Duvall v. McLeod

¶1dissenting.

¶2At the hearing on defendant’s motion, defense counsel argued that there was no requirement that a responsive pleading be tendered with the motion. When informed by the court that it disagreed and that a responsive pleading was needed to determine “whether or not there’s a good reason” to set aside the judgment, counsel responded that “liability is not an issue. All it [the answer] would indicate, all we would file is a denial on the damage.”1 However, without having before it “a pleading or motion under Rule 21 A which contained an assertion of a claim or defense,” the court stated that it would set aside the judgment if an answer, admitting liability but contesting damages, was filed within 10 days of the hearing.

¶3ORCP 71 B(l) provides, in part:

“On motion and upon such terms as are just, the court may relieve a party or such party’s legal representative from a judgment for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect[.] … A motion for reason[ ] (a) … shall be accompanied by a pleading or motion under Rule 21 A which contains an assertion of a claim or defense. The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) not more than one year after receipt of notice by the moving party of the judgment.” (Emphasis added.)

¶4Despite the plain, mandatory language of ORCP 71 B(1), the majority, relying on the last definition of “accompany” in Webster’s Third New Int’l Dictionary, 12 (unabridged ed 1993),2 concludes that “accompany” means “to exist or occur *696in conjunction or association with.” From that definition, the majority decides that the words “accompanied by” in ORCP 71 B(1) mean that, “[s]o long as the responsive pleading is tendered before the court exercises its discretion, the requirement is satisfied.” 160 Or App at 692.

¶5I disagree. In my view, it is the first definition in the dictionary consulted by the majority that gives the plain, natural and ordinary meaning of the word “accompany.” PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). That definition is “to go with or attend as an associate or companion: go along with.” See n 2. That definition of “accompany” captures a contemporaneous quality. In other words, in plain and ordinary usage, everyone understands that children “shall be accompanied by an adult” does not mean at some time during the relevant period, but at all times.…3 Thus, I would hold that the language “shall be accompanied by a pleading or motion under Rule 21 A” means that the motion and responsive pleading must be tendered contemporaneously to satisfy ORCP 71 B(1). Defendant’s failure here to have tendered a responsive pleading at the same time she filed her motion should have doomed the motion to failure.

¶6I recognize that it is important to give citizens their day in court. However, I find it extremely difficult to understand the necessity of butchering the language of ORCP 71 to approve the procedure countenanced by the trial court here. In my view, a defendant who comes to court asking to have its negligence excused so that it can deprive a plaintiff of a judgment should have “its ducks in order.” What difficulty is there in requiring that a defendant seeking to set aside a judgment follow the law to the letter? What difficulty, or impracticality, is there in requiring, at the time the motion is filed, that a defendant spell out its theory of defense so that the motion can be resolved in one hearing, not a series of hearings? I can think of none.

¶7*697Certainly, hypotheticals can be conjured with various factual equities to test the limits of simply following the plain language of the rule. Be that as it may, I would hold that, in seeking relief from a default judgment, the defense motion “shall be accompanied by a pleading or motion under Rule 21 A, which contains an assertion of a claim or defense” at the time the motion is filed and heard. Failure to tender such a pleading contemporaneously with the motion does not comply with the rule and should result in a denial of the motion.

¶8My disagreement with the majority does not end with its interpretation of the plain language of ORCP 71 B(1). In my view, even under the majority’s definition, the trial court abused its discretion in setting aside the judgment. As the majority points out, former ORS 18.610 is the statutory antecedent to Rule 71 B(1), and judicial decisions applying that statute established the requirement that the demonstration of a meritorious defense is an “important element[ ] to be considered by the trial judge in the exercise of his discretion in granting or denying a motion to vacate a default decree.” Lowe v. Institutional Investors Trust, 270 Or 814, 817, 529 Or P2d 920 (1974).

¶9Here, the trial court pin-ported to exercise its discretion before considering whether defendant had shown a meritorious defense:

“Defense counsel represented that his client did not dispute liability but did dispute damages. The court then ruled orally that it intended to grant the defendant’s motion provided that she filed an answer within 10 days. On October 13, defendant tendered a putative answer that, contrary to counsel’s representation, generally denied plaintiffs allegations.” 160 Or App at 688.

¶10The filing of a meritorious defense is not a mere formality but an important element necessary for the trial court to properly exercise its discretion.

¶11Here, there is nothing in the claims adjuster’s affidavit offered in support of the motion to set aside the judgment challenging the correctness of the damages plaintiff recovered in the judgment. Nor did defense counsel at any point offer any insight into the merits of the challenge to *698plaintiffs damages. In fact, as indicated above, counsel represented to the court that the theory of defense was only a challenge to damages; however, after the court indicated its intention to set aside the judgment, defendant filed an answer contesting both liability and damages. As I read the record, the trial court exercised its discretion based solely on counsel’s representation that only damages were contested. Counsel’s representation and the court’s statement that it would set aside the judgment occurred before any answer was filed.

¶12I disagree with the majority that “all was made right” when the answer was tendered. The answer, in the form of a general denial, provided no more information or insight into the “theory of defense” or why the damages plaintiff obtained were somehow inflated or undeserved, and the trial court never indicated that “now” that the answer was filed it was going through the mental process of deciding whether to set the judgment aside. The reality is that the trial court made its ruling before the answer was tendered and that must necessarily be an abuse of discretion. Accordingly, I would reverse the trial court.

¶13I dissent.