179 Or. App. 703 41 P.3d 449

Argued and submitted June 6, 2001,

affirmed February 27, 2002

Peter VON OHLEN, Appellant, v. GERMAN SHORTHAIRED POINTER CLUB OF AMERICA, INC., a Missouri corporation, Respondent.

94C-13141; A108607

41 P3d 449

Clayton C. Patrick argued the cause and filed the briefs for appellant.

Gordon Hanna argued the cause and filed the brief for respondent.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

*704KISTLER, J.

*705KISTLER, J.

In 1996, the trial court issued a permanent injunction prohibiting the German Shorthaired Pointer Club of America from collaring dogs during field trials. In 1999, the court granted a motion to dissolve the injunction. On appeal, plaintiff challenges the latter ruling. We review de novo and affirm.

Plaintiff raises and trains German Shorthaired Pointers.1 Until recently, plaintiff was a member of the German Shorthaired Pointer Club of America, which conducts field trials for that breed under the auspices of the American Kennel Club (AKC). In 1994, plaintiff filed this action against the German Shorthaired Pointer Club of America, Inc. (GSPCA, Inc.) to enjoin the practice of collaring German Shorthaired Pointers during field trials.

Collaring means “controlling a dog by the collar around [its] neck rather than controlling the dog by voice command.” Plaintiff explained why the practice concerned him:

“[T]raditionally a German shorthaired pointer cannot be touched at a field trial except tapped on the head to release to retrieve. In all other circumstances, the dog has to be mentally tough enough, mentally sound enough to do everything at a field trial by voice command. ** * * [Allowing collaring rather than requiring voice commands during *706field trials] creates a dog that is not nearly as mentally sound a dog as the old traditional shorthair was.”

Plaintiff based his request for injunctive relief on the club’s rules, which prohibited collaring. In 1996, the court issued an injunction prohibiting the “German Shorthaired Pointer Club of America” from allowing collaring during field trials,2 and we affirmed the trial court’s judgment on appeal.

Three years later, the German Shorthaired Pointer Club of America Foundation (GSPCA Foundation) filed a motion to dissolve the injunction because it had changed its rules in 1999 to permit collaring. Plaintiff responded that the motion should be denied for two reasons. First, he noted that he had filed his action in 1996 against GSPCA, Inc., but that a different entity, the GSPCA Foundation, had moved to dissolve the injunction. Plaintiff argued that the GSPCA Foundation was not the real party in interest. Alternatively, he argued that, even if the GSPCA Foundation were the real party in interest, it had fraudulently procured a 1997 rule change, and perhaps a 1998 rule change, that affected the 1999 rule change that gave rise to the Foundation’s motion to dissolve the injunction. The trial court ruled that the GSPCA Foundation was the proper party and that any impropriety in the 1997 rule change did not affect the 1998 or 1999 rule changes.

To understand plaintiffs arguments, it is necessary to set out more completely the somewhat complex facts that have given rise to them. Before 1990, the German Short-haired Pointer Club, Inc., was incorporated in Pennsylvania. In 1990, that corporation asked its attorney how it could achieve nonprofit tax status. The attorney explained that, because the corporation’s records were in disarray, it would be difficult for it to be treated as a nonprofit corporation. The attorney advised the corporation that it would be more cost effective to move to a new state and reincorporate instead of trying to reconstruct and organize the corporation’s records. *707Following its attorney’s advice, the corporation reincorporated as GSPCA, Inc., in Missouri in August 1990.

Before reincorporating in Missouri, the Pennsylvania corporation neither notified its members of its plans nor obtained their consent to reincorporate. In January 1991, approximately four months after it reincorporated, the corporation sent ballots to its members,3 asking whether it should reincorporate in Missouri. The letter accompanying the ballot explained that the corporation was seeking to gain nonprofit tax status. The corporation’s members approved reincorporating in Missouri.4

In September 1991, GSPCA, Inc., received another letter from its attorney, advising it that it could achieve nonprofit status more easily in Missouri if it were a foundation. Following that advice, the GSPCA Foundation incorporated in Missouri in October 1991.5 The GSPCA Foundation appears to have assumed responsibility for the functions that GSPCA, Inc., previously performed. The GSPCA Foundation also appears to have acted as if GSPCA, Inc.’s members automatically became its members. GSPCA, Inc., however, did not notify its members that the GSPCA Foundation had been formed or ask them whether a new corporation, the GSPCA Foundation, should assume GSPCA, Inc.’s responsibilities. Rather, all of the GSPCA Foundation’s correspondence continued to go out under GSPCA, Inc.’s name.

In January 1992, the State of Missouri dissolved GSPCA, Inc., because it failed to file annual corporate reports. In January 1993, the State of Missouri dissolved the GSPCA Foundation because it also failed to file annual corporate reports.

In 1994, plaintiff filed this action against GSPCA, Inc., seeking to enjoin collaring at field trials. At that point, *708both GSPCA, Inc., and the GSPCA Foundation had been dissolved. Plaintiff served his complaint on the club’s president and secretary, who appeared through the club’s attorney in Oregon.6 It does not appear that anyone told the trial court that the GSPCA Foundation had been incorporated with the understanding that it would assume the functions that GSPCA, Inc., had performed. Similarly, it does not appear that anyone told the trial court that both Missouri corporations had been dissolved before plaintiff filed his action.

In his complaint, plaintiff alleged that the practice of collaring violated the club’s rules. In 1996, the trial court entered a permanent injunction against the “German Shorthaired Pointer Club of America,”7 prohibiting

“the Defendant from allowing collaring at any field trials, and Defendant is hereby enjoined and restrained from allowing collaring at any field trials unless and until such collaring has been approved by a vote of the membership of Defendant pursuant to its constitution and bylaws.”

At that point, the club was the only entity authorized by the AKC to conduct field trials for German Shorthaired Pointers, and the people who ran the club abided by the court’s injunction.

In 1997, the State of Missouri rescinded the order dissolving the GSPCA Foundation’s corporate status. The next year, the GSPCA Foundation registered the name “German Shorthaired Pointer Club of America, Inc.” as an assumed business name.

Beginning in 1997, the GSPCA Foundation held a series of elections that led to the amendment permitting collaring. In 1997, the members voted to insert the words “breed conformation” before the word “standard” as it appeared in the Foundation’s constitution and bylaws.8 In 1998, the *709members voted to approve lowering the voting requirement necessary to amend the field performance standards from two-thirds to a simple majority of the members. In 1999, the members were asked to approve the use of collaring, the practice that had previously been prohibited by the club’s rules. The club’s members approved the use of collaring by a simple majority, a vote that was permissible under the 1998 amended constitution and bylaws. In the 1999 election, members were also asked to decide whether to dissolve .the Pennsylvania corporation and “officially recogniz[e] the Missouri Corporation as the sole operating [ejntity for the German Shorthaired Pointer Club of America, Inc.”9 That measure was also approved.

On September 8,1999, the GSPCA Foundation filed an order to show cause why the 1996 injunction should not be dissolved.10 In response, plaintiff argued initially that the GSPCA Foundation was not the real party in interest. Alternatively, he argued that, even if the GSPCA Foundation were the real party in interest; the trial court should not dissolve the injunction because irregularities in the 1997 election resulted in the Foundation’s members improperly approving the use of collaring in the 1999 election. The trial court did not accept either argument and dissolved the injunction.

On appeal, plaintiff pursues the same issues that he raised below. We begin with the question whether the GSPCA Foundation is subject to the injunction. If it is, it may move to dissolve it. On that point, plaintiff argues that, because the GSPCA Foundation has not taken the necessary steps under Missouri law to make it the lawful successor in interest to GSPCA, Inc., it is not bound by the injunction.11 In analyzing plaintiffs argument, we begin with the terms of *710ORCP 79 D. That rule provides that every order granting a preliminary injunction

“is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with any of them who receive actual notice of the order by personal service or otherwise.”

ORCP 79 D.12 That portion of the rule is taken verbatim from Rule 65(d), FRCP. As the Court has explained, the federal rule embodies “the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in ‘privity’ with them, represented by them or subject to their control.” Regal Knitwear Co. v. NLRB, 324 US 9, 14, 65 S Ct 478, 89 L Ed 661 (1945); see Alemite Mfg. Corp. v. Staff, 42 F2d 832 (2d Cir 1930) (stating the common-law doctrine).

Wright, Miller, and Kane explain the limitations on binding nonparties:

“Although [Rule 65(d)] itself does not speak of ‘privity,’ the concept frequently is used by the federal courts as synonymous with the enumeration in Rule 65(d) of nonparties who may be bound. Inasmuch as holding a nonparty in contempt for engaging in enjoined conduct might be considered as a possible denial of due process, the privity concept must be restricted to persons so identified in interest with those named in the decree that it would be reasonable to conclude that their rights and interests have been represented and adjudicated in the original injunction proceeding.”

Charles A. Wright, Arthur R. Miller, and Mary K. Kane, Federal Practice and Procedure § 2956, 340-41 (2d ed 1995); see Crane Boom Life Guard Co. v. Saf-T-Boom Corp., 362 F2d 317 (8th Cir 1966), cert den 386 US 908 (1967) (holding that, on the facts of that case, the individual shareholders, the attorney, and a supplier were bound by a consent decree entered against the corporation); Meredith v. Fair, 313 F2d 532 (5th Cir 1962), cert den 372 US 916 (1963) (holding that *711the Governor of Mississippi was bound by an injunction requiring the University of Mississippi to admit Meredith).

More specifically, Wright, Miller, and Kane explain that, “[w]hen an injunction has issued against a corporation, a subsidiary corporation or an independent corporation acting in active concert also may be bound by the order.” Wright, Miller, and Kane, Federal Practice and Procedure § 2956 at 352.13 In this case, the GSPCA Foundation has held itself out as the successor in interest to GSPCA, Inc. It has assumed that corporation’s obligations and functions since it was incorporated in 1992, and it acknowledges that it had ample notice and an opportunity to be heard before the trial court issued the injunction in 1996. Even if the 1999 election were not sufficient under Missouri law to make the GSPCA Foundation the lawful successor to GSPCA, Inc., a proposition that we do not address, the GSPCA Foundation is still “so identified in interest with those named in the decree that it would be reasonable to conclude that [its] rights and interests have been represented and adjudicated in the original injunction proceeding.” See Wright, Miller, and Kane, Federal Practice and Procedure § 2956 at 340-41. Because the GSPCA Foundation was bound by the injunction, it properly moved to dissolve it.

On the merits, plaintiff does not dispute that, if the 1999 rule were validly adopted, the trial court correctly dissolved the injunction. He contends instead that the 1999 rule is a product of a 1997 rule change and a 1998 rule change and that the latter rules were not properly adopted. The GSPCA Foundation responds that the trial court correctly ruled that the 1999 rule was validly adopted.14 Having reviewed the *712parties’ arguments, we conclude that a discussion of those issues would not benefit bench or bar and affirm the trial court’s ruling on the merits of plaintiffs claims without discussion.

Affirmed.

Von Ohlen v. German Shorthaired Pointer Club of America, Inc.
179 Or. App. 703 41 P.3d 449

Case Details

Name
Von Ohlen v. German Shorthaired Pointer Club of America, Inc.
Decision Date
Feb 27, 2002
Citations

179 Or. App. 703

41 P.3d 449

Jurisdiction
Oregon

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