Forsi v. Hildahl
| Decision Date | 25 August 2004 |
| Citation | 96 P.3d 852,194 Or.App. 648 |
| Parties | Erica FORSI, Respondent, v. Erin HILDAHL, Appellant. |
| Court | Oregon Court of Appeals |
Julie D. Elkins, Portland, argued the cause for appellant. With her on the brief was Cavanagh & Zipse.
Willard E. Merkel, Portland, argued the cause for respondent. With him on the brief was Merkel & Associates.
Before LANDAU, Presiding Judge, and ARMSTRONG, Judge, and KANTOR, Judge pro tempore.
At issue in this personal injury case is whether the trial court erred in permitting plaintiff to amend her complaint on the day of trial to reduce her prayer for damages from over $27,000 to $5,500. The effect of the amendment was to enable plaintiff later to claim entitlement to attorney fees pursuant to ORS 20.080,1 which permits an award of attorney fees in certain cases in which the amount pleaded is $5,500 or less. We conclude that the trial court did not abuse its discretion in permitting the amendment and therefore affirm.
The facts are not disputed. On May 16, 2001, as plaintiff was riding her bicycle, defendant hit plaintiff with her car. On October 8, 2001, plaintiff served defendant with a demand letter seeking $5,500 in damages. The demand letter stated that, if defendant did not accept that settlement offer, plaintiff would initiate an action for $5,500 in damages and would also seek attorney fees pursuant to ORS 20.080. Defendant's insurance company tendered an offer for $4,462.55, which plaintiff rejected. Plaintiff then initiated this action, seeking damages of $27,012.55.
The action proceeded to mandatory arbitration, and the arbitrator awarded plaintiff $3,178.28. Plaintiff appealed that award, seeking trial de novo in the circuit court. On October 15, 2002, plaintiff sent notice to defendant of her intent to file an amended complaint that reduced the prayer for damages to $5,500 and to seek attorney fees pursuant to ORS 20.080. Plaintiff also made an offer of settlement, for an amount less than $5,500, which defendant rejected.
On October 18, 2002—the day of trial— plaintiff moved for leave to file the amended complaint. Defendant objected, arguing that she would suffer prejudice if plaintiff were permitted to reduce her prayer. According to defendant, had she known earlier that plaintiff intended to "amend down," she could have talked with her insurance company about settling to avoid the possibility of an attorney fee award under ORS 20.080. The trial court initially denied the motion, but it reconsidered midway through the trial and allowed plaintiff to amend.
The jury returned a verdict in plaintiff's favor for $5,500. Plaintiff submitted a request for attorney fees, and the trial court entered judgment for plaintiff, ultimately awarding her $5,500 in damages, $1,192 in costs, and $9,033.50 in attorney fees.
On appeal, defendant argues that the trial court erred in permitting plaintiff to amend her complaint to reduce the amount of damages pleaded so late in the proceeding. She argues that permitting plaintiff to reduce her prayer constituted an abuse of discretion because of "the sudden exposure to attorney fees" and because the court's decision subverted the policy encompassed in ORS 20.080 of encouraging settlements.
Plaintiff responds that the trial court did not abuse its discretion in permitting the amendment, given that the amendment introduced no new element of proof and reduced defendant's potential exposure by over $20,000. Moreover, she argues, permitting the amendment was entirely consistent with the policy of ORS 20.080 to encourage settlements. Plaintiff observes that she provided defendant the opportunity to settle the case for $5,500 several days before trial, when she notified defendant of her intent to reduce her prayer, and over a year before that, when she first sent a demand letter for $5,500.
ORCP 23 A provides that, with leave of the court, a party may amend a pleading after a responsive pleading has been served and that "leave shall be freely given when justice so requires." We review a trial court's ruling on a motion for leave to file an amended complaint for abuse of discretion. Mitchell v. The Timbers, 163 Or.App. 312, 317, 987 P.2d 1236 (1999). The trial court abuses its discretion if it exercises that discretion in a manner that is unjustified by, and clearly against, reason and evidence. Quillen v. Roseburg Forest Products, Inc., 159 Or.App. 6, 10, 976 P.2d 91 (1999). It has been said that the trial court has "ample discretionary authority to allow amendments, provided the proffered amendment does not substantially change the cause of action or interject an entire new element of damage." Cutsforth v. Kinzua Corp., 267 Or. 423, 433-34, 517 P.2d 640 (1973) (citation omitted).
In evaluating whether a trial court abused its discretion in ruling on a motion to amend, we have identified four relevant factors: (1) the proposed amendment's nature and its relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendment; and (4) the colorable merit of the proposed amendment. Safeport, Inc. v. Equipment Roundup & Mfg., 184 Or.App. 690, 699, 60 P.3d 1076 (2002), rev. den., 335 Or. 255, 66 P.3d 1025 (2003). We turn, then, to an evaluation of this case in light of those factors.
First, plaintiff's amendment did not interject a new claim in the litigation. Nor did the amendment alter an element of any existing claim. It required nothing to be proved to the jury that was not already required to be proved. It merely lowered the amount of damages pleaded from $27,012.55 to $5,500.
Second, defendant has failed to identify any prejudice that she suffered as a result of the amendment. To be sure, she does complain about her "sudden exposure to attorney fees." We do not understand how that sudden "exposure" amounts to prejudice, at least not on the facts of this case. She neglects to factor into her prejudice argument the fact that, as a result of the amendment, her potential exposure was reduced by more than $20,000—over twice the amount of any additional exposure in the form of an attorney fee award. Moreover, as we have noted, the amendment did not introduce a new element into the proof of plaintiff's claims or of any defenses to those claims. No additional discovery was required. Defendant was not required to expend any additional effort in responding to plaintiff's proof at trial.
Third, plaintiff did propose her amendment rather late in the proceedings. As noted, however, she...
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