Citizens Bank v. Fenn

602 P.2d 305, 43 Or. App. 67, 1979 Ore. App. LEXIS 3358

• Court: Court of Appeals of Oregon
• Decided: November 5, 1979
• Docket: No. L78-1039, CA 13097
• Status: Published

Opinion

BUTTLER, J.

Defendants appeal from a partial summary judgment entered against them. The appeal presents an abstract, academic question, the determination of which would avail defendants nothing. Therefore, we affirm.

Plaintiffs complaint joins nine causes of action against defendants, eight of which seek payment of the unpaid balance alleged to be due under eight separate promissory notes, in which defendant George S. Fenn is the maker, together with attorney’s fees as provided for in each of said notes, and the ninth cause of action is against defendant Frances Fenn, as a guarantor on each of the notes. Each of the defendants filed substantially similar counterclaims for damages in tort arising out of the plaintiff’s having allegedly unlawfully disclosed confidential information concerning defendants’ financial condition; each prays for both compensatory and punitive damages. Defendants asserted nothing by way of set-off or recoupment which could reduce the amounts plaintiff claimed under the notes. See Rogue River Management Co. v. Shaw, 243 Or 54, 411 P2d 440 (1966).

Plaintiff moved for summary judgment. The trial court concluded that there was no genuine issue of a material fact with respect to liability on the notes or the guaranty, or to the principal balances owing under each of the promissory notes, but that there was a genuine issue with respect to attorney’s fees to be allowed plaintiff under each of said notes. Defendants do not dispute those conclusions. The court entered a partial summary judgment (ORS 18.125)¹ for the balance due under each of the eight promissory notes, together with accrued interest, but reserved the issue with respect to attorney’s fees for trial. The judgment, as permitted by the statute, directed that no execution issue on the judgment pending resolution of the defendants’ counterclaims. It further stated, as required by the statute, "No just reason exists for delay”² and directed the entry of the judgment.

In this court defendants do not deny their liability under the notes or the guaranty, or the amounts owing thereunder, but assign error to the trial court’s entering a partial summary judgment on the grounds that: (1) the claim for attorney’s fees under each of the notes is indivisible from the causes of action based upon the notes, and (2) the trial court made no specific findings to support its determination that there was no just reason for delaying the entry of judgment. However, defendants paid the full amount thereof, and a satisfaction has been entered of record. Given this posture of the case, we do not understand how our deciding those questions can be of benefit to defendants.

Assuming, arguendo, that we were to hold that the lartial summary judgment ought not to have been ntered for either or both of the reasons given, defend-nts would not be entitled to restitution from plaintiff ecause they admit both liability on the notes and the mounts owing thereunder. This is not a case where an ppellant pays a judgment pending appeal where lia-ility or the amount of damages is contested, the eversal of which would entitle defendants to restitu-Lon.³ Defendants’ contention that all of the claims, oth plaintiff’s and defendants’, should be resolved efore any judgment is entered⁴ is beside the point ecause they have paid what they admittedly owe, lthough claiming that they have other unrelated auses of action against the plaintiff which could re-ult in a judgment in excess of the amount they owe laintiff. If they prevail on their counterclaims, they dll be entitled to a judgment against plaintiff and lay proceed to execute on that judgment, if necessary.

As things stand, any decision we might make with aspect to either of defendants’ contentions would be bstract or academic because any judgment we could ander would be of no efficacy to defendants. Appellate ourts do not sit to decide such questions.

Affirmed.

1 ORS 18.125 provides:

"(1) When more than one demand for relief is presented in a suit or action, whether as multiple causes of suit or action, counterclaims, cross-claims, or third-party actions or suits, or when multiple parties are involved, the court may direct the entry of a final judgment or decree as to one or more but fewer than all of the causes of suit or action 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 or decree. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the causes of suit or action or the rights and liabilities of fewer than all the parties shall not terminate the proceeding as to any of the causes of suit or action or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment or decree adjudicating all the causes of suit or action and the rights and liabilities of all the parties.

"(2) When the court has ordered a final judgment or decree under the conditions stated in subsection (1) of this section, the court may stay enforcement of that judgment or decree until the entering of a subsequent judgment or judgments or decree or decrees and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment or decree is entered.”

2 A principal function of that determination is to make the partial judgment appealable, ORS 19.010, and normally the question as to the trial court’s determination that there is no just reason for delay is raised by the respondent. This does not mean that there may not be cases where the person against whom the partial judgment is entered may not raise the issue on appeal even though the anomaly exists that the appellant would be appealing from an order which, if he is correct, is not appealable.

3 See Coker & Bellamy v. Richey, 108 Or 479, 484, 217 P 638 (1923), here the court stated:

"When a judgment is vacated after it has been by compulsion paid, the party who was so compelled to pay is entitled to have restored to him all that he lost under the erroneous judgment; and the party to whom such payment was made is obliged to make restoration. The right of restoration is of common law origin and while many of the states have incorporated the right in a statute, it is frequently, if not usually, held that such statutes are merely cumulative * * (Citations omitted.)

4 Defendants apparently contend that ORS 18.100 precludes a partial immary judgment. It does not. That section provides:

"If a counterclaim established at the trial exceeds the plaintiff’s demand so established, judgment for the defendant shall be given for the excess; or if it appears that the defendant is entitled to any other affirmative relief, judgment shall be given accordingly.”