s. dennis miller, et al., clackamas county circuit plaintiffs,...
TRANSCRIPT
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
S. DENNIS MILLER, et al., ) Clackamas County Circuit )
Plaintiffs, ) Court No.: CV031 10235 )
and ) )
LINDA LORD; GLORIA D. MARSH; ) ALGER MARSH; RAGNARHOKANSON; ) CAA130522 MARILYN HOKANSON; CLARON REED; ) LEE REED; and DIANE WELLS, )
) P lainti ffs-Appe llants, )
) v. ~
JAMES RIGGLE; LAURA RIGGLE, aka ) Laura Rambo; WADE BELKNAP; SHEILA ) BELKNAP; DONALD ISAACSON; ~ DIANE MCKNIGHT; JAMES MCKNIGHT; CITY OF OREGON CITY; ) OREGON CITY EVANGELICAL ) CHURCH, )
) Defendants-Respondents, )
) and )
) EDGAR BRUBAKER, III; and MICHELLE ) BRUBAKER; ELLEN BIRKLAND, et al., )
) Defendants. )
RESPONDENTS' BRIEF AND SUPPLEMENTAL EXCERPT OF RECORD
Appeal from the Order Denying Motion For Mistrial and ORCP 71B(l)(d) Motion entered November 15,2005, in the
Circuit Court of the State of Oregon for the County of Clackamas, HON. DOUGLAS V. VAN DYK, Circuit Court Judge
(Counsel listed on Inside of Cover) 3/09
Ridgway K. Foley, Jr., OSB # 630242 Greene & Markley, P .C. 1515 SW 5th Avenue, Suite 600 Portland, OR 97201 Telephone: (503) 295-2668
Michael D. Walsh, Esq., OSB # 733177 John e. Hutchison, Esq., OSB # 680795 Hutchison & Walsh, P.e. P.O. Box 648 West Linn, OR 97068 Telephone: (503) 656-1694
Attorneys for Defendants-Respondents James Riggle, Laura Riggle, Wade Belknap, Sheila Belknap and Donald Isaacson as Trustee of the Isaacson Trust
Charles F. Hudson, Esq., OSB # 830494 Lane Powell, P.C. 601 SW 2nd Ave., Ste 2100 Portland, OR 97204 Telephone: (503) 778-2178
Attorney for Defendant-Respondent Oregon City Evangelical Church
Jeffrey L. Kleinman, Esq., OSB # 734726 1207 S W 6th Avenue Portland, OR 97204 Telephone: (503) 248-0808
Attorney for Defendant-Respondent City of Oregon City
8136\p Resp Brief cover.doclhe
Glenda P. Durham, Esq., OSB # 802120 P.O. Box 1228 Welches, OR 97067 Telephone: (503) 622-5621
Attorney for Plaintiffs-Appellants (except Linda Lord)
Linda Lord Holmes Lane
Oregon City, OR 97045 Telephone: (
pro se Plaintiff-Appellant
Bryan R. Welch, Esq., OSB # 034900 Jon S. Henricksen, Esq., OSB # 731351 Jon S. Henricksen, P.C. 725 Portland Avenue Gladstone, OR 97027 Telephone: (503) 655-7555
Attorney for Defendants-Respondents Diane McKnight, James McKnight
TABLE OF CONTENTS
STATEMENT OF THE CASE .................................................................................. 1
1. Effective Date Of Entry Of Judgments, Timeliness Of Notice Of AppeaL .............. 1 2. Basis Of, And Limitations On, Appellate Jurisdiction .............................................. 1
A. The Court Of Appeals Has Limited This Appeal ......................................... 1
B. Identification of the Multiple Judgments and Notices of Appeal ................. 1
C. Plaintiffs' Failure To Appeal Timely Limits Appellate Jurisdiction ............. 3
3. Summary Of The Arguments .................................................................................... 4
A. Lord And Durham Appellants' First Assignments Of Error ....................... .4
B. Lord And Durham Appellants' Second Assignments Of Error And Durham Appellants' Third Assignment of Error .................................. 5
C. Lord Third Assignment Of Error. .................................................................. 5
D. Lord And Durham Appellants' Fourth Assignments OfError. ..................... 6
RESPONDENTS' COMBINED JURISDICTIONAL ANSWER TO APPELLANT LORD'S FIRST AND THIRD ASSIGNMENTS OF ERROR AND DURHAM APPELLANTS' FIRST ASSIGNMENT OF ERROR ................. 7
Appellants' Claims Were Not Preserved And Presented Timely Because They Were Not Raised By The Motion For Mistrial Or The ORCP 71B Motion ........... 7
A. Appellants' Motion For Mistrial Presented And Preserved No Error Because It was Untimely .................................................................. 7
B. Appellants' 7IB Motion Only Asserted Issues Not Raised On Appeal ........... 8
RESPONDENTS' COMBINED ANSWER TO LORD AND DURHAM APPELLANTS' FIRST ASSIGNMENTS OF ERROR ......................................... 11
The Court Of Appeals Lacks Appellate Jurisdiction To Hear And Decide These Assignments Of Error ..................................................................................... 11
A. Standard On Review ....................................................................................... 11
B. Lord Presents No Justiciable Controversy Concerning This Issue ................ 11
C. Since Gregory And Julie Washburn Are Not Appellants, The Durham Appellants' Assignment Must Read Solely Upon The Status And Record Relating To Alger And Gloria Marsh ............................................................. 12
D. Appellants Failed To Preserve Any Assignment Of Error Challenging Lack Of Circuit Court Personal Jurisdiction Over Alger And Gloria Marsh ................................................................................. 13
E. The Circuit Court Had Personal Jurisdiction Over The Marshes And Washburns ...................................................................................................... 13
F. No Circuit Court Action Or Order Violated Due Process .............................. 16
RESPONDENTS' COMBINED ANSWER TO LORD AND DURHAM APPELLANTS' SECOND ASSIGNMENTS OF ERROR AND DURHAM APPELLANTS' THIRD ASSIGNMENT OF ERROR ........................ 24
To The Extent The Court Of Appeals Has Appellate Jurisdiction To Hear And Decide These Assignments Of Error The Circuit Court Had Subject Matter Jurisdiction ............................................................................... 24
A. The Circuit Court Had Subject Matter Jurisdiction To Enter Its Judgment .................................................................................... 24
B. Does The Court Of Appeals Lack Appellate Jurisdiction? ............................ 25
C. The Curious Contract Claim ............................... '" ......................................... 27
RESPONDENTS' COMBINED ANSWER TO APPELLANT LORD'S THIRD ASSIGNMENT OF ERROR ....................................................................... 27
Appellants Failed To Preserve Any Error ............................................................... 27
The Circuit Court Did Not Err When It Granted Respondents' Motion In Limine ........................................................................................................ 27
1. The 'rrial Court Ruling .................................................................................... 27
2. Appellants Failed To Preserve These Claimed Errors .................................... 28
RESPONDENTS' COMBINED ANSWER TO LORD AND DURHAM APPELLANTS' FOURTH ASSIGNMENTS OF ERROR ................................... 34
Appellants' Assignments Of Error Challenging The Supplemental Judgment Of The Circuit Court Are Moot ................................................................................ 34
Appellants Lack A Justiciable Controversy Or Standing ....................................... 34
11
III
Appellants Assert No Meritorious Error ................................................................... 34
Argument ..................................................................................................................... 34
1. Interest Of Respondents Other Than City Of Oregon City ............................. 34
2. Appellants' "General Judgment" Argument ................................................... 35
3. The Racially Restrictive Covenant Issue Does Not Help Appellants ............. 35
4. Appellants Have No Justiciable Claim ............................................................ 36
A. These Appellants Lack Standing ................................................................ 37
B. Assignments Of Error Concerning The Attorney Fee Issue Are Moot ...... 38
CONCLUSION ........................................................................................................... 40
IV
INDEX OF AUTHORITIES
CASES
Abrahamson v. Northwestern P. & P. Co., 141 Or 339, 15P2d472, 17P2d 1117(1933) .................................................. 37
Ahlstrom v. Lyon, 129 Or 629, 131 P2d219 (1942) ....................................................................... 14
American Fed Teachers v. Oregon Taxpayers United, 208 Or App 350, 145 P3d 1111 (2006), affirmed, 345 Or 1, 189 P3d 9 (2008) ................................................................................... 12, 13, 38
Benchmark Properties v. Hipolito, 161 Or App 598, 984 P2d 927 (1999) ............................................................... 30
Bornhoft v. Aubry, 178 Or App 625, 37 P3d 1049, rev den, 334 Or 260,47 P3d 486 (2002) ......... 28
Brumnett v. PSRB, 315 Or 402, 848 P2d 1194 (1993) ................................................................ 12, 38
Christensen v. Cober, 206 Or App 719, 138 P3d 918 (2006) ................................................................ 10
Clark v. Dagg, 38 Or App 71,588 P2d 1298 (1979) ................................................................. 38
Daniel v. Naylor, 192 Or App 1,84 P3d 819 (2004) .................................................................... 25
Dawson v. Payless for Drugs, 248 Or 334,433 P2d 1019 (1967) ........................................................................ 8
Dougan v. SAIF, 339 Or 1, 115 P3d 242 (2005) .............................................................................. 3
Duncan Lumber Co. v. Wil/apa Lumber Co., 93 Or 386,182 P 172, 183 P 476 (1919) ........................................................... 14
Gortmaker v. Seaton, 252 Or 440,450 P2d 547 (1969) ....................................................................... 38
Haley v. Haley, 215 Or App 36, 168 P3d 305 (2007) ............................................................ 11, 25
Hamel v. Johnson, 330 Or 180, 998 P2d 661 (2000) ....................................................................... 39
Kessel v. Leavitt, 204 W Va 95,511 SE 2d 720 (1998) ................................................................. 12
v
Just v. City of Lebanon, 193 Or App 121, 88 P3d 307 (2004) ................................................................ 38
Just v. City of Lebanon, 193 Or App 132,88 P3d 312 (2004), rev dismissed, 342 Or 117, 149 P3d 139 (2006) ...................................................................................... 12, 38
Land Associates, Inc. v. Becker, 294 Or 308, 656 P2d 927 (1982) ....................................................................... 16
Landsing Property Corp. v. Anglea, 89 OrApp 381, 749P2d 588 (1988) ................................................................. 17
Larabee v. Mell, Extr'x, 193 Or 543, 239 P2d 597 (1952) ....................................................................... 38
Lovinger v. Lane County, 342 Or 254,149 P3d 1213 (2006) ...................................................................... 10
Ludgate v. Somerville, 121 Or 643,256 P 1043 (1927) ......................................................................... 32
Lunski v. Lindemann, 270 Or 316,527 P2d 254 (1974) ......................................................................... 8
Magar v. City of Portland, 179 Or App 104, 39 P3d 234 (2002) ............................................................ 11, 25
Marineau v. A. P. Green Refractories Co., 201 Or App 590, 120 P3d 916 (2005), rev den, Lovinger v. Lane County, 342 Or 254,149 P3d 1213 (2006) ...................................................................... 10
Mathews v. Hutchcraft, 221 Or App 479,190 P3d 474 (2008) .................................................................. 3
McCall v. Kulongoski, 339 Or 186, 118 P3d 256 (2005) .......................................................................... 3
McDonald v. World Wide Dodge, Inc., 243 Or 218,412 P2d 371 (1966), overruled in part on other grounds by
Dawson v. Paylessfor Drugs, 248 Or 334,433 P2d 1019 (1967) ....................... 8
McIntire v. Forbes, 322 Or 426,909 P2d 846 (1996) ................................................................. 12, 38
Multnomah Co. v. Reed, et al 203 Or 21,278 P2d 135 (1954) ......................................................................... 38
M utzig v. Hope, 176 Or 368, 158P2d 110(1945) ...................................................................... 14
Nicklin v. Hobin, 13 Or 406 (1886) ............................................................................................... 10
VI
Ragnone v. Portland School District No. IJ, 289 Or 339, 613 P2d 1052 (1980), rev 'd after remand on other grounds, 291 Or617,633P2d 1287(1981) ..................................................................... 37
SAIF v. Shipley, 326 Or 557, 955 P2d 244 (1998) ........................................................................ 25
Shelley v. Kraemer, 334 US 1,68 S Ct 836,92 L Ed 1161 (1948) ................................................... 36
Shields v. Campbell, 277 Or 71, 559 P2d 1275 (1977) ....................................................................... 28
State v. A dams, 315 Or 359,847 P2d 397 (1993) .......................................................................... 4
State v. Affeld, 307 Or 125, 764 P2d 220 (1988) ....................................................................... 29
State v. Barnes, 208 Or App 640,145 P3d 261 (2006) ............................................................... 29
State v. Bowen, 340 Or 487, 135 P3d 272 (2006) .................................................................. 29-30
State v. Busby, 315 Or 292,844 P2d 897 (1993) ................................................................. 30, 31
State v. Hilton, 187 Or App 666, 69 P3d 779 (2003), rev den, 336 Or 377, 84 P3d 1081 (2004) ....................................................................................... 8, 13
State v. Hughes, 192 Or App 8, 83 P3d 951 (2004) ............................................................... 29, 30
State v. Luke, 104 Or App 541, 802 P2d 672 (1990) ............................................................... 31
State v. Wilson, 323 Or 498,918 P2d 826 (1996), cert den, 519 US 1065, 117 S Ct 704, 136 LE2d 625 (1997) .................................................................. 28
State v. Olmstead, 310 Or 455, 800 P2d 277 (1990) ....................................................................... 29
State v. Phillips, 3]4 Or 460,840 P2d 666 (1992) ....................................................................... 30
State v. Smith, 319 Or 37,872 P2d 966 (1994) ......................................................................... 30
State v. Snyder, 337 Or 410,97 P3d 1181 (2004) ...................................................................... .3-4
Vll
State v. Williams, 322 Or 620,912 P2d 364, cert den, 519 US 854, 117 S Ct 149, 136 L Ed 2d 95 (1996) .................................................................................... 8, 13
State v. Wyatt, 331 Or 335,15 P3d 22 (2000) ........................................................................... 31
State ex rei Juv. Dept. v. Holland, 290 Or 765, 625 P2d 1318 (1981) ..................................................................... 39
State ex rei Methodist Old People's Home v. Crawford, 159 Or 377,80 P2d 873 (1938) ......................................................................... 14
State ex rei Mix v. Newland, 277 Or 191, 560 P2d255 (1977) ............................................................... 9-10, 15
Stirton v. Trump, 202 Or App 252, 121 P3d 714 (2005) ............................................................ 7,25
Utsey v. Coos County, 176 Or App 524, 32 P3d 933 (2001) rev dismissed 335 Or 217, 65P3d 1109(2003) ................................................................... 11-12, 13,38,39
Waddill v. Anchor Hocking, Inc., 330 Or 376, 8 P3d 200 (2000), adh 'd to on recons, 331 Or 595, 18 P3d 1096 (2001) ........................................................................................ 7,25
Yancy v. Shatzer, 337 Or 345,97 P3d 1161 (2004) ....................................................................... 38
CONSTITUTIONAL PROVISIONS
Oregon Constitution, Article VII (Amended) Section 1 ............................................... 38
STATUTES AND RULES
ORAP 5.45 ................................................................................................................... 10 ORAP 5.45(4)(a)(iii) .................................................................................................... 29 ORCP21A ................................................................................................................... 14 ORCP 21A(2) .............................................................................................................. 14 ORCP64F(I) ................................................................................................................. 7 ORCP 71B(I) ............................................................................................................... 26 ORS 18.242 .............................................................................................................. 6,40 ORS 19.420(1) ......................................................................................................... 6, 39 ORS20.105 .................................................................................................................... 6 ORS 40.065 .................................................................................................................. 40 ORS 40.070(2) ............................................................................................................. 40 ORS 40.450 .................................................................................................................. 34 ORS 40.455 .................................................................................................................. 34 ORS 93.740 .................................................................................................................. 16
V111
INDEX OF SUPPLEMENTAL EXCERPT OF RECORD
SUPPLEMENTAL EXCERPT OF RECORD
Plaintiffs' Fifth Motion For Joinder (4/8/2005) (CCCC OJIN 274) ...................... SER-J
Fifth Order For Joinder Of Additional Parties (5/04/2005) (CCCC OJIN 298) .............................................................................. SER-4
Letter From Glenda Durham (6/14/2005) .............................................................. SER-5
Motion To Dismiss (6/16/2005) ............................................................................. SER-6
Eighth Order For Joinder Of Additional Parties (6/22/2005) (CCCC OJIN 369) ............................................................................ SER-13
Order (7/2212005) (CCCC OJIN 384) .................................................................. SER-14
Order Dismissing Appeal As To Second Amended General Judgment, Dismissing Appeal As To Bruce Vincent, And Allowing Appeal To Proceed As To November 15,2005 Order (3/0112006) (App. OJIN 22) ............. SER-18
Full Satisfaction Of Judgment (9/15/2008) (CCCC OJIN 538) ........................... SER-21
Order Determining That Appeal Is Not Moot (12/16/2008) (App. OJIN 120) ............................................................................. SER-23
* All of the Certificates of Service have been deleted from the Excerpt of Record documents
STATEMENT OF THE CASE
1. Effective Date Of Entry Of Judgments, Timeliness Of Notice Of Appeal 2. Basis Of, And Limitations On, Appellate Jurisdiction
A. The Court Of Appeals Has Limited This Appeal All Plaintiffs 1
failed to appeal timely from the General Judgment, or from the operative Amended
General Judgment, or from the Second Amended General Judgment. For that reason,
this Court already has strictly limited all Plaintiffs' appeals to grounds raised below in
their Motion for Mistrial (Mistrial Motion) and their ORCP 71B(I)(d) Motion (71B
Motion).
The Second Amended Notice of Appeal identified only the following Circuit
Court plaintiffs, in addition to Appellant Lord, as parties to this appeal: Ragnar and
Marilyn Hokanson, Agnes and Linda Kennett, Gloria and Alger Marsh, Claron and
Lee Reed, and Diane Wells.2 The second, operative, Durham Appellants' Brief
caption eliminates Agnes and Linda Kennett as Appellants.
B. Identification of the Multiple judgments and Notices of Appeal
The Circuit Court entered its General Judgment on July 27,2005 (OHN 381).3
1 Attorney Glenda Durham represented all Plaintiffs in Circuit Court and she filed all notices of appeal. Plaintiff-Appellant Linda Lord chose to file a separate Appellant's Brief pro se. Attorney Durham filed a separate Appellants' Brief for some Plaintiffs below. Respondents refer, when necessary to differentiate, to "Lord" and to "Durham Appellants." Appellants may be included in the term "Plaintiffs" at times when discussing Circuit Court proceedings.
2 The Third Amended Notice of Appeal, challenging the Supplemental Judgment, does not include Agnes or Linda Kennett. Therefore, they have no interest in Durham Appellants' Fourth Assignment of Error.
Plaintiffs chose not to appeal from this General Judgment. The Circuit Court entered
its Amended General Judgment on August 15, 2005 (OlIN 390). Plaintiffs chose not
to appeal from this Amended General Judgment, even though it is the operative
judgment for appeal.
On October 24,2005, the Circuit Court entered a Second Amended General
Judgment specifically to correct two clerical mistakes in the Amended General
Judgment (OJIN 416). The Second Amended Judgment differs from the Amended
General Judgment only in these two respects: it makes clerical changes to the caption
and to wording on page four, and all rulings are identical (compare OlIN 390 and
OlIN 416). Therefore, according to ORS 18.107(2), the Amended General Judgment
remains the operative judgment for commencement of an appeal.
On November 9,2005, Plaintiffs filed their Mistrial Motion (OlIN 418) and
their 71B Motion (OlIN 419). The parties did not argue these motions and the Circuit
Court denied them on November 15,2005 and November 17,2005 (OlIN 421, OlIN
422).
On November 28,2005, all Plaintiffs, including Lord, by attorney Durham,
filed their initial Notice of Appeal, purporting to appeal from the Second Amended
General Judgment and from the Orders denying their Mistrial and 71B Motions
(OJIN 423). Hence, Appellants' initial Notice of Appeal was filed 99 days after entry
of the operative final and appealable judgment. Seventy days earlier, Judge Van Dyk
3 Circuit Court record citations follow the original OJIN format, numbering entries chronologically from the commencement of the case. Appellate OlIN citations, abbreviated (App. OlIN) follow the same format.
2
had cautioncd Appellants' lawyer on the record that she might have already missed
the deadline for timely filing a notice of appeal (9119/05 Tr 5-6).
C. Plaintiffs' Failure To Appeal Timely Limits Appellate Jurisdiction.
Plaintiffs failed to perfect their appeal timely from the Second Amended General
Judgment as commanded by ORS 19.240, 19.250, and 19.255, and thcy never
attempted to appeal from the operative Amended General Judgment (OnN 390).
Plaintiffs moved the Court of Appeals for a summary determination of appealability
(App. OnN 2) and Respondents moved to dismiss Plaintiffs' appeal (App OnN 18;
OJIN 440). On March 1,2006, the Chief Judge of the Oregon Court of Appeals
dismissed Plaintiffs' appeal from the Second Amended General Judgment as
untimely, and allowed their appeal to continue only from the Orders denying the
Mistrial and 71B Motions (App. OJIN 22). The Chief Judge adhered to his ruling (on
Respondents' subsequent Motion to Dismiss) by Order entered October 31, 2007
(App. OJIN 69). This ruling establishes the law of the case.
Consequently, this Court lacks appellate jurisdiction to consider Plaintiffs'
appeal from the Second Amended General Judgment. Mathews v. Hutchcraft, 221
Or App 479,190 P3d 474 (2008); McCall v. Kuiongski, 339 Or 186, 195-96, 118 P3d
256 (2005) (Court of Appeals lacks jurisdiction to consider a case not appealed as
required by the appellate statutes); Dougan v. SAIF, 339 Or 1,6, ] 15 P3d 242 (2005)
(Oregon recognizes no common law right to appeal; the right to appeal is solely
statutory and subject to all statutory limitations); State v. Snyder, 337 Or 410,416,97
3
P3d 1181 (2004) (same rule); State v. Adams, 315 Or 359, 364,847 P2d 397 (1993)
(same rule).
3. Summary Of The Arguments
A. Lord And Durham Appellants' First Assignments Of Error.
Personal jurisdiction claims are personal to the parties affected. Lord has no standing
to raise this assignment of error, and since Gregory and Julie Washburn did not
appeal, the Durham Appellants must rest their personal jurisdictional arguments on
the status of Appellants Alger and Gloria Marsh. None of the Appellants preserved
any personal jurisdiction assignment of error since none of them appealed timely from
the applicable Amended General Judgment. Their ORCP 71 B and Mistrial Motions
did not present and preserve any personal jurisdiction claims.
Moreover, since the Marshes and the Wash burns made general appearances in
the Circuit Court, that court possessed personal jurisdiction over them. None of these
parties specially appeared. They did not claim that the trial court lacked jurisdiction
over them at the time of their appearance; rather they expressly argued that the court
did not have personal jurisdiction over them at an earlier time when it ruled on a
partial summary judgment motion. Moreover, they sought relief consistent with the
existence of general jurisdiction.
In addition, the trial court accorded the Marsh and Washburn parties due
process including a fair opportunity to present their case under all of the
circumstances. Instead of doing so, these couples joined with a long-time passive
plaintiff and filed a separate action in Clackamas County raising substantially similar
4
..
Issues. No law supports Appellants' contention that the Marsh and Washburn parties
thereby deprived the Circuit Court of personal and subject matter jurisdiction in the
present case by choosing to file another lawsuit and deciding not to participate in this
case after they made a general appearance through their lawyer. Any other rule would
destroy the ability of trial courts to render final judgments.
B. Lord And Durham Appellants' Second Assignments Of Error And
Durham Appellants' Third Assignment Of Error. These assignments all fail by
reason of an erroneous minor premise: since the Circuit Court had personal
jurisdiction over all identified parties, it necessarily had subject matter jurisdiction to
hear and decide this case. It is too late to raise any claim of error relating to the
Circuit Court decision concerning any putative "contract" claim; since the trial court
had personal and subject matter jurisdiction, any erroneous judgment is not "void" but
merely "voidable" and hence not within the reach of any 71B Motion.
C. Lord Third Assignment Of Error. Appellants failed to preserve their
challenges to the Respondents' motions in limine in the Circuit Court because they
made no offer of proof identifying their witnesses and summarizing or detailing their
proposed testimony. Thus, this Court has no basis upon which to determine (1)
whether the trial court erred in excluding any evidence and, if so, (2) whether such
hypothetical error affected any substantial right. Further, following Appellants' vague
description of the type of testimony they sought to offer, the Circuit Court told
Appellants that any such testimony appeared to be irrelevant and inadmissible
5
hearsay. The Circuit Judge directly asked Appellants' trial lawyer for any countering
argument, explanation, or authority and she provided none.
D. Lord And Durham Appellants' Fourth Assignments Of Error. The
Supplemental Judgment awarded Respondent City attorney fees under ORS 20.105,
and awarded all Respondents prevailing party costs (OnN 464). Only the City has a
direct interest in the attorney fee award. On October 6, 2008, the City filed, and the
County entered, a Full Satisfaction of the attorney fee judgment (SER 21). Neither
Lord nor any of the Durham Appellants paid any money satisfYing this award. The
statutory time within which any paying party could claim contribution or
reimbursement from Lord or the Durham Appellants has passed. ORS 18.242; see
also, ORS 19.420(1). Thus, no justiciable case or controversy exists because (1) none
of the Appellants have the requisite standing to maintain these assignments of error
and (2) any controversy about this claimed error is moot.
All Respondents have a direct interest in these assignments to the extent that
Lord and the Durham Appellants claim to be prevailing parties and that the trial court
thus erred in awarding customary prevailing party fees to all Respondents. Appellants
contend that they prevailed by removing a racially-restrictive covenant. No one ever
asserted that this covenant played any role in this case. Racially-restrictive covenants
have been legally null and void for sixty years, and neither the court nor the
Respondents could change that fact.
6
..
,.
,.
RESPONDENTS' COMBINED JURISDICTIONAL ANSWER TO APPELLANT LORD'S FIRST AND THIRD ASSIGMENTS OF ERROR
AND DURHAM APPELLANTS' FIRST ASSIGNMENT OF ERROR
Appellants' Claims Were Not Preserved And Presented Timely Because They Were Not Raised By The Motion For Mistrial Or The ORCP 71B Motion
Introductory Statement: The Lord and Durham Appellants' Fourth
Assignments of Error timely challenge the Supplemental Judgment. Lord's Second
Assignment of Error and the Durham Appellants' Seeond and Third Assignments of
Error eannot be waived by lack oftimely filing because they purport to contend that
the Circuit Court lacked subject matter jurisdiction. Waddill v. Anchor Hocking,
Inc., 330 Or 376,384, 8 P3d 200 (2000) adh 'd to on recons, 331 Or 595, 18 P3d 1096
(2001); Stirton v. Trump, 202 Or App 252, 255,121 P3d 714 (2005). The law of the
case precludes all other assignments of error because they were not presented or
preserved by the Mistrial and ORCP 7lB Motions.
A. Appellants' Motion For Mistrial Presented And Preserved No Error Because It Was Untimely.
Plaintiffs filed their written Motion for Mistrial on November 9, 2005 (OnN
418). This motion expressly and laboriously challenged several events and rulings
that long antedated the motion and that were decided by the Amended General
Judgment (ld.) entered on August 15, 2005. Hence, Plaintiffs gambled on the
outcome, lost their wager, and then attempted to bootstrap post-judgment appellate
assignments by their untimely motion.4
4 If Appellants' lawyer really meant to file a Motion for a New Trial, and mislabeled her Motion for Mistrial, she was far too late. ORCP 64F(l).
7
Plaintiffs waived their mistrial motion. The Supreme Court set forth the
governing rule in the death penalty case of State v. Williams, 322 Or 620, 631, 912
P2d 364, cert den, 519 US 854, 117 S Ct 149, 136 L Ed 2d 95 (1996):
"To preserve error, a motion for a mistrial must be timely. It is timely if it is made when the allegedly objectionable statement was made. * * *. Defendant's motion here was not timely and, thus, that claim of error was not preserved for review. We decline to consider defendant's argument."
This Court quoted this controlling principle with approval and declined to consider a
slightly delayed mistrial motion in the felony appeal of State v. Hilton, 187 Or App
666,676-77, 69 P3d 779 (2003), rev den, 336 Or 377, 84 P3d 1081 (2004). If this
strict norm applies in serious criminal cases, where no effective alternative recourse
for the complaining party exists, it clearly also controls simple civil litigation like this
where an injured client enjoys an effective, available alternate remedy. In any event,
Oregon has always recognized that the grant or denial of a timely mistrial motion rests
in the sound discretion of the trial court. E.g., Lunski v. Lindemann, 270 Or 316,
320-21,527 P2d 254 (1974); McDonald v. World Wide Dodge, Inc., 243 Or 218,
221,412 P2d 371 (1966), overruled in part on other grounds by Dawson v. Payless
for Drugs, 248 Or 334,433 P2d 1019 (1967). Judge Van Dyk presided over this
extended litigation and clearly understood that all arguments advanced by the mistrial
motion had been heard and decided long ago.
B. Appellants' 71B Motion Only Asserted Issues Not Raised On Appeal.
Plaintiffs expressly limited their 71 B Motion to a single ground:
"Plaintiffs move the court to set aside the general judgments entered in this case on July 27, August 15, and October 24,
8
..
2005 under ORCP 71B(l)( d) in that the judgments are void because they fail to address all claims in the plaintiffs' Second Amended Complaint and they therefore are not an [sic] appealable judgments. * * *." (OHN 419, para. J)
Plaintiffs are simply wrong. The General Judgment recited that "The court
therefore found in favor of defendants and against plaintiffs," "* * * ADJUDGED that
plaintiffs shall recover nothing by their complaint * * * ," entered a declaration
concerning the partition or subdivision of lots, and "ADJUDGED" Defendants to be
the prevailing parties and entitled costs and disbursements (OHN 381, page 4). The
Amended General Judgment contains substantially similar language (OJIN 390, pages
4-5), as does the Second Amended General Judgment (OJIN 416, pages 4-5). Hence,
the trial court ruled against Plaintiffs on all issues and no statute, rule, or case requires
a different statement of its general adjudication.
To repeat: Plaintiffs decided not to appeal from the General Judgment or the
Amended General Judgment, and they failed to comply with the jurisdictional rules in
their aborted attempt to appeal from the Second Amended General Judgment. Both
opening appellants' briefs rest on the premise that this Court possesses jurisdiction to
hear and determine issues necessarily concluded by those three earlier judgments
under a 71B Motion claiming one or more of them to be "void." To the contrary,
none of the judgments are defective; none of the assigned appellate issues were
presented in the 71B Motion; and even if one could surmise that a general judgment
ought to contain different words and phrases, any such defect does not render any
judgment "void," but at the most "voidable" because the trial court had jurisdiction to
enter those judgments, even if incorrectly stated. State ex rei Mix v. Newland, 277
9
Or 191,199,560 P2d 255 (1977) (where trial court has jurisdiction both concerning
the subject matter and over the parties, any judgment in excess of proper authority is
not void, but merely voidable); see also, Nicklin v. Hobin, 13 Or 406, 409-10 (1886)
where Justice Lord enunciated the controlling principle that survives to this day:
"* * * . The question whether a judgment is right or wrong is a very different one from whether it is valid or void. Although it is the aim of courts to decide rightly, yet the power to decide necessarily carries with it the power to decide wrong as well as right. And where a court has jurisdiction, the judgment or determination is binding and obligatory until reversed, without reference to the question whether it is right or wrong."
ORAP 5.45 compels appellants to raise issues in the trial court before this
Court will consider them on appeal. See, e.g., Marineau v. A. P. Green Refractories
Co., 201 Or App 590,596-97,120 P3d 916 (2005), rev den, Lovinger v. Lane
County, 342 Or 254, 149 P3d 1213 (2006). Preservation of error rules rest on two
sound principles: the requirement that a party present its argument at the first
adjudicative level enhances judicial economy; that rule also promotes fairness both to
the trial court and to the opposing parties. See, e.g., Christensen v. Cober, 206 Or
App 719, 726, 138 P3d 918 (2006). As to the voluminous "errors" assigned by
Plaintiffs beyond the contention that the judgments failed to rule on all claims and
issues, this Court should adhere to its decision in Marineau, 201 Or App at 597, and
hold:
"* * *. Because that issue [decided by the Court] is the only issue raised in the trial court regarding its authority to dismiss plaintiffs complaint, we reject plaintiffs other contentions made on appeal for lack of preservation."
10
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"
RESPONDENTS' COMBINED ANSWER TO LORD AND DURHAM APPELLANTS'
FIRST ASSIGNMENTS OF ERROR
The Court Of Appeals Lacks Appellate Jurisdiction To Hear And Decide These Assignments Of Error
The Circuit Court Had Requisite Personal Jurisdiction Over All Parties
A. Standard On Review
The Court of Appeals reviews jurisdictional and due process assignments for
errors oflaw. Haley v. Haley, 215 Or App 36, 38, 168 P3d 305 (2007). This standard
governs issues concerning both personal and subject matter jurisdiction. Magar v.
City of Portland, 179 Or App 104, 106, 39 P3d 234 (2002).
B. Lord Presents No Justiciable Controversy Concerning This Issue
Lord's First Assignment of Error charges that the Circuit Court lacked personal
jurisdiction over Alger Marsh, Gloria Marsh, Gregory Washburn, and Julie Washburn
(Lord AB 5, 10-25). Lord commenced this action and submitted herself to the
jurisdiction of the Circuit Court of the State of Oregon for Clackamas County; hence
the Circuit Court had jurisdiction over her person. On appeal, Lord appears pro se.
She does not, and cannot, represent Appellants Alger and Gloria Marsh, who are
represented by attorney Glenda Durham. She cannot represent Gregory and Julie
Washburn who are not parties to this appeal. Lord may only represent Lord inasmuch
as she is not an attorney licensed by the State of Oregon.
Oregon judicial jurisdiction extends only to actual cases and controversies, that
is, persons coming to an Oregon court must have a right to obtain an adjudication of
the issue presented. Utsey v. Coos County, 176 Or App 524, 539-41, 32 P3d 933
11
(2001), rev dismissed, 335 Or 217,65 P3d 1109 (2003). Sometimes phrased in the
shorthand as "standing," Oregon requires a party to establish that a judicial decision
will have some practical effect upon her individual rights. E.g., McIntire v. Forbes,
322 Or 426, 433,909 P2d 846 (1996); Brumnett v. PSRB, 315 Or 402, 405-06, 848
P2d 1194 (1993). Appellant Lord, as the person invoking the jurisdiction of the
Oregon courts, must demonstrate that the decision will have a personal effect upon
her. Justv. Cityo/Lebanon, 193 Or App 132, 147,88 P3d 312 (2004), rev
dismissed, 342 Or 117, 149 P3d 139 (2006). Further, as an appellant she must
demonstrate "standing" on this particular appeal inasmuch as the fundamental concept
of justiciability applies at all decisional levels. American Fed. Teachers v. Oregon
Taxpayers United, 208 Or App 350, 377, 145 P3d 1111 (2006), affirmed, 345 Or 1,
189 P3d 9 (2008). Here, Lord lacks any semblance of standing since only Mr. and
Mrs. Marsh, among all Appellants before this Court, could assert the claim presented
in Lord's First Assignment of Error.
C. Since Gregory And Julie Washburn Are Not Appellants, The Durham Appellants' Assignment Must Rest Solely Upon The Status And Record Relating To Alger And Gloria Marsh
Personal jurisdictional questions are personal to the parties allegedly affected.
In Kessel v. Leavitt, 204 W Va 95, 118, 511 SE 2d 720 (1998), the West Virginia
Supreme Court set forth the universal rule in its holding:
"[W]e hold that an appellant/defendant may not assign as error a circuit court's affirmative assertion of personal jurisdiction over a coappellant/codefendant when the coappellant/codefendant either has not challenged the assertion of personal jurisdiction over him/her or has otherwise, by hislher acts and/or omissions, waived hislher
12
right to challenge the personal jurisdiction ruling. Accordingly, we find that the remaining defendants are not proper parties to challenge the circuit court's exercise of personal jurisdiction over the defendant."
Since Gregory and Julie Washburn chose not to appeal, their status and any claim
they might possess is irrelevant to the claims of any of the remaining Appellants and
to the resolution of their appeal. Utsey, 176 Or App at 539-41; American Fed.
Teachers, 208 Or App at 377.
D. Appellants Failed To Preserve Any Assignment Of Error Challenging Lack Of Circuit Court Personal Jurisdiction Over Alger And Gloria Marsh
First, Appellants Alger and Gloria Marsh should have raised any alleged error
concerning lack of personal jurisdiction by a timely appeal from the General
Judgment, the Amended General Judgment, or the Second Amended General
Judgment. They failed to timely and properly appeal from any of these judgments.
Second, neither the Motion for Mistrial nor the 71B Motion presented and
preserved any challenge to personal jurisdiction over the Marsh Appellants.
Appellants made no timely motion for mistrial. State v. Williams, 322 Or at 631;
State v. Hilton, 187 Or App at 676-77. Their 71B Motion limited their argument to a
faulty contention that the trial court judgment had failed to rule on all issues. They
come to this Court too late to make their claim.
E. The Circuit Court Had Personal Jurisdiction Over The Marshes And Washburns
Mr. and Mrs. Marsh and Mr. and Mrs. Washburn waived any claim of lack of
personal jurisdiction by generally appearing in the Circuit Court proceeding. A
13
general appearance confers personal jurisdiction upon the court over the appearing
party. Mutzig v. Hope, 176 Or 368,389,393-94, 158 P2d 110 (1945); Duncan
Lumber Co. v. Willapa Lumber Co., 93 Or 386,404,182 P 172,183 P 476 (1919). A
party generally appears when he requests affirmative relief from the Circuit Court.
Ahlstrom v. Lyon, 129 Or 629,633, 131 P2d 219 (1942) (motion seeking vacation of
a default constitutes a general appearance). Under traditional code pleading rules,
parties claiming lack of personal jurisdiction challenged the authority of the court by
specially appearing for the sole purpose of moving to quash service of the summons
and complaint. E.g., State ex rei Methodist Old People's Home v. Crawford, 159 Or
377,390,80 P2d 873 (1938). The modern Oregon code enables a party to assert lack
of personal jurisdiction by a motion to dismiss under ORCP 21A(2).
ORCP 21 A contains two additional mandates. First, "* * *. A motion to
dismiss making any of these defenses [including (2)] shall be made before pleading if
a further pleading is permitted. * * *." Second, "* * *. The grounds upon which any
of the enumerated defenses [including (2)] are based shall be stated specifically and
with particularity in the responsive pleading or motion. * * *."
The Marsh Appellants and Washburn Plaintiffs made a specific and explicit
statement of their contention that amounted to a general appearance. Their Motion To
Dismiss, filed June 16,2005 by their attorney Paula B. Hammond, asserted the
following basis for their motion in the third section:
"Neither the Marshes nor the Washburns were under the personal jurisdiction of the court at the time the court made its decision to grant the Defendant City's Motion for Partial
14
..
Summary Judgment and to eliminate related issues/rom the trial. * * *." [Emphasis Supplied] (SER 6)
The Marsh and Washburn Plaintiffs reiterated their position in the concluding
paragraph of their Motion to Dismiss:
"Alger and Gloria Marsh and Gregory and Julie Washburn were not joined to the case or under the personal jurisdiction of the court when the decision was made on the constitutional issues in Case No.: CV031l0235 [this case now on appeal], They are not bound by that decision, and have raised the identical issues in their action for declaratory judgment filed June 16th
. * * *." (SER 6)
This Court will observe that Appellants Marsh and Plaintiffs Washburn
specifically do not contend that the Circuit Court lacked personal jurisdiction over
them following service of summons and complaint in the present case. They claim
something quite different, that the Circuit Court lacked jurisdiction over them at an
earlier time, when they were not residents of the affected subdivision and were not
named and served parties in this case.5 As demonstrated hereafter, the trial court
committed no reversible error with regard to these Appellants and Plaintiffs. Even
had Judge Van Dyk erred, such a hypothetical ruling would not render his judgment
"void" but rather merely "voidable" because the Circuit Court enjoyed personal
jurisdiction over these parties. State ex rei Mix v. Newland, 277 Or at 199.
Furthermore, the Marsh Appellants and Washburn Plaintiffs also engaged the
general jurisdiction of the Circuit Court when their lawyer filed their Motion To
5 The Durham Appellants also argued in support of the Marsh contention, and also claimed that the Marsh and Washburn parties were not under the personal jurisdiction of the court when it decided the City's Motion for Partial Summary Judgment (OliN 296, page 2).
15
Postpone Trial on June 21, 2005 (OJIN 363) and when they argued for postponement
on June 21, 2005 (6/21-22/05 Tr. pp 5-8). Again, they did not contest the existence of
personal jurisdiction over them at that time. Rather, they argued for a postponement
for three reasons: (1) the unavailability by reason of failing health oflong-time
passive plaintiff Lorrein Behrend; (2) the advisability of awaiting the outcome of their
emergency motion to the Court of Appeals in the other case they had filed; and (3) the
short notice they had received because of a flaw in their title reports (Jd.).
F. No Circuit Court Action Or Order Violated Due Process
Appellants' redundant attacks complain that the Circuit Court failed to accord
the Marsh and Washburn litigants fair play, adequate notice, and a sufficient time
within which to state their case. Their briefs are long on rhetoric but short on facts,
and the record tells a very different tale. This tactic compels Respondents to address
the factual record at length, in order to prevent any misunderstanding of the events
that transpired.
At the outset, Appellants forget that on May 4, 2005, on their Motion, the
Circuit Court issued its Fifth Order For Joinder Of Additional Parties, specifically
including Gloria and Alger Marsh (OJIN 298). Further, they overlook the lis pendens
notice their lawyer filed on August 10,2004, long before the Marsh and Washburn
parties purchased their properties. ORS 93.740. The Oregon Supreme Court
succinctly summarized the controlling feature of the lis pendens doctrine (a concept
dating far back in the common law) in Land Associates, Inc. v. Becker, 294 Or 308,
313-14,656 P2d 927 (1982):
16
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"* * *. This lis pendens doctrine states that the filing of a suit concerning real property is notice to people who obtain an interest in the property after the commencement of the suit that they will be bound by the outcome of the suit."
See also, Landsing Property Corp. v. Anglea, 89 Or App 381, 384, 749 P2d 588
(1988) (where a lis pendens notice is filed and recorded, subsequent purchasers "take
it subject to the litigation"). Appellants' counsel told the Circuit Court that Gregory
and Julie Washburn purchased their residence on June 6,2005, and that Alger and
Gloria Marsh also moved into the subdivision after some trial court rulings took place
(6/13/05 Tr. 30-32). On inquiry by the trial judge, Appellants assured the Court that
the lis pendens had been recorded correctly on all affected properties (Id., 32).
Further, when the Court discovered that Appellants had not successfully served
the Marsh and Washburn parties as directed (Id., 30-31), Judge Van Dyk erected
safeguards to protect their interests. He mandated alternative service to be
accomplished by County officials with a limited time to respond, and Lord told the
Court, "* * * we're more than willing to cooperate in that. * * *." (Jd., 34). Judge
Van Dyk then asked Appellants' lawyer, "* * *. Do you agree with me, Ms. Durham,
that we can adopt an alternative service method here with regard to Marshes and
Washburns? * * *." Ms. Durham replied that "I don't have a problem on service on
that. * * *" but expressed worry about a truncated opportunity of these couples to
respond (Id., 35). The trial court admonished that any such concern should be raised
by these particular parties, not by Appellants, and that given continuing purchases and
sales of properties within this large subdivision, the problem could arise repeatedly
and prevent any final resolution (Id.).
17
After listening to an extended argument by most of the represented parties,
Judge Van Dyk ordered alternate service on the Marsh and Washburn couples,
explaining:
"THE COURT: All right. Well, what I'm - what I'm going to do, I'm going to direct that the second amended complaint be filed [sic] on the Washburns and the Marshes. We're going to have that service be by posting on the properties tomorrow. I'm going to prepare an order directing that a response be filed by Friday or a default may be taken against them, okay? That's what I'm going to do with regard to the Washburns and the Marshes * * *."
"But that's how I intend to deal with the problem that we have with regard to Marsh and Washburn. We're going to have their properties posted with the direction that they respond by Friday. In part because they have - you know, they bought their properties knowing that there was this litigation pending. It's clear that they're aware that this litigation will affect the deed restrictions, and so there's no -been no denial of due process in that respect. * * *." (ld., 49-50).6
The Marsh and Washburn parties generally appeared and moved to dismiss this
pending action following their joinder and alternate service (SER 6). During that
argument, the Court repeated his analysis and further explained his ruling. He
expressed concern about finality when a case involving ,,* * * a very large
subdivision, and a relatively frequent turnover in title" becomes "very old and ripe"
(6120/05 Tr 10). Following this general observation about case management, the trial
judge addressed the specific issue of the recent joinder ofMr. and Mrs. Marsh and
Mr. and Mrs. Washburn:
6 The Court subsequently reiterated his general ruling and assured Plaintiffs that the Court would see to the service of process on the Marsh and Washburn parties (6/l3/05 Tr 69-71).
18
..
"Well, the fact of the matter is, these folks have been joined. The Washburns and the Marshes have been joined. Where do you get the process that protects latecoming title takers to properties in a subdivision that's involved in litigation over the CCRs? I think you get that from the lis pendens, they have had notice - or constructive notice of this lawsuit, the right to intervene or otherwise participate, since well before they actually purchased their properties, and that is what the law would contemplate to try to close the circle and allow finality in a lawsuit like this." (ld., 10-11).
Judge Van Dyk restated that lis pendens puts all purchasers on notice and permits the
assumption that any interested purchaser would investigate the status and effect of the
pending action before completing any proposed transaction (Id., 13). In these
circumstances, the court also must consider the right of long-participating parties in a
very old case to receive a final determination which would enable them to enter
transactions held in abeyance (ld.). The Circuit Court made it patent that, contrary to
claims by Appellants' lawyer, "* * *. This court has never said that these parties
who were recently joined in this action are not able to raise any issues to the attention
of this court. * * *."(ld., 18).
In response to Appellants' concern that perhaps the Marsh and Washburn
parties had not received accurate notice from the lis pendens filing, Respondents
pointed out that none of them had submitted an affidavit or any evidence explaining to
the trial court what they had learned concerning the pending proceeding and when
they obtained such knowledge (Id., 20). Indeed, these arguments were advanced not
by the Marsh and Washburn parties (represented by Ms. Hammond) but on behalf of
other Plaintiffs represented by Ms. Durham. Putting aside the question of standing,
Respondents' counsel observed some deficiencies afflicting Plaintiffs' argument:
19
MR. WALSH: * * * * *. Another point is, Judge, you don't have an affidavit, you don't have the Washburns, and you don't know what they know or didn't know. Now, it very well may be that when the Washburns went and bought this property and talked to their realtor they were informed of the lis pendens. It may show up in the earnest money agreement, it may show up in a preliminary title report preliminary to this one, it may be showing up in other title reports; you don't have that information. The Washburns should be here to give that to you. All you have is a motion by somebody that apparently doesn't represent the Washburns, with a copy of a preliminary title report. You have nothing else. You don't have enough information to grant a motion like this." (ld., 20; see also, 21-22).
Thereafter, the trial court heard from some of the Respondents concerning
particular issues and reasons why any further postponement would be damaging and
unfair (ld., 24-26). In the absence of any evidence of lack of notice, and given the
general appearance made by the Washburn and Marsh parties (ld., 22), the Circuit
Court certainly possessed the discretion to presume that they had received adequate lis
pendens notice before they closed their transactions.
During the June 20,2005 pretrial hearing the lower court observed that the
Marsh Appellants and Washburn Plaintiffs had been duly served, had filed a motion
to dismiss, and had joined long-time passive Plaintiff Lorrein Behrend in commencing
a separate lawsuit involving substantially similar issues (Id., 19).
Appellants' lawyer persisted, urging that "* * * we just absolutely have to give
these people [which counsel did not represent at the time J their constitutional right to
procedural due process" (ld., 27), prompting Judge Van Dyk to set the record straight:
"THE COURT: Well * * * they have their constitutional rights. They have notice, and they have the opportunity to be
20
"
"
heard. They got notice as of Tuesday last week. In fact, they evidently knew about the suit at least a couple of days in advance of that based on the correspondence that I received from your office. So they've had notice for a week, and they've chosen not to appear. They've decided that they're not going to participate in this proceeding, and instead, file a separate lawsuit. So they've had notice, they have had the opportunity to be heard." (Jd., 27-28).
The Circuit Court, following additional and repetitive argument from counsel
representing the other Plaintiffs, reiterated some of the harm that further delay would
cause other parties to the action (Jd., 28-29). Judge Van Dyk also reminded Ms.
Durham of the inaccuracy of her broad-based complaints:
"And, further, this court hasn't deprived anybody who has joined late of their opportunity to make the motion for summary judgment. This court's only prevented these plaintiffs [like Mrs. Behrend] who have been involved for a long period of time from being able to submit a motion for summary judgment late. That's the procedural posture of this case." (Jd., 29-30)
The court then ruled:
"THE COURT: All right. The motion to dismiss that was filed by the other plaintiffs in this case is denied. These are the parties that are represented by Ms. Durham. The trial is going to proceed tomorrow. The opportunity has been made available to these other folks to participate, and they've elected not to do it. They're not here to represent why a setover should be allowed. This court considers there to be a unanimity of interest. This Court has made adequate provision for these parties to be heard. There's really an importance placed on the need to reach a final resolution of this matter for all of the parties that are affected, and the court, as I've stated repeatedly, is in a difficult position to address matters of notice and the opportunity to be adequately heard, given the * * * potential for lot sales." (ld., 30-31).
* * * * *
21
"* * *. But here, in fact, these parties were joined by service last Tuesday, and, as I've said, * * * they have appeared through attorney Hammond. They made a tactical decision to at least represent to the court that * * * they don't plan to actually participate in this case, and, instead, file another lawsuit. Well, that's their choice, but I'm not going to require all of the parties that are affected by this case to await a final outcome of a trial any longer, given the competing consideration here. So we will proceed tomorrow." (Jd., 31-32).
On the day of trial, the Circuit Judge again addressed the fairness and due
process issues and balanced the competing interests of the parties when he explained
his decision to deny the motion for postponement filed by Alger and Gloria Marsh
and Gregory and Julia Washburn.7 His statement based on the extensive record
demonstrates a wise decision clearly within standard trial court discretion:
"THE COURT: I'm prepared to rule. * * *. All right, I'm going to deny the motion to postpone the trial. The court recognizes a couple of things in that respect.
In the first place, we have so many individuals who are effected [sic] by the outcome of this. * * * it's a case that's been pending for 19 months. We have the risk that at any point in time that properties can be sold and the parties change. We suffered that experience here in this case. We attempted to get the Washburns joined in late May. Ms. Durham's office made that effort unsuccessfully. By the way, there is an order dated late May, I think it's May 29 th
or so, directing that they be brought into the case.
In any event, eventually service was effected on them on June 14th and they retained Ms. Hammond to represent their interests. The court recognizes that there is an identity of interests between the Washburns, the Marshes and the other plaintiffs in the case.
7 Judge Van Dyk separately considered and ruled upon the motion to postpone filed on behalf of Mrs. Behrend (6/21-22/05 Tr., pp. 8-11).
22
The Washburns and the Marshes retained Ms. Hammond who's been involved in this case for a length of time and is already knowledgeable about the issues and has been involved to some extent in the preparations for this case and I believe also has been working with the attorney for the plaintiffs, Ms. Durham, so to that extent, she's been apprised of what the legal issues are here. So under the circumstances where the law seems to suggest that this court could proceed even without the Washburns given that there is an identity of interests and given the fact that in fact we have effected service on the Washburns, the Marshes * * *, and they do have competent counsel here prepared to represent their interests and there is an identity of interests in this case, for those reasons I'm not going to postpone the trial. The same circumstances I indicated can arise again and so it's just a circumstance that we can't avoid given the state ofthe law and the type of case that this is." (6/21-22/05 Tr. pp. 6-8)8
Both Lord and the Durham Appellants contend that when the Marshes, the
Washburns, and Mrs. Behrend filed their second case, Behrend et al v. Riggle et aI,
Clackamas County No. CV 05060459, presenting substantially similar issues, the trial
court somehow lost jurisdiction to continue, hear, and decide the instant case (Lord
AB 19; Durham AB 13-14, 19). No statute or judicial decision supports this strange
notion. All plaintiffs and defendants generally appeared in the present case, thereby
providing the Circuit Court with personal jurisdiction over all parties. It would be
singular to allow an appearing party to declare himself a non-participant and thereby
destroy the power of a court of general jurisdiction to render a binding decision. If
such an odd notion became the law, finality would disappear since any disgruntled
litigant could avoid final judgment by dismissing himself from the case.
8 Ms. Hammond had been "a consulting attorney" for Plaintiffs for a long time and she had acknowledged to Judge Van Dyk during an earlier hearing that she was fully familiar with the case and its fundamental issues (6/13/05 Tr. 10-11).
23
RESPONDENTS' COMBINED ANSWER TO LORD AND DURHAM APPELLANTS' SECOND ASSIGNMENTS OF
ERROR AND DURHAM APPELLANTS' THIRD ASSIGNMENT OF ERROR
To The Extent The Court Of Appeals Has Appellate Jurisdiction To Hear And Decide These Assignments Of Error
The Circuit Court Had Subject Matter Jurisdiction
A. The Circuit Court Had Subject Matter Jurisdiction To Enter Its Judgment
Syllogistically, Appellants' argue "subject matter jurisdiction" thus:
Major Premise: The Circuit Court must achieve personal jurisdiction over all affected parties in order to have subject matter jurisdiction to enter a judgment
Minor Premise: The Court did not have personal jurisdiction over Alger and Gloria Marsh and Gregory and Julie Washburn
Conclusion: Therefore, the Circuit Court lacked subject matter jurisdiction so its judgment is void and subject to attack at any time
Review of Respondents' answer to the first assignments of error advanced by
Lord and the Durham Appellants (RB 11-23) demonstrates beyond cavil the fatal flaw
afflicting the minor premise of Appellants' essential syllogism. The Marsh
Appellants and the Washburn Plaintiffs generally appeared in Circuit Court, providing
the trial court jurisdiction over their persons and the subject matter of this suit. Any
alleged "errors" by the lower court thus would not render the judgment "void" but
merely "voidable." In fact, as the foregoing Answer to the First Assignments of Error
shows, Judge Van Dyk afforded the Marsh and Washburn parties all procedural
process due, and they chose not to participate in this case and to file another action in
24
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..
Clackamas County. This conduct does not in any fashion deprive the Circuit Court of
jurisdiction over their persons or concerning the subject matter before it.
B. Does The Court Of Appeals Lack Appellate Jurisdiction?
Appellants' erroneous minor premise should fully dispose of the Lord and
Durham Appellants' second assignments of error, and of the latter's third assignment
of error. Failing this disposition, the Court of Appeals must face a more thorny legal
issue concerning its appellate jurisdiction.
This Court reviews subject matter jurisdictional claims for legal error. Haley,
215 Or App at 38; Magar, 179 Or App at 106. Neither Appellants' Motion for
Mistrial nor their 71 B Motion raised these subject matter jurisdiction as claims, and
this Court has held their attempted appeal from the Second Amended General
Judgment to be untimely. They never appealed from the operative Amended General
Judgment to this day.
Thus, these assignments present an issue on the penumbra of permissible
appellate jurisdiction, an issue Respondents believe to be unique. The parties agree
(see Durham AB 29) that lack of subject matter jurisdiction may be raised for the first
time upon appeal because it presents an issue that cannot be waived. Waddill, 330 Or
at 384, citing with approval, SAIF v. Shipley, 326 Or 557,561, n L 955 P2d 244
(1998). This Court has held expressly and recently that lack of preservation of error
below does not prevent a party from urging a claim that the trial court lacked subject
matter jurisdiction for the first time on appeal. See, e.g., Stirton, 202 Or App at 255;
Danielv. Naylor, 192 Or App 1,3-4,84 P3d 819 (2004).
25
Here, however, Appellants never attempted to appeal from the operative
Amended General Judgment which was entered on August 15,2005 (OHN 390).
They filed their initial Notice of Appeal 99 days after entry of that operative final
judgment (App OJIN 1). An appellate court must possess appellate jurisdiction in
order to decide a subject matter jurisdictional challenge. How late is too late for
subject matter jurisdictional challenges? One could suppose, for example, that a party
could not come before this Court five years after issuance of an Appellate Judgment
and claim for the first time that the Circuit Court did not enjoy subject matter
ju\isdiction when it entered the underlying judgment; even common law motions to
recall a mandate must have possessed some time restraints in order to assure the
finality so necessary to an Anglo-American juridical system.
All reported cases reviewed by Respondents rest upon a timely notice of appeal
from an operative final judgment. Here, this Court already has limited Appellants to
the issues set forth in their Mistrial and 71 B Motions. Those motions purported to
raise limited issues and did not mention, let alone challenge, any lack of subject
matter jurisdiction as now asserted. Certainly, the Mistrial Motion was untimely
under all decided cases when Appellants filed it in Circuit Court. Hence, Appellants
call upon this Court to decide whether their 71B Motion sufficiently saved a different
claim oflack of subject matter jurisdiction, compounded by Appellants' failure to
appeal at any time from the operative final judgment. See ORCP 71B(1) which
expressly omits the one-year limitation on claims of that "* * * the judgment is void
* * *." Respondents urge, without direct authority, that this new claim comes too
26
II'
..
..
late, and that the public interest in the final resolution of controversy overcomes any
contrary public policy. To repeat: the Court will avoid this seminal issue if it rules
that the Circuit Court obtained personal jurisdiction over all affected parties.
C. The Curious Contract Claim
Lord (Lord AB 25-28) and the Durham Appellants (Durham AB 32-37) argue
that the trial court erred in denying them a trial by jury on a purported claim for
breach of contract. Respondents fail to comprehend how this contention turns into a
lack of subject matter jurisdiction. If a trial court errs for any reason by entering a
judgment against a plaintiff over which it enjoys personal jurisdiction, such an error
does not render the resulting judgment void but merely voidable and subject to
correction on a timely appeal. Of course, Appellants failed to file a timely appeal
here, and their 7IB Motion does not resurrect this odd claim.
RESPONDENTS' COMBINED ANSWER TO APPELLANT LORD'S THIRD ASSIGNMENT OF ERROR
Appellants Failed To Preserve Any Error
The Circuit Court Did Not Err When It Granted Respondents' Motions In Limine
1. The Trial Court Ruling
Appellant Lord urges that Circuit Court rulings on three similar motions in
limine prevented her from proving her case (Lord AB 28-39). Any purported error
was not presented and preserved at Circuit Court.
27
The Circuit Court granted Respondents' motions in limine and limited the
issues at trial to a determination of the original intent of the drafters of the CC&Rs
with regard to future development (e.g., ER 19-21). The court order expressly
excluded any evidence of the sUbjective belief of current landowners in the
subdivision about the meaning of the CC&Rs, and any landowner comments about
the "livability" or effect of "re-subdivision" upon the neighborhood (ER 20). It also
excluded evidence concerning any purported act or omission of the City or regarding
any issue already concluded and excluded by the trial court summary judgment order
(ER 19).
2. Appellants Failed To Preserve These Claimed Errors
Parties owe the trial court and counsel "* * * the obligation of a sound, clear
and articulate motion, objection or exception, so as to permit the trial judge a chance
to consider the legal contention." Shields v. Campbell, 277 Or 71,77,559 P2d 1275
(1977), cited with approval in BornhoJt v. Aubry, 178 Or App 625, 631, 37 P3d 1049,
rev den, 334 Or 260,47 P3d 486 (2002). A failure to argue a particular contention at
trial precludes appellate consideration of that claim. BornhoJt, 178 Or App at 631,
citing with approval, State v. Wilson, 323 Or 498, 512, 918 P2d 826 (1996), cert den,
519 US 1065, 117 S Ct 704,136 LE2d 625 (1997).
In the context of a challenge to the grant of a motion in limine, an appellant not
only must present her argument in a "sound, clear and articulate" fashion but also
must make an acceptable offer of proof concerning the evidence excluded. BornhoJt,
178 Or App at 630 (lack of proper preservation precluded necessity of court
28
evaluation of adequacy of offer of proof). ORAP 5.45(4)(a)(iii) codifies this
requirement:
"(iii) If an assignment of error challenges an evidentiary ruling, the assignment of error shall quote or summarize the evidence that appellant believes was erroneously admitted or excluded. If an assignment of error challenges the exclusion of evidence, appellant also shall identify in the record where the trial court excluded the evidence and wltere tlte offer of proofwas made; * * *." [Emphasis Supplied]
Thus, even assuming that an evidentiary error has been otherwise presented and
preserved, this Court will not review it in the absence of an offer of proof. State v.
Hugltes, 192 Or App 8,16,83 P3d 951 (2004) (civil commitment proceedings); State
v. Olmstead, 310 Or 455,459, 800 P2d 277 (1990) (stating, in dicta, that an offer of
proof is required to preserve error where exclusion arises from the functional
equivalent of a motion in limine).
State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988) explains that the purpose
of this rule is "* * * to assure that appellate courts are able to determine whether it
was error to exclude the evidence and whether any error was likely to have affected
the result of the case." See also, State v. Barnes, 208 Or App 640, 646-47, 145 P3d
261 (2006) (citing Affeld and stating that the rule ensures an adequate record on
review); State v. Olmstead, 310 Or at 461 (recognizing, as an additional purpose of an
offer of proof, the preservation of the opportunity for the trial court to make a
reasoned decision).
Failure to make an adequate offer of proof precludes any appellate
consideration of an alleged error even in a death penalty murder case. See, State v.
29
Bowen, 340 Or 487,501, 135 P3d 272 (2006), cert den, 549 US 1214, 127 S Ct 1258,
167 L Ed 2d 89 (2007) (absent an adequate offer of proof, the Supreme Court is ,,* *
* unable to determine whether the trial court erred * * * and, if so, whether that
alleged error affected the result in this case." Affirmed death penalty in aggravated
murder case); State v. Smith, 319 Or 37, 44, 872 P2d 966 (1994) (absence of offer of
proof precludes court from evaluating whether exclusion of proffered testimony was
proper. Affirmed death penalty in aggravated murder case); State v. Busby, 315 Or
292,298-300, 844 P2d 897 (1993) (failure to specifY proposed trial testimony on the
record deprives appellate court of any basis for evaluating importance of the evidence
excluded and the possible prejudice resulting from the ruling). Clearly if this rule
governs serious criminal cases where the failure to preserve error produces
irremediable results, it also should control the present civil case where parties harmed
by lack of proper presentation possess an alternate remedy.
Generally, an offer of proof may be made by question-and-answer or by
summary of the proposed proof by counsel adequate to permit appellate determination
of whether the ruling constituted reversible error. State v. Phillips, 314 Or 460,466,
840 P2d 666 (1992); State v. Hughes, 192 Or App at 17; Benchmark Properties v.
Hipolito, 161 Or App 598, 605, 984 P2d 927 (1999) (counsel generally may make an
acceptable offer of proof by summary). Without a record of the content of the
anticipated testimony, this Court cannot evaluate whether the lower court erred in
excluding the evidence. (ld.)
30 , ..
.'
Essentially, an offer of proof sufficient to preserve appellate error must enable
the trial court to identify the alleged error and to correct it if warranted. State v.
Wyatt, 331 Or 335, 343, 15 P3d 22 (2000). A proper offer of proof occurs when
counsel states to the trial court, on the record, what a specific witness would say under
oath and what she expects to prove by this testimony. State v. Luke, 104 Or App 541,
544, 802 P2d 672 (1990). Assigned trial error related to evidentiary rulings ordinarily
is subject to a harmless error analysis, and such an analysis cannot be performed with
nothing on the record regarding the effect of any claimed error. State v. Busby, 315
Or at 301-02.
Appellants made no formal or informal offer of proof during the hearing on
Respondents' motions in limine on June 20,2005. The Court will search that 55-page
transcript in vain, looking for any semblance of counsel summary or question-and-
answer sufficient to enable an appellate court to evaluate any purported exclusionary
error and any real affect on the outcome of the trial. Indeed, after Respondents
withdrew some affirmative defenses, the trial judge informed Appellants of his
understanding that any evidence concerning the beliefs of current landowners about
the meaning of the CC&Rs would be irrelevant:
"Now, Ms. Durham, do you understand that their position is that they're withdrawing those defenses, and the court can then limit the testimony to just the matter of what the meaning of the CC&Rs is? There would be no basis, that rm aware of, for you to submit evidence of what transpired after the CC&Rs were adopted if those defenses are out of the case. But if that's mistaken, now's the time to disabuse the court of that notion." (6/20/05 Tr. 36-37) [emphasis supplied]
31
Counsel never "disabused" the trial court of his understanding. 9 She conceded that
Appellants had no witness possessing "firsthand" knowledge of the meaning of the
CC&Rs (ld., p. 37). Instead of responding to the court's question, she told the trial
judge that "* * * we are in the process of interviewing a former judge of the Supreme
Court who lived in the subdivision and was aware of some of these things * * *" (ld.).
However, when the Court asked the identity of the "former judge," eounsel refused,
saying, "* * * we're not ready to release that name * * *." (ld.).
The Circuit Court revisited the issue and afforded Appellants another
opportunity to describe the evidence they intended to produce (ld., pp. 41-42). The
following colloquy ensued:
"THE COURT: Okay. So you've got the CC&Rs, you've got the deeds. What other evidence do you have?
MS. DURHAM: I have the evidence of people who were beneficiaries and residents of those original covenants.
THE COURT: All right. But that's the evidence they seek to exclude because that's not going to be relevant to what was intended by the original CC&Rs." (ld., p. 42)
Counsel made no attempt to identify any witness (with one exception) and to
summarize the testimony of that person, nor did she explain how such purported
evidence could be relevant.
9 Instead of directly responding to the trial court, Appellants offered as legal support for their position that they had pled a viable breach of contract claim (Jd., 39-41). Counsel and Ms. Lord relied on Ludgate v. Somerville, 121 Or 643,649-53,256 P 1043 (1927) (Jd.). This case is clearly inapposite and does not establish any contract claim. In any event, it does not cure the lack of adequate preservation of error and lack of any offer of proof.
32
..
The most one can glean from the record related to the motions in limine (ld,
37-48) is that counsel wished to introduce evidence of what some landowners
believed the covenants governing the subdivision meant when they acquired their
properties (Id, 40), although she conceded that all individuals with "firsthand
knowledge" were deceased, and that only one individual had "secondhand
knowledge" (ld, 37). Appellants failed to specifY the content of such testimony or
"knowledge" and, with one exception, failed to identifY any proposed witness (ld, 37-
48).
The exceptional instance concerned Mrs. Behrend. Appellants' lawyer told the
Circuit Court:
"This case does not just come down to, you know, what does Mrs. Behrend remember that her father told her. We can establish what the people that were here believe these covenants were. But there's been really egregious breach of them in certain cases, and it's part and parcel of this case, it's the enforcement part." (ld, 40)
* * * * * "MS. DURHAM: Mrs. Behrend. Assume we bring Mrs. Behrend in here on a stretcher, and she says, "My father built houses with these people. Everybody understood and I clearly recall." (ld, 44)
Judge Van Dyk observed that any such statement would constitute hearsay and Ms.
Durham failed to elaborate on her proposed proof, satisfied with the vague comment
that some unspecified hearsay exception might apply (ld.). She failed to express and
establish any applicable hearsay exception. The record contains nothing more,
33
certainly not an explicit summary of Mrs. Behrend's proposed testimony. 10 Hence,
even if Appellants had specified the identity of their proposed witnesses and the
explicit content of their testimony, the acknowledged "secondhand" nature of such
evidence clearly constituted inadmissible hearsay, ORS 40.450, ORS 40.455, and
Appellants identified and argued no exception to the rule.
RESPONDENTS' COMBINED ANSWER TO LORD AND DURHAM APPELLANTS' FOURTH ASSIGNMENTS OF ERROR
Appellants' Assignments Of Error Challenging The Supplemental Judgment Of The Circuit Court Are Moot
Appellants Lack A Justiciable Controversy Or Standing
Appellants Assert No Meritorious Error
Argument
1. Interest Of Respondents Other Than City Of Oregon City
To the extent Appellants argue that the Circuit Court erred in awarding the
City Attorney Fees in the Supplemental Judgment, the Respondents other than the
City possess a mere academic interest. However, both Lord (Lord AB 39-40, 44-45)
and the Durham Appellants (Durham AB 42, 47-48) seem also to contend that the
trial court erred in awarding standard prevailing party Circuit Court costs and
disbursements.
10 From the context of the colloquy, it appears unlikely that Mrs. Behrend's health would permit her to appear in court, although ifher testimony had been relevant, Appellants could have perpetuated it by deposition.
34
2. Appellants' "General Judgment" Argument
Both Lord (Lord AB 40, 44-45) and the Durham Appellants (Durham AB 42,
47-48) repeat their claim that the Circuit Judge erred in entering a general judgment in
improper form, that is, that he failed to rule on each claim and contention
individually. Respondents reiterate their stated position that the General Judgment
(OlIN 381, p. 4), the Amended General Judgment (OlIN 390, pp. 4-5), and the
Second Amended General Judgment (OlIN 416, pp. 4-5) fully disposed of all claims
and contentions and met all recognized standards for the composition of an Oregon
"judgment." Of course, and in addition, Respondents reiterate their stated position that
Chief Judge Brewer has strictly limited this appeal, and that neither Appellants'
Motion for Mistrial nor their 71B Motion raise, present, and preserve this issue
adequately.
3. The Racially Restrictive Covenant Issue Does Not Help Appellants
Both Lord (Lord AB 41-43) and the Durham Appellants (Durham AB 45-47)
urge that the Circuit Court erred in awarding Respondents prevailing party costs
because the Appellants secured removal of a racially restrictive covenant. Their
reliance on this feature is misplaced for two separate reasons.
First, Respondents' sole opposition to Appellants' pleading related to formal
issues and did not go to the merits. Early in the proceedings, Judge Van Dyk inquired
of Appellants' counsel, "Why is that [pleading concerning the racially restrictive
covenant] even in this case?" (11115/04 Tr 5), and "Why are we even talking about
that? (Jd., 6). The trial court observed at that point that, "Everybody knows that's not
35
enforceable" (Id.), and "1 doubt that there's anybody in this room that would have the
slightest inclination to enforce such a provision." (Id.). Appellants persisted in
arguing the point during a later hearing, prompting City counsel to explain
Respondents' position that their motions were directed to the rather inartful pleading
by an inexperienced lawyer:
"* * *. * * * we did move against that paragraph just because it states law. Not because the restriction should survive, but because there were a lot of recitations of law, rather than fact, in the complaint, and that was one of the ones we moved against. * * * ." (1110105 Tr 52)
Again, Judge Van Dyk assured Plaintiffs that no one opposed removal of the
covenant, even if it had been a legal nullity for decades. "* * * no one's opposing it
[removal of the covenant] * * *." (Jd., 54). When Appellants' lawyer continued to
argue the issue, the Circuit Court with no dissent by any Respondent - agreed to
incorporate removal of the void covenant in an order (Jd., 58_59).11
Second, the Supreme Court of the United States effectively removed that
covenant sixty years ago in Shelley v. Kraemer, 334 US 1,68 S Ct 836, 92 L Ed 1161
(1948). Since the Supreme Court establishes the law of the land, no action by
Appellants or any State or inferior court was necessary to effect this change.
4. Appellants Have No Justiciable Claim
With regard to Appellants' claim of error in the award of attorney fees to the
City, this Court should hold that none of these Appellants present a justiciable case or
11 One Respondent's attorney noted for the court that Federal law required all title reports and policies to facilitate transfers regardless of race, religion, creed, or other protected interest regardless of any contrary language in the CC&Rs (1110105 Tr 59).
36
..
..
controversy subject to judicial review, for two independent reasons: these Appellants
lack standing, and their assigned errors are moot.
The Supplemental Judgment awarded attorney fees to the City of Oregon City
against Plaintiffs below (OHN 464). On October 6,2008, the Circuit Court entered a
Full Satisfaction Of Judgment (SER 21) executed by the City. None of the payments
made to the City to satisfY the attorney fee segment of the Supplemental Judgment
were made by any Appellant before this Court. On December 16, 2008, the City filed
a Notice Of Potential Mootness with this Court (SER 23). On December 16,2008,
Appellate Commissioner Nass determined that the Supplemental Judgment
assignments of error were not moot. The City did not argue, and the Commissioner
did not consider, any lack of standing contention.
A. These Appellants Lack Standing
Neither Lord nor any of the Durham Appellants contributed to the payments
that satisfied the Supplemental Judgment (OHN 464). Therefore, none of the
Appellants before this Court have suffered any detriment to be redressed on this
appeaL Justiciability represents the shorthand description of the legal axiom that
"Before a court may grant relief to a litigant, there must be some identifiable source of
power to enter upon an inquiry of the merits of the claim. * * *." Ragnone v.
Portland School District No. IJ, 289 Or 339, 341, 613 P2d 1052 (1980)12, citing with
approval, Abrahamson v. Northwestern P. & P. Co., 141 Or 339,343,15 P2d 472,
17 P2d 1117 (1933). The "standing" aspect of justiciability requires that any litigant
12 Reversed after remand on other grounds, 291 Or 617,633 P2d 1287 (1981)
37
asserting a claim must establish that a judicial decision will have some practical effect
upon his or her rights. E.g., Mcintire, 322 Or at 433; Brumnett, 315 Or at 405-06. 13
One who invokes the jurisdiction of the appellate court must establish the existence of
that necessary practical effect. Just v. City of Lebanon, 193 Or App at 147; Just v.
City of Lebanon, 193 Or App 121, 124, n 2, 88 P3d 307 (2004). All Appellants lack
standing to raise their respective Fourth Assignments of Error since any decision
could have no practical effect upon their rights. Utsey, 176 Or App at 539-41;
American Fed. Teachers, 208 Or App at 377.
B. Assignments Of Error Concerning The Attorney Fee Issue Are Moot
With all due respect to the Commissioner, this Court cannot, and does not,
decide matters that fail the constitutional case or eontroversy requirement. The
judicial power vested in Oregon courts by Article VII (Amended), Sec. 1, does not
include the power to decide moot questions. Yancy v. Shatzer, 337 Or 345, 363, 97
P3d 1161 (2004). The exercise of judicial jurisdiction under the Oregon Constitution
depends upon the existence ofa case or controversy. ld., 337 Or at 347,349,351,
362-63; see, Gortmaker v. Seaton, 252 Or 440,442,450 P2d 547 (1969). When an
issue becomes moot, any semblance of a case or controversy disappears. Full
satisfaetion of a judgment here erases any necessary judicial precondition. As Judge
13 Earlier Oregon cases phrased the essential component as requiring a litigant to "have a substantial interest in the subject matter," Multnomah Co. v. Reed, et ai, 203 Or 21,23, 278 P2d 135 (1954), or to be "aggrieved" by the putative error, Larabee v. Mell, Extr'x, 193 Or 543, 545-56, 239 P2d 597 (1952). Justice (then Judge) Gillette held that these two tests were identical and interchangeable. Clark v. Dagg, 38 Or App 71, 77,588 P2d 1298 (1979). The "practical effect" test appears to comprise the modern statement of the rule without changing its essence.
38
Landau wrote in Utsey, 176 Or App at 541, "* * *. By definition, the mootness
doctrine reaffirms the basic principle of justiciability that, at all times, the court's
decision must have a practical effect on the rights ofthe parties. * * * ." [italics in
original]; Confirm, Hamel v. Johnson, 330 Or 180, 184,998 P2d 661 (2000).
ORS 19.420(1) describes the scope of the relief this Court may award:
"19.420 Action by appellate court on appeal; review of order granting new trial or judgment notwithstanding verdict; reversal upon loss or destruction of reporter's notes or audio records. (1) Upon an appeal, the court to which the appeal is made may affirm, reverse or modify the judgment or part thereof appealed from as to any or all of the parties joining in the appeal, and may include in such decision any or all of the parties not joining in the appeal, except a codefendant of the appel/ant against whom a several judgment might have been given in the court below; and may, if necessary and proper, order a new trial." [Emphasis Supplied]
Under ORS 19.420(1), the plaintiffs below who paid the attorney fee segment of the
Supplemental Judgment were "co-defendants" (in the essential sense of the word)
against whom a several judgment might have been given below, and against whom a
several judgment in fact was given. Since these parties did not join in this appeal, the
express language of the statute limits this Court's power to modify the Supplemental
Judgment against them. Hence, payment in full by non-appealing parties reduces any
decision on the Fourth Assignments of Error into the resolution of an abstract
question without any practical effect. See, State ex rei Juv. Dept. v. Holland, 290 Or
765, 767, 625 P2d 1318 (1981). Mootness flows from this lack of any practical
effect.
39
Appellants contended before the Commissioner that the judgment debtors who
paid the Supplemental Judgment might seek contribution from them. No such
contribution claim has been commenced. ORS 18.242 requires one seeking
contribution in this context to file a notice of payment and a claim for contribution
with the Clerk of the Circuit Court within 30 days of any such payment. ORS 18.242
also requires the Clerk to make a marginal entry note of such a notice of payment and
claim to contribution. This Court should take judicial notice of the Clerk and
Judgment records of Clackamas County. ORS 40.065, 40.070(2). No notice of
payment and claim has been filed, and thirty days has long since passed. Therefore,
Lord and the Durham Appellants will not suffer any such practical effect upon their
rights and property.
CONCLUSION
The Court of Appeals should affirm all judgments of the Circuit Court and
award Respondents their costs and disbursements on appeal.
Respectfully submitted this 2nd day of March, 2009.
G:\c1ients\8136\P Respondents Brief and SEKdoc/he
Michael D. Walsh, OSB No. 733177 Hutchison & Walsh, P.C. Telephone: (503) 656-1694
Ridgway K. Foley, Jr., OSB No. 630242 Greene & Markley, P.C. Telephone: (503) 295-2668
Attorneys for Defendants-Respondents James Riggle, Laura Riggle, Wade Belknap, Sheila Belknap and Donald Isaacson as Trustee of the Isaacson Trust
KlugWay-1'\... r Ult:y, Jl., Vk)D nv. VJVk"Tk
40
.'
CERTIFICATE OF FILING AND SERVICE
I hereby certifY that I fi1ed the foregoing Respondents' Brief And Supplemental Excerpt of Record by mailing the original and 20 copies by first-class mail to:
State Court Administrator Appellate Courts Records Section 1163 State Street Salem, OR 97301-2563
on the date set forth below, by placing it in a sealed package with postage paid, addressed to the address set forth above and deposited in the U.S. Post Office at Portland, Oregon.
I further certifY that I served two copies of the foregoing Respondents' Brief And Supplemental Excerpt of Record upon the following:
Glenda P. Durham, Esq. P.O. Box 1228 Welches, OR 97067 Telephone: (503) 622-5621
Attorney for Plaintiffs-Appellants (except Linda Lord)
Linda Lord Holmes Lane
Oregon City, OR 97045 Telephone: (
pro se Plaintiff-Appellant
Michael D. Walsh, Esq. John C. Hutchison, Esq. Hutchison & Walsh, P.C P.O. Box 648 West Linn, OR 97068 Telephone: (503) 656-1694
Attorney for Defendants-Respondents J ames Riggle, Laura Riggle, Wade Belknap, Sheila Belknap and Donald Isaacson as Trustee of the Isaacson Trust
Bryan R. Welch, Esq. Jon S. Henricksen, Esq. Jon S. Henricksen, P.C. 725 Portland Avenue Gladstone, OR 97027 Telephone: (503) 655-7555
Attorney for Defendants-Respondents Diane McKnight, James McKnight
Jeffrey L. Kleinman, Esq. 1207 SW 6th Avenue Portland, OR 97204 Telephone: (503) 248-0808
Attorney for Defendant-Respondent City of Oregon City
Charles F. Hudson, Esq. Lane Powell, P.C. 601 SW 2nd Ave., Ste 2100 Portland, OR 97204 Telephone: (503) 778-2178
Attorney for Defendant-Respondent Oregon City Evangelical Church
Page 1 - CERTIFICATE OF FILING AND SERVICE
on the date set forth below, by mailing to them a true and correct copy thereof, certified by me as such, placed in sealed, first-class, postage prepaid envelope, addressed to them at the last known addresses set forth above, and deposited with the United States Postal Service at Portland, Oregon.
DATED this 2nd day of March, 2009.
GREENE & MARKLEY, P.C.
By _ osg }C D63lj} RidgwayK. Foley, Jr., OSB No. 630242 Greene & Markley, P.C. 1515 SW 5th Avenue, Suite 600 Portland, OR 97201 Telephone: (503) 295-2668
Of Attorneys for Defendants-Respondents James Riggle, Laura Riggle, Wade Belknap, Sheila Belknap and Donald Isaacson as Trustee of the Isaacson Trust
A TRUE COPY OF THE ORIGINAL ------------------------------
Page 2 - CERTIFICATE OF FILING AND SERVICE
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