RIGGS, J.
These consolidated appeals
arise from losses allegedly sustained by plaintiffs Orton, Riddle and Jensen in gambling games operated on the premises of the Eugene Lodge of the Benevolent and Protective Order of Elks (Lodge). Orton and Riddle alleged claims for gambling losses, and all plaintiffs alleged violations of the Oregon Racketeer Influence and Corrupt Organization Act (ORICO). ORS 166.715
et seq.
The trial court struck the unlawful gambling claims that arose more than three years before the filing of the complaint and granted defendants’ motions to dismiss plaintiffs’ ORICO claims. It also denied defendant Nyberg’s motion to amend his pleading to claim attorney fees under ORS 20.105. Plaintiffs and Nyberg appeal. We affirm in part and reverse in part.
We turn first to a procedural matter. ORS 19.033(2) (a) provides:
“The following requirements
of ORS 19.023, 19.026 and 19.029
are jurisdictional
and may not be waived or extended:
“(a)
Service of the notice of appeal on all parties identified in the notice of appeal as adverse parties
or, if the notice of appeal does not identify adverse parties, on all parties who have appeared in the action, suit or proceeding, as provided in ORS 19.023(2)(a), within the time limits prescribed by ORS 19.026.” (Emphasis supplied.)
Jensen’s ORCP 67B judgment specifically excludes her claim against Hainline & Pope, P.C. The record does not show that Hainline was ever served or that it ever appeared in trial proceedings.
Nonetheless, Jensen named it as an adverse party on appeal but did not serve it with a copy of the notice of appeal.
Before 1985, ORS 19.033(2) provided that a notice of appeal must be served on all parties who have appeared in the action. The statute was amended in 1985 to provide for service only on named adverse parties in order to end the practice of dismissing timely appeals because of a failure to serve parties
who had been dismissed earlier in an action and who had no active interest in the litigation.
Rhodes v. Eckelman,
302 Or 245, 249, 728 P2d 527 (1986);
Maduff Mortgage Corp. v. Deloitte Haskins & Sells,
83 Or App 15, 22, 730 P2d 558 (1986),
rev den
303 Or 74 (1987).
It would be contrary to the legislative purpose to dismiss Jensen’s entire appeal because of her failure to serve Hainline when Hainline has never appeared in the action, is specifically excluded from the judgment and has no interest in the appeal. We do not believe that the statutes command such a result. ORS 19.033(2) (a) requires service on all parties
who appeared
in the action, if adverse parties are not named, and refers to ORS 19.023, ORS 19.026 and ORS 19.029 for the requirements that are jurisdictional. None of those statutes requires service of the notice of appeal on a party who has not appeared in the action. It would be anomalous for the statute to require dismissal of Jensen’s entire appeal because Hainline was inadvertently named as an adverse party. We decline to do so. However, because the appeal against Hainline has not been perfected, we dismiss the appeal as to it. We decline to dismiss Jensen’s appeal against the other parties and turn to the merits.
Plaintiffs Riddle and Orton assign error to the trial court’s striking of the claims for gambling losses that occurred more than three years before the complaints were filed. They argue that the statutory basis for their claims is ORS 30.780:
“Any person violating ORS 167.117 to 167.162 [criminal gambling statutes] shall be liable in a civil suit for all damages occasioned thereby.”
They argue that the applicable limitation is six years under ORS 12.080(2), which provides that an
“action upon a liability created by statute, other than a penalty or forfeiture * * * shall be commenced within six years.”
Plaintiffs are not correct. Even if a claim under ORS 30.780 is subject to the six-year limitation of ORS 12.080(2),
they did not bring their claims under that statute. Their complaints seek double damages under ORS 30.740,
which provides for a penalty or forfeiture,
see Mozorosky v. Hurlburt,
106 Or 274, 198 P 556, 211 P 893 (1923); therefore, on its face, ORS 12.080(2) does not apply.
The trial court held that the applicable Statute of Limitations is ORS 12.100(2), which provides:
“An action upon a statute for penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state, excepting those actions mentioned in ORS 12.110, shall be commenced within three years.”
Although defendants did not assign error to the trial court’s determination, at oral argument they postulated that the applicable provision is ORS 12.130:
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RIGGS, J.
These consolidated appeals
arise from losses allegedly sustained by plaintiffs Orton, Riddle and Jensen in gambling games operated on the premises of the Eugene Lodge of the Benevolent and Protective Order of Elks (Lodge). Orton and Riddle alleged claims for gambling losses, and all plaintiffs alleged violations of the Oregon Racketeer Influence and Corrupt Organization Act (ORICO). ORS 166.715
et seq.
The trial court struck the unlawful gambling claims that arose more than three years before the filing of the complaint and granted defendants’ motions to dismiss plaintiffs’ ORICO claims. It also denied defendant Nyberg’s motion to amend his pleading to claim attorney fees under ORS 20.105. Plaintiffs and Nyberg appeal. We affirm in part and reverse in part.
We turn first to a procedural matter. ORS 19.033(2) (a) provides:
“The following requirements
of ORS 19.023, 19.026 and 19.029
are jurisdictional
and may not be waived or extended:
“(a)
Service of the notice of appeal on all parties identified in the notice of appeal as adverse parties
or, if the notice of appeal does not identify adverse parties, on all parties who have appeared in the action, suit or proceeding, as provided in ORS 19.023(2)(a), within the time limits prescribed by ORS 19.026.” (Emphasis supplied.)
Jensen’s ORCP 67B judgment specifically excludes her claim against Hainline & Pope, P.C. The record does not show that Hainline was ever served or that it ever appeared in trial proceedings.
Nonetheless, Jensen named it as an adverse party on appeal but did not serve it with a copy of the notice of appeal.
Before 1985, ORS 19.033(2) provided that a notice of appeal must be served on all parties who have appeared in the action. The statute was amended in 1985 to provide for service only on named adverse parties in order to end the practice of dismissing timely appeals because of a failure to serve parties
who had been dismissed earlier in an action and who had no active interest in the litigation.
Rhodes v. Eckelman,
302 Or 245, 249, 728 P2d 527 (1986);
Maduff Mortgage Corp. v. Deloitte Haskins & Sells,
83 Or App 15, 22, 730 P2d 558 (1986),
rev den
303 Or 74 (1987).
It would be contrary to the legislative purpose to dismiss Jensen’s entire appeal because of her failure to serve Hainline when Hainline has never appeared in the action, is specifically excluded from the judgment and has no interest in the appeal. We do not believe that the statutes command such a result. ORS 19.033(2) (a) requires service on all parties
who appeared
in the action, if adverse parties are not named, and refers to ORS 19.023, ORS 19.026 and ORS 19.029 for the requirements that are jurisdictional. None of those statutes requires service of the notice of appeal on a party who has not appeared in the action. It would be anomalous for the statute to require dismissal of Jensen’s entire appeal because Hainline was inadvertently named as an adverse party. We decline to do so. However, because the appeal against Hainline has not been perfected, we dismiss the appeal as to it. We decline to dismiss Jensen’s appeal against the other parties and turn to the merits.
Plaintiffs Riddle and Orton assign error to the trial court’s striking of the claims for gambling losses that occurred more than three years before the complaints were filed. They argue that the statutory basis for their claims is ORS 30.780:
“Any person violating ORS 167.117 to 167.162 [criminal gambling statutes] shall be liable in a civil suit for all damages occasioned thereby.”
They argue that the applicable limitation is six years under ORS 12.080(2), which provides that an
“action upon a liability created by statute, other than a penalty or forfeiture * * * shall be commenced within six years.”
Plaintiffs are not correct. Even if a claim under ORS 30.780 is subject to the six-year limitation of ORS 12.080(2),
they did not bring their claims under that statute. Their complaints seek double damages under ORS 30.740,
which provides for a penalty or forfeiture,
see Mozorosky v. Hurlburt,
106 Or 274, 198 P 556, 211 P 893 (1923); therefore, on its face, ORS 12.080(2) does not apply.
The trial court held that the applicable Statute of Limitations is ORS 12.100(2), which provides:
“An action upon a statute for penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state, excepting those actions mentioned in ORS 12.110, shall be commenced within three years.”
Although defendants did not assign error to the trial court’s determination, at oral argument they postulated that the applicable provision is ORS 12.130:
“An action upon a statute for a penalty given in whole or in part to the person who will prosecute for the same, shall be commenced within one year after the commission of the offense * * *.”
We conclude that the limitation is three years under ORS 12.100(2). The distinction between earlier versions of ORS 12.100(2) and ORS 12.130 was pointed out by the Supreme Court in
Howe v. Taylor,
6 Or 284, 294 (1877):
“[W]hen the action is given to the party aggrieved to recover a forfeiture under a statute or to the state, with such party three years is the limitation, and when it is given generally to an informer, one year is the limitation.”
Riddle and Olson alleged that they sustained gambling losses. They are “aggrieved” parties who may seek to recover twice their losses within three years.
See Mozorosky v. Hurlburt, supra,
106 Or at 290. The trial court properly struck the claims for losses sustained earlier than that time.
Plaintiffs assign error to the trial court’s ruling that their complaints failed to state ultimate facts sufficient to
state a claim under ORICO. ORCP 21A(8). At the pretrial hearing, defendants moved to dismiss on that ground and argued,
inter alia,
that the pleadings fail to show a distinction between the “enterprise” and the “person,”
as required by ORS 166.720.
The trial court agreed.
The judgment of dismissal was entered on the general ground that plaintiffs had failed to state a claim and recited that they had pled their strongest case and did not seek leave to plead over.
Plaintiffs contend that they need not plead a distinction between the person and the enterprise.
Defendants argue that we can affirm the trial court on any basis sufficient to sustain the judgment,
see Rader v. Gibbons and Reed Company,
261 Or 354, 365 n 3, 494 P2d 412 (1972), and need not reach the substantive issues of ORS 166.720, because plaintiffs have failed to meet general pleading requirements. Defendants contend that the pleadings must set forth factual allegations which, if proved, would establish plaintiffs’ right to prevail,
see Davis v. Tyee Industries, Inc.,
295 Or 467, 476, 668 P2d 1186 (1983), and that the pleadings do not do so.
Plaintiffs must allege facts to show that they are entitled to bring the statutory cause of action.
See Demars v.
Erde,
55 Or App 863, 640 P2d 635,
rev den
293 Or 146 (1982). They must allege facts relating to each element of the cause; total omission of a material allegation renders the complaint fatally defective.
Fuhrer v. Gearhart By The Sea, Inc.,
306 Or 434, 442, 760 P2d 874 (1988);
see also Baker v. State Bd. of Higher Ed.,
20 Or App 277, 289, 531 P2d 716,
rev den
(1975). Facts not alleged are presumed not to exist.
See Pickett v. Washington County,
31 Or App 1263, 1270, 572 P2d 1070 (1977).
At oral argument, plaintiffs contended that they had stated an ORICO claim by alleging the elements of ORS 167.720: An enterprise consisting of the Lodge, its Board of Trustees and chair officers operated numerous gambling activities, received money from the players, collected unlawful debts, used coercion to collect the debts and, “as a result of the activity,” damaged plaintiffs. However, to show that they have an ORICO cause of action, plaintiffs must not only properly allege the elements of ORS 167.720; they must show that they come within the provisions of ORS 166.725(7)(a):
“Any person who is injured by reason of any violation of the provisions of ORS 166.720(1) to (4) shall have a cause of action for three-fold the actual damages sustained and, when appropriate, punitive damages. Such person shall also recover attorney fees in the trial and appellate courts and costs of investigation and litigation, reasonably incurred.”
A plaintiff may not bring a civil ORICO claim for generalized harm suffered by the world at large. The language of ORS 166.725(7)(a), that a person may claim three-fold the
actual
damages suffered, gives a cause of action to a particular person for particular damages. In turn, that damage must have resulted from the defendants’ violation of ORS 166.720. Plaintiffs failed to allege the required elements of particular damage and the relationship between defendants’ conduct and that damage.
Plaintiffs allege that defendants conducted general ongoing racketeering activity and practiced unlawful debt collection. They then conclusorily state that, as a result of defendants’ activities, they “sustained damages.” There are no allegations showing that the damages are personal to them. Plaintiffs alleged that the “enterprise” cashed checks made to pay gambling loss, but they do not allege that the checks were made by them or that they were targets of the alleged unlawful debt collection. No facts are pleaded to show that the alleged gambling activities resulted in personal losses. Plaintiffs have alleged that defendant conducted a smorgasbord of gambling activities, but they make no allegations about when or whether they participated in the gambling. Plaintiffs’ complaints do not allege facts required by ORS 166.725(7)(a) to show personal damage caused by defendants’ illegal activity. Plaintiffs refused to plead further, and we will not add facts to their complaints.
Doyle v. Oregon
Bank, 94 Or App 230, 764 P2d 379 (1988). The complaints fail to state an ORICO claim.
Defendant Nyberg has separately appealed from the denial of'his motion to amend his answer to Riddle’s and Orton’s complaints to include a demand for attorney fees
under ORS 20.105.
The motion was made at the pretrial hearing and, in response, plaintiffs moved to dismiss Nyberg. The trial court granted plaintiffs’ motion and denied Nyberg’s.
Nyberg argues that the trial court abused its discretion in denying his motion, because there was no showing of prejudice to plaintiffs and the amendment was not beyond the scope of the issues framed by the original pleadings.
See Jackson v. Mult. Co.,
76 Or App 540, 544, 709 P2d 1153 (1985). We agree. A determination of whether plaintiffs acted in bad faith, wantonly or solely for oppressive reasons would be based on the facts and the series of events that gave rise to plaintiffs’ claims and would not introduce new issues. Nyberg’s motion should have been considered on its merits.
During trial colloquy, plaintiffs’ counsel admitted that, at the time of depositions, apparently months before trial, it was agreed that the claim against Nyberg would be dismissed. Nyberg’s attorney was informed that it would be. Yet it was not until Nyberg’s pretrial motion that plaintiffs moved to dismiss him from the action. Nyberg was thus forced to prepare for trial. Dismissal of the claims against him immediately before trial does not remove the grounds for his motion. The amendment should have been allowed.
Appeal dismissed as to defendant Hainline and Pope, P.C., in CA A46098; judgment reversed as to appellant Nyberg in CA A43857 and in CA A43858 and remanded; otherwise affirmed.