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Courter v. City of Portland

Court of Appeals of Oregon

June 7, 2017

Richard W. COURTER and Gayanne Courter, husband and wife, Plaintiffs-Appellants,
v.
CITY OF PORTLAND, a political subdivision of the State of Oregon, Defendant-Respondent.

          Argued and Submitted October 13, 2015

         Multnomah County Circuit Court 130507693.

          Richard Maizels, Judge pro tempore.

          Kristian Roggendorf argued the cause for appellants. With him on the briefs was Roggendorf Law LLC.

          Terence L. Thatcher, Deputy City Attorney, argued the cause and fled the brief for respondent.

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge. [*]

         [286 Or.App. 40] Case Summary:

         Plaintiffs appeal a judgment in favor of defendant City of Portland (the city) dismissing plaintiffs' inverse condemnation claim and their request for declaratory relief. In 2003, the city obtained a judgment condemning an easement to bury pipes on plaintiffs' property. According to plaintiffs, the city was required to bury the pipes at a depth of at least 18 feet but later buried them as shallow as four feet. Plaintiffs asserted that the city therefore exceeded the scope of its easement and effected a taking without just compensation and, additionally, requested a declaration that the terms of the judgment required the city to bury the pipes at a depth of at least 18 feet. Plaintiffs also contended that the placement of the pipes increased the cost of future development of their property. The city moved for summary judgment, arguing, inter alia, that plaintiffs' claims were not ripe, because it was uncertain whether plaintiffs could develop their property and any resulting damages were therefore speculative. The city also argued that the court lacked jurisdiction to consider plaintiffs' declaratory judgment action, because a declaratory judgment action may not be used to construe the terms of a prior circuit court judgment. The trial court concluded that plaintiffs' claims were not ripe and granted the city's motion.

         Held: The trial court erred in concluding that plaintiffs' claims were not ripe. If the pipes are physically occupying plaintiffs' property, there has been a taking, and nothing else needs to occur before a court can adjudicate that issue. Additionally, courts have jurisdiction to issue declaratory judgments construing or clarifying ambiguous terms in prior judgments. Plaintiffs' request for a declaratory judgment is based on an assertion that the terms of the 2003 judgment are ambiguous, so it is within the court's jurisdiction.

         Reversed and remanded.

         [286 Or.App. 41] SERCOMBE, P. J.

         Plaintiffs appeal a judgment in favor of defendant City of Portland (the city) dismissing plaintiffs' inverse condemnation claim and their request for declaratory relief under the Declaratory Judgments Act, ORS 28.010 to 28.160. In 2003, the city condemned an easement for the "placement of utilities" beneath an access road on plaintiffs' property, in order to bury pipes to connect a water tank to the city's water system. According to plaintiffs, the city agreed during the 2003 condemnation trial to bury the pipes at a depth of at least 18 feet but later buried them as shallow as four feet. Plaintiffs assert that the city therefore exceeded the scope of its easement and effected a taking without just compensation in violation of Article I, section 18, of the Oregon Constitution.[1] On the city's motion, the trial court granted summary judgment on the ground that plaintiffs' claims were not ripe for adjudication. Plaintiffs raise two assignments of error on appeal, first, arguing that the trial court erred in implicitly concluding that the city was not barred from defending the action under the doctrine of judicial estoppel and, second, asserting that the trial court erred in concluding that their claims were not justiciable. In response, the city contends that the case is not ripe and that judicial estoppel does not apply. The city also raised three alternative bases for affirmance, including an argument that a court cannot issue a declaratory judgment construing the terms of a prior judgment.[2] We conclude that the case is ripe for adjudication and that a declaratory judgment action [286 Or.App. 42] can, under these circumstances, be brought to construe the prior judgment. Therefore, we reverse and remand.[3]

         On appeal from a trial court's grant of a motion for summary judgment, "we view the evidence and all reasonable inferences in the light most favorable to" the nonmoving party "for the purpose of determining whether there is no genuine issue of material fact and the [moving party] is entitled to judgment as a matter of law." Farnworth v. Rossetto. 285 Or.App. 10, 12, ___ P.3d___ (2017).

         This case concerns a dispute about the results of a 2003 condemnation trial. At that time, the city exercised its power of eminent domain to acquire property owned by plaintiffs in order to build a water tank and associated facilities. Following the trial, a jury reached a verdict awarding plaintiffs $596, 000 in just compensation for the taking. The trial court then entered a judgment, which granted the city a fee interest in 1.6 acres of plaintiffs' land and "an easement for ingress and egress and the placement of utilities" along an access road on plaintiffs' property.

         Subsequently, the city constructed the water tank and buried pipes to connect the tank to the city's water system. The city buried the pipes at depths ranging from four to 15 feet beneath the access road. According to plaintiffs, by doing so, the city exceeded the scope of its easement, which, plaintiffs contend, required them to bury their pipes at a depth of at least 18 feet. Plaintiffs subsequently filed a complaint raising a claim of inverse condemnation and a request for declaratory relief.

         In their complaint, plaintiffs alleged that, at the 2003 trial, the city represented-through its witnesses and through counsel-that the pipes would be buried at a depth of at least 18 feet, and that, if they were buried at that depth, they would not interfere with plaintiffs' ability to develop their property in the future. According to plaintiffs, now, before they can develop the property, they will have to dig up and move the pipes at great expense. Furthermore, plaintiffs asserted that, during the 2003 trial, they were barred [286 Or.App. 43] from arguing that they should ...


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