Submitted April 7, 2017.
County Circuit Court CV15040205 Paul E. Winters, Judge pro
Evan Webster fled the brief pro se.
P. Losk and Maylie & Grayson LLP fled the brief for
Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
Summary: Defendant appeals a purported limited judgment
awarding sanctions under ORCP 17 to plaintiffs, and an order
granting plaintiffs' motion to strike defendant's
fourth amended answer. Plaintiffs argue that neither document
is appealable, and request delay damages under ORS 19.445,
and [288 Or. 534] attorney fees and costs. Held: The
purported limited judgment in this case was not appealable.
The document awarding sanctions was not a valid limited
judgment under any of the categories of ORS 18.005(13). In
particular, under Baugh v. Bryant Limited
Partnerships, 98 Or.App. 419, 779 P.2d 1071 (1989), it
was not a valid ORCP 67 B judgment. The trial court's
order striking the fourth amended answer was also not
appealable under ORS 19.205. Regardless of whether the order
striking the fourth amended answer affected a substantial
right, it did not effectively determine the action below. See
ORS 19.205. Plaintiffs' request for delay damages under
ORS 19.445 was denied, as the statute only applies in cases
where a judgment is affirmed on appeal-not when it is
dismissed, as it was here. Plaintiffs' request for
attorney fees and costs was also denied because
plaintiffs' erroneous designation of the order awarding
sanctions as a "limited judgment" may have
contributed to defendant appealing prematurely.
Or. 535] LAGESEN, J.
appeals a purported limited judgment awarding $2, 000 in
sanctions under ORCP 17 to plaintiffs, and an order granting
plaintiffs' motion to strike defendant's fourth
amended answer, contending that each is erroneous for a
variety of reasons. In response, plaintiffs argue that
neither document is appealable and that the appeal should be
dismissed for that reason. Plaintiffs also request that we
award them "delay damages" under ORS 19.445,
contending that defendant lacked "probable cause"
for taking the appeal, as well as attorney fees and costs.
For the reasons that follow, we dismiss this appeal but deny
plaintiffs' request for delay damages under ORS 19.445.
start with the purported limited judgment awarding ORCP 17
sanctions against defendant. That document, which was
prepared by plaintiffs' counsel, is titled "Limited
Judgment and Money Award." It therefore is not
surprising that defendant understood it to be a limited
judgment and appealed from it. Had he not done so, and it
turned out to be a valid limited judgment, then he would have
lost his ability to challenge it. However, notwithstanding
its title, the document is not a valid limited judgment.
18.005(13) defines what qualifies as a "limited
"(a) A judgment entered under ORCP 67 B or 67 G;
"(b) A judgment entered before the conclusion of an
action in a circuit court for the partition of real property,
denning the rights of the parties to the action ...