State ex rel. Zidell v. Jones

• Citation: 301 Or. 79,720 P.2d 350
• Parties: STATE of Oregon ex rel. Arnold H. ZIDELL, Plaintiff-Relator, v. The Honorable Robert P. JONES, Defendant. SC S31538. . *
• Decision Date: 01 July 1986
• Court: Supreme Court of Oregon

Page 350

720 P.2d 350

301 Or. 79

STATE of Oregon ex rel. Arnold H. ZIDELL, Plaintiff-Relator, v. The Honorable Robert P. JONES, Defendant.

SC S31538.

Supreme Court of Oregon,

In Banc. ^*

Argued and Submitted Nov. 5, 1985.

Decided May 20, 1986.

Reconsideration Denied July 1, 1986.

Charles F. Hinkle, Portland, argued the cause and filed the briefs for defendant. With him on the briefs were Lois O. Rosenbaum, Joseph D. Cohen, and Stoel, Rives, Boley, Fraser & Wyse, Portland.

William L. Hallmark, Portland, argued the cause and filed the brief for plaintiff-relator. With him on the brief were Emil R. Berg, and Hallmark, Griffith & Keating, P.C., Portland.

Thomas A. Balmer, Portland, filed a brief Amici Curiae Kobin & Meyer, P.C., and Professional Liability Fund of Oregon State Bar. With him on the brief were Carl R. Neil, and Lindsay, Hart, Neil & Weigler, Portland.

CAMPBELL, Judge.

This is an original proceeding in mandamus. The relator was the plaintiff in a civil action in Multnomah County Circuit Court entitled Zidell v. Zidell, et al. The defendant in this proceeding was the trial judge in that action. This court granted an alternative writ of mandamus which required the defendant to show cause why he had not signed and directed entry of a final judgment as to all parties in the Multnomah County case. The defendant's answer in effect alleged that a final judgment had previously been entered, and that in any event the relator is not entitled to relief by way of mandamus.

The chief issue is whether a document entitled "JUDGMENT" signed by the defendant trial judge on September 8, 1982, in the Multnomah County action constitutes a final judgment. ¹ This issue involves the interpretation and application of ORCP 67A. and B. and ORCP 70A. See State ex rel. Orbanco Real Estate Service Company v. Allen, 301 Or. 104, 720 P.2d 365 (1986) (decided this date.) We hold that the document dated September 8, 1982, when considered together with another document dated June 25, 1982, constitutes a final judgment. Therefore, we need not consider the affirmative defenses pleaded by the defendant in his answer to the alternative writ. We dismiss the alternative writ.

On May 1, 1980, the original complaint was filed in the case of Zidell v. Zidell, et al. It named 14 defendants. The amended complaint and the second amended complaint included two additional defendants--Rodney Stevens and Lillie Kugel. On June 25, 1982, the trial judge (defendant herein) signed a document entitled "JUDGMENT AS TO DEFENDANTS STEVENS AND KUGEL." The parties in the caption were designated as "ARNOLD H. ZIDELL, Plaintiff v. EMERY ZIDELL, et al., Defendants." The full body of the document reads as follows "The motion for Summary Judgment of defendants Stevens and Kugel having been allowed,

IT IS ORDERED AND ADJUDGED that plaintiff's Complaint be, and the same is hereby dismissed with prejudice as to defendants Rodney Stevens and Lillie Kugel, and that they shall have and recover their costs and disbursements incurred herein, taxed at $______."

Costs were later taxed at $55.

Between June 28, 1982, and August 9, 1982, the case was tried without a jury. At the conclusion of the trial the defendant herein, as trial judge, announced his oral decision including general findings and conclusions.

On September 8, 1982, the same trial judge signed a document entitled "JUDGMENT," prepared by the plaintiff's attorneys. The 14 original defendants were listed in the caption. The first paragraph of the document named each of the original 14 defendants and their respective attorneys. The defendants, Stevens and Kugel, were not mentioned in either the caption or the body of the document. The final three paragraphs of the document were as follows:

"NOW, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that plaintiff's amended and second amended complaints and pretrial contentions, and any claim for relief contained therein are dismissed with prejudice and judgment is entered herein against the plaintiff and in favor of defendants with respect to said claim.

"IT IS FURTHER ORDERED that defendants' several counterclaims, amended counterclaims and pretrial contentions and any claims for affirmative relief against plaintiff contained therein are dismissed with prejudice and judgment is entered herein against the defendants and in favor of the plaintiff with respect to each of said counterclaims and contentions.

"IT IS FURTHER ORDERED that no party recover their costs and disbursements incurred herein."

On September 20, 1982, the plaintiff filed a notice of appeal to the Court of Appeals:

"Plaintiff-Appellant hereby gives notice of appeal from that Judgment dated September 8, 1982, and entered in this case on September 15, 1982, by Judge Robert P. Jones in the Multnomah County Circuit Court dismissing with prejudice plaintiff's Amended, Second Amended and Supplemental Complaints, pretrial contentions and any claim for relief contained therein and entering judgment against plaintiff and in favor of defendants with respect to said claims."

On November 11, 1983, the Court of Appeals dismissed the appeal because "the appellant failed to serve his notice on two parties [Stevens and Kugel] who appeared in the trial proceedings." ² On February 10, 1984, the Court of Appeals denied reconsideration. On March 20, 1984, this court denied review. 296 Or. 638, 678 P.2d 739 (1984). Thereafter the plaintiff substituted attorneys and moved this court for a rehearing. On April 24, 1984, this court issued an order denying reconsideration.

On May 11, 1984, the plaintiff filed in the Multnomah Circuit Court a "MOTION FOR CERTIFICATION PURSUANT TO ORCP 67B." On May 25, 1984, the defendant trial judge, in an opinion letter, denied the motion. The letter in part stated: "The Judgment Order of September 15, 1982, disposed of every claim by every party." ³ By order entered on June 6, 1984 the plaintiff's "MOTION FOR CERTIFICATION PURSUANT TO ORCP 67(B)" was denied.

On December 17, 1984, the plaintiff, who is now the relator, associated the legal counsel currently representing him in this proceeding. On the same date, the plaintiff moved the circuit court "to enter a final judgment as to all defendants who have appeared in this case." The motion was denied on February 15, 1985.

On February 26, 1985, the plaintiff-relator filed the petition for an alternative writ of mandamus in this court. The petition recited the chronological history of Zidell v. Zidell, et al. and prayed for a writ commanding that Robert P. Jones, the defendant herein, vacate his order of February 15, 1985, and enter a final judgment as to all parties or show cause for his failure to do so. The alternative writ was issued by this court on May 8, 1985.

This brings us to the chief issue in this case: Was the document signed by the defendant trial judge on September 8, 1982, and entered on September 15, 1982, a final judgment within the meaning of ORCP 67A. and B. and ORCP 70A.?

ORCP 67 provides in part:

"A. Definitions. 'Judgment' as used in these rules is the final determination of the rights of the parties in an action; judgment includes a decree and a final judgment entered pursuant to section B. or G. of this rule. 'Order' as used in these rules is any other determination by a court or judge which is intermediate in nature.

"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. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all of the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

ORCP 70A. provides:

"Every judgment shall be in writing plainly labeled as a judgment and set forth in a separate document. A default or stipulated judgment may have appended or subjoined thereto such affidavits, certificates, motions, stipulations, and exhibits as may be necessary or proper in support of the entry thereof. No particular form of words is required, but every judgment shall specify clearly the party or parties in whose favor it is given and against whom it is given and the relief granted or other determination of the action. The judgment shall be signed by the court or judge rendering such judgment or, in the case of judgment entered pursuant to Rule 69 B. (1), by the clerk."

The defendant trial judge takes the position that the Oregon Rules of Civil Procedure and the relevant case law impose four requirements for the existence of a final judgment: (1) final determination, (2) plain labeling, (3) separate documents, and (4) clear specification of parties and determination. He argues that the document, entitled "JUDGMENT," which he signed on September 8, 1982, satisfied all four requirements and therefore was a final judgment.

ORCP 67A. defines "judgment" as "the final determination of the rights of the parties in an action." (Emphasis added.) An "order" is "any other determination by a court or judge which is intermediate in nature." ORCP 70A. provides that "every judgment shall be in writing plainly labeled as a judgment and set forth in a separate document." (Emphasis added.) ⁴ The same rule also requires that "every judgment shall specify clearly the party or parties in whose favor it is given and against whom it is given and the relief granted or other determination of the action." (...