Widmer Brewing Co. v. Rolph

• Decision Date: 29 June 1994
• Citation: 128 Or.App. 666,877 P.2d 112
• Parties: WIDMER BREWING COMPANY, an Oregon corporation, Appellant, v. Kevin ROLPH and Carole Rolph, Respondents. 9207-04599; CA A79936.
• Court: Oregon Court of Appeals

Page 112

877 P.2d 112

128 Or.App. 666

WIDMER BREWING COMPANY, an Oregon corporation, Appellant, v. Kevin ROLPH and Carole Rolph, Respondents.

9207-04599; CA A79936.

Court of Appeals of Oregon.

Argued and Submitted May 27, 1994.

Decided June 29, 1994.

Barton C. Bobbitt, Portland, argued the cause for appellant. With him on the briefs was Bobbitt & Laster, P.C.

Kim T. Buckley, Portland, argued the cause for respondents. With him on the brief was Esler, Stephens & Buckley.

Before De MUNIZ, P.J., and LANDAU and LEESON, JJ.

De MUNIZ, Judge.

Plaintiff brought this action against defendants for breach of contract, breach of a joint venture agreement and fraud. Plaintiff appeals from a summary judgment for defendants on all three claims. We affirm.

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ORCP 47 C; Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978). We view the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the nonmoving party, which is plaintiff here. Stevens v. Bispham, 316 Or. 221, 223, 851 P.2d 556 (1993).

Defendants learned that the Oregon Transportation Commission planned to sell, at a public auction, several parcels of improved and unimproved property, including a parcel that adjoined property they owned. They were interested in purchasing part of the parcel to "square up" their property. Plaintiff also had learned of the auction and wanted to buy the same parcel to acquire a different part for use as a parking lot. Plaintiff previously had asked if defendants would sell it a portion of their property for use as a parking lot, but defendants did not want to sell any of their property.

Plaintiff and defendants went to the auction. Shortly before the auction began, plaintiff approached defendants and learned that they planned to bid on the same parcel. Defendants said, in their respective depositions, that they were prepared to pay $75,000 or more to purchase the parcel. Plaintiff was prepared to pay $20,000 to $30,000. The minimum bid for the parcel was $9,100. Plaintiff proposed to defendants that one party bid and purchase the parcel on behalf of both and then sell the lots it did not want to the other party for a pro rata share of the purchase price. Defendant Kevin Rolph told plaintiff that he would trade to plaintiff the lot it wanted in exchange for two lots defendants wanted.

The parties agreed to plaintiff's proposal. They decided that defendants would bid on behalf of both parties. Defendants bid successfully and purchased the parcel for $12,500. Plaintiff did not bid. Approximately 30 people attended the auction, and there were several unsuccessful bidders. After the auction, defendants did not sell any lots to plaintiff.

When defendants refused to sell any of the lots, plaintiff filed this action. The trial court granted defendants' motion for summary judgment on plaintiff's three claims and dismissed defendants' counterclaim for attorney fees.

Plaintiff makes five assignments of error. In its first assignment, plaintiff argues that the trial court erred by granting summary judgment sua sponte for an "alleged violation of Oregon antitrust law." It asserts that, because defendants did not raise an antitrust violation as a defense, the trial court had no authority to grant summary judgment on that ground.

Plaintiff's argument is unpersuasive. Nothing in the record indicates that the trial court granted summary judgment because there was a violation of Oregon antitrust law. The order partially granting summary judgment states that "defendants' motion for summary judgment is GRANTED except as to defendants' counterclaim for an award of reasonable attorney fees." The trial court's judgment dismisses plaintiff's claims against defendants without any reference to an antitrust law violation.

Plaintiff's argument apparently derives from comments the trial court made during oral argument on defendants' motion for summary judgment. According to a narrative statement that summarizes the hearing, the trial court asked counsel whether the alleged agreement might violate antitrust laws, but neither side was prepared to respond to the court's inquiry. ¹ Nothing in the narrative statement suggests that the trial court granted summary judgment because there was a violation of Oregon antitrust law. A trial judge's antecedent remarks or opinions, not embodied in its written findings and judgment, may not be used to attack the written findings or judgment on appeal. State v. Swain/Goldsmith, 267 Or. 527, 530, 517 P.2d 684 (1974); Sause Bros. Ocean Tow. v. Gunderson, 265 Or. 568, 576, 510 P.2d 541 (1973). Because nothing in the record indicates that the trial court granted summary judgment on the basis of a violation of antitrust law, or that any party objected to consideration of that basis, the alleged error is not preserved for appellate review. ORAP 5.45(4).

In its second assignment, plaintiff argues that, if the trial court properly considered the issue of an antitrust violation, it erred in concluding that the parties' agreement was "illegal per se." Because nothing in the record indicates that the trial court's judgment was based on an antitrust violation, we need not address that assignment.

In its third assignment, plaintiff argues that the trial court erred in granting summary judgment on its breach of contract claim. It asserts that an agreement between bidders at a public auction is enforceable if the agreement is for a proper purpose, which is a question of fact. It also asserts that, because it refrained from bidding at the auction, the agreement is enforceable under the part performance exception to the Statute of Frauds.

An agreement between parties to bid jointly at a public auction is not illegal per se. It may be enforceable as long as the purpose of the agreement is not to prevent competition. Rosenkrantz et al. v. Barde, 107 Or. 338, 347, 214 P. 893 (1923); Kine v. Turner, 27 Or. 356, 360, 41 P. 664 (1895). Whether the purpose of an agreement is to prevent competition depends on the facts and circumstances of each particular case. Rosenkrantz et al. v. Barde, supra, 107 Or. at 347, 214 P. 893.

The dispute here concerns whether an agreement to prevent competition was conclusively established by the evidence. Plaintiff asserts that ...