Jansen v. Atiyeh

749 P.2d 1230 (1988)

89 Or.App. 557

Leonardus and Regina JANSEN, Dba White Motel; Denis and Judy Toney, Dba Palm Motel; Clifford and Anna Moran, Dba Valley Entrance Motel; Albert and Betty Bamforth, Dba Bards Inn Motel; Carolyn Branham, Dba Seasons at Oak Knoll; Dennis Perkins, Dba Ashland Taxi Co.; Harvey Theyer, Dba Manor Motel; Respondents Cross-Appellants, Karsten Arriens, Dba Mark Anthony Hotel; John Connors, Dba Casa Del Sol; Norma Dankulich, Dba Gold Rush Jewelry Store; David Pinsky, Dba Brooklyn Nite Club, Plaintiffs, v. Victor ATIYEH, Governor of the State of Oregon; David Frohnmayer, Attorney General of the State of Oregon; Norma Paulus, Secretary of the State of Oregon; William B. Davis, Chancellor of Higher Education of the State of Oregon; Natale Sicuro, President of Southern Oregon State College; Donald E. Lewis, Past Administrative Officer of Southern Oregon State College; Ronald Bolstad, Present Administrative Officer of Southern Oregon State College; Ernest Ettlich, Dean of Academic Affairs at Southern Oregon State College; Marythea Grebner, Public Affairs Officer of Southern Oregon State College; Mel Slocum, Director of College Union of Southern Oregon State College; Phil Campbell, Director of Housing and Food Services of Southern Oregon State College; Wayne Schumacher, Director of Residence Hall Programs of Southern Oregon State College; Southern Oregon State College; Director of Department of General Services of the State of Oregon; the State of Oregon, Defendants, State Board of Higher Education of the State of Oregon and Each of Its Individual Members, Appellants Cross-Respondents.

138,808; CA A38701.

Court of Appeals of Oregon.

Petition for Reconsideration November 5, 1987.

Petition for Reconsideration November 12, 1987.

December 1, 1987.

Decided February 10, 1988.

Reconsideration Denied March 25, 1988.

Review Denied April 18, 1988.

*1231 Robert L. Ackerman, Springfield, for petition and response for respondents-cross-appellants.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Robert M. Atkinson, Asst. Atty. Gen., Salem, for appellants-cross-respondents.

On Respondents Cross-Appellants' Petition for Reconsideration November 5, 1987.

Appellants Cross-Respondents' Petition for Reconsideration November 12, 1987.

Respondents Cross-Appellants' Response December 1, 1987.

DEITS, Judge.

Respondents cross-appellants and appellants-cross-respondents (Board) separately petition for reconsideration of our decision. 87 Or. App. 617, 743 P.2d 765 (1987). ORAP 10.10. We deny respondents cross-appellants' petition and grant the Board's petition. We modify our former opinion.

The Board assigns as error our affirmance of the award of attorney fees to plaintiff. The pertinent language of the opinion is:

"The Board also appeals the court's award of costs, disbursements and attorney fees to plaintiff. On April 11, 1986, the court entered a supplemental judgment allowing those. On May 21, 1986, the Board filed a motion for relief from default, which we denied on July 28, 1986. Because the Board's motion was filed more than 30 days after entry of the supplemental judgment, and we are without authority to extend the time set by statute within which to file an appeal, ORS 19.026(1); ORS 20.220, we are precluded from considering the issue, and to that extent the judgment must be affirmed. Jansen v. Atiyeh, 302 Or 314, 728 P2d 1382 (1986)." 87 Or. App. at 619 n. 4, 743 P.2d 765.

The Board presents alternative arguments. First, it argues that the result of its failure to perfect its appeal from the supplemental judgment awarding attorney fees was to deprive this court of jurisdiction and that, therefore, the court was precluded from taking any action on the claim. Alternatively, it argues that this court had authority to address the attorney fees issue as a part of the judgment on the merits and that, in view of the court's disposition on the merits, the award should be reversed.

We conclude that, because of the defective appeal of the supplemental judgment awarding attorney fees, Jansen v. Atiyeh, supra, 302 Or. 314, 728 P.2d 1382, that issue was never before this court and, thus, that it was improper to affirm the award. When no appeal was perfected, the trial court's award of attorney fees became final. We did not have authority to review the attorney fees issue as a part of our review of the judgment on the merits. Under ORS 19.029(1)(c), a party may appeal from a part of a judgment. An appeal from a judgment on the merits, followed by no appeal or a defective (and dismissed) appeal, as here, from a post-appeal award of attorney fees, is an appeal from part of "the judgment," that is, the part of the judgment disposing of the case on the merits. The portion of the judgment not appealed from the award of attorney fees becomes final and a reversal on appeal of the remainder of the judgment does not affect the finality of the judgment for attorney fees. Accordingly, we modify the last sentence of note 4 of the opinion to read:

"Because the Board's motion was filed more than 30 days after entry of the supplemental judgment, and we are without authority to extend the time set by statute within which to file an appeal, ORS 19.026(1); ORS 20.220, we are without jurisdiction to consider the issue. Jansen v. Atiyeh, 302 Or 314, 728 P2d 1382 (1986)."

In addition, the disposition is modified to delete the language affirming the award of attorney fees.

Reconsideration denied on respondents cross-appellants' petition; on appellants cross-respondents' petition, reconsideration granted, former opinion modified and adhered to as modified.