YEON STREET PARTNERS, Respondent,
v.
ENVIRONMENTAL CONSULTING SERVICE, Appellant.
9012-07746; CA A69954.
Court of Appeals of Oregon.
Motion to Dismiss Appeal November 14, 1991. Motion to Dismiss Appeal November 27, 1991. Decided April 1, 1992.Jacob Tanzer and Ball, Janik & Novack, Portland, for motion.
William B. Crow and Miller, Nash, Wiener, Hager & Carlsen, Portland, contra.
Before ROSSMAN, P.J., and RIGGS and EDMONDS, JJ.
On Respondent's Motion to Dismiss Appeal November 14, 1991.
On Appellant's Response to Motion to Dismiss Appeal November 27, 1991.
RIGGS, Judge.
Plaintiff (landlord) sought specific performance of an alleged oral modification to a written lease. Landlord obtained a preliminary injunction that required tenant to vacate before trial and required landlord to pay tenant's actual moving expenses. When the case came to trial, the parties agreed that they had presented all of the evidence at the hearing on the preliminary injunction. The court therefore entered judgment granting landlord a permanent injunction on the same terms. Tenant appeals, and landlord moves to dismiss the appeal.
Landlord had purchased the building in which tenant was a commercial tenant. Tenant had leased several offices for 2 years with an option to renew for 2 additional years. Landlord sought to have those offices vacated so that it could relet the entire building to a single tenant. It alleged that tenant had agreed to vacate *478 the offices if landlord promised to provide comparable space for the same price and to pay the moving expenses. Tenant denied the existence of any such agreement but complied with the preliminary injunction and sent an "interim invoice" to landlord for moving expenses, together with a cover letter disclaiming waiver of any rights. Landlord paid the amount invoiced.
Landlord argues first that tenant surrendered its right to appeal by accepting payment for moving expenses. Second, landlord asserts that the case is moot, because tenant has already specifically performed the contract and no issue remains to be contested. It points out that tenant voluntarily dismissed its counterclaim below and seeks no affirmative relief on appeal. Tenant argues that its compliance with the injunction does not amount to acquiescence in the judgment. It did not voluntarily vacate the offices, because it was obeying a court order that it had opposed. It did not "benefit" in any way from the trial court's judgment and should not be construed to have benefitted simply because landlord has reimbursed the out-of-pocket costs of compliance. Tenant argues that the amount that landlord has already remitted is the minimum to which tenant is entitled. It can do no worse on remand, if we reverse.
Tenant did not surrender its right to appeal by complying with the preliminary injunction, even though the final judgment contained precisely the same terms. Compliance with a judgment does not preclude a party from maintaining an appeal, unless it appears that compliance "was voluntary, not coerced, and made with the view of settlement." Diesel Service Unit v. Bonbright, 276 Or. 417, 421, 555 P.2d 452 (1976); see also Housley et ux v. Linnton Plywood Ass'n, 210 Or. 520, 525, 311 P.2d 432 (1957); Cottrell et ux. v. Prier et ux., 191 Or. 571, 231 P.2d 788 (1951). Because an order granting a preliminary injunction is generally not appealable, ORS 19.010; Moran v. Lewis, 274 Or. 631, 633, 547 P.2d 627 (1976), tenant had to vacate the offices or be held in contempt. Therefore, its compliance was neither voluntary nor an attempt to reach a settlement.
Landlord relies on Clackamas Town Center v. Jandel Foods, Inc., 88 Or.App. 72, 744 P.2d 280 (1987), for the proposition that "[a] party cannot simultaneously accept the benefits of a contract and maintain an appeal challenging the validity of that contract." In that case, a landlord filed an FED action to evict the tenant. The tenant tendered to the court the amount alleged to be due as rent. After judgment for the tenant, the tenant moved to disburse the money to the landlord and a stipulation to that effect was entered. The landlord appealed the judgment, but accepted payment of rent while the appeal was pending. We granted tenant's motion to dismiss the appeal. That situation is not this one.
Landlord also argues that tenant "cannot accept the benefits of a judgment and also pursue an appeal which may overthrow the right to those benefits." Bates and Masvidal, 85 Or.App. 614, 616, 737 P.2d 973, rev. den., 304 Or. 186, 743 P.2d 736 (1987) (citing Nickerson v. Nickerson, 296 Or. 516, 520, 678 P.2d 730 (1984)). However,
"if it is possible for an appellant to obtain a more favorable judgment in the appellate court, without the risk of a less favorable judgment from a new trial of the whole case, then the acceptance of what the original judgment gives him does not constitute a waiver or bar to his right of appeal." Gas-Ice Corporation v. Newbern, 263 Or. 227, 235, 501 P.2d 1288 (1972). (Citations omitted.)
A party does not waive its right to appellate review by accepting an amount that is irrevocably conceded by the opposing party as due. Hofer v. Hofer, 244 Or. 88, 94, 415 P.2d 753 (1966). The judgment was rendered precisely as landlord requested. Landlord has not cross-appealed any part of it and has not contested the amount already paid for moving expenses under the judgment. See Hofer v. Hofer, supra, 244 Or. at 96, 415 P.2d 753. Therefore, tenant cannot lose any more than it has already lost if the appeal or a new trial is decided against it.
*479 Landlord also argues that the case is moot, because tenant has already moved, has not claimed additional moving expenses and has not counterclaimed for damages. We are unconvinced that tenant would have no recourse against landlord to recover damages that tenant incurred as a result of complying with the preliminary injunction, should we find the injunction to have been wrongful. See, e.g., ORCP 82 A(1)(a); ORCP 82 B; Pearson v. Sigmund, 263 Or. 626, 630, 503 P.2d 702 (1972). We also cannot predict what collateral consequences tenant might suffer from our refusal to review the judgment of permanent injunction. We therefore deny landlord's motion to dismiss tenant's appeal.
Motion to dismiss denied.