Moser v. DKN Ind.

EDMONDS, P. J.,

concurring.

In general, this case involves circumstances where the trial court, acting sua sponte and without first notifying plaintiff, awarded plaintiff lesser damages than the amount he claimed in his affidavit in support of his application for a default judgment. There are at least three implications that appear from the majority’s opinion based on those facts: (1) a trial court is authorized to enter an amount different from that requested in an affidavit made in support of a motion for a default judgment if it determines that the amount as shown by the affidavit is not correct, 191 Or App at 349; (2) plaintiff failed to give the trial court sufficient information to establish the amount of damages, id.; and (3) plaintiff did not request a hearing before the trial court, id. For the reasons that follow, I would hold only that plaintiff invited the error of which he complains.

Because there is disagreement between me and my colleagues about the issue framed by plaintiffs first assignment of error, I begin by explaining my understanding of plaintiffs brief. The first question presented in plaintiffs brief is as follows: “Does a Judge have the right to greatly and unjustly reduce the relief sought for by the Plaintiff when Defendant failed to appear, for want thereof, and had no concern or regard for the amount that would be lost by their failure to appear and defend?” When stripped to its essential words, I perceive the question presented by plaintiff to be: Whether, in plaintiffs absence and without notice to him, the trial court was authorized to reduce the amount of damages sought by plaintiff when defendant failed to appear and was in default?

According to the trial court record, plaintiff moved for entry of a default judgment on December 6. In that motion, plaintiff requested judgment in the amount of $6,000. In the affidavit in support of the default judgment, plaintiff averred, in relevant part, that “[t]he amount owed to *351me by [defendant] for Harassment, Breach of Contract, and Negligence is the sum of $6000[.]” The trial court signed a judgment reducing the award of damages on December 23, 2002. The amount of $6,000 was crossed out in the judgment and the sum of $500 was inserted in its place and was initialed by the trial judge. The judgment was filed on December 26. On the same date, it appears that the trial judge sent a letter to plaintiff explaining why the court had reduced the amount of the judgment. On January 3, plaintiff asked the court to reconsider its reduction of the award of damages, but he never asked for a hearing or an opportunity to appear personally and testify as to the amount of his damages. Rather, he submitted an affidavit conceding that the amount prayed for in his complaint may have been “somewhat unreasonable” but asserting that the court’s reduction was too great in amount. The judgment was also entered on January 3. The Oregon Judicial Information Network (OJIN) record shows that the motion for reconsideration was denied on January 14.1

When the record is considered with plaintiffs brief, I understand him to assign error to the court’s ruling on December 23 when it signed the judgment reducing the requested amount of damages to $500. There is no indication in the record that the trial court put plaintiff on notice of its intention to reduce the amount of damages asserted in his affidavit or that it furnished him an opportunity to be heard before it signed the judgment reducing the amount of damages. One issue then, as framed by plaintiffs brief, is whether the trial court’s action under the above circumstances was authorized by ORCP 69.

The short answer to that question, however, is that it is not necessary for us to decide the import of ORCP 69 B under the above circumstances because plaintiff invited the *352purported error in the trial court that he now claims on appeal. In his motion for reconsideration, plaintiff implicitly recognized the purported authority of the trial court to reduce the amount of the judgment by interlineation. He told the trial court, in effect, that some reduction was warranted but that the amount of reduction was too great. If there was error committed by the trial court on December 23, plaintiff invited the perpetuation of that error with his motion for reconsideration. See Sheets v. B & B Personnel Systems, 257 Or 135, 146-47, 475 P2d 968 (1970) (holding that, where the defendant suggested in a motion for directed verdict that a specific sum of damages would be proper, the defendant could not subsequently complain that that amount of damages was improper); Beck v. Southern Ore. Health Serv., 255 Or 590, 592-93, 469 P2d 622 (1970) (holding that, where the defendant stipulated to facts that included the sums awarded, the defendant had invited any resulting error in the amount of judgment). It is axiomatic that a party on appeal cannot take a position inconsistent with that which he invited the trial court to take. Howland v. Iron Fireman Mfg. Co., 188 Or 230, 290, 213 P2d 177 (1949).2

To the extent that the majority’s opinion reaches the merits of plaintiffs argument, the implicit assertion that a trial court is authorized by ORCP 69 to reduce sua sponte the amount of damages from the amount sought in an affidavit in support of a motion for a default judgment without notification to the plaintiff or without giving the plaintiff an opportunity to be heard deserves further comment. ORCP 69 B governs the entry of default judgments, and subsections B(1), B(2), and B(3) are relevant to the above issue. Subsection B(1) authorizes entry of default judgments by the court clerk or the court on written application of the party seeking judgment when the action arises on contract or the claim is for the recovery of a sum certain or for a sum that can, by computation, be made certain. Under those circumstances, judgment *353shall be entered when, along with other requirements, “[t]he party seeking judgment submits an affidavit of the amount due[.]” ORCP 69 B(1)(e).

In contrast to ORCP 69 B(1), subsection B(2) authorizes the entry of default judgments by the court “[i]n cases other than those cases described in subsection (1) * * In pertinent part, subsection B(2) provides:

“If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing, or make an order of reference, or order that issues be tried by a jury, as it deems necessary and proper. The court may determine the truth of any matter upon affidavits.”

Under subsection B(2), the use of the word “may" suggests that the grant of an evidentiary hearing is discretionary with the court. However in contrast to the language of ORCP 69 B(2), ORCP 69 B(3), which governs the entry of the amount of judgment, provides that “[t]he judgment entered shall be for the amount due as shown by the affidavit[.]” (Emphasis added.) The mandatory “shall” language of subsection B(3) obligates the trial court to award the amount of damages as shown by the affidavit and appears to impose a boundary on the court’s discretion. Thus, a tenable reading of the two sections together, of which trial courts should be cognizant, is that, while the holding of an evidentiary hearing or the requiring of additional affidavits is discretionary, a trial court cannot disregard the evidence from an uncontroverted affidavit without giving the parly an opportunity to be heard.

A motion for reconsideration made after entry of a judgment is equivalent to a motion for new trial and must comply with ORCP 64 B. Sorenson v. DMV, 190 Or App 164, 170, 78 P3d 145 (2003). Here, plaintiffs motion for reconsideration, the default judgment and the money judgment were all entered on the same date. It is not clear from the record whether plaintiffs motion was entered in the court records before the judgments were entered. See Voth v. State of Oregon, 190 Or App 154, 157-58, 78 P3d 565 (2003) (holding that a motion for reconsideration made before a court’s final ruling can preserve an issue for appeal).

Nonetheless, the language of ORCP 69 B, in my view, creates potential pitfalls for trial courts. Trial courts throughout the state enter default judgments on a daily basis, so the rule’s import is significant. Although most default judgments for money judgments are probably entered in the amounts averred in affidavits, this case presents an opportunity to encourage trial courts to think about the implications of the rule whenever the amount entered is different from the amount sought in the affidavit.