Much v. Doe

                                        652

          Argued and submitted June 15, 2020, affirmed May 26, 2021


                            Linda MUCH,
                         Plaintiff-Appellant,
                                   v.
                              Jane DOE,
                         an unknown party,
                              Defendant,
                                 and
                    FRED MEYER STORES, INC.,
                        a foreign corporation,
                       Defendant-Respondent.
                     Yamhill County Circuit Court
                        18CV03056; A168009
                                     

     Plaintiff appeals an order of the trial court granting defendant’s motion for
relief from a default judgment on the ground of mistake, inadvertence, or excusable neglect. ORCP 71 B(1)(a). Plaintiff contends that the court erred in considering defendant’s declarations, submitted in support of the motion, because the declarations did not include the phrase “subject to penalty for perjury,” as required
by ORCP 1 E. Plaintiff asserts that, without the declarations, defendant did not
establish a ground for relief from the judgment. Held: Plaintiff did not raise her
objection to the declarations by written motion as required by ORCP 14; thus,
plaintiff’s challenge to the trial court’s consideration of the declarations either is
not preserved or does not constitute error. The record supports the court’s finding
that defendant’s default was the result of mistake, inadvertence, or excusable
neglect, and the Court of Appeals concluded that the court did not abuse its discretion in granting defendant’s motion to set aside the judgment.
    Affirmed.



    Ronald W. Stone, Judge.
   Joshua B. Lay-Perez argued the cause and filed the briefs
for appellant.
   Megan J. Crowhurst argued the cause for respondent.
Also on the brief were Francis T. Barnwell and Kalia J.
Walker.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
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 (2021)   653

  ARMSTRONG, P. J.
  Affirmed.
  Aoyagi, J., concurring.
  Tookey, J., dissenting.
654                                                            Much v. Doe

          ARMSTRONG, P. J.
         Plaintiff brought a wage claim against defendant
Fred Meyer and obtained a default judgment after defendant failed to appear. Plaintiff appeals an order of the trial
court granting defendant’s motion for relief from the default
judgment on the ground of mistake, inadvertence, or excusable neglect. ORCP 71 B(1)(a).1 For the reasons explained
below, we reject plaintiff’s assignments of error and affirm
the trial court.
          In support of defendant’s contention that its failure
to appear was the result of mistake, inadvertence, or excusable neglect, defendant offered the declarations of members
of its legal staff explaining that, in the lengthy process of
routing notice of plaintiff’s action to the correct legal department, defendant’s staff neglected to forward a copy of the
summons and complaint. The trial court held a hearing on
the motion and granted it, concluding:
   “Now, let’s get to the heart of the thing and that is whether
   there is evidence sufficient to meet the premise of the law
   to set aside the default based on mistake, inadvertence or
   excusable neglect. Clearly that’s exactly what happened
   here.”
          Plaintiff’s first assignment on appeal asserts:
      “The trial court erred as a matter of law in considering
   declarations and attached exhibits that was [sic] not under
   penalty of perjury as required by ORCP 1 E,2 OEC 603, and
   ORS 153.080, in setting aside the order of default.”

   1
     ORCP 71 B(1) provides:
         “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 reasons (a), (b), and (c) shall be accompanied by a pleading or motion under Rule 21 A which contains an assertion of a claim or
   defense.”
   2
     ORCP 1 E provides:
         “A declaration made within the United States must be signed by the
   declarant and must include the following sentence in prominent letters
   immediately above the signature of the declarant: ‘I hereby declare that the
   above statement is true to the best of my knowledge and belief, and that I
   understand it is made for use as evidence in court and is subject to penalty
   for perjury.’ ”
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Defendant responds that the asserted claim of error is not
preserved or properly before the court, and we agree.
          Preliminarily, we note that plaintiff’s assignment of
error is not directed to any ruling of the court and therefore
is not a proper assignment. ORAP 5.45(3) (“Each assignment
of error shall identify precisely the legal, procedural, factual, or other ruling that is being challenged.”). As we said
in Village at North Pointe Condo. Assn. v. Bloedel Const., 

, 

, adh’d to on recons, 

, 

 (2016), “[c]ompliance with ORAP 5.45 is not
a matter of mere form; it is crucial to our ability to review
trial court rulings for error and to determine whether the
appellant’s claims of error were preserved.” A court’s consideration of declarations submitted with a motion brought
under ORCP 71 B(1) is not a “ruling.” An appropriate assignment might have been that the court erred in denying at
the ORCP 71 hearing an oral motion that plaintiff made to
strike the declarations, which would have highlighted the
fact that the court did not rule on plaintiff’s oral motion,
explaining, perhaps, why plaintiff chose to assign error in
the manner that she did.
         Contrary to the dissent’s assumption, plaintiff’s
argument in support of her assignment of error—viz., that
the court erred in admitting the declarations—is not an
assignment of error. Assuming, however, that plaintiff’s
briefing is sufficient to apprise us of the ruling being challenged on appeal, we reject plaintiff’s assignment, either
because it is not preserved or because it does not constitute
error.
        In the trial court, plaintiff first mentioned the
omission from the declarations of the “penalty for perjury”
clause in a footnote on the thirteenth page of her sur-reply
memorandum, without argument.3 Then, at the hearing

Defendant’s declarations did include a statement immediately above the declarant’s signature line, but it is missing the concluding clause, “and is subject to
penalty for perjury”:
    “I hereby declare that the above statement is true to the best of my knowledge
    and belief and that I understand it is for use as evidence in court.”
    3
      Plaintiff’s objection, in its entirety, stated: “Plaintiff also objects to
Defendant’s declarations for non-compliance with ORCP 1 E by failing to obtain
declarations under penalty of perjury.”
656                                                 Much v. Doe

on defendant’s motion to set aside the judgment, plaintiff
made an oral motion to strike the declarations as “inadmissible and void for failing to be under penalty of perjury as
required under ORCP 1 E,” again without argument.
        The trial court did not rule on plaintiff’s oral motion,
nor was it required to do so. That is because the court did
not have a proper motion before it. ORCP 14 provides:
      “An application for an order is a motion. Every motion,
   unless made during trial, shall be in writing, shall state
   with particularity the grounds therefor, and shall set forth
   the relief or order sought.”
A motion, other than one made at trial, must be in writing.
The footnote in plaintiff’s sur-reply memorandum was not
a motion; and plaintiff’s motion made at the hearing, which
was not a trial or a trial-like proceeding, was not in writing. The written declarations submitted by defendant with
its motion under ORCP 71 B(1)(a) were a part of the trial
court’s record. Had plaintiff wished the court not to consider
the written declarations, she should have filed a written
motion to strike them on which the court would then have
ruled. Had the court been presented with a proper motion,
it could have directed defendant to correct the declarations
to include the missing “penalty of perjury” clause or could
at least have given defendant the opportunity to do that. We
agree with defendant that plaintiff’s footnote in her hearing
memorandum or her oral motion to the court did not constitute a written motion or preserve the objection for appeal.
         The dissent proposes that plaintiff’s oral motion
was like an objection made at trial to the admission of evidence which, apparently, we should treat as having been
implicitly overruled. But a hearing under ORCP 71 B to set
aside a judgment is not a trial. Like a motion for summary
judgment or the many other pre- and post-trial motions, a
motion under ORCP 71 is typically addressed to the court
through written submissions, including affidavits and declarations. Those declarations and affidavits become a part
of the record when submitted. A court may allow a hearing
to permit the parties to make legal arguments on whether
the court should grant the pending motion in light of the
facts contained in the submitted declarations. But a party
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seeking to take issue with submitted declarations should
file a motion to strike or exclude them, which, under ORCP 14,
must be in writing,4 unless excused by the trial court.
         It is true, as the dissent points out, that when courts
allow a hearing under ORCP 71 B(1), they sometimes do
exercise their discretion to allow parties to submit evidence
at the hearing, including testimony. When a court holds an
evidentiary hearing, we would agree that, in that respect,
the hearing would be sufficiently similar to a trial to permit the court, within its discretion, to allow the parties to
object to evidence without filing a written motion. But that
is not what happened here. The parties did not seek to submit evidence at the hearing; the only “evidence” before the
court were the declarations submitted in support of and in
opposition to defendant’s motion. Those declarations were
in the trial court’s record. If plaintiff wished the court not
to consider them, she should have filed a written motion
to strike them. Plaintiff having failed to submit a written
motion, there could be no error in failing to strike the declarations. Because the declarations were not stricken, they
were a part of the record that the court could consider in ruling on defendant’s motion under ORCP 71 B. We therefore
reject plaintiff’s first assignment of error.
         Plaintiff contends in her third assignment that the
court erred in failing to reject defendant’s motion outright
because defendant did not simultaneously tender a responsive pleading with its motion, as required by ORCP 71 B (“A
motion for reasons (a), (b), and (c) shall be accompanied by a
pleading or motion under Rule 21A which contains an assertion of a claim or defense.”); Duvall v. McLeod, 

, 

 (2001) (holding that ORCP 71 B(1) requires
that a party tender a motion for relief from default judgment
and a responsive pleading simultaneously).
         In Dickey v. Rehder, 

, 

(2010), rev den, 

 (2011), we explained that the
simultaneous responsive pleading is required under ORCP

    4
       We recognize that defendant did not invoke ORCP 14 in support of its preservation argument. Defendant’s failure to invoke an applicable rule in opposition
to plaintiff’s assignment of error does not prevent us from recognizing and applying it. Miller v. Water Wonderland, 

, 309 n 3, 

 (1998).
658                                              Much v. Doe

71 B to assure the court that the party seeking to set aside
a default judgment has a meritorious defense. Id. at 259. But
we reasoned in Dickey that ORCP 71 B(1) does not limit a
party to only one attempt to file a correct motion and that
allowing a party to withdraw a motion and refile it along
with a responsive pleading does not undermine the requirements of Duvall “that the party tell the court why it failed
to properly respond to the original pleadings and why that
matters.” Id. at 259. Thus, we held in Dickey that the trial
court did not err in granting the defendant’s motion to withdraw an incomplete motion to set aside the judgment and to
refile a complete one. Id. at 260.
        We have reviewed the record here. It shows that,
although defendant’s initial motion did not attach an
answer, the court, within its discretion (and before ruling
on the motion), allowed defendant to withdraw its motion
and refile. It shows also that, at the time that the court
ruled on defendant’s refiled motion, the court had before it
defendant’s answer. We conclude that the court did not err
in addressing defendant’s motion to set aside the judgment.
         Finally, in her fourth assignment, plaintiff contends that the record does not support the trial court’s grant
of defendant’s motion to set aside the judgment. Courts liberally construe ORCP 71 B, particularly when the judgment
is the result of a default. In re Long, 

, 

 (2020). The record here supports the court’s finding
that defendant’s default was the result of mistake, inadvertence, or excusable neglect, and we conclude that the court
did not abuse its discretion in granting defendant’s motion
to set aside the judgment.
        We reject plaintiff’s second assignment of error
without discussion.
        Affirmed.
        AOYAGI, J., concurring.
         I join in the majority’s opinion but write separately
to briefly provide some additional perspective on the first
assignment of error. In short, I agree with the majority that
the trial court did not err in granting relief from the default
Cite as 

 (2021)                             659

judgment under ORCP 71 B based on mistake, inadvertence,
or excusable neglect. I write separately only to emphasize
that the purposes of preservation were not served in this
case.
         The majority opinion focuses on the lack of a written
motion, but I do not understand it to announce a bright-line
rule under which, outside trial, an oral motion is insufficient
to preserve an issue for appeal under ORCP 14. Rather, I
understand the majority opinion to say that, in this case,
the trial court did not rule on plaintiff’s oral motion to
strike; that the trial court committed no error in not ruling, because the motion was not properly presented to the
court; and that plaintiff has tried to get around her failure
to secure a ruling from the trial court by assigning error to
a nonruling (the trial court’s “consideration” of defendant’s
declarations), which is procedurally improper. I agree with
each of those points. Akin to summary judgment, a declaration submitted in support of an ORCP 71 B motion is in
the record until and unless it is stricken therefrom—there
is no point at which the court rules to “admit” it—and, as
long as it is in the record, it is not error to consider it. If
plaintiff wanted to have declarations stricken, she needed to
move to strike them, and, if she wanted to obtain appellate
review on that issue, she needed to obtain a ruling denying
her motion. That is not what happened here.
          As I said, however, I write separately to emphasize
something that may not be obvious from the majority opinion: The purposes of preservation were not served in this
case. See Peeples v. Lampert, 

, 

 (2008) (preservation requirements promote judicial efficiency, ensure fairness to opposing parties, and foster full
record development). That is, the problem with what plaintiff did is not her failure to comply with ORCP 14 in and of
itself. Noncompliance with a rule does not necessarily translate to lack of preservation for appeal. Rather, the fundamental problem is that she did not adequately apprise the
trial court and defendant of her position and, consequently,
failed to secure a ruling.
        On this record, it is not at all clear that the trial
court or defendant even caught plaintiff’s objection to
660                                                 Much v. Doe

defendant’s declarations, let alone understood its basis. The
omission in the attestations appears, on its face, likely to be
a scrivener’s error. It is the type of defect that, unless clearly
identified, may be easily missed by lawyers and judges who
read declarations regularly and are looking at them for
their substance. Meanwhile, in plaintiff’s view, the defect
is fatal to defendant’s ORCP 71 B motion, regardless of the
merits of that motion, and thus determinative of the final
outcome of this litigation. In that context, plaintiff’s one-sentence objection in a footnote in a sur-reply, followed by
a one-sentence motion at hearing, was not enough to bring
attention to the issue and, more importantly, secure a ruling. For context, plaintiff mentioned the penalty-of-perjury
issue near the beginning of a lengthy argument to the court,
in the midst of a series of summary procedural arguments.
She first renewed a prior motion to strike hearsay from the
declarations; then objected to “hearsay statements made by
counsel in testifying during the previous hearing back in
April which contained evidence that was not submitted in
the declarations”; then objected and moved to strike “all of
the Defendant’s declarations as attached to all of its motions
including the motion for sanctions as being inadmissible and
void for failing to be under penalty of perjury as required
under ORCP 1 E” (emphasis added); then argued for six
transcript pages about the answer-filing issue that is the
subject of her third assignment of error on appeal; and then
addressed the merits of the ORCP 71 B motion.
         Finally, default judgments are disfavored—a principle that weighs against leniency on preservation in this
case. See In re Long, 

, 

 (2020)
(referencing long-standing rule that ORCP 71 B should be
“liberally construed” in favor of relief, “particularly when
the judgment is the result of a default,” because “the policy of the law is to afford a trial upon the merits when it
can be done without doing violence to the statute and established rules of practice that have grown up promotive of the
regular disposition of litigation” (internal quotation marks
omitted)). Had plaintiff properly and clearly raised the issue
in the trial court, defendant would have had a meaningful
opportunity to respond, including, for example, offering to
file corrected declarations, and the trial court would have
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 (2021)                                                661

ruled. On this record, by contrast, the most plausible inference is that the trial court never ruled at all, leaving us
nothing to review.
         It would be inconsistent with the purposes of preservation to reverse the grant of an ORCP 71 B motion—
thus reinstating a default judgment and avoiding a trial on
the merits—where a procedural issue was not clearly and
properly raised, where the trial court never ruled on it, and
where the issue pertains to a likely scrivener’s error that
could have been easily corrected had the issue been properly
raised.1
        For all of those reasons, in addition to those discussed in the majority opinion, I concur.
           TOOKEY, J., dissenting.
         I write separately to dissent, because I disagree
with the majority’s contention that plaintiff’s objection
was not properly made, and because I disagree with the
concurrence’s contention that plaintiff’s objection was not
preserved. As explained below, I would reach the merits of
plaintiff’s first assignment of error and, in so doing, I would
conclude that the trial court erred in granting defendant’s
motion to set aside the default order and judgment; accordingly, I think the default judgment should be reinstated
in this case, thereby entitling plaintiff to the award for
damages that she sought as compensation for nearly two
decades’ worth of unauthorized payroll deductions made by
defendant.
        This case relates, in part, to an unsettled question
within the context of hearings on motions to set aside under
ORCP 71 B—specifically, whether a party attending such

    1
      I would also note that, in the circumstances of this case, even if the trial
court erred in not ruling on the oral motion to strike, the appropriate remedy
would be to remand, not rule on the motion ourselves. The trial court might well
exercise its discretion to allow filing of corrected declarations, rather than simply striking the declarations and denying the ORCP 71 B motion on that basis.
Cf. Chevalier Advertising v. Ballista Tactical Systems, 

, 

 (2016) (“[I]n adopting plaintiff’s belated and extraneous procedural
argument pertaining to the first Johnson declaration without providing defendant an opportunity to address the claimed defect [(the lack of an original signature)], the trial court abused its discretion.”).
662                                                             Much v. Doe

hearings may make an oral objection concerning the admission of testimonial evidence, such as declarations.1 That is
precisely what I understand plaintiff to have done in this
case when her attorney stated, at the hearing on defendant’s
motion to set aside, “I also have to object to and move to
strike all of the Defendant’s declarations … as being inadmissible and void for failing to be under penalty of perjury
as required under ORCP 1 E.”
          The majority answers that unsettled question in the
negative; they conclude that, in the context of hearings on
motions to set aside under ORCP 71 B, a party is required
to object by way of a written motion to strike and that plaintiff’s oral objection in this case was improper. 311 Or App at
656. In explaining that conclusion, the majority analogizes
motions to set aside under ORCP 71 B to motions for summary judgment under ORCP 47:
    “Like a motion for summary judgment or the many other
    pre- and post-trial motions, a motion under ORCP 71 is
    typically addressed to the court through written submissions, including affidavits and declarations. … But a
    party seeking to take issue with submitted declarations
    should file a motion to strike or exclude them, which, under
    ORCP 14, must be in writing[.]”
311 Or App at 656.
         The difficulty with the majority’s analogy is that
trial courts do not confine themselves to considering only the
affidavits or declarations that may be attached to an ORCP
71 B motion to set aside; rather, trial courts routinely hold
evidentiary hearings on those motions at which they receive
and admit evidence, including testimonial evidence offered
by parties and witnesses. See, e.g., Duvall v. McLeod, 

, 

 (2001) (noting trial court received evidence at hearing on ORCP 71 motion); Wagar v. Prudential
Ins. Co., 

, 

 (1976) (noting trial
court took oral testimony at hearing on motion to set aside);
Benson v. Harrell, 

, 

 (2011)
(noting trial court heard testimony from multiple witnesses
at hearing on ORCP 71 B motion to set aside); Knox v. Genx
    1
      Under ORS 45.010, “The testimony of a witness is taken by six modes[,]”
including by “[d]eclaration under penalty of perjury, as described in ORCP 1 E[.]”
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Clothing, Inc., 

, 

 (2007)
(noting trial court heard witness testimony at hearing on
ORCP 71 B motion to set aside); Matchey v. Staffing Network
Holdings, Inc., 

, 

 (2004) (noting trial court received evidence and testimony from parties
at hearing on ORCP 71 B motion to set aside); McKenna and
McKenna, 

, 

 (1982) (noting
trial court heard oral testimony and admitted written evidence at hearing on motion to set aside).
          If a party is allowed to present testimony and other
evidence at hearings on ORCP 71 B motions to set aside, it is
difficult to understand why a party would not also be allowed
to make oral objections to evidence at those very same hearings. Indeed, the majority acknowledges that perhaps a party
could be allowed to object at such hearings without filing
a written motion. But, the majority argues, such an objection would only be allowed in limited circumstances. 311 Or
App at 657. Notably, the majority cites no rule, authority, or
principle of law in support of that argument. Likewise, the
majority cites no authority for the contention that an objection to a declaration—like the objection made by plaintiff in
this case—is required to be made in writing.
         To be sure, the majority does cite the writing requirement in ORCP 14 to support their contention that a motion
to strike—other than one made during trial—must be made
in writing. Yet the majority’s reliance on ORCP 14 is only
well founded if, as they propose, plaintiff’s oral objection is
accurately characterized as merely an oral motion to strike.
But that characterization, while perhaps accurate, is nevertheless incomplete; it ignores the part of plaintiff’s objection
where she said “I also have to object to and move to strike all
of the Defendant’s declarations … as being inadmissible[.]”
Thus, in light of the entirety of plaintiff’s objection, I think
what plaintiff did can just as accurately be characterized as
an objection to the admission of testimonial evidence.2 And,
significantly, the majority cites no rule or other authority
disallowing oral objections to testimonial evidence at hearings on ORCP 71 B motions to set aside.
    2
      To the extent that the majority contends that plaintiff’s objection also
included a motion to strike, I do not disagree.
664                                               Much v. Doe

           Given that absence of authority, I see no reason to
say that plaintiff could not orally object to defendant’s declarations at the hearing on defendant’s motion to set aside.
Instead, I think the fairer approach would be to recognize
the propriety of plaintiff’s objection and to address plaintiff’s first assignment of error on its merits.
          Before addressing the merits, however, I note my
disagreement with the majority’s contention that plaintiff’s
first assignment of error “is not an assignment of error,” and
that it “is not preserved.” 311 Or App at 655.
          Plaintiff’s first assignment of error is proper.
Though plaintiff’s briefing may not be a model of clarity,
its language does make clear that plaintiff assigns error to
the trial court’s decision to admit evidence—i.e., “The trial
court erred as a matter of law in admitting and considering the evidence contained in [defendant’s] defective declarations.” (Emphasis added.) The majority discounts that
language as an “argument” rather than an “assignment
of error.” But that language—along with the rest of plaintiff’s briefing—does not require a search of the record to be
understood, and I believe it is sufficient to satisfy the purpose of an assignment of error. See State v. Brown, 

, 

 (1990) (“[T]he purpose of an assignment of error was satisfied,” because “one of the parties
fully briefed the matter and set out verbatim the pertinent
parts of the record,” such that “this court on appeal need not
search the record.” (Citing ORAP 5.45(3).)). Moreover, this
court routinely reviews assignments of error regarding the
admission of evidence over a party’s objection. See, e.g., State
v. Hixson, 

, 

 (2020) (reviewing trial court’s admission of a statement over party’s hearsay objections); State v. Reineke, 

, 

 (2019) (reviewing whether trial court erred when
witness testimony was “admitted, over defendant’s OEC 401
and OEC 403 objections”); State v. Navaie, 

, 

 (2015) (reviewing whether “the trial court
erred when it admitted evidence, over [defendant’s] hearsay
objections”); State v. Serrano, 

, 

(2014) (reviewing whether “the trial court erred by permitting a police criminalist to testify, over defendant’s objection”); Stuart v. Kelsay, 

, 

 (1972)
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(reviewing whether the trial court erred by “receiving in evidence, over plaintiff’s objection, certain evidence pertaining
to the decedent”). Thus, contrary to the majority, I think
that plaintiff’s first assignment of error is proper.
          Additionally, plaintiff’s first assignment of error
is preserved. As noted above, plaintiff stated at the hearing, “I also have to object to and move to strike all of the
Defendant’s declarations as attached to all of its motions
… as being inadmissible and void for failing to be under
penalty of perjury as required under ORCP 1 E.” In my view,
that objection is sufficient to satisfy the preservation requirement: Plaintiff raised the evidentiary issue before the trial
court in a sound, clear, and articulate oral objection, thereby
giving the court an opportunity to consider the objection,
permitting the opposing party to respond, and allowing
the record to develop. See Peeples v. Lampert, 

, 

 (2008) (discussing policy considerations
underlying preservation requirement, namely “giv[ing] a
trial court the chance to consider and rule on a contention,”
“permitting the opposing party to respond to a contention
and by otherwise not taking the opposing party by surprise,”
and “foster[ing] full development of the record”); see also

 (“ ‘A party owes the trial court the obligation of a
sound, clear and articulate motion, objection or exception,
so as to permit the trial judge a chance to consider the legal
contention or to correct an error already made.’ ” (Quoting
Shields v. Campbell, 

, 

 (1977).)).
Here, plaintiff’s oral objection provided both defendant and
the trial court an opportunity to address that objection—
even if they chose not to do so. And certainly, plaintiff’s oral
objection was sufficient to dispel any chance that raising the
issue again on appeal would come as a genuine surprise to
the opposing party.
          The concurrence posits that plaintiff’s objection is
not preserved because “she did not adequately apprise the
trial court and defendant of her position.” 311 Or App at
659 (Aoyagi, J., concurring). But here, I think there can be
no doubt that plaintiff’s objection provided enough information for both her opponent and the trial court to understand
and respond to that objection. See State v. Blasingame, 

, 

 (2014) (“[W]hen determining
666                                                            Much v. Doe

if an issue has been adequately preserved for review, the
appropriate focus ‘is whether a party has given opponents
and the trial court enough information to be able to understand the contention and to fairly respond to it.’ ” (Quoting
State v. Walker, 

, 

 (2011).)); see
also Clinical Research Institute v. Kemper Ins. Co., 

, 

 (2004) (“Traditionally, in order to
preserve a ground for appeal, it has been deemed essential
for a party to raise an issue at trial but less important to
make a specific argument or identify a particular source.”
(Emphases added; citation and internal quotation marks
omitted.)). Plaintiff not only raised the issue—i.e., the admissibility of defendant’s testimonial evidence—but also made
a specific argument and identified a particular source—i.e.,
that defendant’s declarations were inadmissible testimony
because they failed to comply with the perjury requirements
set forth in ORCP 1 E. As such, I am not sure what more
plaintiff was required to say or do in order to sufficiently
apprise the trial court and defendant of her position.
          Thus, I would conclude that plaintiff’s first assignment of error is both proper and preserved. For those
reasons—and the reasons that follow—I respectfully dissent, and I would review this case as set forth below and
reverse and remand for the trial court to reenter the general
judgment.
                              …
          The relevant facts are undisputed and largely procedural. Plaintiff sued defendant for unauthorized payroll deductions. After defendant did not timely appear or
respond, plaintiff obtained an order of default and, later, a
general judgment. Shortly thereafter, defendant submitted
a motion under ORCP 69 F and ORCP 71 B to set aside
the default order and judgement.3 In that motion, defendant
asserted that its “failure to appear or respond to plaintiff’s

    3
      ORCP 69 F provides, “For good cause shown, the court may set aside an
order of default. If a judgment by default has been entered, the court may set it
aside in accordance with Rule 71 B and C.”
    ORCP 71 B(1) 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[.]”
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 (2021)                                 667

complaint was the result of mistake, inadvertence, or excusable neglect.” In support of its motion, defendant submitted declarations from members of its legal team. Those
declarations explained that defendant’s failure to appear
resulted from an error in its complaint routing process.
Notably, those declarations did not contain a clause stating
that they were under penalty of perjury, as required under
ORCP 1 E(2).
         Plaintiff opposed defendant’s motion to set aside,
noting in her briefing to the trial court that she “objects to
Defendant’s declarations for non-compliance with ORCP 1 E”
because defendant did not “obtain [those] declarations under
the penalty of perjury.” Additionally, at a hearing on defendant’s motion to set aside, plaintiff repeated her objection to
defendant’s declarations: “I also have to object to and move
to strike all of the Defendant’s declarations … as being
inadmissible and void for failing to be under penalty of perjury as required under ORCP 1 E.”
         The trial court did not explicitly rule on plaintiff’s
objection to defendant’s declarations and ultimately granted
defendant’s motion to set aside, stating:
   “Now let’s get to the heart of the thing and that is whether
   there is evidence sufficient to meet the premise of the law
   to set aside the default based on mistake, inadvertence, or
   excusable neglect. Clearly that’s exactly what happened
   here. …

      “…

      “… I do find there was mistake, inadvertence, and
   excusable neglect which allows you to set aside the default.”

         On appeal, plaintiff contends that the “trial court
erred as a matter of law in considering declarations … that
w[ere] not under penalty of perjury as required by ORCP 1 E,”
and that “if the trial court erred in admitting the declarations, there [i]s no remaining properly presented evidence
to establish excusable neglect.” In response, defendant contends that its “declarations substantially complied with the
language in ORCP 1 E(2), and so the lower court had the
discretion to consider them.”
668                                             Much v. Doe

         “A decision under ORCP 71 B can implicate multiple standards of review.” Union Lumber Co. v. Miller, 

, 

 (2017). “Conclusions that a trial court
reaches under ORCP 71 B as to whether a moving party’s
neglect, inadvertence, surprise, or mistake constitute cognizable grounds for relief, are legal rulings that an appellate court reviews for errors of law.” 

. “If, in the
course of reaching such a conclusion, a trial court makes
express or implied findings on issues of disputed fact, an
appellate court will accept those findings if they are supported by evidence in the record.” 

 Where the trial court
admits or excludes declarations based on its understanding
of the meaning of a rule of civil procedure, we review that
decision for legal error. Cf. Yoshida’s Inc. v. Dunn Carney
Allen Higgins & Tongue, 

, 

(2015) (“Where the trial court admits or excludes evidence
based on the court’s interpretation of a statute, we review
the court’s ruling for legal error.”); Union Lumber Co., 

 (noting that, when court’s decision depends on its
understanding of the meaning of ORCP rule, we review for
errors of law).
         The parties’ dispute as to whether declarations are
required to include a perjury clause calls into question the
proper construction of ORCP 1 E(2). “We construe the rules
of civil procedure using the same analytical method that
applies to statutory construction.” Rains v. Stayton Builders
Mart, Inc., 

, 

 (2013). That
is, “we examine the text, context, and history of the rule
to discern the intent of the Council on Court Procedures.”
Union Lumber Co., 

.
         For the reasons explained below, I would conclude
that the text, context, and rule history indicate that the
intent of the Council on Court Procedures (CCP) was that
declarations under ORCP 1 E(2) are required to include the
perjury clause specified in that rule in order to be admissible testimony.
        I begin with the text of ORCP 1 E(2), because there
is no more persuasive evidence of the intent of the CCP than
the words by which it undertook to give expression to its
wishes. Cf. State v. Gaines, 

, 

Cite as 

 (2021)                                669

(2009) (so noting with respect to legislative intent). The text
of ORCP 1 E(2) indicates the CCP’s intent to require that
declarations include the perjury clause specified in that
rule. ORCP 1 E(2) provides:
       “A declaration made within the United States must be
   signed by the declarant and must include the following sentence in prominent letters immediately above the signature
   of the declarant: ‘I hereby declare that the above statement
   is true to the best of my knowledge and belief, and that I
   understand it is made for use as evidence in court and is
   subject to penalty for perjury.’ ”

(Emphases added.) That text unambiguously indicates not
only that declarations “must” include the prescribed sentence—
which includes the perjury clause—but also specifies the
precise location for that perjury clause, i.e., “immediately
above the signature.”

         Of particular significance here is use of the word
“must” in ORCP 1 E(2). Although the CCP did not define
“must,” relevant dictionary definitions of “must” include “is
required by law.” See Webster’s Third New Int’l Dictionary
1492 (unabridged ed 2002) (defining “must” to mean, among
others, “is required by law, custom, or moral conscience <we
~ obey the rules>”).

          Understanding “must”—as it is used in ORCP
1 E(2)—to mean “required by law” is consistent with the
meaning this court has ascribed to that term in interpreting
statutes. See, e.g., Oregon Cable Telecommunications v. Dept.
of Rev., 

, 

 (noting that “the
verb ‘must,’ … generally connotes a required action when
used in law,” and citing Bryan A. Garner, A Dictionary of
Modern Legal Usage 577-78 (2d ed 1995) (explaining that, in
legal drafting, “must” is generally used in the sense of “an
absolute requirement” or “is required to”)); Bishop v. Waters,

, 

 (2016) (“Similar to the
word ‘shall,’ the word ‘must’ ordinarily expresses ‘a duty,
obligation, [or] requirement ….’ ”).

        In sum, the text of ORCP 1 E(2) indicates the CCP’s
intent that declarations are required by law to include the
670                                              Much v. Doe

specified perjury clause immediately above the declarant’s
signature.
          The context and history of ORCP 1 E(2) further
indicate the CCP’s intent to require inclusion of the perjury
clause, as the CCP considered it important to ensuring that
declarants would be liable for perjury. “Context includes
… related rules and statutes,” and “the legislative history
that we consider is generally the history of the proceedings
before the council [on court procedures]” but also “any legislative history that we find useful.” Rains, 

. Because the context and history of ORCP 1 E are intertwined, I discuss them together.
         In early 2002, the CCP began the process of amending ORCP 1 E to allow the use of declarations. See Agenda,
Council on Court Procedures, Feb 9, 2002, 3. A “major concern” for the CCP was that “declaration[s] should be subject to
perjury prosecution.” Agenda, Council on Court Procedures,
May 11, 2002, Attachment B at 1-2. Indeed, when the CCP
considered amending ORCP 1 E,
   “all members appeared to be agreed that if use of declarations is to be introduced into practice under the ORCP
   there must be absolute assurance that knowingly false
   statements of material fact contained in the declarations
   would be subject to prosecution for perjury to the same
   extent as is true of affidavits.”
Minutes, Council on Court Procedures, Apr 13, 2002, 2.
With those concerns about perjury in mind, the CCP drafted
amendments to ORCP 1 E to allow declarations under penalty of perjury. See Agenda, Council on Court Procedures,
June 8, 2002, Attachment 4d at 1-3.
        At that same time, the CCP also began drafting
proposed amendments to the ORS. The CCP had determined that, in order for “a declaration to be subject to
perjury prosecution on the same basis as such statements
contained in an affidavit, certain statutory amendments
would be needed.” Minutes, Council on Court Procedures,
Apr 13, 2002, 2-3. Consequently, the CCP proposed amendments to ORS 162.055(4), which defines a “sworn statement,” as that term is used in Oregon’s perjury statute,
Cite as 

 (2021)                                                 671

ORS 162.065.4 See Agenda, Council on Court Procedures,
June 8, 2002, Attachment 4d at 1-3. Ultimately, as a result of
that proposal, the very same act that amended ORCP 1 E to
allow the use of declarations also amended ORS 162.055(4)
so that, for purposes of perjury, a “sworn statement” would
include a “declaration under penalty of perjury as described
in ORCP 1 E.” See Or Laws 2003, ch 194, §§ 1, 4 (amending
ORCP 1 E and ORS 162.055(4) (emphasis added)).5
         Prior to the enactment of Or Laws 2003, ch 194,
the CCP sent its proposed amendments for ORCP 1 E and
ORS 162.055(4) to the Oregon State Bar Board of Governors
“for its approval as a legislative package for pre-session
filing and sponsorship by the Oregon State Bar (OSB) in
the 2003 Legislative Assembly.” Minutes, Council on Court
Procedures, May 11, 2002, 2.
         In early 2003, a representative from OSB explained
to the House Committee on Judiciary the intended purpose
and effect of the proposed amendments to ORCP 1 E:
        “This would simply allow lawyers and people representing themselves pro se to sign a declaration, right in front
    of their name, that specifically says ‘I am giving this testimony under the penalty of perjury.’
        “…
        “If we were to pass this, anyone who signs that is going
    to see right in front of their name, ‘I swear under penalty of
    perjury that the statement I am signing right now is true.’ ”
    4
      Oregon’s perjury statute provides that a “person commits the crime of perjury if the person makes a false sworn statement or a false unsworn declaration
in regard to a material issue, knowing it to be false.” ORS 162.065. I note that the
provisions of ORS 162.065(1) relating to “unsworn declarations” are not relevant
to my analysis. Pursuant to ORS 162.055(5), an “unsworn declaration,” as that
phrase is used in 162.065(1), “has the meaning given that term in ORS 194.805.”
ORS 194.805 concerns declarations made by a declarant who, at the time of making the declaration, “is physically located outside the boundaries of the United
States ….”
    5
      ORCP 1 E was amended in 2003 to allow the use of declarations. Or Laws
2003, ch 194, § 1. Later, in 2014, “[s]ection E [wa]s reorganized in light of the
Legislature’s enactment of ORS 194.800-194.835 to incorporate the Uniform
Foreign Declarations Act into the Oregon Revised Statutes.” Council on Court
Procedures, Staff Comment to ORCP 1 Amendment, 2 (Dec 6, 2014). As a result of
that reorganization, current “subsection E(2) retains the approved language for
domestic declarations under penalty of perjury and subsection E(3) now contains
the approved language for foreign declarations.” Id. That reorganization does not
affect our analysis.
672                                              Much v. Doe

Tape Recording, House Committee on Judiciary, House
Bill 2064, Jan 22, 2003, Tape 1, Side A (statement of Kevin
Chames (emphasis added)).
        Thus, the above context and history further indicate that declarations under ORCP 1 E(2) were intended to
require inclusion of the perjury clause.
         In light of the foregoing, I would conclude that the
text, context, and relevant history indicate the CCP’s intention that declarations under ORCP 1 E(2) are required by
law to include the specified perjury clause immediately
above the declarant’s signature in order to be admissible.
         Because defendant’s declarations did not conform
with the requirements of ORCP 1 E(2), I would conclude
that it was error for the trial court to admit them. I would
further conclude that, because the evidence supporting
defendant’s motion to set aside was contained in those erroneously admitted declarations, there is not any evidence
sufficient to support a finding of mistake, inadvertence,
or excusable neglect, as required to set aside a judgment
under ORCP 71 B; therefore, the trial court erred when it
concluded otherwise.
          In seeking a contrary result, defendant contends that
“the Court was required to disregard any errors or defects
pursuant to ORCP 12 B[ ] and had discretion to accept some
or all of” the statements in defendant’s declarations, because
they “substantially conform[ed] to the language set forth in
ORCP 1 E(2).” ORCP 12 B provides that “[t]he court shall, in
every stage of an action, disregard any error or defect in the
pleadings or proceedings which does not affect the substantial
rights of the adverse party.” However, failure to comply with
ORCP 1 E(2)’s perjury clause requirement is not an excusable error or defect, cf. Bridgestar Capital Corp. v. Nguyen,

, 

 (2018) (A “party’s
complete failure to comply with the textual requirements of
ORCP 68 C(2) … cannot be excused by ORCP 12 B.”), and
admitting defendant’s declarations ultimately affected a substantial right, see Mary Ebel Johnson, P.C. v. Elmore, 

, 

 (2008) (order setting aside default
judgment based on evidence of defendant’s neglect, mistake,
or inadvertence affected substantial right of the plaintiff).
Cite as 

 (2021)                              673

          Defendant also contends that two of its declarations were made by “lawyers and officers of the court, and
so their declarations could have been appropriately considered even without the ‘under penalty of perjury’ language.”
That contention is unavailing; nothing in ORCP 1 E suggests that lawyers are exempt from the declaration requirements, and defendant does not cite any authority supporting
that contention. Defendant’s argument is, therefore, insufficiently developed for us to address it. See Beall Transport
Equipment Co. v. Southern Pacific, 

, 700 n 2,

, adh’d to on recons, 

, 

(2003) (it is not “our proper function to make or develop a
party’s argument when that party has not endeavored to do
so itself”).
         For the foregoing reasons, I would conclude that
defendant’s declarations were required by ORCP 1 E(2) to
include the specified perjury clause; therefore, the trial court
erred by admitting them without that clause. I would further conclude that, without those declarations, the evidence
in the record is insufficient to support a factual finding of
mistake, inadvertence, or excusable neglect; therefore, the
trial court erred when it determined otherwise and set aside
the judgment. Consequently, I would reverse and remand
for the trial court to reenter the general judgment.