Yoshida v. Watson

• Docket Number: A175509
• Decision Date: 16 August 2023
• Citation: 327 Or.App. 475
• Parties: Junki YOSHIDA, an individual, Plaintiff-Appellant, v. Samuel WATSON, an individual; Greensky Collective, LLC, an Oregon limited liability company; Luna Verde, LLC, an Oregon limited liability company; and Jeffrey's Flower & Oil, LLC, an Oregon limited liability company, Defendants-Respondents.
• Court: Oregon Court of Appeals

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327 Or.App. 475

Junki YOSHIDA, an individual, Plaintiff-Appellant, v. Samuel WATSON, an individual; Greensky Collective, LLC, an Oregon limited liability company; Luna Verde, LLC, an Oregon limited liability company; and Jeffrey's Flower & Oil, LLC, an Oregon limited liability company, Defendants-Respondents.

A175509

Court of Appeals of Oregon

August 16, 2023

Argued and submitted March 24, 2023.

Multnomah County Circuit Court 18CV09136 Kathleen M. Dailey Judge.

Keith A. Pitt argued the cause for appellant. Also on the briefs was Slinde Nelson.

Gabriel Aaron Watson argued the cause for respondents. Also on the brief was McKean Smith.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán Judge.

Affirmed.

MOONEY, J Plaintiff appeals from the trial court's post-judgment order that denies plaintiffs motion for entry of partial satisfaction of judgment, grants defendants' motion for entry of satisfaction, declares a deficiency, and awards attorney fees to defendants. The underlying judgment had been entered by stipulation of the parties after settlement of a contentious dispute about a loan between former in-laws. The loan, which was secured by business-related collateral, was made to help fund a marijuana business. Among other things, the stipulated judgment awarded $164,329.10 to plaintiff and ordered "that execution issue for these amounts."

Plaintiff raises three assignments of error. In his first assignment of error, plaintiff argues that defendant's motion was facially deficient under ORS 18.235 and that the trial court erred in awarding fees under ORS 18.235. In his second assignment, plaintiff asserts that the trial court did not retain jurisdiction to adjudicate the motion, given a pending appeal on a separate ruling. Finally, plaintiff asserts that the trial court erred in its "continued misinterpretation" of the stipulated judgment.

We reject the third assignment because it does not comply with ORAP 5.45(3), which requires that "[e]ach assignment of error must identify precisely the legal, procedural, factual, or other ruling that is being challenged." "A failure to comply with ORAP 5.45 generally renders the claim of error unreviewable on appeal." Village at North Pointe Condo. Assn. v. Bloedel Constr., 278 Or.App. 354, 360, 374 P.3d 978, adh'd to as modified on recons, 281 Or.App. 322 (2016). An assignment must do more than challenge a factual finding or legal conclusion of the court, otherwise we are left to "divine * * * what the [appellant] most likely is getting at." Justice and Crum, 265 Or.App. 635, 638 n 1, 337 P.3d 840 (2014) (quoting Association of Unit Owners v. Dunning, 187 Or.App. 595, 605, 69 P.3d 788 (2003)). Assigning error to the "continued misinterpretation" of the stipulated judgment lacks the precision needed for review and, therefore, we will not review that assignment.

For the reasons that follow, we reject the first two assignments as well. We affirm.

We reject plaintiffs request for de novo review without discussion. To the extent that plaintiff argues that the trial court erred in its interpretation of ORS 18.235, we review for legal error. See State v. Kirkpatrick, 302 Or.App. 62, 65, 460 P.3d 114 (2020). As to the award of attorney fees under ORS 20.075(3),^[1] we review for abuse of discretion.

The pertinent facts begin with the court's entry of a Stipulated Judgment awarding plaintiff $164,329.10 and ordering that a Writ of Execution "shall be granted in favor of the [p]laintiff," and allowing "the sheriff of Multnomah County and/or a representative of the Oregon Liquor Control Commission, within ten (10) days from the date of this [j] udgment" to take possession of "the collateral" securing the loan. The judgment also provided that:

"* * * pursuant to the Writ of Execution the sheriff of Multnomah County and/or a representative of the Oregon Liquor Control Commission shall sell all of the Collateral in order to satisfy the entire debt.

"*** [defendants are hereby foreclosed of any right, title and interest in said Collateral."

Plaintiff did not pursue a writ of execution within the 10 days contemplated by the judgment and the sale authorized by the judgment likewise did not occur.

Several months after entry of the stipulated judgment, defendants filed a Motion to Enter Satisfaction of Judgment under ORS 18.235, alleging that plaintiff wrongfully and willfully declined to provide one. ORS 18.235 provides, as relevant:

"(1) A judgment debtor, or a person with an interest in real property against which a judgment lien exists, may move the court for an order declaring that a money award has been satisfied or for a determination of the amount necessary to satisfy the money award, when the person making the motion cannot otherwise obtain a satisfaction document from a judgment creditor.

"(2) Motions under this section shall be filed in the action in which the judgment was entered. All proceedings on the motion shall be conducted as part of the action in which the judgment was entered. An appearance fee may not be charged for filing a motion under this section.

"(3) A motion under this section must include the following information, to the extent known to the person making the motion:

"(a) The date of entry and principal amount of the money award.

"(b) The rate of interest and the date the interest commenced to accrue.

"(c) The date or dates and amounts of any payments on the money award.

"(d) Any amount that the person believes remains to be paid on the money award, including any supporting mathematical calculations.

"(e) Any other information necessary or helpful to the court in making its determination.

"(7) If the court determines that the person making the motion is entitled to relief, the court shall issue an order providing that the money award has been satisfied in full or, if the money award has not been satisfied in full, the specific amount that will satisfy the judgment on a specific date or within a period of time specified in the order.

"(8) If the court finds that the judgment creditor willfully failed to provide a satisfaction document under ORS 18.225, the court may render a supplemental judgment awarding reasonable attorney fees to the person making the motion. The supplemental judgment may provide that the person making the motion may satisfy the judgment by paying such amounts the court determines to be necessary to satisfy the judgment less that sum of money the court awards as attorney fees."

The trial court denied the motion as "premature" and ordered defendants to "use their best efforts to have [p]laintiffs right of ownership of the [collateral] manifested legally." The court found that although defendants had been foreclosed from ownership by the judgment, it was unclear whether "[p]laintiff s failure to exercise his right to have the sheriffs sale should result in [defendants' right to an entry of Satisfaction of Judgment." Plaintiff appealed the denial of that motion even though he prevailed on it, and we affirmed because plaintiff did not challenge the trial court's determination "that defendants were not entitled to have a satisfaction of judgment entered with respect to the stipulated judgment." Yoshida v. Watson, 316 Or.App. 104, 105, 500 P.3d 772 (2021).

While that appeal was still pending, defendants filed a "Supplemental Motion" for entry of satisfaction of judgment. In that motion, defendants argued that plaintiff had the limited right, under the judgment, to seize the collateral within 10 days after entering the judgment. They conceded that if plaintiff could identify collateral that existed within 10 days of the judgment, he was entitled to that collateral, but argued that if plaintiff was unable to identify collateral to which he was entitled, satisfaction should be entered. Plaintiff opposed defendants' supplemental motion and filed his own motion for entry of partial satisfaction and requesting a declaration of deficiency. Plaintiff argued that defendants' improper removal and transfer of the collateral that secured the loan resulted in the judgment remaining unsatisfied, except for $22,376 from collateral he had already received.

On January 22, 2021, the trial court entered the post-judgment order that is the subject of this appeal. Because the parties agreed that the stipulated judgment had been partially satisfied, the court determined the outstanding deficiency and, in a detailed written opinion and order, explained its decision:

"This Court previously held that the [stipulated] Judgment limits Plaintiffs remedy to foreclosure. The Judgment does not, however, further limit the remedy of foreclosure so that the sale of the collateral would satisfy the entire debt regardless of any discrepancy between the sold collateral's value and the money award amount listed in the Judgment. Under Oregon law, the remedy of foreclosure includes the right to enforce a judgment by execution where a judgment includes a money award that the sale of foreclosed property fails to satisfy. ORS 88.060(3). Based on the inclusion of the money award amount in the Judgment and the language used in the foreclosure provision, Plaintiffs exclusive remedy of foreclosure encompasses this right.

"ORS 88.060(3) provides that where a 'judgment includes a money award against the defendants[,]' and the proceeds of a sheriffs sale do not satisfy the judgment, 'the judgment may be enforced by execution as in ordinary cases.' Therefore, the enforcement of a judgment of lien foreclosure includes a right to enforcement by execution if 'the net sale proceeds' do not satisfy the money award in the judgment. The Judgment clearly includes a 'money award' for Plaintiff. The Court held earlier that this money award did not create an award for Plaint

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