Averill v. Red Lion

Decision Date17 February 1993
Citation846 P.2d 1203,118 Or.App. 298
PartiesAlyse A. AVERILL, Appellant, v. RED LION, a California Limited Partnership, formerly known as R.L. Acquisition Company, Respondent. A8812-06591; CA A65842.
CourtOregon Court of Appeals

Kathryn H. Clarke, Portland, argued the cause for appellant. With her on the briefs were Linda K. Eyerman and Gaylord and Eyerman, Portland.

I. Franklin Hunsaker, Portland, argued the cause for respondent. With him on the briefs were Ronald E. Bailey, Lisa E. Lear and Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland.

Before ROSSMAN, P.J., and DE MUNIZ and LANDAU, * JJ.

LANDAU, Judge.

Plaintiff appeals from a judgment for defendant notwithstanding a jury verdict in plaintiff's favor. She appeals on two grounds. First, she contends that the trial court erred in granting defendant's motion for judgment n.o.v. because the motion was not timely filed. Second, she contends that the court erred in granting the motion because there was evidence to support the jury's verdict in her favor. Defendant cross-assigns as error various trial court rulings related to the timeliness of the motion for judgment n.o.v. We reverse.

We review first the timeliness of the motion. The trial court entered judgment on the verdict for plaintiff on May 4, 1990. Ten days later, defendant delivered a "courtesy copy" of a motion for judgment n.o.v. to the trial judge's secretary and mailed a copy to plaintiff. However, defendant did not deliver the motion to the clerk of the court until a month later, on June 15, 1990. The trial court granted defendant's motion and entered judgment in its favor.

In her opening brief on appeal, plaintiff challenged the timeliness of the filing of defendant's motion, on the ground that defendant failed to deliver the motion to the clerk of the court within 10 days of the entry of judgment for plaintiff. See ORCP 63 D. Defendant then moved in the trial court "pursuant to ORCP 71" for an order modifying the judgment to reflect that its motion for judgment n.o.v. was timely filed. 1 Plaintiff moved for an order setting aside the judgment in favor of defendant.

The trial court denied both motions. With respect to defendant's motion, the court concluded that ORCP 71 did not provide a basis for the relief defendant requested. With respect to plaintiff's motion, the court found that the motion for judgment n.o.v. had not been filed "in a technical sense by the clerk of the court or trial court administrator or entered into the register of [the] court." Nevertheless, it concluded that plaintiff had not been prejudiced and that defendant's delivery of the copy of the motion to the trial court within 10 days constituted a timely filing. Plaintiff filed a supplemental notice of appeal from the order denying her motion. Defendant cross-assigns as error the trial court's denial of its motion.

ORCP 63 D requires that motions for judgment n.o.v. "shall be filed not later than 10 days after the entry of the judgment sought to be set aside." Defendant delivered its motion to the trial court--but not to the clerk of the court--within the 10-day period. The question is whether that delivery constitutes "filing" of the motion. If it does not, then the court lacked authority to grant the motion. State ex rel. State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or. 179, 183, 590 P.2d 231 (1979).

ORCP 9 E provides, in part:

"The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court or the person exercising the duties of that office."

"Filing," in other words, means delivery to the clerk of the court or other person exercising the duties of the clerk of the court. There is no exception for deliveries to the chambers of the trial court judge, the judge's secretary or any other courtroom personnel. If not delivered to the clerk of the court or the person exercising the duties of the clerk of the court, a motion or other pleading has not been "filed."

Defendant's motion was not delivered to the clerk of the court until well after the 10-day deadline had passed. Therefore, the motion for judgment n.o.v. was not timely filed, and the trial court was without authority to grant it.

Defendant argues that the delivery of the copy of its motion to the trial court's secretary should be considered effective filing. In support of that assertion, it cites Charco, Inc. v. Cohn, 242 Or. 566, 411 P.2d 264 (1966), in which the Supreme Court held that delivery of pleadings to an in-court clerk constituted "filing." In that case, however, the in-court clerk was the "deputy county clerk," one of the officers in that county designated for receiving court filings. The trial court's secretary here had no similar authority.

Defendant argues that, in any event, the trial court's secretary should be considered the clerk of the court because she performs some of the functions of the clerk of the court. 2 The argument is without merit. Any number of persons may perform one or more functions that are also performed by the clerk of the court. For example, ORS 8.225(2)(b) provides that one of the functions of the clerk of the court is to "record the proceedings of the court." Under defendant's reasoning, parties could "file" pleadings with a private court reporter hired by one of the parties to prepare a daily transcript of court proceedings. Merely because an individual exercises one or more functions that also happen to be exercised by the clerk of the court does not make that person the clerk of the court.

Defendant further argues that, even if the delivery of the courtesy copy of its motion to the trial court's secretary did not constitute proper filing, the fact that the court granted the motion signified that the court implicitly granted an extension of time within which to file it. The argument cannot be squared with State ex rel. State Farm Mutual Auto. Ins. Co. v. Olsen, supra, in which the Supreme...

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5 cases
  • Weatherspoon v. Allstate Ins. Co.
    • United States
    • Oregon Court of Appeals
    • 12 Mayo 2004
    ...trial court. Dippold v. Cathlamet Timber Co., 98 Or. 183, 188, 193 P. 909 (1920). Defendant relies on our holding in Averill v. Red Lion, 118 Or.App. 298, 846 P.2d 1203, clarified by 120 Or.App. 232, 850 P.2d 1173, rev. den., 317 Or. 271, 858 P.2d 1313 (1993), in support of its argument tha......
  • Duvall v. McLeod
    • United States
    • Oregon Court of Appeals
    • 26 Mayo 1999
    ...that ORCP 15 D does not apply here. None of those reasons withstands scrutiny. First, plaintiff argues that Averill v. Red Lion 118 Or.App. 298, 301, 846 P.2d 1203 (1993), prohibits granting motions to extend time by implication. That generalization is not accurate. Red Lionreaffirmed that ......
  • Unifund CCR Partners v. Kelley, 080710614; A142367.
    • United States
    • Oregon Court of Appeals
    • 29 Diciembre 2010
    ...to file a pleading with the clerk of the court creates a subject matter jurisdictional problem, plaintiff relies on Averill v. Red Lion, 118 Or.App. 298, 846 P.2d 1203 (1993). We are not persuaded. In Averill, we did not address whether the failure to file a motion with the court creates a ......
  • Averill v. Red Lion
    • United States
    • Oregon Court of Appeals
    • 12 Mayo 1993
    ...for motion. Before ROSSMAN, P.J., and DE MUNIZ and LANDAU, JJ. PER CURIAM Plaintiff requests clarification of our opinion. 118 Or.App. 298, 846 P.2d 1203 (1993). In that opinion, we reversed and remanded "for entry of judgment on the verdict" in plaintiff's favor. Plaintiff points out that ......
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