Braat v. Andrews

• Decision Date: 27 September 1973
• Citation: 514 P.2d 540,266 Or. 537
• Parties: Arnold BRAAT and Mary Lou Braat, husband and wife, Appellants, v. Fred W. ANDREWS et al., Respondents. . *
• Court: Oregon Supreme Court

Page 540

514 P.2d 540

266 Or. 537

Arnold BRAAT and Mary Lou Braat, husband and wife, Appellants, v. Fred W. ANDREWS et al., Respondents.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted May 8, 1973.

Decided Sept. 27, 1973.

Dennis D. Doherty, Heppner, argued the cause for appellants. With him on the brief were Winter & Doherty and Herman W. Winter, Heppner.

Steven H. Corey and George H. Corey, Pendleton, argued the cause for respondents. With them on the brief were Corey, Byler & Rew, Pendleton.

O'CONNELL, Chief Justice.

This is an action brought by plaintiffs to condemn an easement across defendants' land. Judgment was entered in favor of defendants. Plaintiffs appeal, contending that the trial court erred in entering an order nunc pro tunc which awarded defendants their attorney fees.

Plaintiffs, relying upon ORS 772.305, ¹ Art. I, § 18 of the Oregon Constitution, ² and ORS Chapter 35 as amended in 1971, sought to condemn an easement across defendants' land for an irrigation pipeline. Defendants interposed a demurrer to plaintiffs' complaint, which was sustained on the ground that since plaintiffs were private citizens they did not qualify as 'condemners' under ORS 35.215. ³ On September 5, 1972, judgment was entered dismissing plaintiffs' complaint and taxing costs and disbursements against plaintiffs. On November 24, 1972, the trial court entered an order nunc pro tunc as of October 12, 1972, allowing defendants' motion to open and modify the judgment to award reasonable attorney fees. On that same day, after a hearing, modification of the judgment was entered to include an award for attorney fees in the amount of $2,725.

Plaintiffs contend that defendants' affidavit in support of the motion to modify the judgment is not sufficient to justify granting relief from the judgment because it does not set forth any of the grounds for relief recited in ORS 18.160. ⁴

It is true that defendants have not shown any of the statutory grounds for relief. However, a court's power to vacate, correct or modify its judgment or decree is not limited to the circumstances described in ORS 18.160; in addition, the circuit judge has inherent power to modify its judgment, provided that it does so within a reasonable time. ⁵

The question is, then, whether the trial court had the authority to amend the judgment to provide for an award of attorney fees. This precise issue has not been previously decided in Oregon, but we see no reason why attorney fees should not be the subject of an order modifying a judgment where justice so requires. While the trial court thus had discretion to so modify its judgment, the question remains whether there were sufficient reasons for its exercise. In the absence of statute a defendant in a condemnation proceeding cannot recover attorney fees. ⁶ Defendants contend that the provisions for the allowance of attorney fees in condemnation cases contained in ORS 35.335 are applicable to them. ORS 35.335 provides as follows:

'(1) If an action is abandoned by the condemner, the court shall enter judgment in favor of the defendant for his costs and disbursements in the action and for reasonable attorney fees and reasonable expenses as determined by the court.

'(2) Expenses mean costs of appraisals and fees for experts incurred in preparing and conducting the defense to the action.

'(3) An action is considered abandoned if, at any time after filing a complaint, the case is dismissed or terminated or the condemner files an election not to take the property. If an election is not filed within 60 days after the verdict, the condemner is considered to have elected to take the property.'

Plaintiffs develop two arguments in support of their contention that defendants may not recover their attorney fees under the above statute. First, it is argued that since the judgment was based on the fact that plaintiffs were not 'condemners' within the meaning of ORS 35.215, they cannot be 'condemners' for purposes of ORS 35.335. The language of the statute does not require this narrow reading. We think that the term 'condemner' was used to mean the person who had brought the condemnation proceedings, whether or not he was qualified to do so.

Plaintiffs' second argument is that the object of ORS 35.335 was to 'discourage harassment by condemners who would initiate repeated actions and then abandon them with impunity,' and to 'discourage the filing of actions not undertaken seriously * * * with intent to prosecute them to a verdict.' Read in this way, plaintiffs argue that the term 'dismissed' in ORS 35.335(3) must be construed narrowly as meaning only a voluntary dismissal obtained by the condemner. Since defendants prevailed on their demurrer and secured the judgment of dismissal, plaintiffs argue that the case was not 'abandoned' within the meaning of the statute.

Again, we regard this as an unnecessarily narrow interpretation of the statute. Under the statute defendant would be entitled to prevail if the case were dismissed upon the motion of the condemner, irrespective of the reasons which prompted such action, including circumstances where the action was undertaken seriously with the intent to prosecute it to a verdict but was later found to be impracticable or unnecessary. Then, too, it is possible that a plaintiff who qualifies as a condemner under ORS 35.215(1) might, after the suit is filed, dismiss it, realizing that the complaint is subject to attack for any one of a variety of reasons (e.g., because plaintiff has no jurisdiction over the property sought to be taken, or because the taking is for a private purpose, etc.). Surely ORS 35.335 would apply when the action was dismissed upon the plaintiff's motion under these circumstances. The same result should obtain where the defect in the condemner's case brought to light by the defendant's attack upon the complaint through a demurrer or answer, as a consequence of which an involuntary nonsuit is ordered. We cannot believe that the legislature would intend to make ...