Varde v. Run! Day Camp for Dogs, LLC

• Decision Date: 18 February 2021
• Docket Number: A168924
• Citation: 309 Or.App. 387,482 P.3d 795
• Parties: James VARDE, Plaintiff-Appellant, v. RUN! DAY CAMP FOR DOGS, LLC, an Oregon limited liability company; and Erica Ochs, Defendants-Respondents.
• Court: Oregon Court of Appeals

309 Or.App. 387

482 P.3d 795

James VARDE, Plaintiff-Appellant,

v.RUN! DAY CAMP FOR DOGS, LLC, an Oregon limited liability company; and Erica Ochs, Defendants-Respondents.

A168924

Court of Appeals of Oregon.

Argued and submitted February 25, 2020.

February 18, 2021

George W. Kelly argued the cause and filed the brief for appellant.

John D. Ostrander, and Elliot, Ostrander & Preston, P. C., filed the brief for respondents.

Before Lagesen, Presiding Judge, and Powers, Judge, and Kamins, Judge.

POWERS, J.

In this appeal, which arises out of a dispute about whether plaintiff was underpaid or overpaid for work performed, the threshold question is whether we have appellate jurisdiction. In the underlying proceeding, the parties executed an agreement after a judicial settlement conference that required, in part, plaintiff to make monthly payments to defendants.¹ The settlement agreement further provided that, if plaintiff failed to timely pay, defendants would be entitled to file and execute a stipulated general judgment and money award that was attached to the agreement as an exhibit. Plaintiff failed to make timely payments, and the trial court—at defendants’ request and over plaintiff's objection—entered the stipulated general judgment as contemplated by the settlement agreement. Plaintiff now appeals from that stipulated judgment, which awarded $80,000 in damages to defendants, assigning error to the court's entry of the stipulated judgment, failure to hold a hearing before doing so, and decision to set aside a judgment of dismissal before it entered the stipulated judgment. As explained below, however, we do not have appellate jurisdiction over the stipulated judgment, and we dismiss this case without reaching the merits of plaintiff's arguments.

The relevant facts are mainly procedural and are undisputed. Plaintiff filed a claim for unpaid wages after performing repair work. Defendants answered by denying plaintiff's claims and asserting several counterclaims including fraud and breach of contract. Ultimately, the parties settled their dispute after a judicial settlement conference and entered into a settlement and release agreement that included a provision where plaintiff would pay defendants $15,000 plus interest at a rate of $300 per month to be made on the first of each month. The settlement agreement further provided that, "[i]n the event of failure to timely pay the Settlement Amount, [plaintiff] shall be in default, and [defendants] shall be entitled to file and execute on the Stipulated General Judgment & Money Award."

Both parties signed the agreement, and the trial court entered a general judgment of dismissal.

A few months later, defendants moved to set aside the judgment of dismissal alleging that plaintiff failed to make timely payments. Plaintiff, who was representing himself at the time, responded by filing a motion to "have a hearing" so that the court could hear his objection to the motion to set aside the default and to entering the general judgment. Although he admitted that he "was unable to make a payment on time," plaintiff asked the court for a hearing so that he could "provide many more details to support [his] position." Importantly, none of his articulated objections challenged the terms of the settlement agreement. Without a hearing, the court granted defendants’ motion and signed an order setting aside the general judgment of dismissal. The court then entered the stipulated general judgment, and plaintiff initiated this appeal by filing a notice of appeal from that stipulated general judgment.²

On appeal, the parties advance various arguments regarding whether the trial court erred in failing to hold a hearing before it set aside the general judgment of dismissal and before entering the stipulated general judgment. According to plaintiff, a hearing on the motion to set aside "was required because the parties had made opposing factual claims and, unless the court took evidence, there was no way for it to determine which claim to believe." Plaintiff further argues that this case "must be remanded so that the court can take evidence, establish whether plaintiff in fact was late on his payments and, assuming that he was late, determine whether the lateness was waived." (Emphasis omitted.) Defendant remonstrates that "[t]he record, including Plaintiff's admissions, shows that Plaintiff was late on his required monthly payment, and there is no legal excuse for Plaintiff's breach."

Although not raised by the parties, we first consider whether we have jurisdiction over an appeal from a stipulated general judgment. See Concienne v. Asante , 299 Or. App. 490, 497, 450 P.3d 533 (2019), rev. den. , 366 Or. 135, 456 P.3d 646 (2020) (explaining that "we have an independent obligation to consider jurisdictional issues * * * even where the parties have failed to fully explore the issue" (internal quotation marks and citation omitted)). In this case, both parties assert without further explanation that we have jurisdiction under ORS 19.205.³

It is axiomatic—in the non-mathematical sense—that the source of our appellate jurisdiction is statutory. See, e.g. , City of Lowell v. Wilson , 197 Or. App. 291, 296, 105 P.3d 856, rev. den. , 339 Or. 406, 122 P.3d 64 (2005) (so recognizing); Rauda v. Oregon Roses, Inc. , 329 Or. 265, 268, 986 P.2d 1157 (1999) ("An appellate court cannot exercise appellate jurisdiction over an appeal unless a statute authorizes an appeal from the judgment or order that the trial court entered."). Moreover, it is long settled that parties may not create appellate jurisdiction by stipulation. See, e.g. , Brodine v. Employment Exchange, Inc. , 33 Or. App. 237, 240, 576 P.2d 384, rev. den. , 283 Or. 1, 580 P.2d 1030 (1978). Various statutes govern how a party may initiate an appeal and proscribe the requirements for perfecting the appeal. See generally ORS 19.240 - 19.270 (describing requirements for appellate jurisdiction in the Court of Appeals and the Supreme Court). Specific to the circumstances raised in this appeal, ORS 19.245 outlines when a party may appeal from a stipulated judgment:

"(3) A party to a stipulated judgment may appeal from the judgment only if:

"(a) The judgment specifically provides that the party has reserved the right to appellate review of a ruling of the trial court in the cause; and

"(b) The appeal presents a justiciable controversy."

Here, the stipulated judgment does not specifically provide for a reservation of rights to appeal. Accordingly, unless an exception applies, plaintiff may not appeal from the stipulated judgment because he did not reserve his right to do so. Benavente v. Thayer , 285 Or. App. 148, 152 n. 4, 395 P.3d 914 (2017) (recognizing general rule under ORS 19.245(3)(a) ).

There are two exceptions to this general rule prohibiting appeals from stipulated judgments. The first exception is where there are inconsistent terms. That is, a party may assert on appeal that the terms of the stipulated judgment are inconsistent with the stipulation. See id. Plaintiff did not argue to the trial court that the terms of the stipulated judgment were inconsistent with the settlement agreement, and he does not make that argument on appeal.

The second exception to the general rule is a challenge to consent. That is, "the validity of a stipulated judgment can be challenged on appeal on the ground that the party did not consent to it." Hoogendam and Hoogendam , 273 Or. App. 219, 220 n. 1, 359 P.3d 376 (2015) ; see also Brown and Shiban , 155 Or. App. 238, 241, 963 P.2d 105 (1998), rev. den. , 328 Or. 594, 987 P.2d 514 (1999) ("[T]he prerequisite to application of [the rule of appealing from stipulated judgments] has always been actual consent to the entry of the judgment.").

At first blush, it may seem plausible to conclude that, because plaintiff filed two motions in response to defendant's motion to set aside and subsequently filed an appeal from the stipulated judgment, he raised an argument that he did not "consent" to the entry of the stipulated judgment. Fairly read, however, such an argument does not challenge his consent to the settlement agreement...