concurring.
I agree with the majority’s disposition of this case and with most of its analysis. The trial court exceeded the extent of its personal jurisdiction over defendant when it entered a default judgment that exceeded the amount of relief sought in the last pleading with which defendant was served. See ORCP 9 A (“No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in [ORCP] 7.”). I write separately because I do not agree with the majority’s reading of ORCP 67 C. Because, in my view, the result does not depend upon the application of the majority’s construction of ORCP 67 C, I concur.
The majority concludes that, under ORCP 67 C, notice and an opportunity to be heard are “jurisdictional essentials” that must exist before a party can obtain a default judgment in excess of the amount sought in the complaint. 192 Or App at 416.1 agree with the majority insofar as it concludes that a trial court exceeds its jurisdiction when it enters a default judgment that exceeds in amount the prayer for relief in the operative pleading. I also agree that it is likely that the legislature intended ORCP 67 C(1) to embody jurisdictional requirements imposed by due process principles. I disagree only with how the majority construes ORCP 67 C(1) to reach that result.
*420According to the majority, we can tell that the legislature intended ORCP 67 C(1) to comport with due process by looking at the second sentence of that subsection, which requires “ ‘that reasonable notice and opportunity to be heard are given to any party against whom the judgment is to be entered.’ ” 192 Or App at 416 (quoting ORCP 67 C(1)). That clause, however, appears in a sentence that governs only those default judgments granting equitable remedies and, accordingly, does not directly apply in this case.
ORCP 67 C provides, in relevant part:
“Every judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if such relief has not been demanded in the pleadings, except:
“C(1) A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. However, a default judgment granting equitable remedies may differ in kind from or exceed in amount that prayed for in the demand for judgment, provided that reasonable notice and opportunity to be heard are given to any party against whom the judgment is to be entered.”
The first sentence of ORCP 67 C(1) states that default judgments shall not be different in kind or exceed in amount what was prayed for. The second sentence is an exception: a default judgment granting equitable remedies may be different in kind or exceed in amount what was prayed for if proper notice and an opportunity to be heard are given. The majority reasons that the legislature intended notice and opportunity to be heard to be required whenever a judgment is to exceed the amount prayed for. 192 Or App at 416. It seems much more likely that the legislature intended that requirement to apply only to cases involving equitable relief; otherwise it would not have phrased ORCP 67 C(1) as a general rule followed by an exception, but rather would have said that any default judgment can differ in kind or exceed in amount what was sought if proper notice and an opportunity to be heard are given.
In my view, the legislature clearly indicated in ORCP 67 C(l) that, consistently with due process, a judgment granting only legal relief may not exceed the amount *421sought in the prayer. Consequently, I agree with the majority that the trial court lacked jurisdiction to enter the default judgment to the extent that it exceeded the amount sought in plaintiffs amended complaint. I do not agree that, under the plain language of ORCP 67 C(1), a default judgment granting only legal relief may exceed the amount sought if proper notice and an opportunity to be heard are given. However, that is not a question we need to decide in this case.
For the reasons stated above, I concur.