159
Argued and submitted November 15, 2018, reversed and remanded
December 4, 2019
Daylen LAWRENCE,
Plaintiff-Respondent,
v.
Amber BAILEY,
Defendant-Appellant.
Multnomah County Circuit Court
15CV06417; A164753
454 P3d 16
In this second appeal arising from a binding arbitration award in tort litigation, defendant appeals from both an order denying her relief from a judgment
under ORCP 71 B(1)(e) and the underlying judgment. After the first appeal, and
before the trial court entered a new judgment as instructed on remand, defendant moved for satisfaction of the judgment. The trial court denied defendant’s
motion on the ground that it lacked authority, at that time, to determine whether
defendant had satisfied the judgment. The court then entered a judgment for
plaintiff reflecting the full amount awarded by the arbitrator and stating that
defendant was entitled to a credit for any payments determined to have been
made by defendant’s insurer. Defendant subsequently moved for satisfaction of
that judgment under ORCP 71 B(1)(e), providing evidence that her insurer had
paid the remaining amount due. Plaintiff contested the motion, arguing that
it was an impermissible motion for reconsideration of defendant’s prejudgment
motion for satisfaction. The trial court denied the motion on the basis that it was
an impermissible motion for reconsideration under a local rule. Defendant argues
that the trial court erred in denying her ORCP 71 B(1)(e) motion on that ground.
Held: Defendant’s motion did not seek reconsideration of an earlier ruling. The
motion instead sought the credit to which defendant was entitled by the terms
of the judgment. Accordingly, the trial court erred when it denied defendant’s
motion on that basis.
Reversed and remanded.
Jerome E. LaBarre, Judge.
Jonathan Henderson argued the cause for appellant. Also
on the briefs were Carl R. Rodrigues and Davis Rothwell
Earle & Xóchihua, P. C.
Willard E. Merkel argued the cause for respondent. Also
on the brief was Merkel & Associates.
Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
160 Lawrence v. Bailey
HADLOCK, J. pro tempore.
Reversed and remanded.
Cite as 301 Or App 159 (2019) 161
HADLOCK, J. pro tempore
Defendant moved under ORCP 71 B(1)(e) for relief
from a judgment, contending that the judgment had been
satisfied. The trial court denied the motion on the ground
that it was an impermissible motion for reconsideration.
Defendant appeals from both the underlying judgment and
the order denying her ORCP 71 B(1)(e) motion. For the reasons set out below, we conclude that the trial court erred
when it determined that defendant’s motion impermissibly
sought reconsideration of an earlier ruling. Accordingly, we
reverse and remand.
The pertinent facts are procedural and undisputed.
This is the second appeal arising from tort litigation related
to a motor vehicle accident in which plaintiff was injured.
As we explained in the first appeal, after plaintiff filed a
civil action in circuit court, the parties agreed to submit the
claim to binding arbitration. Lawrence v. Bailey, 279 Or App
356, 357,
379 P3d 863 (2016) (Lawrence I). The arbitrator
ultimately awarded plaintiff a total of $9,074.50, including
$2,324.00 in medical expenses, and stated that it was his
intent that any amount that had been paid by insurance
would be paid only “one time.”
Id. at 358. Following a proceeding to confirm the award, the circuit court entered a
judgment for $6,944.50, reflecting a $2,130.00 credit for
payment that defendant asserted her insurer had made to
plaintiff’s health care providers.
Id. at 359-61. On plaintiff’s
appeal, we held that the arbitration award “recognized that
defendant was entitled to a credit for medical expenses that
she had paid to plaintiff’s health care providers,” although
the arbitrator “did not establish the amount of that credit
anywhere in the award.”
Id. at 362. Because the arbitrator
had not established the amount of the credit to which defendant was entitled, we explained, the circuit court “should
have entered an order and judgment that reflects all that the
arbitrator actually decided and only that—i.e., plaintiff had
damages of $9,074.50 and defendant was entitled to a credit
for medical expenses that her insurer had already paid.”
Id. at 363. We reversed and remanded for entry of a judgment
so stating. In doing so, we observed that processes remained
available for determining the amount of the credit:
162 Lawrence v. Bailey
“To the extent that leaves open the issue of the amount
of credit to which defendant is entitled, satisfaction and
enforceability of the judgment may be affected, and presumably any future dispute as to whether defendant has
satisfied that judgment can be dealt with in the proceedings provided for enforcement of a judgment in a civil proceeding. See ORS 36.715 (judgment confirming an arbitration award may be ‘enforced as any other judgment in a
civil action’).”
Id.
On remand, the parties submitted competing proposed forms of judgment. Before any new judgment was
entered, defendant moved in February 2017 for a satisfaction of judgment, based on her assertions that her insurer
had paid plaintiff’s health care providers $2,130.00 in 2012
and that defendant had subsequently paid the remaining
$6,944.50, which had resulted in entry of a partial satisfaction of judgment in 2015. Defendant accordingly sought
an order recognizing full satisfaction of the judgment. As
authority for that motion, defendant cited former ORS 18.410
(1995), repealed by Or Laws 2003, ch 576, § 580, which she
described as the statute that “sets out the procedure for the
court to determine if a judgment has been satisfied or, if not
satisfied, to determine the payment needed to fully satisfy a
judgment.”
At a March 2017 hearing on defendant’s motion and
the proposed forms of judgment, plaintiff argued that there
could not be “satisfaction of a judgment that hasn’t been
entered.” Plaintiff also pointed out that former ORS 18.410
(1995) had been repealed. In addition, she asserted that the
attachments to defendant’s motion (which consisted largely
of correspondence between the parties’ lawyers) did not
amount to evidence of the amount that defendant’s insurer
had paid. The trial court denied defendant’s motion and ultimately, in keeping with our holding in Lawrence I, entered
a judgment that included a money award in the amount of
$9,074.50 and stated that defendant “shall be entitled to a
credit against said judgment in a sum equal to the amount
to be determined to have been paid by her insurer … in
reimbursement for medical expenses.”
Cite as 301 Or App 159 (2019) 163
At the end of the hearing, defendant sought to clarify the reason that the trial court was denying her motion
for satisfaction of judgment and, in doing so, expressed her
understanding that the “motion for satisfaction of judgment
under the current procedural posture of this case is denied.”
(Emphasis added.) The trial court stated, “That’s correct.”
The court added that it was denying the motion “for a host of
reasons, including what’s in the language of the opinion”—
apparently referring to Lawrence I, which the parties and
court had been discussing—“and the function of the Court
at this time under Oregon law.” (Emphasis added.) Thus, the
court appears to have believed that Lawrence I limited its
authority, at that time, to entering the judgment and that
it could not then also enter a satisfaction of judgment. The
court entered the judgment in March 2017.
Defendant filed a notice of appeal from that judgment and, in May 2017, moved for relief from the judgment
under ORCP 71 B(1)(e) on the ground that the judgment
had been satisfied.1 Defendant supported her ORCP 71
B(1)(e) motion with evidence, including a copy of the check that
had been tendered by defendant’s insurer and endorsed by
plaintiff’s health care provider. Plaintiff opposed the motion
solely on the ground that it was an impermissible motion for
reconsideration and therefore prohibited under Multnomah
County Supplementary Local Rule (SLR) 5.045(1), which
provides, in part: “No Motion for Reconsideration on any
pre-trial, trial, or post-trial civil or criminal matter shall be
heard, reviewed, or considered by any judge ….” Plaintiff
1
ORCP 71 B allows for a motion under that section to be filed while an appeal
is pending and it provides, in pertinent part:
“B(1) … 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: … (e) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have
prospective application. …
“B(2) … A motion under sections A or B may be filed with and decided
by the trial court during the time an appeal from a judgment is pending
before an appellate court. The moving party shall serve a copy of the motion
on the appellate court. The moving party shall file a copy of the trial court’s
order in the appellate court within seven days of the date of the trial court
order. Any necessary modification of the appeal required by the court order
shall be pursuant to rule of the appellate court.”
164 Lawrence v. Bailey
asserted that the trial court, having previously rejected
defendant’s February 2017 motion for satisfaction of judgment, had no authority to reconsider that ruling. In reply,
defendant asserted that her ORCP 71 B(1)(e) motion was
not a motion for reconsideration. Even if it was, however,
defendant argued that it was permissible under Multnomah
County SLR 5.045(2), which states that the general prohibition on motions for reconsideration does not apply “to any
statutory motion to modify, set aside, vacate, suppress, or
rescind.” The trial court heard argument on the motion in
June 2017 and denied the motion “[f]or the reasons set forth
in plaintiff’s memorandum.”
On appeal from the resulting order, defendant
assigns error to the trial court’s denial of her ORCP 71
B(1)(e) motion, reiterating her arguments that the motion
was not barred by Multnomah County SLR 5.045. Plaintiff
makes two arguments in response. First, she contends that
we lack jurisdiction over defendant’s appeal from the trial
court’s post-judgment order denying defendant’s ORCP 71
B(1)(e) motion because that order did not “affect[ ] a substantial right” of defendant so as to make it appealable under
ORS 19.205(3). Second, plaintiff argues that, if we do have
jurisdiction, we should affirm on the ground that the trial
court correctly determined that defendant’s ORCP 71 B(1)(e)
motion was a motion for reconsideration disallowed under
Multnomah County SLR 5.045 because the ORCP 71 B
motion sought relief identical to that which defendant had
sought in her earlier motion for an order reflecting satisfaction of judgment.
We begin by addressing, and rejecting, plaintiff’s
contention that we lack jurisdiction over the appeal from the
post-judgment order denying defendant’s ORCP 71 B(1)(e)
motion. ORS 19.205(3) provides that an order that is entered
after a general judgment is entered is appealable if it “affects
a substantial right.” Here, the judgment entered on remand,
in keeping with Lawrence I, observes that defendant “shall
be entitled to a credit against said judgment in a sum equal
to the amount to be determined to have been paid by her
insurer … in reimbursement for medical expenses.” The
trial court’s denial of defendant’s motion for relief from that
judgment essentially denied defendant the credit to which
Cite as 301 Or App 159 (2019) 165
the judgment states that she is entitled, apparently leaving
no further avenue for relief. The order thus affected defendant’s ability to obtain that credit, which is a “substantial
right.”2 See generally Hoddenpyl v. Fiskum,
281 Or App 42,
383 P3d 432 (2016) (post-judgment order denying an ORCP
71 B(1) motion seeking to set aside a default judgment on
ground of excusable neglect was appealable under ORS
19.205(3)); York v. Paakkonen,
259 Or App 276, 278,
313 P3d
332 (2013) (post-judgment order granting motion for entry of
partial satisfaction of judgment was appealable under ORS
19.205(3)). We have jurisdiction over this appeal.
We turn to the merits. As the parties have framed
the issues on appeal, the question before us is whether
the trial court erred when it denied defendant’s ORCP 71
B(1)(e) motion on the sole ground on which plaintiff opposed
the motion, viz., that it was a motion for reconsideration that
Multnomah County SLR 5.045 precluded the court from
considering. We review the trial court’s determination that
defendant’s motion was impermissible under SLR 5.045 for
legal error.
We have addressed the meaning of that SLR once
before. In Brown v. Gatti, 195 Or App 695, 709,
99 P3d 299
(2004), aff’d in part and rev’d in part on other grounds,
341
Or 452,
145 P3d 130 (2006), the defendant had attempted
to subpoena a reporter; the plaintiff moved to quash the
subpoena and the trial court granted that motion. “When
[the] plaintiff subsequently attempted to subpoena the
same [reporter], the trial court apparently treated that act
as an attempt to persuade the court to reconsider quashing
defendant’s earlier subpoena,” and therefore considered the
attempt as impermissible under Multnomah County SLR
5.045(1). Id. at 709-10. We disagreed, holding that the SLR
did not apply because the plaintiff’s action did not ask the
2
In that regard, this case is not like those in which we have held that post-judgment orders did not affect a substantial right because the orders did not
represent a final determination of whether a party was entitled to the relief
requested, but meant only that the party needed to pursue further process. See,
e.g., City of Portland v. Diaz, 289 Or App 361, 364-65,
409 P3d 70 (2017) (order not
appealable under ORS 19.205(3) because it had only a speculative consequence on
the appellant’s ability to obtain a further hearing on whether the appellant was
entitled to the relief he requested).
166 Lawrence v. Bailey
trial court to reconsider the ruling it had previously made
but, rather, made an independent request for relief. Id. at
710. We understand Brown to hold that a motion for reconsideration means, for purposes of the SLR, a motion that
asks the court to reconsider a ruling that it already has
made.
In this case, defendant’s ORCP 71 B(1)(e) motion did
not ask the trial court to reconsider a previous ruling. The
record reflects that, when the trial court denied defendant’s
February 2017 motion for satisfaction of judgment, it did so
based on the procedural posture of the case and its belief
that it lacked authority, following remand in Lawrence I,
to do anything other than enter the judgment that we had
described in that opinion. Nothing in the record suggests
that the trial court ruled that defendant was not entitled
to a credit for the amount paid by her insurer; nor does the
record suggest that the court denied the motion because
defendant cited the wrong statute (former ORS 18.410
(1995)) or because defendant simply had not proved an entitlement to satisfaction. Rather, although the court said that
it was denying the motion for “a host of reasons,” the court’s
stated reasons reflect only its agreement with defendant
that it was denying the motion based on the then-existing
procedural posture of the case and the court’s understanding of its limited function “at this time.” The court did not
reach the merits of defendant’s claim that she had paid the
amount owed to plaintiff.
Thus, when the trial court denied defendant’s
February 2017 motion for satisfaction of judgment, its ruling was that it could then do nothing other than enter the
judgment that Lawrence I required. The court subsequently
entered that judgment, which provided that defendant
“shall be entitled to a credit against said judgment in a sum
equal to the amount to be determined to have been paid by
her insurer … in reimbursement for medical expenses.” In
seeking relief from that judgment under ORCP 71 B(1)(e),
defendant did not ask the court to reconsider the ruling it
previously had made; the ORCP 71 B(1)(e) motion did not
challenge the court’s determination that it lacked authority, months earlier, to determine whether or not defendant
had satisfied that judgment. Rather, the May 2017 ORCP 71
Cite as 301 Or App 159 (2019) 167
B(1)(e) motion sought relief that defendant had not previously
sought, that is, relief from the March 2017 judgment pursuant to its very terms, which acknowledged that defendant is
entitled to a credit for the amount paid by her insurer and
necessarily contemplated that defendant would take some
action to get the benefit of that credit. Accordingly, the trial
court erred in determining that the ORCP 71 B(1)(e) motion
was an impermissible motion for reconsideration under
Multnomah County SLR 5.045, and it erred in denying the
motion on that basis.3 We therefore reverse and remand for
further proceedings on the ORCP 71 B(1)(e) motion.4
Reversed and remanded.
3
Because we conclude that the ORCP 71 B(1)(e) motion was not a motion for
reconsideration, we need not determine whether it would be permissible under
Multnomah County SLR 5.045(2) as a motion to “set aside” or “vacate” even if it
were a motion for reconsideration.
4
On appeal, defendant also asserts that she is entitled to attorney fees under
ORS 18.235(8), which authorizes a court to award reasonable attorney fees when
a judgment creditor has “willfully failed to provide a satisfaction document under
ORS 18.225.” We decline to address that argument, which is premature, given
that the trial court has not yet addressed the merits of defendant’s ORCP 71
B(1)(e) motion, including whether defendant is entitled to a satisfaction of
judgment.
