Much v. Doe
| Decision Date | 26 May 2021 |
| Docket Number | A168009 |
| Citation | 311 Or.App. 652,493 P.3d 38 |
| Court | Oregon Court of Appeals |
| Parties | Linda MUCH, Plaintiff-Appellant, v. Jane DOE, an unknown party, Defendant, and Fred Meyer Stores, Inc., a foreign corporation, Defendant-Respondent. |
Joshua B. Lay-Perez, Salem, argued the cause and filed the briefs for appellant.
Megan J. Crowhurst, Portland, argued the cause for respondent. Also on the brief were Francis T. Barnwell and Kalia J. Walker.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
Plaintiff brought a wage claim against defendant Fred Meyer and obtained a default judgment after defendant failed to appear. Plaintiff appeals an order of the trial court granting defendant's motion for relief from the default judgment on the ground of mistake, inadvertence, or excusable neglect. ORCP 71 B(1)(a).1 For the reasons explained below, we reject plaintiff's assignments of error and affirm the trial court.
In support of defendant's contention that its failure to appear was the result of mistake, inadvertence, or excusable neglect, defendant offered the declarations of members of its legal staff explaining that, in the lengthy process of routing notice of plaintiff's action to the correct legal department, defendant's staff neglected to forward a copy of the summons and complaint. The trial court held a hearing on the motion and granted it, concluding:
Plaintiff's first assignment on appeal asserts:
"The trial court erred as a matter of law in considering declarations and attached exhibits that was [sic ] not under penalty of perjury as required by ORCP 1 E,2 OEC 603, and ORS 153.080, in setting aside the order of default.
Defendant responds that the asserted claim of error is not preserved or properly before the court, and we agree.
Preliminarily, we note that plaintiff's assignment of error is not directed to any ruling of the court and therefore is not a proper assignment. ORAP 5.45(3) (). As we said in Village at North Pointe Condo. Assn. v. Bloedel Const. , 278 Or. App. 354, 359, 374 P.3d 978, adh'd to on recons , 281 Or. App. 322, 383 P.3d 409 (2016), "[c]ompliance with ORAP 5.45 is not a matter of mere form; it is crucial to our ability to review trial court rulings for error and to determine whether the appellant's claims of error were preserved." A court's consideration of declarations submitted with a motion brought under ORCP 71 B(1) is not a "ruling." An appropriate assignment might have been that the court erred in denying at the ORCP 71 hearing an oral motion that plaintiff made to strike the declarations, which would have highlighted the fact that the court did not rule on plaintiff's oral motion, explaining, perhaps, why plaintiff chose to assign error in the manner that she did.
Contrary to the dissent's assumption, plaintiff's argument in support of her assignment of error—viz ., that the court erred in admitting the declarations—is not an assignment of error. Assuming, however, that plaintiff's briefing is sufficient to apprise us of the ruling being challenged on appeal, we reject plaintiff's assignment, either because it is not preserved or because it does not constitute error.
In the trial court, plaintiff first mentioned the omission from the declarations of the "penalty for perjury" clause in a footnote on the thirteenth page of her sur-reply memorandum, without argument.3 Then, at the hearing on defendant's motion to set aside the judgment, plaintiff made an oral motion to strike the declarations as "inadmissible and void for failing to be under penalty of perjury as required under ORCP 1 E," again without argument.
The trial court did not rule on plaintiff's oral motion, nor was it required to do so. That is because the court did not have a proper motion before it. ORCP 14 provides:
A motion, other than one made at trial, must be in writing. The footnote in plaintiff's sur-reply memorandum was not a motion; and plaintiff's motion made at the hearing, which was not a trial or a trial-like proceeding, was not in writing. The written declarations submitted by defendant with its motion under ORCP 71 B(1)(a) were a part of the trial court's record. Had plaintiff wished the court not to consider the written declarations, she should have filed a written motion to strike them on which the court would then have ruled. Had the court been presented with a proper motion, it could have directed defendant to correct the declarations to include the missing "penalty of perjury" clause or could at least have given defendant the opportunity to do that. We agree with defendant that plaintiff's footnote in her hearing memorandum or her oral motion to the court did not constitute a written motion or preserve the objection for appeal.
The dissent proposes that plaintiff's oral motion was like an objection made at trial to the admission of evidence which, apparently, we should treat as having been implicitly overruled. But a hearing under ORCP 71 B to set aside a judgment is not a trial. Like a motion for summary judgment or the many other pre- and post-trial motions, a motion under ORCP 71 is typically addressed to the court through written submissions, including affidavits and declarations. Those declarations and affidavits become a part of the record when submitted. A court may allow a hearing to permit the parties to make legal arguments on whether the court should grant the pending motion in light of the facts contained in the submitted declarations. But a party seeking to take issue with submitted declarations should file a motion to strike or exclude them, which, under ORCP 14, must be in writing,4 unless excused by the trial court.
It is true, as the dissent points out, that when courts allow a hearing under ORCP 71 B(1), they sometimes do exercise their discretion to allow parties to submit evidence at the hearing, including testimony. When a court holds an evidentiary hearing, we would agree that, in that respect, the hearing would be sufficiently similar to a trial to permit the court, within its discretion, to allow the parties to object to evidence without filing a written motion. But that is not what happened here. The parties did not seek to submit evidence at the hearing; the only "evidence" before the court were the declarations submitted in support of and in opposition to defendant's motion. Those declarations were in the trial court's record. If plaintiff wished the court not to consider them, she should have filed a written motion to strike them. Plaintiff having failed to submit a written motion, there could be no error in failing to strike the declarations. Because the declarations were not stricken, they were a part of the record that the court could consider in ruling on defendant's motion under ORCP 71 B. We therefore reject plaintiff's first assignment of error.
Plaintiff contends in her third assignment that the court erred in failing to reject defendant's motion outright because defendant did not simultaneously tender a responsive pleading with its motion, as required by ORCP 71 B ("A motion for reasons (a), (b), and (c) shall be accompanied by a pleading or motion under Rule 21A which contains an assertion of a claim or defense."); Duvall v. McLeod , 331 Or. 675, 677, 21 P.3d 88 (2001) ().
In Dickey v. Rehder , 239 Or. App 253, 244 P.3d 819 (2010), rev den , 349 Or. 664, 249 P.3d 1282 (2011), we explained that the simultaneous responsive pleading is required under ORCP 71 B to assure the court that the party seeking to set aside a default judgment has a meritorious defense. Id. at 259, 244 P.3d 819. But we reasoned in Dickey that ORCP 71 B(1) does not limit a party to only one attempt to file a correct motion and that allowing a party to withdraw a motion and refile it along with a responsive pleading does not undermine the requirements of Duvall "that the party tell the court why it failed to properly respond to the original pleadings and why that matters." Id. at 259, 244 P.3d 819. Thus, we held in Dickey that the trial court did not err in granting the defendant's motion to withdraw an incomplete motion to set aside the judgment and to refile a complete one. Id. at 260, 244 P.3d 819.
We have reviewed the record here. It shows that, although defendant's initial motion did not attach an answer, the court, within its discretion (and before ruling on the motion), allowed defendant to withdraw its motion and refile. It shows also that, at the time that the court ruled on defendant's refiled motion, the court had before it defendant's answer. We conclude that the court did not err in addressing defendant's motion to set aside the judgment.
Finally, in her fourth assignment, plaintiff contends that the record does not support the trial court's grant of defendant's motion to set aside the judgment. Courts liberally construe ORCP 71 B, particularly when the judgment is the result of a default. In re Long , 366 Or. 194, 200, 458 P.3d 688 (2020). The record here supports the court's finding that defendant's default was the result of mistake, inadvertence, or excusable neglect, and we conclude that the court did not abuse its discretion in granting defendant's motion to set aside the judgment.
We reject plaintiff's second assignment of...
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...the declaration. His failure to do so is fatal to any argument that the trial court was prohibited from considering it. Much v. Doe, 311 Or.App. 652, 656, 493 P.3d 38, rev den, 369 Or. 69 (2021) (where omitted the "penalty for perjury" clause, objecting party was required to file a motion t......