specially concurring.
I agree with Judge De Muniz in dissent that the majority opinion defines the word “accompany” too expansively, given its plain, natural and ordinary meaning. The ORCP 71 motion in this case was not “accompanied” by an answer. However, for the following reasons, I agree with the majority that the trial court did not abuse its discretion in permitting the tender and filing of an answer that did not accompany the motion to set aside judgment.
As the dissent observes, it is true that the trial court ruled orally that it would permit filing of an answer disputing damages before it reviewed the answer. It is also true that the answer ultimately tendered did not dispute only damages, contrary to the representation of defendant’s attorney. However, the trial judge did not enter his written order until after the answer was filed. Moreover, the answer did dispute damages, as predicted. While the sequence of procedure followed was not a text book model, the trial court permitted what it intended; namely, a damage contest. Not only did the trial court not abuse its discretion, it took a pragmatic approach given defendant’s initial failure to comply with the literal dictates of ORCP 71 B(1). That flexibility is precisely what is contemplated by ORCP 15 D,* 1 which “upon such terms as may be just” permits extensions and enlargements of time within which to make pleadings.
Plaintiff gives three reasons in her reply brief in support of her contention that ORCP 15 D does not apply here. *694None of those reasons withstands scrutiny. First, plaintiff argues that Averill v. Red Lion 118 Or App 298, 301, 846 P2d 1203 (1993), prohibits granting motions to extend time by implication. That generalization is not accurate. Red Lion reaffirmed that trial courts lack authority to set aside a judgment after the lapse of the 10-day deadline for filing motions for JNOV under ORCP 63 D, unless an extension of time was granted within that period. 118 Or App at 302. In Red Lion, the trial court did not act, either orally or in writing, to extend the time for filing the motion. This court did not consider ORCP 15 D in Red Lion since no extension was ever sought. Here, the trial court expressly relied on ORCP. 15 D in its letter opinion. Nothing was done by implication. Moreover, contrary to plaintiffs reading of the rule, ORCP 15 D did not restrict the trial court to allowing the pleading only by separate order. What plaintiff is really arguing is that the court was powerless to extend the time for tendering an answer because it did not accompany the motion. Plaintiffs argument misreads the text of ORCP 15 D and is not supported by the Red Lion decision.
Next, plaintiff contends that no time element exists within ORCP 71 B to be enlarged, since the motion to set aside must be made simultaneously with tender of the answer. That argument also ignores the feature of ORCP 15 D that contemplates allowance of pleadings after the time limited by the procedural rules. Moreover, the accompaniment requirement in ORCP 71B is not a filing deadline, such as exists for JNOV and certain other motions. The answer is not even filed unless the court sets the judgment aside and permits filing. Therefore, there is no reason by virtue of cases decided under filing deadline rules to impose such a rigid interpretation on ORCP 71B.
Finally, plaintiff argues that ORCP 15 D does not permit the filing of answers after entry of judgment. That argument misses the point. The answer is merely to be tendered abiding determination of a motion to set aside judgment. If the judgment is set aside, then and only then is the answer filed.
The trial court did not abuse its discretion in permitting a late tender of defendant’s answer before it entered its *695order setting aside the judgment. I would affirm the trial court’s order based on its proper exercise of discretion under ORCP 15 D.
Edmonds, J., joins in this special concurrence.ORCP 15 D provides:
“The court may in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or allow any other pleading or motion after the time limited by the procedural rules, or by an order enlarge such time.”