Roe v. Doe

• Decision Date: 07 July 1999
• Parties: John ROE, Respondent, v. Jane DOE, Appellant.
• Court: Oregon Court of Appeals

984 P.2d 344

161 Or. App. 477

John ROE, Respondent, v. Jane DOE, Appellant.

(9608-06568; CA A95997)

Court of Appeals of Oregon.

Argued and Submitted November 30, 1998.

Decided July 7, 1999.

Margaret H. Leek Leiberan, Portland, argued the cause for appellant. With her on the briefs was Leiberan & Gazeley.

Wayne Mackeson, Portland, argued the cause and filed the brief for respondent.

Before De MUNIZ, Presiding Judge, and HASELTON and LINDER, Judges.

HASELTON, J.

Defendant "Jane Doe" appeals from the trial court's order that granted plaintiff "John Roe's" motion for a new trial and set aside a summary judgment it had previously entered for Doe. ORCP 64 C. Doe contends, principally, that the court erred in allowing that relief because the original summary judgment was correct and, thus, was not the product of an "[e]rror in law occurring at the trial and objected to or excepted to by the party making the application." ORCP 64 B(6). We agree with Doe and, consequently, reverse and remand for reinstatement of the original judgment.

This is an action for breach of the terms of a settlement of a prior lawsuit between the parties. In March 1995, Doe brought an action against Roe for tortiously infecting her with herpes. On May 21, 1996, the parties agreed to settle the underlying case before the Multnomah County trial court. In colloquy before the trial court, counsel recited the terms of the settlement:

"The Court record will be sealed as you have it before you, the deposition transcripts will be sealed, the medical records will be sealed, and none of that information will be reopened without an order of the Court for good cause shown.

"The audio tapes will be her personal property.

"There will be a mutual release between [Doe] and [Roe]. The parties agree in that mutual release to release each other of all claims that they have against each other arising out of this matter and that there will be no professional or personal harassment by [Roe] of [Doe]; there will be no professional or personal harassment by [Doe] of [Roe] regarding anything arising out of this lawsuit or their relationship.

"There is no gag order and [Doe] is free to speak to third parties regarding this matter. And specifically, the concern that she had regarding that harassment that we talked about with the Court is if she is asked or discloses to third parties that [Roe] has herpes, that is not harassment, that is a fact, and that was the problem that the word `harassment' brought up in her mind that we discussed with the Court that needed to be clarified on the record.

"* * * * *

"And [Doe] can tell people that [Roe] infected her. That is a fact and that is not part of the gag order.

"* * * * *

"[Doe] can recite her belief that he infected her."

On August 16, 1996, the trial court signed a final judgment that incorporated by reference that oral description of the terms of the settlement agreement. On August 28, 1996, less than two weeks after the entry of the judgment incorporating the settlement, newspapers and broadcast media in the Portland metropolitan area published accounts detailing Doe's allegations against Roe and the settlement. On August 29, 1996, Roe brought this action against Doe for breach of the settlement agreement, alleging that Doe "disclosed sealed or otherwise non-disclosable information to the press and others" and that "[c]ertain disclosures and conduct by the Defendant [were] in breach" of the settlement agreement.

Doe subsequently moved for summary judgment, submitting, inter alia, her own affidavit that acknowledged that she had disclosed information concerning her claims and the settlement to third parties, including press entities, but that indicated that the documents she had disclosed did not include documents sealed pursuant to the settlement agreement. Doe asserted that her disclosures were explicitly permitted under the terms of the settlement and, thus, that there was no breach. Roe opposed summary judgment, submitting his unsigned affidavit in which he recited his subjective understanding that, under the settlement agreement, documents in the tort case were to be sealed and that information in those documents was not to be disclosed to the press. Roe further asserted that such disclosure was "harassment" in breach of the settlement agreement. The trial court granted summary judgment for Doe, determining, in part:

"3. The agreement to seal medical records protected only the actual records, and was not a gag order.

"4. The agreement provided that there was no gag order or limitation on what [Doe] could say; and, in fact, the agreement specifically provided that [Doe] could talk to third parties and tell them of her belief that [Roe] infected her with herpes.

"5. The conduct of [Doe] was not a breach of the agreement or a violation of the court order.

"6. The conduct of [Doe] in telling third parties was not harassment of [Roe] because the agreement specifically allowed [Doe] to do so."

On November 13, 1996, the trial court entered judgment for Doe.

Roe timely moved, pursuant to ORCP 64 C, for a new trial and to set aside the judgment. That motion raised five alternative grounds, but argued, principally, that the nondisclosure provisions of the settlement agreement were ambiguous in several material respects and, consequently, entry of summary judgment represented an "error in law." ORCP 64 B(6). With his memorandum in support of the new trial motion, Roe proffered, for the first time, evidentiary materials substantiating his understanding of the agreement.¹ The trial court allowed the motion for a new trial. In its oral comments, the trial court observed that it was going to allow the motion in order to

"sit down and figure out what the right answer is, or as close to the right answer as I can get, which may not please [Roe's attorney] either, but at least * * *

"* * * * *

"We won't be under the pressure cooker. And I can say, if anyone asks me later, that I went back and looked at every one of the those allegations and I'm still satisfied that third parties still means you can talk to the media.

"* * * * *

"I have an obligation to the court system, if nothing else, and I can't do that and have it done by the [55th day]."

The trial court subsequently entered its order allowing Roe's motion:

"1. Plaintiff's Motion for New Trial is granted, and the Final Money Judgment for defendant entered herein on November 19, 1996 is set aside and vacated;

"2. The court shall reconsider its ruling on defendant's Motion for Summary Judgment in light of the evidence presented by plaintiff in support of his Motion for New Trial, and rule further[.]"

On appeal, ORS 19.205(2)(d),² Doe challenges the trial court's disposition on three grounds: (1) To the extent that the trial court purported to allow the new trial motion merely to obtain more time to consider the merits of the motion, that constituted an abuse of discretion. (2) The trial court erred in denying Doe's motion to strike Roe's evidentiary exhibits that were submitted, for the first time, with Roe's new trial motion. (3) The trial court erred in allowing the new trial motion in that Roe failed to establish any of the bases for that relief. ORCP 64 B(1) to (6); ORCP 64 C.

Doe's first argument is based on the trial court's oral comments following argument on the new trial motion. See 161 Or. App. at 481, 984 P.2d at 346-347. From those comments, Doe interpolates that the trial court's sole reason for setting aside the summary judgment was to give the court more time to review the new trial motion. Doe contends that that is not a permissible ground for granting a new trial under ORCP 64 B, and that the trial court, in so ruling, impermissibly circumscribed and subverted the 55-day limit prescribed in ORCP 64 F.³

The short, and decisive, answer to Doe's argument is that it ignores the explicit language of the trial court's written order. Whatever the court's oral comments, that order was not an "interim" order subject to further consideration. Instead, the order finally and unconditionally granted the motion for a new trial. That writing controls. See, e.g., State v. Swain/Goldsmith, 267 Or. 527, 530, 517 P.2d 684 (1974)

(court's written order controls, not statement made at conclusion of hearing); State v. Jackson, 141 Or. App. 123, 126, 917 P.2d 34 (1996) (written judgment prevails over oral statements by court that underlie judgment). Accordingly, we review the allowance of the new trial to determine whether any of the grounds advanced in support of the motion was well-taken. Williams v. Laurence-David, 271 Or. 712, 718, 534 P.2d 173 (1975); Herrell v. Johnson, 136 Or.App. 68, 72, 899 P.2d 759 (1995).

We proceed to Doe's third assignment of error, which generally challenges the allowance of a new trial as unsupported by any of the grounds identified in ORCP 64 B(1) to (6).⁴ ORCP 64 B reads as follows:

"A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

"B(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial.

"B(2) Misconduct of the jury or prevailing party.

"B(3) Accident or surprise which ordinary prudence could not have guarded against.

"B(4) Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial.

"B(5) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.

"B(6) Error in law occurring at the trial and objected to or excepted to by the party making the application."

ORCP 64 C reads:

"In an action tried without a jury, a former judgment may be set aside and a new trial granted on

...