398 P.3d 977
Or. Ct. App.2017Background
- Curzi played Oregon State Lottery video poker machines that include an auto-hold feature programmed by the manufacturers to recommend which cards to keep/discard; players may override it.
- Curzi alleges the auto-hold recommendations are sometimes suboptimal, reducing payouts relative to optimal strategy, and that the Lottery failed to disclose that effect.
- Curzi emailed the Lottery Jan 16, 2014; the Lottery replied Feb 3, 2014 explaining auto-hold provides "a strategy" not the only or necessarily optimal strategy.
- Curzi served a notice of claim Oct 24, 2014 and sued Dec 31, 2014 asserting fraud, misrepresentation, negligence, unjust enrichment against the Lottery and an "acting in concert" claim against manufacturers; he also sought class certification under ORCP 32.
- Trial court dismissed all claims with prejudice: tort claims as untimely under ORS 30.275(2)(b) and unjust enrichment as barred by sovereign immunity; manufacturers’ fee motion was granted and prevailing-party fees awarded.
- Oregon Court of Appeals affirmed dismissal of claims but reversed the supplemental judgment awarding prevailing-party fees, holding ORS 20.190(6)(a) bars fee awards in actions alleged as class proceedings under ORCP 32.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of tort-notice under ORS 30.275(2)(b) | Curzi: discovery rule/continuing tort; he did not discover claim until Lottery’s Aug 2014 records response, so Oct 24, 2014 notice was timely | Lottery: Curzi knew or should have known by Feb 3, 2014 (its email) so notice was untimely | Court: Feb 3 email gave Curzi notice of harm, causation, and tortious conduct; claims barred as untimely; not a continuing tort |
| Unjust enrichment vs. sovereign immunity | Curzi: state’s waiver for contract claims (ORS 30.320) also waives quasi-contract/unjust enrichment | Lottery: sovereign immunity bars quasi-contract claims against the State absent express waiver | Court: ORS 30.320 waives suits "upon a contract made"; quasi-contract is not a contract claim; sovereign immunity bars unjust enrichment claim against the State |
| Prevailing-party fees under ORS 20.190(6)(a) | Curzi: case was brought as a class action under ORCP 32; statute forbids fee awards in "a class action proceeding under ORCP 32" so fees improper | Manufacturers: fee bar applies only to proceedings that the court certifies/maintains as class actions, not to complaints merely filed as class actions | Court: legislative context shows "class action proceeding under ORCP 32" covers alleged or maintained class actions; fees reversed and remanded |
Key Cases Cited
- Doe v. Lake Oswego Sch. Dist., 353 Or. 321 (discovery rule for OTCA notice; accept well-pleaded facts on ORCP 21 review)
- T.R. v. Boy Scouts of Am., 344 Or. 282 (statute of limitations question decided as matter of law only if no triable issue)
- Johnson v. Multnomah County Dept. of Community Justice, 344 Or. 111 (knowledge elements for discovery rule)
- Uruo v. Clackamas County, 166 Or. App. 133 (when statute begins to run; reasonable person standard)
- Holdner v. Columbia County, 51 Or. App. 605 (continuing tort doctrine; distinction from repetitious discrete torts)
- Davis v. Bostick, 282 Or. 667 (continuing torts and recovery for cumulative wrongful behavior)
- Anderson v. Dept. of Rev., 313 Or. 1 (state sovereign immunity principles)
- Comcast of Oregon II, Inc. v. City of Eugene, 346 Or. 238 (quasi-contract not a tort for ORS 30.260(8) purposes)