State ex rel. Gattman v. Abraham

• Citation: 302 Or. 301,729 P.2d 560
• Parties: STATE of Oregon ex rel. Ronald GATTMAN, Plaintiff-Relator, v. Philip T. ABRAHAM, Judge of the Circuit Court of the State of Oregon for the Fourth Judicial District, Defendant. SC S32317.
• Decision Date: 03 December 1986
• Court: Supreme Court of Oregon

Page 560

729 P.2d 560

302 Or. 301

STATE of Oregon ex rel. Ronald GATTMAN, Plaintiff-Relator, v. Philip T. ABRAHAM, Judge of the Circuit Court of the State of Oregon for the Fourth Judicial District, Defendant.

SC S32317.

Supreme Court of Oregon.

Argued and Submitted June 3, 1986.

Decided Dec. 3, 1986.

Wayne Mackeson, Portland, argued the cause and filed the brief for plaintiff-relator. With him on the brief was Des Connall, P.C., Portland.

I. Franklin Hunsaker, Portland, argued the cause and filed the brief for defendant. With him on the brief were Stephen F. English, and Bullivant, Houser, Bailey, Hanna, Pendergrass, Hoffman, O'Connell & Goyak, Portland.

Before PETERSON, C.J., and LINDE, CAMPBELL, CARSON, JONES and GILLETTE, JJ.

CAMPBELL, Justice.

This original proceeding in mandamus concerns trial court jurisdiction after a notice of appeal from a partial judgment under ORCP Rule 67 B. The relator is the plaintiff in a civil action in the Multnomah County Circuit Court entitled Gattman v. Favro. The defendant in this proceeding is the circuit judge who was assigned the action for trial. The presiding judge previously granted an ORCP 67 B. judgment in favor of one of the defendants in the Multnomah County action. The plaintiff filed a notice of appeal to the Court of Appeals from that judgment. After trial had commenced on a remaining claim against a remaining defendant, the trial judge allowed a mistrial on the grounds that he did not have jurisdiction of the case.

This court granted an alternative writ of mandamus which required the trial judge to show cause why he did not proceed with the trial of the Multnomah County case against the remaining defendant. The trial judge's answer in effect alleged that he had been ousted of jurisdiction over the entire case because of the appeal to the Court of Appeals.

The issue is whether under ORS 19.033(1) a notice of appeal from a judgment entered pursuant to Rule 67 B. of the Oregon Rules of Civil Procedure divests the trial court of jurisdiction to try the remaining claims against other parties not affected by the judgment. We hold that the trial court has jurisdiction of the remaining claim and defendant, but it is within its discretion either to set the case for trial or to postpone the trial until the appeal is determined. Therefore, we allow the writ directing the trial judge to exercise that discretion.

Gattman's third amended complaint in the Multnomah County case named the following defendants: "NEIL FAVRO; BUZZARD'S ROOST TAVERN, INC., an Oregon corporation; BORRELLI ENTERPRISES, INC., a foreign corporation; and CHARLES TIBBETT, doing business under the assumed business name THE SANCTUARY TAVERN." ¹

The third amended complaint alleged four claims for relief: (1) defendant Favro battered plaintiff by stabbing him repeatedly without justification or excuse causing severe and permanent injuries; (2) plaintiff's injuries were "foreseeably caused" by negligence of each of the three defendant drinking establishments; (3) plaintiff's injuries were caused by violations of ORS 30.950 by defendants Borrelli Enterprises and Tibbett who were strictly liable; and (4) defendant "Borrelli Enterprises, Inc. is liable for all damages discussed against defendant Favro pursuant to ORS 30.950." ²

On July 31, 1985, defendant Borrelli Enterprises filed an ORCP 21 A. (8) motion against the third amended complaint alleging that plaintiff had failed to state sufficient ultimate facts to constitute a claim. The trial court granted Borrelli Enterprises' motion and on September 4, 1985, entered an ORCP 67 B. judgment dismissing plaintiff's claims against that defendant. The judgment was based upon the trial court's "express determination that there is no just reason for delay" and its "express direction for entry of judgment." On October 1, 1985, plaintiff appealed that judgment to the Court of Appeals.

On October 16, 1985, plaintiff's claim of relief against Buzzard's Roost Tavern came on for trial. Because an order of default previously had been entered against defendant Favro and a summary judgment had been granted in favor of defendant Tibbett, the sole remaining defendant was Buzzard's Roost Tavern. On October 18, on motion of Buzzard's Roost Tavern, the trial court granted a mistrial on the grounds that it did not have jurisdiction to try the case. The trial judge stated the reasons for his rulings as follows:

" * * * Well, the Court, after extensive consultation with counsel on the issue and discussion with them, certainly is not overwhelmed that the issue is clear, but is satisfied from research that has been done that Rule 67B. which permits the Court to enter a final judgment after making certain findings as to one of the parties in a multiple party case, has the effect when read with ORS 19.033, when an appeal has occurred from that judgment, to remove jurisdiction for the trial court to proceed with an adjudication of the case to other parties.

"The Court makes that interpretation based upon the May decision--specifically, May v. Josephine Memorial Hospital, Inc., 297 Or. 525, [686 P.2d 1015 (1984) ]. Although there is no case that has been decided that is directly on point on the issue that is confronting us here, the May case strongly suggests that the trial of the rights, claims and defense of other parties must be postponed while the appeal is pending, because the May case lists that as one of the things a trial judge should take into account in deciding whether or not to allow a final judgment as to one of the parties."

On November 18, 1985, plaintiff-relator filed the petition for an alternative writ of mandamus in this court. The petition recited the chronological history of Gattman v. Favro, and prayed for a writ commanding that Philip T. Abraham, defendant herein, vacate his ruling of October 18, 1985, and set a new trial date. The alternative writ issued on February 7, 1986.

The issue in this case involves the interpretation and application of parts of ORS 19.033(1) and ORCP 67 B. The relevant parts are:

ORS 19.033(1):

"When the notice of appeal has been served and filed as provided in ORS 19.023, 19.026 and 19.029, the Supreme Court or the Court of Appeals shall have jurisdiction of the cause, pursuant to rules of the court, but the trial court shall have such powers in connection with the appeal as are conferred upon it by law and shall retain jurisdiction for the purpose of allowance and taxation of attorney fees, costs and disbursements or expenses pursuant to rule or statute." (Emphasis added.)

Rule 67 B.:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

The defendant trial judge's position in this court is that when relator appealed to the Court of Appeals from the 67 B. judgment in favor of Borrelli Enterprises, the Court of Appeals had jurisdiction of the entire case and the trial court had no jurisdiction to try the claim against Buzzard's Roost Tavern. This position is based upon the premise that the term "the cause" in ORS 19.033(1) refers to the entire case and not to that portion of the case affected by the ORCP 67 B. judgment.

The relator's opposite position presents a clear-cut issue. He claims that the purpose of ORCP 67 B. is to make an immediate appeal available on a separate claim as a distinct judicial unit while the trial court retains jurisdiction of the balance of the case. To reach that conclusion, relator contends that the term "the cause" in ORS 19.033(1) means that part of the case which results in the ORCP 67 B. judgment and not the entire case.

ORCP 67 B. is identical to Federal Rule of Civil Procedure 54(b). We have previously held that when ORCP 67 B. was adopted, it was intended that the Oregon courts should follow the existing federal caselaw in interpreting the rule. State ex rel Zidell v. Jones, 301 Or. 79, 89, 720 P.2d 350 (1986). The trouble is that federal cases on the precise issue in this case are as difficult to find as bourbon at a prayer meeting. However, there are federal cases that are based upon the premise that an appeal from a 54(b) judgment does not oust the trial court of jurisdiction as to the remaining claims and remaining parties. We were unable to find any cases that indicate an opposite premise.

In Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), the United States Supreme Court, in discussing FRCP 54(b), said:

"In this form, it does not relax the finality required of each decision, as an individual claim, to render it appealable, but it does provide a practical means of permitting an appeal to be taken from one or more final decisions on individual claims, in multiple claims actions, without waiting for final decisions to be rendered on all the claims in the case. The amended rule does not apply to a single claim action nor to a multiple claims action in which all of the claims have been finally decided. It is limited expressly to multiple claims actions in which 'one or more but less than all' of the multiple claims have been finally decided and are found otherwise to be ready for appeal.

"To meet the demonstrated need for flexibility, the District Court is used as a 'dispatcher.' It is permitted to determine in the first instance, the appropriate time when each 'final decision' upon 'one or more but less than all' of the claims in a multiple claims action is ready for appeal." 351 U.S. at 435, 76 S.Ct. at 899. (Emphasis in original, footnotes omitted).

In Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980), the district court...