Patrick v. Otteman

CourtCourt of Appeals of Oregon
Citation974 P.2d 217,158 Or.App. 175
Decision Date03 February 1999
PartiesVineta L. PATRICK, as personal representative of the Estate of Ralph E. Patrick, deceased, Appellant--Cross-Respondent, v. Richard Henry OTTEMAN, M.D., Respondent--Cross-Appellant, and Merle West Medical Center, an Oregon corporation, Defendant. 9402629CV; CA A91499.

Robert K. Udziela argued the cause for appellant--cross-respondent. With him on the briefs was Pozzi Wilson Atchison, LLP.

Benjamin M. Bloom argued the cause for respondent--cross-appellant. With him on the briefs was Hornecker, Cowling, Hassen & Heysell, LLP.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and ARMSTRONG, Judge.


Plaintiff appeals, assigning error to the trial court's allowance of defendant Otteman's 1 "Motion to Modify Judgment and Alternative Motion to Reconsider Motion for Entry of Judgment Conforming to ORS 18.560." Plaintiff argues that the court lacked authority to grant that relief because defendant's motion was filed more than 10 days after the entry of final judgment and was not cognizable under ORCP 71 B or ORCP 71 C. Plaintiff's arguments depend on the premise that, under the "seriatim judgment" rule, the judgment entered against defendant on November 14, 1995, was the "final judgment" in this case. Because that premise is wrong, we affirm on the appeal.

Defendant cross-appeals, assigning error to the trial court's denial of his original motion for entry of judgment conforming to ORS 18.560. Because our affirmance on the appeal obviates any consideration of that conditional cross-appeal, we dismiss the cross-appeal as moot.

Because our treatment of the merits is so intertwined with the underlying procedural history, a comprehensive recitation of that history is required: In 1994, plaintiff, as personal representative of her husband's estate, brought a wrongful death action, alleging medical malpractice against defendant and Merle West Medical Center. On July 11, 1995, plaintiff and Merle West executed a stipulation that plaintiff's claims against Merle West would be dismissed without costs and with prejudice. That stipulation was filed with the court.

On July 12, 1995, the trial court judge signed a document denominated "Judgment of Dismissal of Merle West Medical Center." That document stated:

"Pursuant to Stipulation it is hereby

"ORDERED and ADJUDGED that this case is dismissed as to defendant Merle West Medical Center only, without costs and with prejudice."

The executed original of that judgment was filed with the clerk of the court on July 12. 2 On July 14, the clerk made the following entry in the register: "Order Dismissal without costs and with Prejudice." (Emphasis added.)

Plaintiff proceeded to trial against defendant. On November 2, 1995, a jury returned a verdict awarding plaintiff economic damages of $98,694.10 3 and noneconomic damages of $1,150,000. Thereafter, defendant moved for entry of a judgment that would limit the amount of noneconomic damages to $500,000 under ORS 18.560(1). 4 At the time that defendant filed his motion, we had held in Greist v. Phillips, 128 Or.App. 390, 875 P.2d 1199 (1994), and Tenold v. Weyerhaeuser Co., 127 Or.App. 511, 873 P.2d 413 (1994), that the $500,000 "cap" of ORS 18.560(1) was unconstitutional. However, the Supreme Court had accepted review and heard oral argument in Greist, and defendant urged the trial court to disregard our decisions. Plaintiff responded that our decisions were controlling. The trial court did not expressly rule on defendant's motion but, on November 14, 1995, entered judgment for plaintiff for $1,235,059.59, including $1,150,000 in noneconomic damages.

Ten days later, on November 24, 1995, the Supreme Court decided Greist v. Phillips, 322 Or. 281, 906 P.2d 789 (1995), holding that, as applied in wrongful death actions, ORS 18.560(1) constitutionally limits recovery of noneconomic damages.

On November 30, 1995, 16 days after the entry of the judgment, defendant filed a "Motion to Modify Judgment; Alternative Motion to Reconsider Motion for Entry of Judgment Conforming to ORS 18.560" based on Greist. Plaintiff responded, inter alia, that defendant's motion was, in actuality, a belated and untimely motion for new trial or judgment notwithstanding the verdict and, to the extent defendant purported to rely on ORCP 71 B and ORCP 71 C, those provisions did not permit modification of money judgments based on postjudgment changes in substantive law.

On December 13, 1995, the court entered an order granting defendant's motion to modify the judgment, alternatively granting defendant's motion for reconsideration of his motion for entry of judgment conforming to ORS 18.560, and vacating the November 14, 1995, judgment. On the same day, the court entered an Amended Judgment for plaintiff in the amount of $585,842.09. In its underlying opinion, the court stated, "[D]efendant raised the [ORS 18.560] limitation at the appropriate time and * * * the court not only has the authority, but probably a duty, to reconsider its order in view of the Supreme Court's statement of the law in Greist."

On January 11, 1996, plaintiff filed a notice of appeal from the December 13, 1995, Amended Judgment, and on January 22, 1996, defendant filed a cross-appeal from that judgment. 5 On February 14, 1996, this court, on its own motion, issued an "Order Giving Leave Under ORS 19.033(4)," which provided, in part:

"Appellant has appealed and cross-appellant has cross-appealed from a judgment entered on December 13, 1995, which does not determine plaintiff's claims against defendant Merle West Medical Center. It appears from the trial court register that an order of dismissal was entered disposing of that claim and that the order has not been reduced to judgment. Therefore, appellant and cross-appellant have appealed from a nonfinal judgment. ORCP 67A. City of Portland v. Carriage Inn, 296 Or. 191, 673 P.2d 531 (1983); Oregonians Against Trapping v. Martin, 72 Or.App. 210, 695 P.2d 932 (1985).

"The court gives the trial court leave, on motion of any party, to enter a judgment complying with ORCP 67B."

Plaintiff sought reconsideration of that order, asserting that the dismissal of Merle West had, in fact, been reduced to judgment. Plaintiff argued that, notwithstanding the register's reference to "order": (1) the trial court had, in fact, signed a document denominated "judgment" that purported to "adjudge" plaintiff's claims against Merle West; and (2) the entry in the register, however "labeled," corresponded to that event or disposition. In response to those arguments, we issued an order denying reconsideration but clarifying our instructions on remand:

"Although a 'JUDGMENT OF DISMISSAL OF MERLE WEST MEDICAL CENTER' was signed by the trial court judge, the entry in the trial court register describes that document as an 'order' rather than a 'judgment'; thus, the trial court register does not show entry of a judgment disposing of plaintiff's claim against Merle West Medical Center.

"Plaintiff's motion for reconsideration is denied, but the court's previous order is hereby amended to clarify that it is the trial court clerk who is given leave at the direction of the trial court judge to re-enter the judgment of dismissal in the trial court register properly described as a 'judgment'." 6

In November 1996, the trial court, after noting that the court clerk had "mistakenly entered" the "judgment" relating to Merle West as an "order," directed the clerk to "re-enter the Judgment of Dismissal of Merle West Medical Center executed on July 12, 1995 as a 'judgment.' " After the court did so, the parties filed amended notices of appeal and cross-appeal respectively, and the issue is now joined.

Plaintiff asserts that the court erred in entering the December 13, 1995, amended judgment because it lacked authority either to modify the November 14, 1995, judgment pursuant to ORCP 71 B or ORCP 71 C or to reconsider its initial denial of defendant's post-trial motion for entry of judgment in accordance with ORS 18.560(1). Plaintiff's argument, as we understand it, consists of a series of interlocking cumulative propositions: (1) Plaintiff's claims against Merle West were dismissed by judgment on July 14, 1995, notwithstanding the register's description of the disposition as an "order" of dismissal. (2) Consequently, under the "seriatim judgment" rule of State ex rel. Zidell v. Jones, 301 Or. 79, 720 P.2d 350 (1986), the November 14, 1995, judgment against defendant disposed of all remaining claims and, thus, was final and appealable. (3) Because the November 14, 1995, judgment was final, when more than 10 days passed after its entry, ORCP 71 represented the sole means and defined the exclusive grounds, by which the trial court could modify that judgment. (4) Because the grounds for relief specified in ORCP 71 B and ORCP 71 C do not include a subsequent change in substantive law (here, Greist), the court erred in vacating and modifying the November 14 judgment.

We reject plaintiff's first premise. Consequently, the balance of plaintiff's analysis fails.

In Zidell, a mandamus proceeding, the court considered whether, when one judgment dismissed all claims as to some defendants, and a subsequent judgment, without incorporating or referring to the earlier judgment, dismissed all claims as to all remaining defendants, the latter judgment was final even though it did not purport to comport with ORCP 67 B. 7 The court concluded that, in combination with the earlier judgment, the later was final and appealable:

"[T]wo or more documents, when considered together, may constitute a final judgment if they adjudicate every claim presented and determine the rights and liabilities of each party." Zidell, 301 Or. at 98, 720 P.2d 350.

In formulating that "seriatim judgment" rule, the court noted that, because the earlier judgment...

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9 cases
  • Patrick v. State of Oregon
    • United States
    • Court of Appeals of Oregon
    • 14 November 2001
    ...This negligence action arises out of an earlier wrongful death action, which resulted in an appeal to this court. See Patrick v. Otteman, 158 Or.App. 175, 974 P.2d 217, rev. den. 328 Or. 594, 987 P.2d 514 (1999). Plaintiff brought that earlier action as personal representative of her husban......
  • In re Schnitzer
    • United States
    • Court of Appeals of Oregon
    • 3 June 2021 not a mere technicality—it determines when the judgment is final and enforceable. ORS 18.082(1) ;3 see also Patrick v. Otteman , 158 Or. App. 175, 183, 974 P.2d 217, rev. den. , 328 Or. 594, 987 P.2d 514 (1999) (a judgment is ineffective until it is entered in the court register). SB 512......
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    • 3 June 2015 against defendant and obviates the need to decide what is essentially a conditional cross-appeal. See Patrick v. Otteman, 158 Or.App. 175, 188, 974 P.2d 217, rev. den., 328 Or. 594, 987 P.2d 514 (1999) (dismissing conditional cross-appeal as “moot” because the affirmance on the appea......
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