Praggastis v. Clackamas County

• Decision Date: 29 March 1988
• Parties: Kay PRAGGASTIS, Petitioner on review, v. CLACKAMAS COUNTY, a Municipal Corporation, Respondent on review. CC 84-3-107; CA A41362; SC S34531.
• Court: Oregon Supreme Court

Page 302

752 P.2d 302

305 Or. 419

Kay PRAGGASTIS, Petitioner on review, v. CLACKAMAS COUNTY, a Municipal Corporation, Respondent on review.

CC 84-3-107; CA A41362; SC S34531.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 19, 1988.

Decided March 29, 1988.

[305 Or. 420] Cynthia L. Barrett, Portland, argued the cause and filed the petition for petitioner on review.

Miles A. Ward, Asst. County Counsel, Oregon City, argued the cause and filed a response to the petition for respondent on review.

JONES, Justice.

The question we address is whether a county will be protected by judicial immunity Plaintiff alleged that: "Defendant, acting through its agents and employees in the course and scope of their business, entered the decree Dissolving Marriage, but failed to docket the judgment," resulting in financial loss to the plaintiff. The trial court directed a verdict for defendant on the grounds that "[t]he 'Decree Dissolving Marriage' * * * did not constitute a Judgment" and that "Defendant is not liable to plaintiff for damages since all the actions taken by defendant's employees were solely at the direction and instruction of Circuit Court judges, who are immune from liability for acts taken within the scope of their judicial duties and functions; the immunity of the Circuit Court judges extends in this case to defendant's agents and employees." The Court of Appeals affirmed on the ground of judicial immunity. Praggastis v. Clackamas County, 87 Or.App. 378, 742 P.2d 669 (1987). We affirm the decision of the Court of Appeals.

when the county is sued under the Oregon Tort Claims Act (OTCA), ORS 30.260 to 30.300, for the alleged negligence of an employee of the county clerk's office, serving as a clerk of the circuit court, when the clerk does not docket a dissolution decree incorporating a property settlement agreement because of existing instructions from the presiding judge of the county.

FACTS

On June 1, 1979, Circuit Judge Patrick Gilroy signed a decree dissolving the marriage of Kay Praggastis and James Praggastis. The decree contained the following paragraph:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the property settlement agreement entered into by the parties and received into evidence is ratified and confirmed. A copy of the property settlement is attached hereto, incorporated herein, and made a part of this decree. The parties are ordered to comply with its terms."

When the lawyer for Kay Praggastis (plaintiff) presented the decree and the attached property settlement to the County Clerk of Clackamas County on June 4, 1979, the deputy clerk who received the documents stamped "FILED" on the front page of the decree and made some unidentified notation in the Register of Actions. ¹ The deputy clerk did not docket the decree as a judgment in the judgment docket book because she had been instructed to docket only documents which specifically contained language identifying the document as a judgment. ² Plaintiff discovered the absence of a docketed judgment in 1982 when plaintiff sought the assistance of "collection specialists," who discovered that plaintiff's former husband's obligation did not appear on title company abstracts. Plaintiff claims that when plaintiff's former husband filed for bankruptcy in November 1982, his other creditors were able to defeat plaintiff's claim. Husband claimed debts of $11,960,943.50 and assets of $2,400 in the bankruptcy proceedings.

Plaintiff's complaint alleged that defendant's employees negligently failed to docket her dissolution decree as a judgment against her former husband in accordance with ORS 18.320, which provided:

"Immediately after the entry of judgment in any action the clerk shall docket the same in the judgment docket, noting thereon the day, hour and minute of such docketing. * * * "

Plaintiff alleged that as a consequence of this failure to docket, she was damaged in the amount of $100,000.

At the time the issues in this case arose, official acts of county clerks were governed by the following statutes:

ORS 7.010(1):

"The records of the circuit and county courts include a register, journal, judgment docket, execution docket, fee register, jury register and final record." ³

ORS 7.020:

"The register is a record wherein the clerk or court administrator shall enter, by its title, every action, suit or proceeding commenced in, or transferred or appealed to, the court whereof he is clerk or administrator, according to the date of its commencement, transfer or appeal. And thereafter, until the entry of judgment, he shall note therein, according to the date thereof, the filing or return of any paper or process, or the making of any order, rule or other direction in or concerning such action, suit or proceeding." (Emphasis added.)

ORS 7.030:

"The journal is a record wherein the clerk or court administrator shall enter the proceedings of the court during term time, and such proceedings in vacation as the statutes specially direct." (Emphasis added.)

ORS 7.040(1):

"The judgment docket is a record wherein judgments and decrees are docketed, as provided by statute. The judgment docket shall contain the following information: Judgment debtor; judgment creditor; amount of judgment; date of entry in journal; when docketed; date of appeal; decision on appeal; satisfaction, when entered; other such information as may be deemed necessary." (Emphasis added.)

ORS 18.030:

"All judgments shall be entered by the clerk in the journal. All judgments shall specify clearly the judgment debtor, judgment creditor, the amount to be recovered, the relief granted or other determination of the action. The clerk shall, on the date judgment is entered, mail a copy of the judgment and notice of the date of entry of the judgment to each party who is not in default for failure to The chief circuit court clerk for Clackamas County described the procedure in effect in 1979 for filing dissolution documents:

appear. The clerk also shall make a note in the docket of the mailing. In the entry of all judgments, except judgments by default for want of an answer, the clerk shall be subject to the direction of the court." (Emphasis added.)

"A. The clerk would sort all of the pleadings pertaining to that desk, put them in numerical order, date stamp them, and enter them on the register of action page. Then she would pick out things that needed to be set up, to be set down for hearing and things that needed to be done to go in the judgment docket and they would be docketed in the judgment docket.

"Q. When you use the word register or enter a docket, what steps are you referring to?

"A. The register of actions is a record that we keep of all the pleadings of the case from the time the case was filed until it is terminated or satisfied.

"Q. If a judgment or decree was received by you, would it show up in that entry * * * [o]r register?

"A. Yes it would.

"Q. And how is the judgment docket separate or different from the register of actions?

"(non-responsive answer)

"Q. Why do you keep things separately? Why do you keep a judgment docket record separate from a register of actions?

"A. Because the statute requires that they be docketed on a separate docket, stating a judgment creditor, a judgment debtor, a face amount, interest figure, and a place for satisfaction or any other pertinent information pertaining to that."

The alleged source of plaintiff's harm was the clerk's failure to docket the judgment. Plaintiff argues that ORS 18.320 creates a ministerial duty to docket judgments, which was breached by defendant's employee. Plaintiff argues that because this was a ministerial duty, and because the clerk in question was an employee of the elected county clerk, the doctrine of judicial immunity does not apply.

JUDICIAL IMMUNITY

In 1979, the only statutory direction for entry of judgment or decree proceedings was found in ORS 7.030, directing the clerk to enter the proceedings in the journal. ⁴ ORS 18.320 assumes entry in the journal as a predicate for docketing the judgment. ORS 18.320 directs the clerk to docket the judgment "[i]mmediately after the entry of judgment," which we assume means entry in the journal. As we stated at the outset, the question before the court is not whether a clerk failing to docket a judgment has breached a ministerial duty. The question is whether a clerk who did not docket a decree of dissolution as a judgment in the judgment docket under previous orders from the presiding judge of the court not to do so is protected by judicial immunity. In order to answer that question, we must decide whether the presiding judge had authority to so direct the clerk.

This court has recognized that a clerk who negligently fails to docket a valid judgment has failed to perform a statutorily directed duty, for which the clerk may be liable. Esselstyn v. Casteel, 205 Or. 344, 286 P.2d 665 (1955). Esselstyn involved a divorce decree and involved an allegation that the clerk "failed and neglected to docket the said decree in the judgment docket of Umatilla County at the time it was entered or at any time thereafter." 205 Or. at 349, 286 P.2d 665. In Esselstyn, this court held that, despite the fact that the decree called for a property settlement to be made in installments, it was a judgment entitled to be docketed, and the failure to docket the judgment could have been the cause of the plaintiff's damages; therefore, the court ruled, the plaintiff's complaint should not have been stricken.

Esselstyn, however, does not decide this case. Immunity was not raised as a defense The common law has long recognized that some public officials should be immune from civil actions for some of the actions taken in the execution of their public employment. Judicial immunity has long been a part of the immunities afforded public officials, being mentioned in the Book of Assizes, 27 Edw. III, pl. 18 (1354). The doctrine of immunity for acts performed by a...