State ex rel. Orbanco Real Estate Services Co. v. Allen

• Decision Date: 01 July 1986
• Citation: 720 P.2d 365,301 Or. 104
• Parties: STATE of Oregon, EX REL. ORBANCO REAL ESTATE SERVICES COMPANY, fka Columbia Mortgage Company, Plaintiff-Relator, v. Edwin E. ALLEN, Defendant, J.I. Johnston Construction Co., Inc., Intervenor. SC S31772. . In Banc *
• Court: Oregon Supreme Court

Page 365

720 P.2d 365

301 Or. 104

STATE of Oregon, EX REL. ORBANCO REAL ESTATE SERVICES

COMPANY, fka Columbia Mortgage Company, Plaintiff-Relator, v. Edwin E. ALLEN, Defendant, J.I. Johnston Construction Co., Inc., Intervenor.

SC S31772.

Supreme Court of Oregon.

In Banc ^*

Argued and Submitted Nov. 5, 1985.

Decided May 20, 1986.

Reconsideration Denied July 1, 1986.

Carlton D. Warren, Portland, filed the Alternative Writ of Mandamus and answering brief for plaintiff-relator. With him on the answering brief were Warren and Allen, and Michael J. Hargis, Portland.

Thomas J. Murphy, Eugene, argued the cause and filed the defendant's brief and abstract of record and defendant's reply brief and supplemental abstract of record for defendant. With him on the brief was Cass, Scott, Woods & Smith, Eugene.

Malcolm L. Brand, Salem, filed a memorandum in support of defendant's memorandum opposing petition for writ of mandamus. With him on the memorandum was Paulus, Rhoten, Brand, Lien & McDonough, Salem.

CAMPBELL, Justice.

This is an original proceeding in mandamus. The relator was one of the defendants in each of four lien foreclosure cases in Lane County. The cases were consolidated. The defendant in this mandamus proceeding was the trial judge in the Lane County cases. After trial the defendant trial judge caused a decree of foreclosure to be entered. The relator appealed to the Court of Appeals. Several months later the appeal was dismissed on relator's motion. The defendant trial judge then caused to be entered an order authorizing a writ of foreclosure and pursuant thereto the Clerk of Lane County issued a writ of execution. The relator then commenced this mandamus proceeding.

This court granted an alternative writ of mandamus which required the defendant to show cause why he did not: (1) Set certain allegedly unresolved matters for trial, (2) Vacate the order for a writ of execution, and (3) Order the recall of the writ of execution. The defendant trial judge filed an answer. His chief defense is that he has previously signed and caused to be entered a judgment and decree of foreclosure which together with certain orders of dismissal "fully and conclusively adjudicated every claim presented * * * and determined the rights and liabilities of every party" in the circuit court proceeding.

This case involves the interpretation and application of ORCP 67 A. and B. and ORCP 70 A. The chief issue in this case is similar to that in State ex rel Zidell v. Jones, 301 Or. 79, 720 P.2d 350 (1986) (decided this date). Can two or more documents, which do not contain the ORCP 67 B. language that "there is no just reason for delay * * * for the entry of judgment," constitute a final judgment when considered together? We hold that they do if in combination they adjudicate every claim presented and determine the rights and liabilities of each party. We dismiss the alternative writ.

This litigation arose out of the construction of a new office building in Springfield known as "Gateway Office Plaza." Allied Commercial Realty (Allied Realty) was the owner and developer of the project. The relator financed the construction and was secured by a trust deed on the property. ¹ The intervenor in this case, J.I. Johnston Construction Co., Inc., (Johnston Construction) was the general contractor. There were a number of subcontractors. The construction project ran into financial difficulties. On or about March 31, 1981, the general contractor and subcontractors who had not completed their work withdrew from the project because they were not being paid. The general contractor and the subcontractors filed construction liens. Four separate actions for the foreclosure of the various liens were filed in the Circuit Court for Lane County. The lien claimants who were not plaintiffs in the four cases sought to foreclose their liens by cross-claims. All actions and cross-claims sought foreclosure upon the same parcel of real property and the improvements thereon. The relator asserted that its trust deed upon the construction site was superior to the claims of the other lien claimants.

On November 27, 1981, the defendant as trial judge, upon motion of some of the lien claimants, consolidated all four cases. He also ordered that all further pleadings be filed under a consolidated heading bearing the number of the first case filed. ²

Allied Realty, the former owner of the subject premises, never appeared, and an order of default was entered against it. The relator foreclosed its trust deed upon the property by a non-judicial proceeding. ³

In February and March 1983, the defendant trial judge entered orders allowing motions for summary judgment as to seven of the subcontractors who had filed construction liens. Later the general contractor and the relator stipulated that a judgment be entered in favor of the eighth subcontractor. By virtue of the summary judgments and stipulated judgment, seven of the subcontractors were found to have liens upon the subject property prior to the relator's trust deed. One of the subcontractor's liens was found to be inferior to the rights of the relator and the other lien claimants.

On September 29, 1983, trial commenced on the remaining issues between the relator and Johnston Construction, the general contractor and intervenor herein. It appears from the opinion of the defendant trial judge that chief issues at the trial were the balance owed to the general contractor and the right of the relator to certain offsets. These amounts were determined and set out in the defendant trial judge's opinion of January 12, 1984.

On April 3, 1984, the defendant trial judge entered six separate documents each entitled "ORDER AND JUDGMENT OF DISMISSAL" and each with the consolidated heading and the number of the first case. The full body of the documents is as follows:

"This matter came before the Court on its own motion on March 12, 1984. The Court is now fully advised.

"IT IS HEREBY ORDERED AND ADJUDGED that all claims asserted herein by Defendant (name of designated party) are dismissed without prejudice and without costs to any party.

"IT IS FURTHER ORDERED AND ADJUDGED that all claims asserted herein by any party against Defendant (name of designated party) are dismissed without prejudice and without costs to any party."

Each of the six documents designated a defendant who had been named in one or more of the original four complaints. The eight subcontractors who previously had been allowed summary or stipulated judgments on their construction liens were not among the six defendants. None of the six documents contained the ORCP 67 B. language "there is no just reason for delay * * * for the entry of judgment."

On April 23, 1984, the defendant trial judge signed a document entitled "JUDGMENT AND DECREE OF FORECLOSURE." It contained the consolidated heading and the single case number as previously ordered.

The "JUDGMENT AND DECREE OF FORECLOSURE" is a detailed document. The body of the document covers more than six pages of single-spaced material and 26 numbered paragraphs. It specifically found that the relator owned the real property in fee simple subject to the action but that its interest was subsequent in time and inferior in right to the claims of the general contractor and seven of the subcontractors. The document decreed a judgment in a specific sum with interest, attorney fees and costs in favor of the general contractor and against Allied Realty, the former owner and developer of the project. It further decreed that the general contractor's construction lien was a valid lien against the subject property and the improvements. The document also declared that each of the eight subcontractors has a judgment against the general contractor for a specific sum with interest, attorney fees and costs. Each of the eight subcontractor's construction liens was also declared to be a "valid and subsisting lien." The relator was given a judgment against Allied Realty for a specific sum with interest, attorney fees and costs. The document decreed that the liens be foreclosed, provided for the relative priority of the liens, determined the order in which the proceeds of the sheriff's sale should be applied, and allowed a deficiency "as provided by law" in the event the sale funds were not sufficient.

The "JUDGMENT AND DECREE OF FORECLOSURE" does not contain "an express determination that there was no just reason for delay" for the entry of a final judgment. ORCP 67 B. It does make a final determination of the claims, rights and liabilities of each of the eight subcontractors and therefore in a sense takes the place of or supplants the previous summary and stipulated judgments. It makes a similar determination as to the claims, rights and liabilities of the general contractor, the relator and the former owner. It does not mention or further adjudicate the claims of the six defendants who were dismissed from the case without prejudice by the orders and judgments of dismissal entered on April 3, 1984.

On May 23, 1984, the relator filed a notice of appeal in the Court of Appeals. Thereafter, the intervenor herein, Johnston Construction, filed a cross-appeal. On December 18, 1984, the relator moved to dismiss its appeal. On January 31, 1985, the Court of Appeals entered the following order:

"Appellant * * * moves to dismiss the appeal herein on the ground that the appeal is taken from a nonappealable judgment. The motion is allowed.

"The Court on its own motion dismisses the cross-appeal herein on the same ground."

On April 14, 1985, the defendant trial judge entered an order authorizing the issuance of a writ of foreclosure pursuant to the "JUDGMENT AND DECREE OF FORECLOSURE" of April 23, 1984. Thereafter on May 13, 1985, the relator filed the petition for an alternative writ of mandamus.

The relator contends that no final judgment has been entered in the circuit court by defendant trial judge because (1) the Court...