City of Portland v. Carriage Inn, A8006-03622
| Decision Date | 18 November 1983 |
| Docket Number | No. A8006-03622,A8006-03622 |
| Citation | 669 P.2d 1185,64 Or.App. 751 |
| Parties | CITY OF PORTLAND, a municipal corporation, Appellant, v. CARRIAGE INN, James W. Flad, John M. Molendyk, Gordon A. Caron, Learoi Shite, William M. Ofstad, Robert Petrix, Mary C. Bline, Paul Henry and Judy Alberton, Respondents. ; CA A25873. |
| Court | Oregon Court of Appeals |
Paul C. Elsner, Portland, argued the cause and filed the briefs for appellant.
Rex Armstrong, Portland, argued the cause for respondents. With him on the brief were Leslie M. Roberts and Kell, Alterman & Runstein, Portland.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
This action was brought to enjoin the use of an apartment building for "transient occupancy" as an alleged violation of the Portland Planning and Zoning Code. Defendants moved to dismiss the amended complaint for failure to state ultimate facts sufficient to constitute a claim for relief. The trial court granted that motion and on June 4, 1982, entered an order, the dispositive portion of which provided:
"IT IS ORDERED that Defendants' motion is granted in its entirety, and the complaint is dismissed, without leave to replead."
Plaintiff filed a notice of appeal from that order on June 16. On August 6, defendants served and filed a cost bill, to which plaintiff filed objections on August 19. Apparently, the costs were allowed on August 19, because a judgment was entered on that day, which provided:
"Based on the Order of the Court entered June 4, 1982, the action is dismissed and judgment is entered against plaintiff and in favor of defendants for their costs and disbursements in the amount of $53.00."
On September 7, 1982, this court granted plaintiff's motion to dismiss its appeal from the June 4 order. Apparently uncertain as to the validity of the August 19 judgment entered pending its appeal of the June 4 order, plaintiff caused a second judgment to be signed on September 9, 1982, and it was entered in the judgment docket on September 13. That judgment is identical to the August 19 judgment. Plaintiff then filed a notice of appeal, designating the judgment "of September 9" as that from which the appeal was taken.
At the outset, defendants contend that this court lacks jurisdiction. We agree, albeit for reasons different from those on which defendants rely. The June 4 order was a final order within the meaning of ORS 19.010(2)(a); it dismissed plaintiff's amended complaint without leave to replead. That order ended the case, and plaintiff's first notice of appeal was both timely and proper; however, that appeal was dismissed on plaintiff's motion.
The apparent function of the action taken by the trial court on August 19 was to give defendants a judgment against plaintiff for their costs. Whether or not the trial court had jurisdiction 1 to enter that judgment...
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...(1983) (interpreting ORCP 68(C)(4), and describing statement of attorney fees and objections as “pleadings”); City of Portland v. Carriage Inn, 64 Or.App. 751, 754, 669 P.2d 1185, rent'd, 296 Or. 191, 673 P.2d 531 (1983) (same); see also Chase v. Vernam, 199 Or.App. 129, 137, 110 P.3d 128 (......
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City of Portland v. Carriage Inn
...to constitute a claim for relief. Plaintiff appealed. We dismissed the appeal for want of an appealable order. City of Portland v. Carriage Inn, 64 Or.App. 751, 669 P.2d 1185. The Supreme Court reversed, reinstated the appeal and remanded to this court for consideration on the merits. 296 O......
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City of Portland v. Carriage Inn
...Kell, Alterman & Runstein, Portland. PER CURIAM. Petitioner seeks review of the dismissal of his appeal by the Court of Appeals, 64 Or.App. 751, 669 P.2d 1185, for lack of jurisdiction. The Court of Appeals dismissed plaintiff's appeal from a judgment dated September 9, 1982, as untimely be......