No. 543 August 7, 2024 231
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Wei LIN,
an individual,
Plaintiff-Appellant,
v.
Changxu JIANG,
an individual,
Defendant-Respondent.
Clackamas County Circuit Court
20CV12429; A177263
Jeffrey S. Jones, Judge.
Argued and submitted November 6, 2023.
Christopher K. Dolan argued the cause for appellant.
Also on the brief was Jordan Ramis PC.
No appearance for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Order granting motion to set aside judgment under
ORCP 71 B(1)(a) affirmed.
Kamins, J., dissenting.
232 Lin v. Jiang
EGAN, J.
In this action to collect on a promissory note,
plaintiff challenges the trial court’s order setting aside an
amended general judgment of default and money award
against defendant. Defendant moved under ORCP 71 B(1)(a)
for relief from the judgment, contending that defendant’s
limited knowledge of the English language constituted a
basis for relief and, further, that plaintiff had failed to provide consideration for or had repudiated the loan agreement
underlying plaintiff’s claim. The trial court granted defendant’s motion. For the reasons set out below, we conclude
that the trial court did not abuse its discretion in granting
defendant’s motion to set aside the judgment under ORCP
71 B(1) and therefore affirm.
STANDARD OF REVIEW
We review the trial court’s decision to set aside an
earlier judgment under ORCP 71 B(1)(a) for an abuse of discretion. Mary Ebel Johnson, P.C. v. Elmore, 221 Or App 166,
171,
189 P3d 35, rev den,
345 Or 301 (2008). Although the
court’s ultimate determination under ORCP 71 B(1)(a) is
reviewed for an abuse of discretion, whether a party seeking
relief under ORCP 71 B(1)(a) has offered a reasonable excuse
for failing to appear is a legal question that we review for
errors of law. Union Lumber Co. v. Miller,
360 Or 767, 777-78,
388 P3d 327 (2017); see also Saldivar v. Roberts,
240 Or App
371, 376,
246 P3d 91 (2011) (setting forth analysis).
“The policy underlying ORCP 71 B is to allow
defaulted parties to have their day in court, when it can be
done ‘without doing violence to the regular disposition of
litigation.’ ” Johnson, 221 Or App at 171 (quoting National
Mortgage Co. v. Robert C. Wyatt, Inc.,
173 Or App 16, 23-24,
20 P3d 216, rev den,
332 Or 430 (2001)). Thus, when considering a motion for relief from default,
“it is the court’s responsibility to liberally construe ORCP
71 B(1)(a) so as to avoid the harsh result of depriving a party
of its day in court. As an aspect of that liberal construction,
the court views the facts in the light most favorable to the
party seeking relief from the default.”
Nonprecedential Memo Op:
334 Or App 231 (2024) 233
Saldivar,
240 Or App at 375. As we review the trial court’s
ultimate discretionary ruling granting defendant’s motion
and setting aside the judgment, we view the facts in a light
most favorable to defendant, who is the party seeking to set
aside the default judgment. Id.; see also Wershow v. McVeety
Machinery,
263 Or 97, 103,
500 P2d 696 (1972) (so viewing
facts on review of motion to set aside default judgment).
BACKGROUND
The pertinent background facts are procedural and
largely undisputed. Defendant executed and delivered to
plaintiff a promissory note under which defendant agreed to
pay plaintiff the principal sum of $180,000. Plaintiff subsequently filed suit, asserting that defendant was in default of
the promissory note and seeking judgment. Defendant did
not appear, and the court entered an order of default. On
June 17, 2020, the court entered an amended general judgment for plaintiff.
On May 7, 2021, defendant filed a motion for an
order to set aside the judgment under ORCP 71 B(1)(a). The
motion was supported by a declaration of defendant’s counsel stating: “Defendant does not read or write English and
speaks very little English.” Defendant simultaneously filed
an answer alleging that plaintiff had repudiated the loan
agreement underlying the promissory note or that the note
was not supported by consideration.
At a hearing on defendant’s motion, the trial court
was interested in defendant’s allegation that plaintiff had
not provided the consideration required by the promissory
note and requested briefing and evidence from the parties
addressing that issue.
Plaintiff provided a declaration stating that he had
loaned defendant $83,000, that he had worked at defendant’s
restaurant for 30 days without pay, and that he had loaned
defendant money for business expenses. In exchange, plaintiff
explained, he had required a promissory note from defendant.
Defendant provided a declaration that defendant’s
deficiency in the English language had prevented him from
responding to plaintiff’s complaint or appearing in the
234 Lin v. Jiang
action. Counsel characterized that excuse as mistake, inadvertence, or excusable neglect under ORCP 71 B. Defendant
also attested that he had not received the promised consideration from plaintiff on the promissory note, that the documentation submitted by plaintiff at the trial court’s request
did not relate to the promissory note or to services plaintiff
provided to defendant and, further, that defendant believed
plaintiff was attempting to perpetrate a fraud against him.
In a letter ruling sent to the parties by email, the
trial court granted the motion to set aside the judgment:
“After reviewing the supplemental filings by plaintiff and
defendant … I find that, applying the liberal construction
of ORCP 71 B(1)(a), I am granting the motion for an order
to set aside the default.”
Defendant emailed a proposed form of order to the court and
to plaintiff. The proposed order included the finding:
“On the grounds of mistake, inadvertence, surprise or
excusable neglect; fraud, misrepresentation, or other misconduct of an adverse party, ORCP 71 B applies to the parties in the above-captioned matter.”
Plaintiff objected, contending that the court had made no
explicit finding in its email letter ruling of “mistake, inadvertence, surprise or excusable neglect; fraud, misrepresentation, or other misconduct.”
Considering plaintiff’s objection, a different judge,
acting on behalf of the trial judge, excised the disputed sentence. But the court’s final order adhered to the emailed letter ruling and granted relief from the default on the same
ground stated in the emailed letter ruling:
“Applying the liberal construction of ORCP 71 (B)(1)(a) it
is appropriate for the Order of Default signed May 7, 2020,
and entered May 8, 2020, and the General Judgment of
Default signed June 2, 2020 and entered June 4, 2020;
and Amended General Judgment of Default signed June 10,
2020 and entered June 17, 2020 to be set aside/vacated.”
(Emphasis in trial court’s order.)
Plaintiff filed this notice of appeal, asserting in a
single assignment of error that the trial court’s order was
Nonprecedential Memo Op: 334 Or App 231 (2024) 235
legally deficient, because it did not include an explicit finding that defendant had established mistake, inadvertence,
surprise, or excusable neglect.
ANALYSIS
The first question before us is whether, when the
court grants relief from a judgment under ORCP 71 B(1)(a),
the court must make an explicit finding of mistake, inadvertence, surprise, or excusable neglect, or whether a general
statement granting relief under ORCP 71 B(1)(a) is legally
sufficient.1 We recently answered a similar question in
Wetzel v. Sandlow, 318 Or App 608, 615,
509 P3d 182 (2022).
There, citing National Mortgage Co.,
173 Or App at 23, we
said that when a trial court does not make an express finding of excusable neglect, the court’s denial of a motion to set
aside a judgment under ORCP 71 made based on excusable
neglect “is an implicit ruling that defendant’s neglect was
inexcusable.” We conclude here that the converse is also true:
If, when presented with a motion to set aside a judgment
under ORCP 71 B(1)(a), a court grants the motion without
making an explicit finding of mistake, inadvertence, surprise, or excusable neglect, that ruling can be viewed as an
implicit ruling that the record satisfies the requirements of
ORCP 71 B(1)(a).
Plaintiff asserts that the issue is not so straightforward here, because the draft order, prepared by defendant’s
counsel, included an explicit finding of mistake, inadvertence, surprise, and excusable neglect, etc., which the court
deleted on plaintiff’s objection arguing that there had been
no explicit finding of mistake, inadvertence, surprise, or
excusable neglect in the court’s email ruling. That deletion,
plaintiff contends, shows that the trial court did not make a
finding as to mistake, inadvertence, surprise, or excusable
neglect and militates against any inference to that effect.
We reject plaintiff’s contention. The deletion of the
sentence at plaintiff’s request does not necessarily demonstrate
1
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[.]”
236 Lin v. Jiang
that the trial court did not make a finding of mistake, inadvertence, surprise, or excusable neglect. It could be that the
judge who lined out the sentence did so because the trial
court’s emailed letter ruling had not included an explicit
finding. But the court’s emailed letter ruling, like the final
order, did state that relief was required under a liberal construction of ORCP 71 B(1)(a), which provides for relief in the
context of “mistake, inadvertence, surprise, or excusable
neglect.” Thus, despite the lining out of the sentence, the
final order, with its explicit reference to ORCP 71 B(1)(a), is
properly viewed as an implicit determination of “mistake,
inadvertence, surprise or excusable neglect.”
Plaintiff contends that, if and to the extent that the
trial court’s order can be understood to include an implicit finding of mistake, inadvertence, surprise, or excusable neglect,
the record does not support that finding. We have reviewed the
record and conclude, contrary to the dissent, that the evidence
presented by defendant concerning his English language
deficit as a reason for not responding to plaintiff’s complaint
was legally sufficient to establish a cognizable basis for relief
under ORCP 71 B(1)(a), and that the trial court therefore did
not abuse its discretion in granting relief.
Order granting motion to set aside judgment under
ORCP 71 B(1)(a) affirmed.
KAMINS, J., dissenting.
I respectfully dissent. Because of the strong interest
in the finality of judgments, the circumstances to set aside a
judgment under ORCP 71 are limited. The subsection relied
on by the trial court, ORCP 71 B(1)(a), allows setting aside
judgments for “mistake, inadvertence, surprise, or excusable
neglect.” The only explanation defendant offered to support
his ORCP 71 B(1)(a) motion was that he had limited proficiency in English. At the hearing, the trial court expressed
skepticism as to that reason, musing that it was “not confident” given that defendant had signed the promissory note
in English and had been sued multiple times.
Nevertheless, the trial court, “[a]pplying the liberal construction of ORCP 71 B(1)(a),” set aside the judgment. At plaintiff’s request, the trial court struck “mistake,
Nonprecedential Memo Op: 334 Or App 231 (2024) 237
inadvertence, surprise, or excusable neglect” as the justification for its decision. But at least one of those bases is
necessary to grant relief under ORCP 71 B(1)(a) and there
is no credited evidence in the record to support any of them.
Defendant failed to explain why he defaulted, and the record
contains only the trial court’s observations casting doubt on
defendant’s proffered reason and the trial court’s deletion
of every identified basis in the rule. It doesn’t take much
to overcome a default, but it takes more than this record.
Accordingly, I would reverse the judgment of the trial court.
