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Trail v. Haney

Court of Appeals of Oregon

November 1, 2017

Alex TRAIL and Connie Trail, Plaintiffs-Respondents,
v.
Azonia HANEY, Defendant, and Brent WEBSTER, Defendant-Appellant. Azonia HANEY and Brent Webster, Third Party Plaintiffs,
v.
Alexander TRAIL, Connie Trail, and Trails Sons & Granddaughters, et al., Third Party Defendants.

          Submitted April 7, 2017.

         Clackamas County Circuit Court CV15040205 Paul E. Winters, Judge pro tempore.

          Brent Evan Webster fled the brief pro se.

          James P. Losk and Maylie & Grayson LLP fled the brief for respondents.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case 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.

         Appeal dismissed.

         [288 Or. 535] LAGESEN, J.

         Defendant 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, [1] 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.

         We 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.

         ORS 18.005(13) defines what qualifies as a "limited judgment":

         "Limited judgment" means:

"(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 ...

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