Allen v. County of Jackson

• Decision Date: 12 July 2000
• Citation: 169 Or. App. 116,7 P.3d 739
• Parties: Richard ALLEN, James Anderson, John R. Atkins, David A. Baleria, Jeanne Burrows, Kenneth R. Curtis, Steven E. Daniels, Sandra Depiero, Sandra L. Eccker, Miltona L. Hendrix, Michel Holloran-Marshall, Brad L. Hope, Richard C. Kennedy, Robert O. Kennedy, Susan M. Luttes, Ed Mayer, Ronald D. Parker, Dewey P. Patten, Danny Lee Penland, David Roughton, Jeannette M. Sieg, Tenley Tanhoff, Edward C. Temple, Shirley A. Tolbert, James L. Vansant, and James N. Warren, Respondents— Cross-Appellants, v. COUNTY OF JACKSON COUNTY, Appellant—Cross-Respondent. County of Jackson County, Third-Party-Plaintiff-Appellant, v. State of Oregon, Third-Party-Defendant-Respondent.
• Court: Oregon Court of Appeals

7 P.3d 739

169 Or. App. 116

Richard ALLEN, James Anderson, John R. Atkins, David A. Baleria, Jeanne Burrows, Kenneth R. Curtis, Steven E. Daniels, Sandra Depiero, Sandra L. Eccker, Miltona L. Hendrix, Michel Holloran-Marshall, Brad L. Hope, Richard C. Kennedy, Robert O. Kennedy, Susan M. Luttes, Ed Mayer, Ronald D. Parker, Dewey P. Patten, Danny Lee Penland, David Roughton, Jeannette M. Sieg, Tenley Tanhoff, Edward C. Temple, Shirley A. Tolbert, James L. Vansant, and James N. Warren, Respondents— Cross-Appellants, v. COUNTY OF JACKSON COUNTY, Appellant—Cross-Respondent.

County of Jackson County, Third-Party-Plaintiff-Appellant, v. State of Oregon, Third-Party-Defendant-Respondent.

(97-0009-L-1; CA A102891)

Court of Appeals of Oregon.

Motion to Reconsider September 13, 1999.

Decided July 12, 2000.

Jacob Tanzer, Portland, for the motion.

Gregory A. Hartman, Portland, and Bennett, Hartman & Reynolds contra.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG, Judge.

On Appellant-Cross-Respondent's Motion to Reconsider September 13, 1999.

ARMSTRONG, J.

Defendant Jackson County moves for reconsideration of our opinion, Allen v. County of Jackson, 162 Or.App. 309, 986 P.2d 612 (1999), in which we dismissed defendant's appeal and plaintiffs' cross-appeal for lack of a final judgment. We allow the petition to reconsider, vacate our original opinion and reverse on appeal and cross-appeal.

In November 1994, the voters of the State of Oregon enacted Measure 8, which amended the Oregon Constitution to require that public employees contribute six percent of their compensation to their retirement accounts. Measure 8 also prohibited public employers from paying their employees' contributions. In December 1994, defendant adopted an ordinance that provided that it would no longer pay plaintiffs' contributions and gave plaintiffs a 5.7 percent pay increase. In 1996, the Supreme Court declared Measure 8 unconstitutional as an impairment of contract in violation of Article I, section 10, of the United States Constitution (the Contracts Clause). Oregon State Police Officers' Assn. v. State of Oregon, 323 Or. 356, 918 P.2d 765 (1996). Plaintiffs are Jackson County employees who seek to recover the amounts that defendant deducted from their wages for retirement contributions between December 7, 1994, and October 8, 1996.

In January 1997, plaintiffs filed the complaint in this case against defendant, stating three claims: (1) a claim under 42 USC § 1983 based on an impairment of contract theory under the Contracts Clause; (2) a claim for breach of contract; and (3) a statutory wage claim under ORS chapter 652. Plaintiffs moved for summary judgment on all of their claims. The common thread in the section 1983 and breach of contract claims is plaintiffs' argument that their performance of their employment duties constituted an acceptance of defendant's promise to pay their retirement benefit contributions so long as they worked for defendant.

Defendant thereafter moved (1) to dismiss the section 1983 claim pursuant to ORCP 21 A(8); (2) for summary judgment against five of the plaintiffs whose employment differed from the remaining plaintiffs on the breach of contract claim; (3) for partial summary judgment on its affirmative defense of mitigation that would limit the remaining plaintiffs' damages to the difference between the six percent pension pick-up that did not occur and the 5.7 percent pay increase that they received; and (4) for summary judgment on plaintiffs' wage claim.

The trial court granted defendant's motion for summary judgment concerning the wage claim and denied defendant's remaining motions. The court also granted plaintiffs' motion for summary judgment on their section 1983 and breach of contract claims as to all plaintiffs. Defendant appeals from the grant of summary judgment on plaintiffs' motions, and plaintiffs cross-appeal from the grant of defendant's summary judgment motion on plaintiffs' wage claim.

In our original opinion, we reasoned:

"[T]he `judgment' purports to award each plaintiff `a judgment against defendant * * * for all amounts withheld from their regular salary for the purpose of making pension contributions from December 1994 to October 1996 plus statutory interest from the date of each withholding.' It purports to be a judgment for the payment of money. However, it does not comply with ORCP 70 because it does not adjudicate the amounts of the money judgments that plaintiffs seek." Allen, 162 Or.App. at 315, 986 P.2d 612 (ellipsis in original).

After we issued our opinion, defendant asked us to grant leave to the trial court to enter an amended judgment. We granted defendant's request and ordered the parties to submit memoranda on the effect of Rauda v. Oregon Roses, Inc., 329 Or. 265, 986 P.2d 1157 (1999), on our jurisdiction over any amended judgment.

After we issued our order, the trial court entered an amended judgment that recites that the court had previously granted plaintiffs' summary judgment motion as to liability and that, while "defendant does not accede to the correctness of the summary judgment or that any amount is owing to the plaintiffs, the parties have agreed on the calculations of the amounts owing to each plaintiff pursuant to the ruling of the court if a trial as to damages were conducted." The amended judgment also (1) awards each plaintiff a specific amount of damages under plaintiffs' breach of contract and section 1983 claims;¹ (2) dismisses plaintiffs' statutory wage claim; (3) dismisses all claims against the State of Oregon without prejudice;² and (4) awards plaintiffs costs and attorney fees under 42 USC § 1988.

I. The Appealability of the Amended Judgment

In Rauda, after the trial court denied the defendant's motion to dismiss, the parties stipulated to the entry of a judgment in favor of the plaintiffs and purported to reserve the defendant's right to appeal from it. We affirmed. Rauda v. Oregon Roses, Inc., 147 Or.App. 106, 935 P.2d 469 (1997). On review, the Supreme Court vacated our decision and dismissed the appeal for lack of jurisdiction. It noted that the parties stipulated to the judgment as a whole and "did not confine their stipulation, for example, to the fact or amount of plaintiffs' damages," Rauda, 329 Or. at 269,986 P.2d 1157. It then concluded that a stipulated judgment is not appealable under ORS 19.245 (1997). At the core of the reasoning in Rauda is the proposition that parties cannot by agreement create a right to appeal from a stipulated judgment that is not otherwise appealable.

Here, unlike in Rauda, the parties did not stipulate to a judgment that is not otherwise appealable. Rather, the amended judgment recites that defendant contested the rulings in favor of plaintiffs on the liability issues and denied that any amount of damages was owed. All that defendants concede is that, assuming the correctness of the court's rulings that defendant contested, plaintiffs' evidence would result in a judgment in the amounts that the judgment actually awarded. Under these circumstances, we conclude that the amended judgment is not controlled by the holding in Rauda and is appealable. Rather than constituting a stipulated judgment from which the parties reserved the right to appeal, the judgment reflects that the parties litigated contested issues, on which the court made rulings regarding liability and damages, and that any stipulation was limited to certain facts, not to the judgment as a whole.

II. Defendant's Appeal

In its brief, defendant provides a summary of undisputed facts that were before the trial court in its consideration of the summary judgment motions. That summary states:

"In the general election of 1994, the voters of the state enacted Measure 8 which amended the state constitution to require that public employees contribute 6% of their compensation to their retirement accounts and to prohibit employers from picking up their employees' retirement contributions.

"On December 7, 1994, after Measure 8 had been approved by the voters but was not yet effective, [defendant] gave all of its employees a raise and began deducting their 6% pension contributions from their pay. The raise for represented employees, pursuant to an amendment of the collective bargaining agreements, was 6%. The raise for supervisory employees (including plaintiffs) was 5.7%.

"By opinion of June 21, 1996, the Supreme Court[,] in Oregon State Police * * * [,] declared Measure 8 unconstitutionally void. On October 8, 1996, pursuant to that decision, [defendant] reinstated its employer payment (referred to as `pick-up') of its supervisors' pension contributions.

"Plaintiffs are the Sheriff of Jackson County and the supervisory employees of the Jackson County Sheriff's Office. They are all members of the group which received a 5.7% pay increase. Plaintiffs are suing for the return of their 6% deductions made between December 7, 1994[,] and October 8, 1996, as damages for breach and impairment of their retirement contracts.

"Three plaintiffs (Steven[ ] Daniels, Brad Hope and Dewey P. Patten) were promoted from the bargaining unit to supervisory positions after Measure 8 was effective. * * *

"Plaintiffs Miltona L. Hendrix and Michel Hollaran-Marshall were new hires into their supervisory positions on January 8, 1996, and February 20, 1996, respectively."

When a summary judgment is on appeal,

"[w]e review to ascertain whether the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. In so doing, we view the record in the light most favorable to the party opposing summary judgment."

Quillen v. Roseburg Forest Products, Inc., 159 Or.App. 6, 9, 976 P.2d 91 (1999).

See also ORCP 47 C.³

A. The Breach of Contract Claim

On appeal, defendant makes three arguments under its assignment that the trial court erred in granting summary judgment on plaintiffs'...