9
Argued and submitted March 11, 2020; on appellants’ appeal of corrected
judgment, affirmed; on cross-appellants’ cross-appeal of corrected judgment,
reversed and remanded; on respondents’ appeal of post-judgment order,
affirmed July 8, 2021
Robert L. MOIR
and Tracy E. Moir,
Plaintiffs-Appellants
Cross-Respondents,
v.
Roman OZERUGA
and Edward Ozeruga,
Defendants-Respondents
Cross-Appellants,
and
URBAN HOUSING DEVELOPMENT, LLC,
an Oregon limited liability company,
Defendant.
Multnomah County Circuit Court
15CV09265; A164566
496 P3d 655
Plaintiffs sued defendants over a series of disputes arising out of an easement along a shared driveway, which ultimately led to two appeals. In the first
appeal, plaintiffs assign error to the trial court’s determination in its original judgment that defendants are entitled to equitable relief on their sixth
counterclaim—a claim against plaintiffs for failure to maintain the easement.
Defendants respond that plaintiffs’ appeal is untimely and cross-appeal the trial
court’s corrected judgment, assigning error to the court’s determination that
both parties were prevailing parties on the sixth counterclaim. In the second
appeal, defendants assign error to a post-judgment order requiring defendants to
install a sign on their property indicating that their entrance gate has a sensor.
Defendants argue that, because plaintiffs transferred ownership of their property into a revocable trust, plaintiffs no longer had standing to enforce the trial
court’s judgment. Held: On the first appeal, the trial court erred in designating
both parties as partial prevailing parties on defendants’ sixth counterclaim. ORS
105.180(2) only allows for one prevailing party per claim. Plaintiffs’ appeal was
untimely because the court awarded equitable relief to defendants in its original judgment and that relief was unchanged in its corrected judgment. On the
second appeal, defendants did not demonstrate that the trial court erred in concluding that plaintiffs, as parties to the judgment, had standing to enforce the
judgment.
On appellants’ appeal of corrected judgment, affirmed. On cross-appellants’
cross-appeal of corrected judgment, reversed and remanded. On respondents’
appeal of post-judgment order, affirmed.
10 Moir v. Ozeruga
Gregory F. Silver, Judge.
Leta Gorman argued the cause for appellants-cross-respondents. Also on the briefs was Gorman Law, LLC.
Terrance J. Slominski argued the cause for respondentscross-appellants. Also on the briefs was David W. Venables.
Before Lagesen, Presiding Judge, and Powers, Judge,
and Kamins, Judge.
LAGESEN, P. J.
On appellants’ appeal of corrected judgment, affirmed.
On cross-appellants’ cross-appeal of corrected judgment,
reversed and remanded. On respondents’ appeal of post-judgment order, affirmed.
Cite as 313 Or App 9 (2021) 11
LAGESEN, P. J.
This set of appeals—consisting of plaintiffs’ appeal
and defendants’ cross-appeal of a corrected general judgment and defendants’ appeal of a post-judgment order—arise
from a dispute about a driveway shared by Tracy Moir and
Robert Moir (plaintiffs) and Roman Ozeruga and Edward
Ozeruga (defendants); one that has become unusually complicated as a procedural matter. For the reasons that follow,
we reverse and remand on the cross-appeal of the corrected
judgment but affirm on the appeals of the corrected judgment and post-judgment order.
Although there are many conflicts in the evidence
about the parties’ underlying driveway dispute, the facts
relevant to the issues on appeal are mostly procedural and
not in dispute. We address separately the corrected judgment and the subsequent post-judgment order.
Corrected general judgment. During the events giving rise to this first appeal, defendants hired contractors to
construct on their property two homes, a garage, and a gate
operated by keypad. Among other activities, those related
to the construction on defendants’ property and defendants’
use of the driveway easement led plaintiffs to sue defendants. Plaintiffs alleged in their complaint that defendants
and their contractors repeatedly trespassed on plaintiffs’
property, blocking access to and damaging plaintiffs’ private
driveway, and damaging plaintiffs’ fence and vehicle. They
brought claims for trespass, nuisance, and negligence, and
sought damages, a declaratory judgment clarifying where
defendants were allowed to construct the gate, and injunctive relief—halting construction of the gate and requiring
defendants’ contractors to park outside of the entrance to
the easement driveway. Defendants counterclaimed that
plaintiffs had interfered with their use of the easement and
their efforts to make repairs on it by, among other things,
ripping up a portion of the pavement and replacing that portion with gravel. They asserted their own claims for declaratory and injunctive relief, damages, nuisance, and negligence. They also alleged, in their sixth counterclaim, that
“plaintiffs breached their statutory duty to maintain the
Easement” by refusing to repair the easement in response
12 Moir v. Ozeruga
to defendants’ written request to do so and, in their seventh,
sought attorney fees.
The legal claims were tried to a jury, which found
that (1) plaintiffs had interfered with defendants’ easement
rights, (2) defendants had not trespassed, (3) both parties
had caused a nuisance, and (4) neither party had been negligent.1 After the jury returned its verdict, the trial court
held a hearing on the parties’ equitable claims, made its
findings in their presence, and issued a general judgment
and money award incorporating the jury verdict and its
own findings in equity. Pertinent to this appeal, the court
granted defendants “judgment on their claims for equitable
relief on their second, fifth and sixth counterclaims.” The
relief on defendants’ sixth counterclaim came in the form of
a requirement that plaintiffs resurface, primarily at their
expense, the portion of the easement that they had ripped
up and replaced with gravel.2 The judgment also stated that
“[t]he terms of section B of this Judgment shall not run with
the land.” (Section B of the judgment addressed the relief
awarded each party on the competing claims for equitable
relief.) The court entered a general judgment on July 26,
2016.
More than seven months later, after the parties filed
various post-judgment motions and the trial court heard
them, the court issued a corrected general judgment and
money award that, in addition to the issues decided in the
first general judgment, provided for prevailing party and
attorney fee awards. Addressing defendants’ sixth counterclaim, the court concluded that plaintiffs prevailed insofar as
the claim alleged a “violation of ORS 105.175(4)(c)” and dismissed “the damages part of the civil action” with prejudice,
1
Plaintiffs received favorable verdicts against Urban Housing Development,
LLC, for trespass, negligence, and nuisance, but Urban Housing is not a party to
these appeals.
2
The court’s judgment specifies that plaintiffs
“are responsible for costs of resurfacing up to $18,575. If the cost of resurfacing exceeds that amount, [plaintiffs] shall present to [defendants], prior to
any resurfacing work, a detailed statement or estimate showing the reasons
for any costs above $18,575. [Defendants] shall pay up to the next $4,925.
[Plaintiffs] shall pay any amount above $23,500.”
The $18,575 figure is the combined jury award for economic damages on defendants’ claim against plaintiffs for interference of easement rights.
Cite as 313 Or App 9 (2021) 13
but the court did not alter its original grant of equitable
relief on the sixth counterclaim. It determined that, under
ORS 105.175(1), “plaintiffs breached their statutory duty
to maintain the easement in repair,” and it maintained its
order to plaintiffs to repave the easement. Based on those
determinations, the court concluded that, on the sixth counterclaim, “each party prevailed on half of the allegations
decided under ORS 105.180.” Upon naming each party a
partial prevailing party, the court awarded $81,000.00 in
attorney fees and costs to plaintiffs and $81,000.00 in attorney fees and costs to defendants. It also granted each party
a partial prevailing party award of $287.50.
Plaintiffs appeal the corrected judgment. In a single assignment of error, they contest the trial court’s determinations that defendants were entitled to equitable relief
under ORS 105.180, and that defendants were partial prevailing parties and therefore entitled to costs and attorney
fees. Defendants respond that plaintiffs’ appeal is untimely
because the court awarded equitable relief on defendants’
sixth counterclaim in the initial judgment and did not alter
that award in the corrected judgment. Defendants also
cross-appeal the corrected judgment, assigning error to the
court’s determination that both parties were prevailing parties for purposes of the sixth counterclaim.
As this appeal has been framed by the parties, the
issues before us involve the scope of our appellate review
authority and the proper designation of the prevailing party
on the sixth counterclaim. The scope of our appellate jurisdiction presents a question of law that we must answer for
ourselves in the first instance; in other words, it is not a
matter of review. ORS 19.270; see also Varde v. Run! Day
Camp For Dogs, LLC, 309 Or App 387, 390-91,
482 P3d 795
(2021). Whether a party is a prevailing party so as to be
entitled to attorney fees is a question of law. Mountain High
Homeowners Assn. v. Jewett,
224 Or App 45, 49,
197 P3d 27
(2008), rev den,
346 Or 65 (2009). Considering the parties’
arguments in view of those standards, on both the appeal
and the cross-appeal, defendants are correct.
With respect to whether we may review plaintiffs’ challenge to the award of equitable relief on the sixth
14 Moir v. Ozeruga
counterclaim, ORS 19.255 provides, in part, that “a notice
of appeal must be served and filed within 30 days after the
judgment appealed from is entered in the register.” In cases
of corrected judgments that affect one or more substantial
rights of a party, that timeline is extended, but only for “the
corrected portions of the judgment and all other portions of
the judgment affected by the correction.” ORS 18.107(3).
Here, neither plaintiffs nor defendants appealed the
trial court’s general judgment, and plaintiffs’ appeal of the
corrected general judgment was filed long after the expiration of the 30-day period for filing a notice of appeal from the
original general judgment. That means that plaintiffs are
limited to challenging the corrected parts of the judgment,
or other parts affected by the corrections.
Plaintiffs’ challenge to the award of equitable relief
does not fall within those limitations. That is, plaintiffs’
assignment of error is predicated on the trial court’s initial judgment awarding equitable relief on defendants’
sixth counterclaim, which is a portion of the judgment that
remained unaffected by the court’s corrected judgment. They
summarize, “The trial court erred when it ruled that defendants were entitled to equitable relief under ORS 105.180(1)
and that, therefore, they were also prevailing parties under
ORS 105.180(2) and entitled to attorneys’ fees, costs, and
a partial prevailing party fee.” But the court’s initial judgment clearly stated, “Ozeruga[s] shall have judgment on
their claims for equitable relief on their second, fifth and
sixth counterclaims[.]” And that equitable relief came in the
form of the court’s order that plaintiffs (using the money that
the jury awarded defendants for plaintiffs’ interference with
easement rights) resurface the portion of the driveway that
they had previously ripped up and replaced with gravel—
relief that remained the same after the corrected judgment.
Plaintiffs acknowledge that the trial court granted
defendants equitable relief and prevailing party status in
its initial judgment but argue in their reply brief that they
are assigning error only to the court’s prevailing party and
attorney fee determinations in the corrected judgment. And
to the extent that plaintiffs’ challenges to the prevailing
party fee and attorney fee determination might not depend
Cite as 313 Or App 9 (2021) 15
on the correctness of the award of equitable relief on the
sixth counterclaim (but instead depend on a corrected portion of the judgment), we agree that we would have jurisdiction to review those contentions. But to the extent that
plaintiffs’ contentions invite us to conclude that the court
erred in awarding equitable relief on the sixth counterclaim
in the unappealed original judgment, under ORS 18.107(3),
plaintiffs’ failure to appeal that judgment precludes us from
reviewing those contentions in the context of this appeal
from the corrected general judgment.
The remaining issue in the appeal of the judgment
is whether the trial court erred when it designated both
plaintiffs and defendants as prevailing parties on the sixth
counterclaim for purposes of the attorney fees authorized
by ORS 105.180(2). Because that designation was one of the
trial court’s corrections, its correctness is properly before us
under ORS 18.107(3).
ORS 105.180(2) provides that, in a civil action to
enforce the maintenance of an easement, “[t]he prevailing party shall recover all court costs, arbitration fees and
attorney fees.” We have held that, generally, “ ‘for purposes of
attorney fees, there can be only one prevailing party under
any statute.’ ” Goodsell v. Eagle-Air Estates Homeowners
Assn., 280 Or App 593, 603,
383 P3d 365 (2016), rev den,
360
Or 752 (2017) (quoting LeBrun v. Cal-Am Properties, Inc.,
197
Or App 177, 186,
106 P3d 647, rev den,
338 Or 488 (2005),
and reasoning that the compulsory fee statute in that case
“contemplates that there is a single prevailing party on each
claim” because the statute allowed recovery for “the” prevailing party). That is, trial courts determine which party
is the prevailing party on a claim-by-claim basis, but there
can only be one prevailing party for each claim. See id.; see
also Lemargie v. Johnson,
212 Or App 451, 454 n 3,
157 P3d
1284 (2007) (“Under ORS 20.077, there can be more than
one prevailing party in actions that involve multiple claims
or counterclaims as in the present matter.”). The trial court,
therefore, legally erred in concluding that all parties were
prevailing parties on the sixth counterclaim, and in awarding offsetting attorney fees to all parties based on that
erroneous determination. We therefore must reverse and
remand the corrected judgment for the trial court to identify
16 Moir v. Ozeruga
who prevailed on the sixth counterclaim and the appropriate award of fees based on that determination.
Appeal of post-judgment order. The second appeal
arises out of a post-judgment order requiring defendants to
install a large metal sign on their property indicating that
their entrance gate has a sensor.
On April 13, 2018, plaintiffs filed a motion to enforce
the corrected judgment, alleging, among other things, that
defendants were improperly using the easement against the
terms of the corrected judgment. Some of plaintiffs’ complaints stemmed from the fact that visitors and delivery
drivers heading to defendants’ property could not tell that
the gate opened by sensor, and so would park on the easement in front of plaintiffs’ home. Defendants responded that
plaintiffs, who had transferred “all of their interest” in their
property into a trust since entry of the corrected judgment,
did not have standing to enforce the judgment because
the relevant terms of the corrected judgment did not run
with the land, and that plaintiffs were otherwise improperly seeking relief outside of the terms of the judgment. At
the hearing on plaintiffs’ motion, the court concluded that
it would not let the change in ownership interfere with its
resolution of the dispute. It reasoned:
“I’m familiar with the trusts that are set up for estate
planning purposes, where the people who were the owners
of land and other things, perhaps, transferred ownership
of real property and often personal property into a trust
that was done for estate planning purposes, and it doesn’t
change anything in terms of the way people live their lives.
…
“I am not one for form over substance. So I’m—while the
trust argument is interesting, and maybe there is a valid
legal argument that everything needs to start over in the
name of the trust. I’m not making … that ruling. I think
what makes the most sense and what is the most expeditious for everyone is to proceed as we are here. …
“…
“So I’m not going to deal with the trust issue today.
We’re simply going to proceed as we have before in the
case. And I think that’s the appropriate way to do it at this
stage.”
Cite as 313 Or App 9 (2021) 17
Ultimately, the court ordered defendants to install a large,
reflective, metal sign on their entrance gate that would
state, “Please pull forward. Gate opens automatically.”
Defendants appeal that order, arguing, as they did
below, that plaintiffs do not have standing to enforce the corrected judgment. Defendants explain that the relevant portion of the corrected general judgment does not run with the
land and, because plaintiffs transferred all of their interest
in their property into a trust, they no longer have standing to enforce the judgment. Plaintiffs respond that they do
have standing because the trust is revocable and they are
its sole trustees. They contend that their status as settlors
of the revocable trust means that they have functionally
remained the owners of the property such that they have
standing to enforce the corrected judgment. Plaintiffs also
argue that the court had authority to issue its order because
it retained jurisdiction over the corrected judgment, and
that defendants cannot contest the order because the order
did not affect a substantial right.
We affirm. We acknowledge that the issue is not
entirely clear, and we hope that it does not become a recurring one, but, in the end, defendants’ arguments do not
convince us that the trial court’s standing determination
is in error. For one, contrary to the apparent premise of
defendants’ standing arguments, the post-judgment order
arose from plaintiffs’ motion to enforce a judgment to which
they are parties, not from a new statutory action to enforce
an easement, and defendants have not fully articulated a
theory as to why a party to a judgment would lose standing to enforce it under the particular circumstances here.
Regardless of the transfer of the property to the revocable
trust, it is undisputed that plaintiffs remain parties to the
judgment and have rights and responsibilities under it. It
is also undisputed that plaintiffs remain in possession of
the property, so they retain some sort of possessory interest in the land in question. Finally, although the trial court
designated that the portion of the judgment addressing the
parties’ equitable obligations to each other did not “run with
the land,” defendants’ arguments essentially called upon
the court to interpret its own judgment, and the court plausibly could have understood its judgment to afford plaintiffs
18 Moir v. Ozeruga
an ongoing interest in its enforcement. That is, the court’s
determination that plaintiffs did not lose standing to enforce
the judgment based simply on the trust transaction is not
one that we are in a position to displace, given the ambiguity of the intentions signaled by the “run with the land”
wording as applied to this particular scenario, and where,
as here, plaintiffs remain in possession of the land. In view
of these converging circumstances, defendants have not convinced us that the trial court erred when it concluded that
plaintiffs had standing to enforce the corrected judgment.
On appellants’ appeal of corrected judgment,
affirmed. On cross-appellants’ cross-appeal of corrected
judgment, reversed and remanded. On respondents’ appeal
of post-judgment order, affirmed.
