Ram Investments v. West Union Development ( 2022 )

419
Argued and submitted February 15; general judgment affirmed, supplemental
judgment reversed and remanded Apri 27, 2022
RAM INVESTMENTS, LLC,
an Oregon limited liability company,
Plaintiff-Appellant,
v.
WEST UNION DEVELOPMENT, LLC,
an Oregon limited liability company;
West Oregon Nursery, Inc.,
an Oregon corporation;
Nish Land, LLC,
an Oregon limited liability company;
and TD Farm, LLC,
an Oregon limited liability company,
Defendants-Respondents.
Washington County Circuit Court
18CV55794; A174427
510 P3d 958
Janelle F. Wipper, Judge.
Edward H. Trompke argued the cause for appellant. Also
on the briefs were Jordan Ramis PC and Christopher K.
Dolan.
Frank J. Godfrey, III argued the cause for respondents.
Also on the brief was Moomaw, Mesirow & Godfrey, LLP.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PER CURIAM
General judgment affirmed; supplemental judgment
reversed and remanded.
420 Ram Investments v. West Union Development
PER CURIAM
In this action to enforce the exercise of an option
to purchase real property, plaintiff appeals from a general
judgment entered in favor of defendants and a supplemental
judgment awarding attorney fees, expenses, and costs and
disbursements to defendants. Plaintiff raises four assign-
ments of error. The first two assignments pertain to the gen-
eral judgment; we reject those assignments without discus-
sion and, therefore, affirm the general judgment. Plaintiff’s
third and fourth assignments pertain to the supplemental
judgment. In those two assignments, plaintiff asserts that
the trial court erred in awarding the amount of attorney
fees it awarded and erred in awarding defendants their
requested litigation expenses and expert witness fee. We
reject without discussion the portion of the third assign-
ment regarding the attorney fees. We conclude that the trial
court erred in awarding the litigation expenses and expert
witness fee on the basis that it awarded them, and we there-
fore reverse and remand the supplemental judgment.
The parties entered into an Agricultural Property
Lease that contains an option to purchase property. The lease
also contains an attorney fee provision that allows the pre-
vailing party in an action arising out of the lease to recover
attorney fees and expenses from the losing party. Plaintiff
filed an action against defendants seeking to enforce the
option to purchase property. Defendants prevailed in the
litigation. The general judgment entered by the trial court
states that “Defendants as prevailing parties, are awarded
their reasonable attorney’s fees, costs and disbursements
against Plaintiff in an amount to be determined by supple-
mental judgment under ORCP 68 C.”
Defendants filed their statement of attorneys’ fees
with exhibits attached, seeking, in part, and as relevant to
this appeal, litigation expenses in the amount of $1,243.751
and an “Appraisal Fee and Expert Witness Fee” in the
amount of $3,000. Plaintiff filed a written objection and dec-
laration of counsel in support of the objection. Defendants
submitted a response to plaintiff’s objection. Neither party
1
The filings indicate that those expenses are defendants’ one-half of the
mediator’s fee from the mediation that the parties engaged in prior to litigation.
Cite as 319 Or App 419 (2022) 421
requested a hearing, and the trial court ruled based on the
parties’ written submissions without providing an expla-
nation for its ruling. The court entered a supplemental
judgment and money award, which included an award for
the mediation expenses and expert fee. As noted, plaintiff
appeals from the supplemental judgment.
On appeal, plaintiff asserts that the mediation
expenses and the expert fee could not be awarded as lit-
igation expenses or costs under Oregon case law, Oregon
statutes, or ORCP 68. Defendants do not dispute that con-
tention; rather, defendants argue that the parties’ lease
provides legal authority for the award. Based on our review
of the record, and considering the arguments made in the
written submissions by the parties below as to the expenses
and fee in question, we do not understand the trial court’s
ruling to be based on an interpretation of a provision in the
parties’ contract. Given the legal arguments made in the
trial court, we agree with plaintiff that the trial court erred
here.2
To the extent that defendants’ reliance on the par-
ties’ lease agreement in support of the trial court’s ruling
might be viewed as an alternate basis on which we could
affirm the trial court’s decision, we conclude that this issue
is not a legal question on which we would exercise our dis-
cretion to affirm on an alternate basis. See Outdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20
P3d 180 (2001) (if “losing party might have created a differ-
ent record below had the prevailing party raised that issue,
and that record could affect the disposition of the issue,
then we will not consider” alternative basis for affirmance)
(emphasis in original)).
Defendants argue on appeal that an award of the
mediation expenses and expert fee is contemplated by the
attorney fee provision in the parties’ lease, which states,
in part, “the losing party shall pay to the prevailing party
its reasonable attorney fees, together with all expenses.”
(Emphasis added.) Therefore, according to defendants, there
2
We note that defendants relied on the lease to support recovery of “reason-
able attorneys’ fees,” but did not specifically invoke the lease as the basis for an
award of the mediation expenses and expert fee.
422 Ram Investments v. West Union Development
is legal support for the award. In plaintiff’s reply brief, it
contends that defendants did not argue below that the lease
allowed them to recover the mediation expenses and expert
fee. Plaintiff also disagrees with defendants’ interpretation
of the term “expenses” in the lease provision, characterizing
it as “aggressive.”
The record might have developed differently below
had defendants relied on the parties’ lease as the basis
on which the mediation expenses and expert fee could be
awarded. Although not presented in a developed argument,
it is evident from the parties’ briefing on appeal that they
disagree as to the meaning of the attorney fee provision in
the lease. There are possible factual issues relating to con-
tract formation and any ambiguity in the contract’s terms.3
See Batzer Construction, Inc. v. Boyer, 204 Or App 309, 315-
17, 129 P3d 773, rev den, 341 Or 366 (2006) (explaining that,
in determining whether a contract term is ambiguous, a
court must consider evidence of the circumstances of con-
tract formation, if provided by the parties). Therefore, we
reverse and remand.4
General judgment affirmed; supplemental judgment
reversed and remanded.
3
We observe that although the lease contains an attorney fee provision pro-
viding for payment of “all expenses,” the lease also contains a mediation provi-
sion that states, in part, that the “cost of mediation must be shared equally by
the parties.” Given our disposition, we need not determine the meaning of the
parties’ contract.
4
We conclude that plaintiff has not obtained a substantial modification of
the judgments on appeal and therefore designate defendants as the prevailing
party on appeal. ORS 20.077(3); ORAP 13.05(3); Village at North Pointe Condo.
Assn. v. Bloedel Constr., 281 Or App 322, 329-31, 383 P3d 409 (2016).