Plaintiffs alleged that that
conduct was “racketeering activity” under ORS 166.715(6)(a)
including, among other subsections, ORS 166.715(6)(a)(TT)
(relating to crimes under the statutes governing escrow),
ORS 166.715(6)(a)(B) (a violation of ORS 162.065, the crime
of perjury in providing a knowingly false sworn statement),
and ORS 166.715(6)(a)(P) (a violation of ORS 165.042, the
crime of fraudulently obtaining a signature).
We initially note that we do not decide here whether
the conduct that plaintiffs contend amounted to racketeering
activity was, in fact, racketeering activity, because defendant
did not adequately preserve that argument in its directed-verdict motion. Therefore, we assume without deciding that
plaintiffs presented evidence of at least some racketeering
activity consistent with its allegations in the trial court.11
10
Defendant raises other arguments on appeal that contend that plaintiffs
did not present sufficient evidence to survive defendant’s directed-verdict motion
against plaintiffs’ ORICO claim. Again, those arguments were not raised in the
trial court or sufficiently preserved for our review.
11
ORS 166.715 defines “[r]acketeering activity” to include committing,
attempting to commit, conspiring to commit, soliciting, coercing, or intimidating
another person to commit “[a]ny conduct that constitutes a crime, as defined in
ORS 161.515, under any of the following provisions ….” ORS 166.715(6), (6)(a).
That statute then lists various specific provisions, including criminal statutes
and, among others, the real estate and escrow statutes in ORS chapter 696. ORS
166.715(6)(a)(TT). Plaintiffs argue that violations of those real estate and escrow
statutes give rise to criminal liability under ORS 696.990(3), which provides that
“[a] violation of any one of the provisions of ORS 696.505 to 696.590 is a Class A
Cite as 314 Or App 687 (2021) 705
We conclude that defendant adequately preserved only its
contention that plaintiffs had not presented sufficient evidence of a “[p]attern of racketeering activity” under ORS
166.715(4) necessary to survive a directed-verdict motion.
(Emphasis added.) The issue before us is whether multiple
incidents of racketeering activity can constitute a “[p]attern
of racketeering activity” under ORS 166.715(4), even if those
incidents occurred within a single escrow transaction that
damaged two victims. As we discuss below, we conclude that
they can.
The issue is again one of statutory interpretation
for which we apply our usual methodology. See Gaines, 346
Or at 171-72. We start with the text in the context of the
statute.
Id. ORS 166.715(4) defines a “[p]attern of racketeering activity” and provides, in relevant part:
“ ‘Pattern of racketeering activity’ means engaging in at
least two incidents of racketeering activity that have the
same or similar intents, results, accomplices, victims or
methods of commission or otherwise are interrelated by
distinguishing characteristics, including a nexus to the
same enterprise, and are not isolated incidents, provided
at least one of such incidents occurred after November 1,
1981, and that the last of such incidents occurred within
five years after a prior incident of racketeering activity.”
We note a few significant aspects of that text within
the overall statute. First, a pattern does not require proof
of a long string of incidents; just “two incidents of racketeering activity” are necessary. Second, those two incidents
can have, as is the case here, “the same … victims,” or be
“interrelated by distinguishing characteristics, including a
nexus to the same enterprise,” among other characteristics.
Third, the incidents may not be “isolated incidents.” That
particular phrase does not require proof of continuity of the
incidents or any particular temporal element. Computer
Concepts, Inc. v. Brandt, 310 Or 706, 721,
801 P2d 800
(1990); see also Penuel v. Titan/Value Equities Group,
127
Or App 195, 205,
872 P2d 28, rev den,
319 Or 150 (1994)
misdemeanor.” Plaintiffs contended that defendant violated, among other statutes, various provisions of ORS 696.535, which refer to the power of the state real
estate commissioner to discipline escrow agents for various improper conduct,
misrepresentations, and conditions.
706 Willms v. AmeriTitle, Inc.
(stating that the phrase “does not have a temporal element”
but describes the relationship among the predicate acts of
racketeering). Rather, the Supreme Court has “read the
phrase ‘not isolated’ to describe the relationship between or
among the predicate acts, including their nexus to the same
enterprise.” Computer Concepts, Inc.,
310 Or at 721.
In Computer Concepts, Inc., the Supreme Court
examined the legislative history of ORICO and, particularly, the phrase “pattern of racketeering activity.” Id. at
720. It noted that, “[b]oth in committee hearings and in
floor debates, the participants stated that ‘pattern of racketeering activity’ was defined by the statute; they referred
only to the words of the statute to define what a pattern
is.”
Id. The court also noted that the only reference to time
occurred when one committee witness stated that the statute was focused on “the relationship between this crime this
day and this crime the next day. That is, this crime is part
of a pattern.”
Id. The court stated that the legislative history
indicated that the phrase “pattern of racketeering activity”
should be “ ‘liberally construed’ in favor of plaintiffs.”
Id.
(quoting ORS 166.735(2)).
From those points, we can reject defendant’s contention that a “pattern of racketeering activity” cannot consist of two or more different incidents of racketeering activity taking place in connection with a single escrow file that
resulted in damage to two victims—e.g., a defendant making fraudulent statements regarding the receipt of escrow
payments (ORS 166.715(6)(a)(TT)) and months later providing a knowingly false sworn statement (ORS.715(6)(a)(B)) or
fraudulently obtaining a signature (ORS 166.715(6)(a)(P))
as part of the same escrow file. Presuming these incidents
occurred, as we must in the posture of this appeal, there
were more than two incidents with the same victims that
were not isolated in occurrence, as they were related to each
other and had a nexus to the claimed enterprise.12
12
Plaintiffs alleged that there was an association between and among
Sanderson, SCI, defendant, and defendant’s representative, Hervey. Plaintiffs
also alleged that this association was an ORICO enterprise. Defendant did not
challenge in its directed-verdict motion the existence of this enterprise or claim
plaintiffs failed to present evidence of such an association.
Cite as 314 Or App 687 (2021) 707
Defendant, relying primarily on two federal cases
from the United States District Court for the District of
Oregon, nevertheless contends that, because the alleged
predicate acts all involved a single escrow file, that the acts
and the overall escrow transaction as a whole must be a single incident under ORICO. Of course, those cases, although
they can be relied upon for their persuasive reasoning, are
not binding on our court. Respectfully, we disagree with
each.
In Newman v. Comprehensive Care Corp., 794 F Supp
1513, 1527 (D Or 1992), one district court judge concluded
that, even assuming that the plaintiffs had alleged multiple predicate acts of racketeering within a failed merger
of two corporate entities, “[t]he predicate acts alleged are
not related; the failed merger was an isolated incident.”
The court first analyzed the plaintiffs’ federal RICO claim,
which has different requirements and higher standards for
proof of temporal “continuity” of the pattern of racketeering activity, before it concluded in one sentence and without
textual analysis of the Oregon statute that the plaintiffs’
ORICO claim failed because it related to a single failed
merger.
Id. A different District of Oregon judge later followed the conclusion in Newman in an unpublished opinion
that concluded that a complaint had not alleged an ORICO
pattern of racketeering activity when it alleged multiple
predicate acts connected to a single real estate transaction.
Altamont Summit Apartments LLC v. Wolff Properties LLC,
No CV 01-1260-BR,
2002 WL 31972359 at *9 (D Or Aug 21,
2002).
With respect, those cases add an element to the statute that does not exist. They require not just that plaintiffs
prove a pattern of racketeering activity comprised, under
the statute, of “at least two incidents of racketeering activity
that have the same or similar … victims … or otherwise
are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents.” ORS 166.715(4). Those cases also require that plaintiffs prove that that pattern of racketeering activity occur
within two separate overarching financial transactions.
Although defendant’s position is not without some appeal,
we conclude that a pattern of racketeering activity under
708 Willms v. AmeriTitle, Inc.
ORS 166.715(4) can consist of separate incidents of racketeering activity that have the same victims and a nexus to
the same enterprise and are not isolated, in that those incidents are related in the way set forth in Computer Concepts,
Inc., but that still occur over the course of one larger overarching financial transaction. See Burley v. Clackamas County,
298 Or App 462, 467,
446 P3d 564, rev den,
365 Or 721 (2019)
(stating that we are not bound by United States District
Court opinions nor do we follow opinions that do not rely on
our rules of statutory interpretation).
Our conclusion is consistent with Penuel, where we
concluded that the defendants’ misrepresentations in connection with the sale of unsuitable limited partnerships to
18- and 15-year old girls, sales which a jury could find were
criminal violations of the securities laws, were not isolated
incidents even though they occurred “within a very short
time” and were “consummated within a few minutes.” 127 Or
App at 204-05. We noted that, even though such incidents of
racketeering might seem isolated “in common parlance,” the
Supreme Court in Computer Concepts, Inc., had concluded
that “isolated incidents” did not have a temporal element
and instead “describes the relationship between or among
the predicate acts, including their relationship to the same
enterprise.”
Id. The federal case law noted above requires
reading into the term “isolated incidents” a temporal element that our Supreme Court has rejected. For that reason
and those discussed above, we conclude that the trial court
did not err in denying defendant’s motion for a directed verdict that contended that plaintiffs had not demonstrated an
ORICO “[p]attern of racketeering activity.”
B. The Trial Court’s Jury Instructions and Related Issues
In its fifth through ninth assignments of error,
defendant raises assignments of error relating to the jury
instructions and, separately but relatedly, to the punitive
damages award.
We very briefly address and reject defendant’s fifth
through seventh assignments of error. In its fifth and sixth
assignments of error, defendant raises a number of arguments that the trial court erred in instructing the jury on
Cite as 314 Or App 687 (2021) 709
punitive damages and in failing, post-trial, to reduce the
jury’s $750,000 punitive damage award. We reject those
arguments without extended discussion. We note only
that the bulk of defendant’s arguments contend that it violated defendant’s due process rights under the Fourteenth
Amendment to the United States Constitution for the jury
to award $750,000 in punitive damages, given that plaintiffs also recovered treble damages under ORICO that effectively added another $2 million to the $1 million damages
award. Defendant contends that the combination of punitive and trebled statutory damages results in an improper
“ratio” of 2.75:1 under the relevant punitive-damage case
law when comparing the punitive and statutory multiplier
damages to the compensatory damages award. We note that
we do not need to address that particular argument—and
we express no opinion on it—because, as we discuss below,
we are reversing the judgment on the ORICO claim and,
accordingly, the ORICO treble damages award. However, to
the extent that defendant would continue to maintain that it
violates due process for the jury to award punitive damages
of $750,000 when the jury awarded $1 million in damages
on the fraud claim, we reject that argument without further
discussion.
We turn to defendant’s eighth and ninth assignments of error, which contend that the trial court erred
with respect to the jury instructions on plaintiffs’ fraud and
ORICO claims. We first address defendant’s ninth assignment of error, which contends that the court erred at the jury-instruction phase when it concluded that a six-year statute
of limitations applied to both plaintiffs’ fraud and ORICO
claims. As we discussed above in the directed-verdict section, the court correctly concluded that the six-year limitations period under ORS 12.080(3) applied to plaintiffs’ fraud
claim. The court concluded the same at the jury-instruction
phase and that, again, was correct.
At the directed-verdict stage, as we discussed above,
there was no support for the contention that the trial court
applied a six-year statute of limitations period to plaintiffs’ ORICO claim. For some reason, that changed when
the court decided the jury instruction issues. We recount
710 Willms v. AmeriTitle, Inc.
the arguments at the jury-instruction phase relating to the
ORICO statute of limitations.
As in the directed-verdict motion, the arguments
were a bit muddled. Defendant’s primary counsel, Sieving,
asked the court to instruct the jury on the appropriate statute of limitations that applied to each claim. Defendant
wanted instructions on the appropriate statutes so that
it could argue to the jury that the limitations period had
passed on each of plaintiffs’ claims. As to the fraud claim,
defendant continued to maintain that the court should
instruct the jury that a two-year statute of limitations
applied. Defendant further contended that
“we need a determination from the Court as to which statute applies to the two claims that are pending. Otherwise,
we get into a mixed question of law and fact as to whether
the six-year applies or whether the two-year applies or
whether the—the five-year applies.”
Defendant’s counsel Sieving later stated, “[a]nd if the court
would instruct them that there’s two or four years on these
two remaining claims, I can argue that they’re time barred.”
Sieving’s later reference to a four-year statute of limitations
appears to have been a casual mistake as he had just referenced a five-year statute, which is the ORICO limitations
period under ORS 166.725(11)(a). No statute of limitations
at issue before the trial court had a four-year limitations
period. Indeed, as discussed below, Sieving’s co-counsel later
explicitly contended to the court that the ORICO limitations
period was, in fact, five years.
Plaintiffs responded by asking for a six-year statute
of limitations to apply, seemingly, to both claims. Plaintiffs’
counsel contended that, “if the Court’s going to give an
instruction as to which one applies, I’d ask for the six-year
statute.” Shortly after, the following exchange occurred:
“THE COURT: So the Court determines that it is the
six-year … statute of limitations, and so we’re going to
proceed on that. And so as a result of that, is there any
reason we need a statute of limitations instruction?
“MR. SIEVING: Just for the record, to clarify, Your
Honor, the Court’s determining that there’s a six-year statute of limitations to both pending claims?
Cite as 314 Or App 687 (2021) 711
“THE COURT: Yes.
“MR. SIEVING: All right. Then we don’t need it.
We—we won’t withdraw it, but for the record—
“THE COURT: You’re withdrawing it based on the
Court’s ruling. You’re objecting to my determination. I got
it.”
Defendant’s other counsel, McLure, then correctly
noted that, “on the RICO statute, the question was we concede that it is a five-year statute, but the question is, is it—
with the discovery rule or—no?” Sieving then contended
that the ORICO limitations period began as of the last predicate racketeering act but acknowledged that the court was
determining that a six-year statute of limitations applied.
The court concluded the colloquy by stating, “we’re moving
you all down the road. That’s what we’re doing. And I understand you’re objecting to that, so that’s preserved for the
record.”
From that somewhat muddled colloquy, we can
make some concrete observations. Defendant objected to
the trial court’s application of a six-year limitations period
to plaintiffs’ ORICO claim and contended that a five-year
limitations period applied. Despite that objection, the court
concluded that a six-year limitations period applied to the
ORICO claim. The trial court was incorrect. The ORICO
statute of limitations provides, in relevant part:
“Notwithstanding any other provision of law, a criminal or
civil action or proceeding under ORS 166.715 to 166.735
[the ORICO statutes] may be commenced at any time
within five years after the conduct in violation of a provision of ORS 166.715 to 166.735 terminates or the cause of
action accrues.”
ORS 166.725(11)(a). The court erred in concluding that a six- and not a five-year limitations period applied to plaintiffs’
civil ORICO claim.
Plaintiffs argue, among other things, that, despite
defendant’s contention that it was prevented from arguing
to the jury that plaintiffs’ ORICO claim was time barred,
defendant “never proposed to make any such showing” and
incorrectly argued that the ORICO limitations period should
712 Willms v. AmeriTitle, Inc.
commence from the last predicate racketeering act and not
from plaintiffs’ discovery of any misconduct. It is unclear if
plaintiffs are contending that defendant failed to preserve
its argument or that any error in failing to instruct the jury
is harmless. Regardless, we conclude based on the unique
record before us that the issue is preserved and the error is
not harmless.
Addressing preservation first, defendant asked the
trial court to conclude that a five-year statute of limitations
period applied to plaintiffs’ ORICO claim and, if the court
did so, asked the court to instruct the jury on the five-year
ORICO statute of limitations. Defendant preserved its argument that it had a right to argue the five-year statute of
limitations to the jury. See Beall Transport Equipment Co.
v. Southern Pacific, 335 Or 130, 141,
60 P3d 530 (2002) (concluding that, by requesting an instruction, the party preserved for appeal the argument that the trial court erred
in failing to give the instruction). The court then asked
if defendant still wanted to present that instruction, and
excused it from doing so after defendant stated that it would
not further pursue the instruction if the court concluded
that the limitations period was six years. The court specifically noted that it understood defendant’s argument and
that the objection to the court’s ruling was preserved. After
defendant’s co-counsel correctly noted that ORICO had a
five-year statute of limitation, but that the court had not
addressed whether there was a discovery rule within the
statute, the court cut off the entire colloquy with the parties
by stating “we’re moving you all down the road. That’s what
we’re doing. And I understand you’re objecting to that, so
that’s preserved for the record.” Under these unique circumstances where the trial court asked if defendant wanted to
pursue the instruction, stated that it understood defendant
was preserving its objection, and then cut off further discussion about the instruction, we conclude that defendant’s
assignment of error was preserved. Cf. State v. Martinez,
275 Or App 451, 459-60,
364 P3d 743 (2015), rev den,
358
Or 611 (2016) (concluding that the preservation rules did not
require the party to make ongoing specific objections within
an exhibit where the party’s general objection to the entire
exhibit was already rejected).
Cite as
314 Or App 687 (2021) 713
We also conclude that the trial court’s error was
not harmless. See Or Const, Art VII (Amended), § 3; ORS
19.415(2) (“No judgment shall be reversed or modified except
for error substantially affecting the rights of a party.”). The
court, based on a misunderstanding of the applicable limitations period, prevented defendant from presenting its statute of limitations defense to the jury. As noted, the statute of
limitations for civil ORICO claims under ORS 166.725(11)(a)
is five years, but the action can be brought either five years
“after the conduct in violation [of ORICO] terminates” or
within five years after the action “accrues.” Accrual occurs
when plaintiffs “discovered or, in the exercise of reasonable diligence, should have discovered that they have been
damaged and the cause of the damage.” Penuel, 127 Or App
at 200. That question is “normally a question for the jury
unless only one conclusion can reasonably be drawn from
the evidence.” Loewen v. Galligan,
130 Or App 222, 236,
882
P2d 104, rev den,
320 Or 493 (1994) (stating same in context
of the accrual of a securities claim). Having reviewed the
record, we cannot say that a factfinder presented with the
evidence could only find that plaintiffs’ claims were timely
under the ORICO statute of limitations. Defendant was prevented from raising its ORICO statute-of-limitations argument to the jury when the court ruled that a six-year statute
of limitations applied. We conclude that that error was not
harmless because we cannot say that there is “little likelihood that the particular error affected the verdict”; in other
words, there is at least some likelihood that, had defendant
been able to argue the five-year limitations period to the
jury, it could have affected the jury’s result. Purdy v. Deere
and Company,
355 Or 204, 226,
324 P3d 455 (2014).
We turn to defendant’s eighth assignment of error,
in which it contends, among other things, that the trial
court erred in instructing the jury on the definition of “pattern of racketeering activity” because the court omitted the
concluding phrase “and are not isolated incidents” from the
statutory definition. See ORS 166.715(4) (“ ‘Pattern of racketeering activity’ means engaging in at least two incidents of
racketeering activity that have the same or similar intents,
results, accomplices, victims or methods of commission …
and are not isolated incidents ….” (Emphasis added.)).
714 Willms v. AmeriTitle, Inc.
Although plaintiffs claim that there was no reversible error,
it is at least undisputed that the trial court adopted plaintiffs’ incomplete instruction over defendant’s written objection. In light of our reversal on defendant’s ninth assignment
of error, we need not decide if that instruction amounted to
reversible error. However, because we remand the case for
further proceedings, we note that the trial court incorrectly
instructed the jury by omitting the phrase “and are not isolated incidents” from the statutory definition.
C. Plaintiffs’ Cross-Appeal
Plaintiffs cross-appeal and assign error to the trial
court’s denial of their request for attorney fees. Plaintiffs
sought their attorney fees under ORS 166.725(14), which
provides that the court may award attorney fees to certain
prevailing parties in an ORICO action. Because we reverse
the judgment for plaintiffs on the ORICO claim, plaintiffs’
arguments on cross-appeal, which are premised on their
having prevailed on their ORICO claim, are now moot.
Accordingly, we dismiss the cross-appeal.
III. CONCLUSION
In sum, we affirm the judgment in favor of plaintiffs on their fraud claim, reverse the judgment on plaintiffs’
ORICO claim because the trial court erred in preventing
defendant from raising their argument regarding the five-year limitations period to the jury, and dismiss plaintiffs’
cross-appeal as moot.
On appeal, reversed and remanded as to plaintiffs’
ORICO claim, otherwise affirmed; cross-appeal dismissed
as moot.
