Litvin v. Engesether

• Citation: 678 P.2d 1232,67 Or.App. 240
• Decision Date: 07 March 1984
• Docket Number: Nos. 39-554,s. 39-554
• Parties: Vernon A. LITVIN and Mildred Litvin, Appellants-Cross-Respondents, v. Ronald ENGESETHER, Respondent-Cross-Appellant. MARING & ASSOCIATES, INC., an Oregon corporation, Respondent, v. Ronald ENGESETHER, Appellant. ; A21444, 39-966; A21143.
• Court: Oregon Court of Appeals

Page 1232

678 P.2d 1232

67 Or.App. 240

Vernon A. LITVIN and Mildred Litvin, Appellants-Cross-Respondents, v. Ronald ENGESETHER, Respondent-Cross-Appellant.

MARING & ASSOCIATES, INC., an Oregon corporation, Respondent, v. Ronald ENGESETHER, Appellant.

Nos. 39-554; A21444, 39-966; A21143.

Court of Appeals of Oregon.

Argued and Submitted Jan. 26, 1983.

Decided March 7, 1984.

Marianne Bottini, Portland, argued the cause for appellants-cross-respondents Vernon A. Litvin and Mildred Litvin. With her on the briefs was Bottini & Bottini, Portland.

Carlton W. Hodges, Portland, argued the cause for respondent-cross-appellant and appellant Ronald Engesether. With him on the briefs was McClaskey, Horenstein & Wynne, Portland.

Michael J. Gentry, Portland, argued the cause for respondent Maring & Associates, Inc., an Oregon corporation. On the brief were Stephen R. Frank, and Tooze, Kerr, Marshall & Shenker, Portland.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

WARDEN, Judge.

This is a consolidated appeal of two actions, one by plaintiffs Litvin (the Litvins) for specific performance of a land sale contract, which we review de novo, and the other by plaintiff Maring & Associates (Maring) to recover a real estate broker's commission on the sale to the Litvins, which we review for errors of law. The two cases were also consolidated for trial to the court.

The trial court advised the parties by letter dated February 27, 1981, that it found that the Litvins and defendant Engesether had entered into a binding contract on or about August 18, 1978, for the purchase and sale of the subject property. Based on that finding, judgment for Maring was entered April 24, 1981. Defendant appealed from that judgment on May 22. Judgment in the Litvins' action ordering specific performance and awarding defendant $22,295.63 on his affirmative answer and counterclaim for improving the subject property was entered May 27, 1981. The Litvins appealed from that judgment on June 26.

An amended judgment was entered in the Litvins' action on June 30, 1981. Defendant moved to dismiss the Litvins' appeal from the May 27 judgment on July 10. The Litvins appealed from the amended judgment on July 29, and defendant cross-appealed on August 10. On December 17, 1981, we allowed defendant's motion to dismiss the Litvins' appeal from the May 27 judgment, apparently because the parties and the court assumed that the amended judgment of June 30 was the final, appealable order. Because we are now satisfied that the trial court lost jurisdiction of the matter upon the Litvins' filing of a notice of appeal from the May 27 judgment, we now reverse our order dismissing the Litvins' earlier appeal and reinstate that appeal. See Mullinax and Mullinax, 292 Or. 416, 430, 639 P.2d 628 (1982).

The amended judgment, entered after the notice of appeal from the May 27 judgment had been filed, was apparently entered in an effort to make the record speak the truth, but it substantially altered the rights of the parties under the May 27 judgment by adding interest and making payment of the judgment for defendant a condition precedent to the Litvins' right to specific performance. We find nothing in the transcript or the letters from the trial judge to show that he originally intended to include those provisions.

After a judgment is entered, a trial court retains jurisdiction over a case on appeal only to facilitate the appeals process, to correct clerical errors and to make the record speak the truth. See, e.g., Gordon Creek Tree Farms, Inc. v. Layne, 230 Or. 204, 358 P.2d 1062 (1961); Caveny v. Asheim, et al., 202 Or. 195, 274 P.2d 281 (1954); Bank of Oregon v. Hiway Products, Inc., 41 Or.App. 223, 598 P.2d 318 (1979). ¹ Trial courts do not have jurisdiction substantially to alter the rights of the parties once an appeal has been taken. Caveny v. Asheim, et al., supra, 202 Or. at 210, 274 P.2d 281. Because the June 30 judgment substantially altered the rights of the parties after the notice of appeal from the original judgment had been filed, it was beyond the trial court's jurisdiction to enter it. It follows that the appeal and the cross-appeal from the amended judgment must be dismissed. Thus we have before us only defendant's appeal from the April 24, 1982, judgment and the Litvins' appeal from the May 27, 1981, judgment.

Defendant's appeal from the judgment for Maring's commission was taken while the action by the Litvins was still pending. Therefore, we must also determine whether we have jurisdiction over that appeal in the light of ORCP 67(B) which, together with ORS 19.010(2)(e), ² bars an appeal from a judgment for less than all claims or parties in an action except upon an "express determination that there is no just reason for delay * * *." ORCP 67(B); see Industrial Leasing Corp. v. Van Dyke, 285 Or. 375, 591 P.2d 352 (1979); Redmond Electric v. Gonzales, 63 Or.App. 606, 665 P.2d 373 (1983). No such determination was made here.

Appeals held barred by ORCP 67(B) have included appeals from a judgment failing to adjudicate third party claims, Industrial Leasing Corp. v. Van Dyke, supra, from judgments on less than all claims, cross-claims or counterclaims in an action, Valdez v. Timmerman, 58 Or.App. 366, 648 P.2d 365 (1982); Hill v. Oland, 52 Or.App. 791, 629 P.2d 867 (1981); Kuvass v. Cutrell, 50 Or.App. 529, 623 P.2d 1116 (1981), and from judgments against fewer than all defendants named in the complaint. State Farm v. Sommerholder, 59 Or.App. 697, 652 P.2d 2 (1982); Adkins v. Watrous, 57 Or.App. 541, 645 P.2d 591 (1982); First Nat'l Bank of Oregon v. Diversified Truss, 54 Or.App. 899, 636 P.2d 991 (1981).

Those cases are not controlling here. These are separate cases. There are no third party claims, each judgment fully adjudicated all claims pled, and nothing was left pending between Maring and defendant after the entry of judgment in Maring's action. Maring moved to consolidate the trials for reasons of economy and convenience, because each case involved similar questions of law and fact, requiring testimony from the same witnesses. Maring's action was otherwise wholly independent of the Litvins'. We conclude that this is not a situation "[w]hen more than one claim for relief is presented in an action * * * ", ORCP 67(B) (emphasis supplied), and therefore ORCP 67(B) does not apply to this case. See Pacific Northwest Bell v. Davis, 43 Or.App. 999, 1002 n. 4, 608 P.2d 547 (1979).

We briefly summarize the facts. On March 10, 1978, an earnest money agreement was executed by the parties. It provided that the defendant would sell the subject property to the Litvins and build a 12-unit apartment complex on it. Details regarding the construction of the apartments were to be agreed upon later. The agreement also included a promise by defendant to pay Maring a broker's commission.

By the middle of May, 1978, it was clear that defendant no longer wanted to build the apartment complex and convey the property to the Litvins for the price stated in the earnest money agreement. The cost of financing the project was apparently greater than defendant had anticipated. The Litvins indicated that they might be willing to pay more for the property, considering defendant's costs, and that matter was a subject of discussion between the parties through their attorneys for a period of two or three months.

On August 18, 1978, the Litvins and their attorney met with defendant and his attorney. At the end of that four-hour meeting, and after adjustments were made in the selling price and the financing arrangements, all the parties thought an agreement had been reached regarding the purchase and sale of the land and the uncompleted apartment complex. The terms of the agreement were put in writing by defendant's attorney that same day. Under the agreement, the Litvins had the right to inspect the first completed portion of the apartment complex to determine whether the workmanship was acceptable. If the workmanship was not acceptable, they had the right to cancel the deal; if the workmanship was acceptable, the completed portion would provide the standard of construction for the rest of the complex. Mr. Litvin inspected the property toward the end of October and, although the building was not finished, indicated a number of concerns regarding the quality of the workmanship.

Defendant continued construction, and the entire complex was near completion by the middle of December. At that time, inspectors from the local building authority inspected the premises but, because of several remaining deficiencies, did not issue an occupancy permit. Those deficiencies were apparently corrected by the defendant, and the units were occupied early in 1979.

On February 23, 1979, defendant's attorney sent the Litvins' attorney, for approval, a final form of the land sale contract. On March 5, 1979, the Litvins sent a corrected copy of that contract, together with instructions for closing, to the escrow company, where they had already deposited a portion of the down payment. By a certified letter dated March 7, 1979, the Litvins' attorney demanded that defendant cure all remaining problems with the apartment complex and close the transaction within 15 days. On March 19, 1979, defendant sent his own instructions to the escrow company. By April 12, 1979, the Litvins had deposited in escrow the full amount necessary to close the deal, had filed their complaint in the action against defendant and had been approved as a buyer by defendant's mortgage bank. Defendant testified that he was unaware that sufficient funds had been deposited in escrow to close the deal.

On appeal, defendant claims that the trial court erred in not sustaining his demurrer to Maring's complaint, because the complaint failed to allege that Maring was a "duly licensed real estate broker" as required by ORS 696.710. He also claims that the trial court erred in awarding Maring prejudgment interest and...