dissent">EDMONDS, J.,

dissenting.

What really happened:

Under a 1982 dissolution judgment, husband received the right to payment of $15,000 plus interest from wife. The judgment gave five years for wife to pay the judgment. After the five-year period expired, wife expressed her inability to pay the full amount in one payment, and the parties entered into an agreement regarding how wife would pay the obligation due under the judgment. The only terms of that agreement were that husband would forbear from taking any legal action on the judgment, as long as wife continued to pay on the judgment debt by monthly installments. Thus, in the event wife breached the agreement, husband’s recourse was to enforce the judgment. When the judgment expired, husband could no longer enforce the underlying obligation by operation of law.

What the majority says happened:

In order to hold for husband, the majority finds that the parties created a new obligation arising out of the 1987 discussions that is necessarily in addition to or in substitution of the obligation expressed by the judgment. According to the majority, it is the new obligation that survived the expiration of the judgment and the debt that it reflected. But did the parties do what the majority says that they did?

This matter commenced with the filing by husband of a “petition for supplemental relief.” In his first claim in the petition, husband alleges that the real property awarded to wife as a result of a 1982 dissolution decree is subject to a judgment lien. After giving wife credit for payments made, he alleges that there is owing under the judgment the sum of $14,812, and he requests that the court foreclose the lien by ordering the property sold, and that he be paid the sums owed *422him from the proceeds of the sale. Obviously, husband cannot prevail on his first claim because the judgment hen expired in June, 1992.

In his second claim in the petition, he realleges the facts of the first claim and then alleges:

“7.

“Parties entered into an oral agreement on or about August, 1987, whereby [wife] was to pay the sum of $3,000 in August of 1987, and $500.00 monthly payments thereafter until said lien amount was paid in full, in consideration of [husband] not instituting legal proceedings to collect the lien herein referred to. [Wife] made payments until June 18, 1992, when she refused to make further payments. There is now due and owing the sum of $14,812.28.” (Emphasis supplied.)

As alternative relief, husband requested that he be awarded a judgment against wife for the principal amount of the unpaid judgment with accrued interest, costs and attorney fees.

In the answer to the petition, wife denies that there was an agreement in 1987, alleges that husband had failed to renew the “judgment,” and that the alleged “oral agreement” was in violation of the Statute of Frauds. In reply to the answer, husband alleges:

“1.

“[I]n consideration of [husband] not undertaking legal action to compel sale of the subject property, nor to file a partition suit, nor to undertake modification of the Decree, nor to file any proceedings to enforce payment of a judgment, [wife] did make payments to [husband] on principal and past due and accrued interest.

“2.

“[Husband] relied on the representations of [wife] and did not undertake collection and/or enforcement procedures-, and thereby suffered damages alleged.” (Emphasis supplied.)

It is apparent from the pleadings, that the only obligation in issue is the one reflected by the judgment and that the disagreement between the parties centers on whether there was an agreement in 1987 about how that obligation would be satisfied. At the hearing on the petition, *423there was no contention by either party that a new debt had been created in 1987. Rather, husband contended that he argued to forbear from executing on the judgment and relied to his detriment on wife’s promise to make payments on the original debt — a debt that arose solely from the judgment.

On direct examination, he testified:

“Q Now, after the period of June 18,1982, did you have certain conversations with Ms. DeCair about the unpaid balance?

“A Yes.

“Q And generally did that preface the payments after the five years?

“A In one form or another.

“Q How do you mean that?

“A Well, it was my understanding that I was entitled to force the payment to a legal process and I suggested to her that she pay off the lien from cash reserves, take out a second mortgage and pay off the hen or sell the house and pay off the lien. She indicated to me if there was any way possible, she didn’t want to sell the house, that she couldn’t pay the $15,000 plus the $7,500 accrued interest, and so in lieu of forcing the issue of her selling the house to satisfy the lien, the judgment, we entered into a verbal agreement that included her making substantial and regular periodic payments to me until the total judgment was satisfied.

“Q The total judgment, would that include both the principal and interest?

“A Yes.

«<* * * * *

“Q Now, did you at that particular time agree not to petition the Court that the property he sold or bring any independent proceeding to collect the judgment?

<<* * * * *

“A It was my understanding that I would do nothing to force the issue because it was a separate contract between Dolores and myself.

“Q You did not undertake any type of collection proceedings during that period of time except — at any time so long as you received the payments?

“A That’s correct.” (Emphasis supplied.)

*424On cross-examination, husband testified:

“Q Okay. You didn’t have any conversation with Dolores DeCair about renewing or not renewing the judgment, did you, at that time?

“A Only after the fact.

“Q Okay. In 1992, after June 18, 1992?

“A Yes.

* * * *

“Q And you did not know the fact there was a statute, 18.360, that said you had to renew the judgment after 10 years elapsed?

“A Not at the time.

<<* * * * *

“Q And there was nothing, as I see in any of your letters that you wrote to Dolores DeCair, that said anything about the judgment expiring or the fact that you would not renew it or would not have to renew it, is that true?

“A I made no allegations or reference to that nature.

$ :{<

“Q You are saying the agreement was that she pay $500 a month till the judgment was paid?

“A That was her offer to me, and I accepted that in lieu of proceeding on the foreclosure and disposition of the property. That was to satisfy the lien. It was clearly understood between the two of us that I would not pursue any other collection efforts.

(C$ ‡ ‡ ‡ $

“Q Are you suggesting that you gave up your right to foreclose in consideration for this agreement, is that your position?

“A Very much so, yes.

“ Q I want you to look at the letter you wrote in August of ’87; do you have it in front of you?

“A Yes.

‡ $ ifs

“Q And when you say ‘satisfy the lien,’ you are talking about your lien, are you not?

“A Yes.

*425“Q And when you say ‘force the sale, ’you mean that is a sale of the home property, that you would sell it; is that right?

‘ ‘A If she defaults. ’ ’ (Emphasis supplied.)

After husband finished testifying, wife testified that their agreement was that she would ‘ ‘make the payments till I no longer owed the money.” She agreed that no discussion occurred in 1987 about renewing the judgment, that she assumed that husband would renew the judgment, and that she would continue to owe on it. When he did not renew the judgment, she stopped payments because the obligation under the judgment was no longer legally enforceable. There was no testimony that either party intended that a new debt be created apart from the debt reflected by the original judgment.

The trial court took the matter under advisement. It rendered a letter opinion which reads in part:

“If it was necessary to docket the judgment or the hen, and I am not sure it was, I find that there was an oral contract entered into between the parties and the Respondent agreed to pay on the $15,000 provision in the divorce decree until it was paid in full. If it is necessary in this case to find partial performance under an oral contract to avoid the statute of frauds, I am satisfied that there was such partial performance in this case and that the oral agreement that was made should and ought to be enforced because of the equitable grounds for enforcing the contract and that the Respondent ought to be estopped from asserting such a defense which would constitute an unjust enrichment.”

The majority says:

“The dissent concludes that husband’s own testimony is contrary to the trial court’s finding that the agreement created a new obligation and that husband viewed the judgment lien as the underlying obligation. We disagree with that argument for two reasons. First, as quoted above, husband testified that he considered the agreement to he a ‘separate contract’ from the judgment. Second, and more importantly, the dissent reaches its conclusion only by placing undue emphasis on husband’s use of the words ‘judgment’ and ‘hen’ in his testimony. Husband did make repeated references to wife ‘paying the judgment’ and ‘satisfying the lien’; however, in the light of husband’s pleadings that wife would make payments until the ‘hen amount was paid in full,’ we *426read his testimony as referring to the amount of the judgment or hen.” 131 Or App at 419 n 5. (Emphasis in original.)

If the trial court means that the oral contract entered into created a new obligation, separate or in lieu of the judgment, it’s analysis, like the majority’s, is not supported by the evidentiary record. First, there is no evidence of such an agreement; if there was, wife would be responsible for two obligations between 1987 and 1992 — one under the judgment and a discrete obligation under the “separate contract.” Nor is there any consideration for such an agreement. Second, there is nothing in the pleadings or the evidence to suggest that the parties intended to create a novation or substitute obligation in 1987. Moreover, the majority’s theory that the parties intended to create a new obligation makes no sense when an unpaid obligation, secured by a judgment lien, already existed.

The majority can hang its hat only on the statement by husband that the 1987 agreement “was a separate contract between [wife] and myself.” However, that statement is made in response to a question from counsel about whether husband had “agreed not to petition the Court that the property be sold to bring any independent proceeding to collect the judgment.” (Emphasis supplied.) The “separate contract” refers to husband’s agreement not to pursue collection efforts on the judgment. After 1987, in exchange for payment to be made by wife on the judgment, there is no suggestion in any of the testimony that the parties believed they were creating an additional obligation or a novation, that could be enforced independently ofthe judgment. In 1987, the parties made an agreement, but it was not an agreement to create a new obligation.

This case is resolved by operation of law. In Hovden and Hovden, 104 Or App 514, 802 P2d 89 (1990), we said that ORS 18.360 defines a period during which a judgment and its lien exist, and if the ten-year period for renewal of the judgment has expired, the obligation reflected by the judgment expires also. 104 Or App at 517. Husband cannot recover on an expired obligation, and the trial court erred when it held to the contrary. In that fight, husband bases his claim on an obligation that was legally not in existence after *4271992, and no sleight of hand — rabbit in the hat-trick by the majority can make it viable again.

The trial court also accepted the argument that wife is estopped from asserting a defense that the judgment is unenforceable. Equitable estoppel is a doctrine by which a person may be precluded by his conduct or silence from asserting a right which he otherwise would have had. Marshall v. Wilson, 175 Or 506, 518, 154 P2d 547 (1945). It is not a theory of liability which, in itself, is the basis for a claim. Gillman v. Emel, 89 Or App 153, 156, 747 P2d 390 (1987). In other words, the doctrine cannot be used to create a new obligation between the parties unless there is otherwise the components of a contractual relationship, but it can be used only to preclude wife from asserting her rights under the original judgment. The elements of equitable estoppel are: (1) a false representation; (2) made knowingly or with knowledge of the true facts; (3) at a time when the plaintiff is ignorant of the truth; (4) made with the intent that it be relied or acted on; and (5) reliance on the false representation by the injured party. Earls et ux v. Clarke et al, 223 Or 527, 530-31, 355 P2d 213 (1960).

Wife argues that she did not make any false representations that resulted in husband not renewing the judgment. The record resoundingly supports her argument. There is no evidence that the consideration of the need to renew the judgment was part of the bargain between the parties in 1987. In May, 1992, husband told wife that he would be gone for several months and asked if she intended to make payments on the judgment in his absence. She said that she would continue to make payments on the judgment “so long as she owed the same.” When husband returned from his trip in July or early August, 1992, he learned that no further payments had been made. When he telephoned wife about her failure to make the payments, she informed him that the judgment had expired. These facts do not amount to an estoppel. There is no persuasive evidence that husband relied to his detriment on a false representation by wife that resulted in his failure to renew the judgment.1 Moreover, *428even if equitable relief were available, equity aids the vigilant, not those who sleep on their rights. It should not relieve husband from the consequences of his own neglect in not renewing the judgment.2Churchill v. Meade, 92 Or 626, 637, 182 P 368 (1919).

In summary, the majority’s interpretation of the record in this case is unsupported by the pleadings or the evidence. The majority simply has fashioned what it perceives to be an equitable remedy out of its sympathy for husband’s predicament and has made an agreement for the parties that they did not contemplate. In doing so, it abrogates its responsibility to decide this case based on the facts in the record and the applicable law. When husband failed to renew his judgment, the parties’ 1987 agreement expired as did the debt owed by wife to husband. The “rabbit” (the obligation reflected by the judgment) died in 1992, and the majority is “dead” wrong when it attempts to resurrect it.

I dissent.

Richardson, C. J., and Landau, J., join in this dissent.

The majority implies that husband was not sophisticated enough to understand the legal impact of the word “judgment.” See 131 Or App at 419 n 5. Husband was formerly an assessor for Marion County.

In Shiel v. Breuer, 130 Or App 87, 880 P2d 500 (1994), we held that the husband’s failure to renew a judgment lien against the wife left him with no equitable remedy, despite the fact that the result allowed the wife to keep the entire value of the home. “The judgment lien lapsed because of husband’s neglect; thus, any enrichment of defendants does not rise to the level of ‘unjust.’ ” 130 Or App at 92. Apparently, the majority has a more sympathic view of husband’s plight.

Citation profile

How this case has been treated — in progress