SERCOMBE, J.
Plaintiffs own a residential lot in a planned community that is regulated by the Oregon Planned Community Act. ORS 94.550-94.783. Plaintiffs brought suit against another lot owner, the Armons, and the homeowners' association for the planned community, the High Lostine Owners' Association (association).
"In reviewing a trial court ruling on a motion to dismiss for failure to state a claim for relief, ORCP 21 A(8), we accept as true all of the allegations and give the nonmoving party the benefit of all favorable inferences that can be drawn from those allegations." American Fed. Teachers v. Oregon
Plaintiffs, in their third amended petition and complaint,
Plaintiffs requested the following relief: (1) an alternative writ of mandamus and permanent writ of mandamus against the homeowners' association to compel it to enforce the CCRs against the Armons; (2) alternatively, a mandatory injunction against the association to compel it to enforce the CCRs against the Armons; (3) a preliminary and permanent injunction restraining the Armons from ongoing violations of the CCRs and enjoining future violations;
The homeowners' association filed motions to dismiss the claims against it for failure to state a claim under ORCP 21 A(8) and ORS 34.170.
At about the same time, defendants Armon moved to strike plaintiffs' claim for injunctive relief and to dismiss or, alternatively, make more definite and certain, plaintiffs' tort claim. The trial court dismissed the claim for injunctive relief and granted the motion to make more definite and certain plaintiffs' tort claim, giving plaintiffs leave to amend the complaint. Plaintiffs, however, stood on their pleading, and the court consequently struck the tort claim from the complaint. The court, having dismissed all claims, entered a general judgment in favor of the Armons and awarded attorney fees to the Armons on the injunction claim.
On appeal, plaintiffs challenge the dismissal of each of their claims. They contend, first, that the writ of mandamus was improperly dismissed because the homeowners' association has a nondiscretionary duty under "ORS 94.550 et seq." to enforce the CCRs against offending homeowners. Moreover, plaintiffs contend that there is no "plain, speedy and adequate remedy in the ordinary course of the law" because actions for damages would require a multiplicity of suits and the only possibility of complete relief is through an action in equity—namely, an injunction. Plaintiffs therefore assert that a writ of mandamus should issue to compel the association to enforce the CCRs against the Armons. Because we conclude that the association has no clear legal duty to perform the act requested, as required for issuance of a writ of mandamus under ORS 34.110, we affirm the trial court's dismissal of plaintiffs' writ. Thus, we need not decide whether plaintiffs have a "plain, speedy and adequate remedy in the ordinary course of the law."
ORS 34.110 provides:
A writ of mandamus is an extraordinary remedy, the primary purpose of which "is to enforce an established right, and to enforce a corresponding imperative duty created or imposed by law." State ex rel. Dewberry v. Kulongoski, 346 Or. 260, 267, 210 P.3d 884 (2009) (internal quotation marks and citations omitted). Mandamus "will never issue unless the duty sought to be enforced is one legally defined. Neither will it issue where there is a plain, speedy, and adequate remedy in the ordinary course of law." State ex rel. Bethke v. Bain, 193 Or. 688, 704-05, 240 P.2d 958 (1952). Although mandamus may compel the exercise of discretion where there is a positive duty to do so, it will not direct the manner in which the discretion will be exercised. State ex rel. Bldg. Council v. Bureau of Labor, 61 Or.App. 22, 29, 656 P.2d 325 (1982). Moreover, mandamus will not lie where there is no duty to exercise discretion in the first instance. Id. (agency commissioner's statutory authority to enforce the wage claim statute was couched in discretionary terms and thus there was no duty to exercise enforcement powers as necessary for issuance of mandamus).
In defending their complaint before the trial court, plaintiffs did not identify any legal duty ("act which the law specially enjoins") requiring the association to enforce the CCRs. In fact, plaintiffs' petition does not allege any statutory duty except to assert that "ORS 94.625 et seq. * * * govern the actions" of the association. On appeal, plaintiffs now cite a number of statutory provisions in the Oregon Planned Community Act, ORS 94.550 to 94.783, that they contend impose
Plaintiffs also cite, both in their petition and on appeal, the CCRs themselves to support the proposition that the association has a legal duty to enforce its provisions. Mandamus is not a vehicle to compel performance of a purely contractual obligation. See Turudic v. Stephens, 176 Or.App. 175, 185, 31 P.3d 465 (2001) (CCRs are contractual); Peterson v. Lewis, 78 Or. 641, 648, 154 P. 101 (1916) ("[S]ince the object of the writ is to enforce duties created by law, it will not lie to enforce private contracts * * *. Where, however, a contract involves an official duty, the rule is otherwise, since that is one of the grounds for the issuance of the writ."). Accordingly, enforcement of the CCRs is not "an act which the law specially enjoins" under ORS 34.110 and, thus, the trial court properly dismissed plaintiffs' writ of mandamus.
Plaintiffs next assign error to the trial court's dismissal of their claim for a mandatory injunction against the homeowners' association. Plaintiffs argue that they have alleged facts that, if true, establish that the association has failed to perform its duty to enforce compliance with the CCRs and that they have no adequate remedy at law. The association responds that it has no legal duty to enforce the CCRs, that plaintiffs suffered no irreparable harm, and that plaintiffs have not specified what enforcement action should be compelled. We agree that the pleading has not properly alleged that the association breached any duty under the CCRs.
"Mandatory injunctions are but rarely issued and should be issued only in extreme cases and where the right to such relief is clear." State ex rel. v. Mart, 135 Or. 603, 613, 295 P. 459 (1931); see also Hickman v. Six Dimen. Cust. Homes, 273 Or. 894, 898, 543 P.2d 1043 (1975) ("Mandatory injunctions are not regarded with judicial favor and are used only with caution and in cases of great necessity."). In order to issue an injunction, the injury for which plaintiff seeks relief must be irreparable, i.e., there must be no adequate remedy at law. Vance v. Ford, 187 Or.App. 412, 420-21, 67 P.3d 412 (2003); see also Wiegand v. West, 73 Or. 249, 254-57, 144 P. 481 (1914) (injunction will not issue where remedy at law is adequate). Moreover, there must be an appreciable threat of continuing harm. Bates v. Motor Vehicles Div., 30 Or.App. 791, 794, 568 P.2d 686 (1977); see also McCombs et al v. McClelland, 223 Or. 475, 485, 354 P.2d 311 (1960) (danger must be probable or threatened).
Thus, a claim for injunctive relief based on a breach of CCRs requires a showing that defendants failed to perform an obligation under the CCRs, that such breach will cause future harm, and that monetary damages
Here, plaintiffs' pleading is deficient. Plaintiffs cite section 12.4 of the CCRs as imposing a duty on the association to enforce the CCRs. That provision simply states that the association and any owner "shall have the right to enforce all of the [CCRs]." It does not describe a duty to do so. Plaintiffs recognize the discretionary character of that authority when they state in their petition, "Pursuant to Section 12.4, the [association] and any owner * * * may take such legal or equitable action necessary and appropriate to compel compliance with the [CCRs]." (Emphasis added.) That provision does not create an enforcement obligation. In the absence of any obligation, plaintiffs did not properly allege grounds for relief against the association in the form of an injunction or otherwise. Thus, the trial court properly dismissed plaintiffs' claim for injunctive relief against the association.
Plaintiffs next assign error to the trial court's dismissal of their claim for a permanent injunction against the Armons to prevent future violations of the CCRs. We agree with plaintiffs that that claim was well pleaded. Our cases recognize that injunctive relief is a remedy for a breach of a CCR. See, e.g., Seagrove Owners Assn. v. Smith, 114 Or.App. 45, 834 P.2d 469 (1992) (affirming injunctive relief for breach of restrictive covenant); Glover, 70 Or.App. at 693-94, 690 P.2d 1083 (same). Again, a claim for injunctive relief based on a breach of CCRs requires a showing that the defendant failed to comply with the CCRs, that that breach will cause future harm, and that monetary damages are an inadequate remedy. Here, plaintiffs alleged that the Armons had violated and continued to violate several specified provisions of the CCRs despite requests to cease their offending activity; that the Armons were obligated to comply with the CCRs; and that plaintiffs had no adequate remedy at law. Taking their allegations as true, together with all favorable inferences, their claim for injunctive relief based on the Armons' breach of the CCRs does state ultimate facts constituting a claim. Thus, the trial court erred in granting the motion to dismiss for failure to state a claim.
Plaintiffs also assign as error the trial court's dismissal of their IIED claim against Lowell Armon. Both parties have assumed that the trial court dismissed plaintiffs' IIED claim for failure to state ultimate facts sufficient to constitute a claim under ORCP 21 A(8), and their arguments on appeal are framed accordingly. However, the record reveals that the trial court in fact struck plaintiffs' claim for failure to amend the complaint after the court had granted the Armons' motion to make more definite and certain under ORCP 21 D. That rule provides that
Plaintiffs were given leave to amend their complaint. Nonetheless, plaintiffs stood on their pleading, believing that the "nature of the charge [was] clear" from the complaint and that the motion was granted in error. As a result, the trial court struck the claim from the complaint "due to plaintiffs' refusal to amend based on the court's grant of leave" to do so. The court subsequently entered a general judgment dismissing the case because there were no remaining claims.
On appeal, plaintiffs do not assign error to the trial court's underlying order granting the motion to make more definite and certain, and thus we express no opinion on its merit. Nor do they properly assign error to the court's order striking the IIED claim for failure to replead. Instead, they argue that the trial court erroneously dismissed their IIED claim for failure to state ultimate facts sufficient to constitute a claim. However, as
Plaintiffs lastly assign as error the trial court's award of attorney fees to the association, its board of directors, and the Armons. A supplemental judgment awarding attorney fees is not valid or appealable where it is predicated on a limited judgment and entered before entry of a general judgment. ORS 18.005(17); Interstate Roofing, Inc. v. Springville Corp., 217 Or.App. 412, 426-27, 177 P.3d 1 (2008), adh'd to as modified on recons, 224 Or.App. 94, 197 P.3d 27 (2008), aff'd in part and rev'd in part on other grounds, 347 Or. 144, 218 P.3d 113 (2009). Here, although the award of attorney fees to the Armons was included in a general judgment, the awards of attorney fees to the association and its board were contained in supplemental judgments entered before the general judgment was rendered. Those supplemental judgments, instead, were predicated on limited judgments. Accordingly, the supplemental judgments awarding attorney fees to the association and its board must be vacated and that portion of the appeal dismissed. In light of our disposition of the other claims, we reverse the award of attorney fees to the Armons.
In sum, the trial court properly dismissed plaintiffs' claims against the homeowner's association and the tort claim against Lowell Armon, but erred in dismissing the claim for injunctive relief against the Armons.
Supplemental judgments vacated; appeal of supplemental judgments dismissed; otherwise affirmed in part, reversed in part, and remanded for further proceedings.