All-States Leasing Co. v. Pacific Empire Land Corp.

• Decision Date: 15 November 1977
• Docket Number: ALL-STATES
• Parties: LEASING COMPANY, a Montana Corporation, Plaintiff-Appellant, v. PACIFIC EMPIRE LAND CORP., an Oregon Corporation, Douglas Irvine, and Wilton A. White, Jr., Defendants, Donald A. Wate, Defendant-Respondent. Donald A. WATE, Third-Party Plaintiff-Respondent, v. Wayne L. JOHNSON, Wilton A. White, Jr., and Douglas Irvine, Third-Party Defendants, Wilton A. White, Sr., Thompson E. White and Richard D. Walker, Third-Party Defendants-Respondents.
• Court: Oregon Court of Appeals

Page 192

571 P.2d 192

31 Or.App. 733

ALL-STATES LEASING COMPANY, a Montana Corporation, Plaintiff-Appellant, v. PACIFIC EMPIRE LAND CORP., an Oregon Corporation, Douglas

Irvine, and Wilton A. White, Jr., Defendants,

Donald A. Wate, Defendant-Respondent.

Donald A. WATE, Third-Party Plaintiff-Respondent, v. Wayne L. JOHNSON, Wilton A. White, Jr., and Douglas Irvine,

Third-Party Defendants,

Wilton A. White, Sr., Thompson E. White and Richard D.

Walker, Third-Party Defendants-Respondents.

Court of Appeals of Oregon.

Submitted on Record and Briefs Oct. 21, 1977.

Decided Nov. 15, 1977.

Paul Gerhardt, Portland, filed the brief for appellant.

Frank R. Alley, III, Medford, filed the brief for third party defendants-respondents Wilton A. White, Sr. and Thompson E. White. With him on the brief was Heffernan & Fowler, Medford.

Before SCHWAB, C. J., and TANZER and ROBERTS, JJ.

ROBERTS, Judge.

Plaintiff filed this action in District Court seeking damages of $1,085 plus interest from defendants for breach of a lease of office equipment. Plaintiff's motion for a summary judgment was denied and after trial to the court, judgment was entered for defendants. Plaintiff appeals assigning as the sole error the refusal of the trial court to grant summary judgment.

Plaintiff, a Montana corporation, authorized to do business in Oregon, leased certain office equipment to defendant Pacific Empire Land Corp. As part of this transaction, defendants Irvine, Wate and Wilton White, Jr. signed a guaranty to plaintiff that Pacific Empire would fulfill its obligations under the lease. Defendant Corporation made no payments after January, 1974.

Plaintiff filed this action seeking to recover the balance due alleged to be $1,085 plus interest. Defendant Wate, by way of a cross-claim, pleaded an indemnity agreement given to him and alleged that the third party defendants were liable to him for plaintiff's claim.

Plaintiff's motion for a summary judgment was against defendant Wate only, and was denied by the trial judge although no counter affidavit was filed by Wate. At trial, plaintiff was unable to prove damages because of the trial court's ruling that insufficient foundation had been laid to allow entry of a computer print out showing the balance due on the lease.

Plaintiff now argues that the summary judgment should have been granted as defendant Wate failed to respond to the motion for summary judgment. ¹ Third party defendants argue that plaintiff failed to file its motion on all adverse parties as required by statute ² and rules of the District Court of Jackson County. ³

This court has held that the denial of a motion for a summary judgment is not appealable. Hoy v. Jackson, 26 Or.App. 895, 554 P.2d 561, Sup.Ct. review denied (1976). An order denying a summary judgment " * * * does not determine anything about the merits of the action or suit, nor does it in any way prevent a judgment therein." Hoy v. Jackson supra at 898, 554 P.2d at 562.

The fact that the denial of a summary judgment is not appealable because of its interlocutory nature does not necessarily preclude review of the denial of a summary judgment after a final order in the case has been entered. The majority of jurisdictions, however, hold that the denial of a summary judgment cannot be reviewed. 15 A.L.R.3d 899, 922-25 (1967).

The rule in federal courts ⁴ is that orders denying motions for summary judgments are not reviewable. Boyles Galvanizing & Plating Co. v. Hartford Acc. & Ind. Co., 372 F.2d 310 (10th Cir. 1967); Dutton v. Cities Service Defense Corp., 197 F.2d 458 (8th Cir. 1952). The federal cases seem to say that a denial of summary judgment is not itself appealable; it is not even reviewable on appeal from a final judgment in the case.

Several state courts have reached the issue of the reviewability of the denial of a motion for a summary judgment. Although the majority agree that the denial of summary judgment is not reviewable there is no clear consensus as to the reasoning to reach that result.

In Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274 (1962), the court refused to review the denial of a motion for summary judgment on the grounds of unfairness. Although the court recognized the unfairness to a party who was wrongfully denied a summary judgment it concluded:

"The greater injustice would be to the party which would be deprived of the jury verdict. Otherwise, a decision based on less evidence would prevail over a verdict reached on more evidence and judgment would be taken away from the victor and given to the loser despite the victor having the greater weight of evidence. This would defeat the fundamental purpose of judicial inquiry." Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d at 366, 187 N.E.2d at 278.

In Bell v. Harmon, 284 S.W.2d 812 (Ky.1955), the court reasoned:

"The Federal appellate courts have recognized the limited scope of summary judgment procedure, and have consistently cautioned trial courts against granting motions for summary judgment if any doubt exists as to the right of a party to a trial. To hold that there may be a review of the trial court's determination that a party is entitled to a trial would be inconsistent with this admonition to proceed cautiously when granting a summary judgment. It would put the appellate court in the position of trying the question of doubt in the mind of the trial judge. We do not think this would be proper review.

"Our refusal to review an order denying a summary judgment can in no...