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Onita Pacific Corp. v. Trustees of Charles D. Bronson12/19/1990
COURT OF APPEALS OF OREGON
CA No. A46940
1990.OR.40071 ; 104 Or. App. 696; 803 P.2d 756
December 19, 1990
ONITA PACIFIC CORPORATION, JOHN A. DANTE AND JEANINE DANTE, APPELLANTS - CROSS-RESPONDENTS,
v.
TRUSTEES OF CHARLES D. BRONSON AND WARDE H. ERWIN, RESPONDENTS - CROSS-APPELLANTS, CLYDE PURCELL AND L. A. SWARENS, RESPONDENTS, AND LAWRENCE W. ERWIN, JOHN COMPTON, DOUGLAS K. SIEBERT AND DOROTHY L. SIEBERT AND DOUGLAS CASCADE CORPORATION, DEFENDANTS
Appeal from Circuit Court, Multnomah County. Donald L. Kalberer, Judge. No. A8607 04518.
I. Franklin Hunsaker, Douglas G. Houser, James G. Driscoll, Lisa E. Lear and Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, filed the briefs for appellants - cross-respondents.
James H. Clarke and Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard, Portland, filed the brief for respondents.
Warde H. Erwin, pro se, and Charles C. Erwin, Portland, filed the briefs for respondents - cross-appellants.
Buttler, Presiding Judge, and Warren and Rossman, Judges.
Buttler
Plaintiffs brought this action for reformation of an agreement by which defendants consented to the assignment of a vendee's interest in a land sale contract. In the alternative, they allege that defendants, acting as joint venturers, breached their duty of good faith and fair dealing under the contract, fraudulently or negligently misrepresented their duty to release deeds to lots under the land sale contract and intentionally interfered with plaintiffs' contract with third parties. The reformation action was tried to the court first, after which the court made findings and concluded that plaintiffs were not entitled to reformation. However, no judgment was entered on that claim until the judgment was entered disposing of the rest of the claims.
The court then granted defendants' motion under ORCP 21 A to dismiss plaintiffs' claims for breach of the duty of good faith and fair dealing and for intentional interference with contract. After plaintiffs had presented their evidence to the jury on the remaining claims, the court granted defendants' motions for directed verdict on the claim of fraud and denied their similar motions on the negligent misrepresentation claim. Only the negligent misrepresentation claim was submitted to the jury.
The jury returned a verdict for plaintiffs. The court denied defendants' motions for judgment notwithstanding the verdict but granted their motions for new trial on the ground that it had given an improper damages instruction. Plaintiffs appeal, assigning error to the order granting a new trial; if we affirm that order, they assign error to the judgment dismissing the other claims. They also assign error to the award of attorney fees to defendants on the contract claim. Defendants cross-appeal, assigning error to the court's denial of their motions for a directed verdict and for judgment notwithstanding the verdict on the claim of negligent misrepresentation.
We recite the facts in the light most favorable to
plaintiffs. Brown v. J. C. Penney Co., 297 Or 695, 688 P2d 811 (1984); Jacobs v. Tidewater Barge Lines, 277 Or 809, 562 P2d 545 (1977). In 1973, Camomile sold three parcels of undeveloped land to defendants by a land sale contract (Camomile contract). In January, 1979, defendants sold th
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