Hooker Creek Companies v. Central Oregon Land Development, Inc., 2016 Ore. App. LEXIS 789

Background

Hooker Creek and Siteworks supplied labor/materials for excavation and paving on a 19.8-acre development; they were owed roughly $56,730 and $87,126 respectively.
Parcel 1 (~3 acres) was owned by COLD; Parcel 2 (remainder) was owned by La Pine; LVCP held a trust deed on the entire 19.8-acre parcel.
Plaintiffs recorded construction liens and sued to foreclose those liens on the whole parcel; LVCP counterclaimed to foreclose its trust deed and asserted plaintiffs’ liens did not extend to Parcel 2.
On summary judgment the trial court ruled plaintiffs’ liens did not apply to Parcel 2 (described in the judgment as “invalid” as to Parcel 2) and ruled Siteworks’ lien had priority over LVCP on Parcel 1; the court later entered a limited judgment foreclosing LVCP’s trust deed.
LVCP sought attorney fees under ORS 87.060(5) as the party that “prevailed on the issues of the validity and foreclosure of the lien” and the trial court awarded $102,210 by a second limited judgment entered before any general judgment.
On appeal the court affirmed the limited foreclosure judgment but concluded the supplemental limited judgment awarding fees was invalid and not appealable; the fee judgment appeal was dismissed and remanded with instructions to vacate that judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in describing plaintiffs’ liens as “invalid” as to Parcel 2	Word choice was incorrect; lien not vitiated by claiming more land than entitled to	Parcel 2 is not subject to plaintiffs’ liens; summary judgment correctly limited liens	Affirmed — no reversible error; characterization didn’t change the ruling that Parcel 2 is not subject to liens and plaintiffs failed to show prejudice
Whether the limited judgment’s apparent dismissal of plaintiffs’ lien claims as to Parcel 2 was effective	Plaintiffs argue the limited judgment cannot dismiss unresolved lien claims	LVCP treated limited judgment as resolving lien scope for Parcel 2	Judgment is a nullity to the extent it purports to conclusively dismiss plaintiffs’ lien claims because those claims were not finally resolved
Whether LVCP was entitled to attorney fees under ORS 87.060(5) based on the summary ruling	Plaintiffs: ruling only limited scope; did not establish LVCP prevailed on validity and foreclosure issues	LVCP: it prevailed on issues of validity and foreclosure for plaintiffs’ liens	Fee entitlement premature — ruling that liens did not extend to Parcel 2 did not establish LVCP prevailed on both validity and foreclosure of the liens; plaintiffs might still prevail; no fee award yet
Whether appellate court should grant leave under ORS 19.270 to permit trial court to re-enter a fee award limited judgment (post-amendment of ORCP 68)	Plaintiffs implicitly oppose allowing a curative procedure	LVCP would benefit from leave to make fee judgment appealable	Court declined to exercise ORS 19.270 leave because fee entitlement is not established on the record; dismissed appeal of fee judgment and remanded to vacate it

Key Cases Cited

Shelter Products v. Steelwood Construction, 257 Or App 382 (supplemental limited judgment awarding attorney fees before general judgment is not valid or appealable)
Lindsay v. The Nicewonger Co., Inc., 203 Or App 750 (dismissal of appeal from invalid limited judgment; remand to vacate)
Bones Construction Co. v. En Stone I, Ltd., 89 Or App 530 (interpretation that ORS 87.060(5) requires prevailing on both validity and foreclosure issues)
HGC Ltd. v. Cascade Pension Trust, 174 Or App 464 (party must prevail on the specific issues enumerated in ORS 87.060(5))
Jackson v. Brown, 116 Or 343 (claiming more land than entitled to does not vitiate a lien)
Erne v. Goshen Veneer, 249 Or 357 (lien may be applied to the area to which it properly applies even if overbroad in description)