ORCP 71

NOTES OF DECISIONS

Legislative history of this rule reflects intent to retain “extrinsic/intrinsic” fraud distinction. Johnson v. Johnson, 302 Or 382, 730 P2d 1221 (1986)

Where there was no fraud, material misrepresentation or other misconduct by husband, “appearance of impropriety” is not sufficient ground to vacate stipulated judgment. Erwin and Erwin, 100 Or App 64, 784 P2d 1109 (1990)

Disproportionate division of marital assets is not itself sufficient to prove misconduct or breach of fiduciary duty which is required to set aside stipulated judgment. Erwin and Erwin, 100 Or App 64, 784 P2d 1109 (1990)

Dissolution judgment is subject to collateral attack through independent action on grounds of extrinsic fraud. Greeninger v. Cromwell, 140 Or App 241, 915 P2d 479 (1996), Sup Ct review denied

ORCP 71A

NOTES OF DECISIONS

Where nothing in order or any part of record indicates that sole purpose for setting aside judgment was to extend time for appeal, even though that was result, trial court’s grant of motion to set aside judgment and issue another was authorized by this rule and ORCP 71C. Stevenson v. U.S. National Bank, 296 Or 495, 677 P2d 696 (1984)

Order denying motion made only under this rule is appealable. Johnson v. Overbay, 85 Or App 576, 737 P2d 1251 (1987), as modified by 87 Or App 540, 743 P2d 181 (1987), Sup Ct review denied

“Clerical” error means mechanical mistake or omission, apparent on record, which does not involve legal decision or judgment. Hopkins and Hopkins, 102 Or App 655, 796 P2d 660 (1990), Sup Ct review denied; Horrocks and Horrocks, 124 Or App 233, 862 P2d 540 (1993), Sup Ct review denied

“Clerical” mistake means oversight or omission in judgment that causes judgment not to reflect what occurred in proceeding leading to judgment. McClure v. Lebenbaum, 181 Or App 268, 45 P3d 1038 (2002)

ORCP 71B

See also annotations under ORS 18.160 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 18.160)

Party seeking relief from default judgment through “mistake, inadvertence, surprise or excusable neglect” must also show action with reasonable diligence after knowledge of default judgment. Street v. Bate Plywood, 262 Or 270, 497 P2d 859 (1972); St. Arnold v. Star Expansion Ind., 268 Or 640, 521 P2d 526, 522 P2d 477 (1974)

Proof of meritorious defense does not alone satisfy burden of showing excusable neglect. Burke v. Raschau, 262 Or 323, 497 P2d 1154 (1972); Rogue Valley Memorial Hospital v. Salem Insurance Agency, 265 Or 603, 510 P2d 845 (1973)

Trial court could not set aside judgment and enter new, identical order for purpose of allowing defendant additional time to appeal. Tierney v. Duris, 21 Or App 604, 536 P2d 431 (1975); Far West Landscaping v. Modern Merchandising, 287 Or 653, 601 P2d 1237 (1979)

Motion to vacate decree based on mistake, inadvertence, surprise or neglect is separate proceeding from ordinary motion to set aside; therefore granting or denial of motion is appealable. Gutzman and Gutzman, 25 Or App 199, 548 P2d 993 (1976)

Statutory provision that decree may be vacated “within one year” is limit on court’s power, and does not mean that motion filed within one year is necessarily timely. Hansen v. Hansen, 31 Or App 823, 571 P2d 568 (1977)

Court may vacate decree of dissolution on grounds of duress or gross inequity, if such vacation is exercised within reasonable time. Hansen v. Hansen, 31 Or App 823, 571 P2d 568 (1977)

Short time lapse between default and motion to set aside does not obviate need to demonstrate good cause for delay. Rodger v. Seager, 278 Or 293, 563 P2d 1200 (1977)

Statute is to be construed liberally to end that rights of litigants be determined on merits of controversy. Morrell v. Lane County, 35 Or App 793, 582 P2d 847 (1978)

Judgment or decree entered by consent of parties is in nature of contract, approved by court, and cannot be set aside except on grounds adequate to justify rescission of contract. Nieminen v. Pitzer, 281 Or 53, 573 P2d 1227 (1978)

In general

When breach of fiduciary duty, misconduct or overreaching occurs in entry of decree incorporating marital property settlement agreement, aggrieved party can directly attack decree. Eltzroth v. Eltzroth, 67 Or App 520, 679 P2d 1369 (1984)

Purpose of permitting filing during pendency of appeal is to permit party to avoid limitation requiring filing motion based on mistake, newly discovered evidence or fraud within one year of judgment. State ex rel Juv. Dept. v. Shaver, 74 Or App 143, 700 P2d 1066 (1985)

Where trial court did not err in denying motion to dismiss default judgment, lack of personal jurisdiction was waived where not raised in first post-judgment motion. Pacific Protective Wear Dist. Co. v. Banks, 80 Or App 101, 720 P2d 1320 (1986)

Test for fraud is identical under either this section or ORCP 71C. Johnson v. Johnson, 302 Or 382, 730 P2d 1221 (1986); Wimber v. Timpe, 109 Or App 139, 818 P2d 954 (1991)

ORCP 71 cannot be used as subterfuge to avoid ORCP 64C. Wills and Wills, 94 Or App 546, 765 P2d 1260 (1988)

Where facts demonstrated defendant’s disregard for seriousness of matter, trial court did not abuse discretion in denying defendant’s motion for relief from default judgment. Walker v. Allied Fidelity Ins. Co, 97 Or App 568, 777 P2d 990 (1989), Sup Ct review denied; Douglas National Bank v. Becker, 102 Or App 143, 792 P2d 1246 (1990)

Where person filed motion to set aside portions of judgment, person did not have burden to prove court lacked personal jurisdiction because party asserting jurisdiction must come forward with jurisdictional facts. Resnik and Resnik, 99 Or App 56, 781 P2d 856 (1989), Sup Ct review denied

Motion to set aside ex parte judgment as void on grounds of denial of due process almost two years after its entry was untimely because motion could have been made within one-year period. Severson v. Youngdahl, 102 Or App 54, 792 P2d 482 (1990)

Where corporate agent cannot say what he did with summons and complaint after being served, and speculation that he followed normal procedures is not supported by other employees, court properly denied motion to set aside default judgment. Mount v. Massachusetts Mutual Life Ins. Co., 103 Or App 156, 796 P2d 388 (1990)

Court did not abuse discretion by granting relief to one defendant, who is agent of defendant denied relief, when defendants used different theories of relief. Mount v. Massachusetts Mutual Life Ins. Co., 103 Or App 156, 796 P2d 388 (1990)

Defendants failed to show excusable neglect where: (a) defendants failed to contact attorney until at least seven days after answer was due; (b) attorney failed to file amended answer or move to set aside default until seven weeks after default entered; and (c) plaintiff, creditor of defendants, showed prejudice since delay put plaintiff at disadvantage with respect to other creditors of defendants. Northwest Acceptance Corp. v. Bles Studs, Inc., 105 Or App 54, 803 P2d 775 (1990), Sup Ct review denied

Judgment by default is taken by “surprise” when relief granted materially varies from what was asked for in underlying pleading. Caudill and Caudill, 107 Or App 435, 812 P2d 28 (1991)

Even if plaintiff’s failure to appear was result of misunderstanding or miscommunication with attorney, in absence of explanation of why that miscommunication should be excused, denial of motion to set aside dismissal was proper. Blue Horse v. Sisters of Providence, 113 Or App 82, 830 P2d 611 (1992), Sup Ct review denied

Where spouse knew or should have known dissolution proceeding was pending but failed to advise court of mailing address change, court did not abuse discretion in denying relief for inadvertence or excusable neglect. Weaver and Weaver, 119 Or App 478, 851 P2d 629 (1993)

Consent judgment may not be set aside by court absent clear and convincing evidence of fraud, misrepresentation or similar misconduct. Auble and Auble, 125 Or App 554, 866 P2d 1239 (1993), Sup Ct review denied

Where service on attorney defendant was made by leaving summons at address listed with Oregon State Bar, failure of defendant to respond due to lack of actual notice was not excusable neglect. Gallogly v. Calhoon, 126 Or App 366, 869 P2d 346 (1994), Sup Ct review denied

Where courier service failed to deliver complaint forwarded to principal by registered agent of principal in compliance with normal operating procedure, failure of principal to appear was excusable neglect. Walters v. Kmart Corp., 149 Or App 65, 942 P2d 286 (1997), Sup Ct review denied

“Newly discovered evidence” must be of facts in existence at time of trial. McCathern v. Toyota Motor Corp., 160 Or App 201, 985 P2d 804 (1999), aff’d 332 Or 59, 23 P3d 320 (2001)

Where corporation’s registered agent is personally served and gives summons to ostensibly responsible subordinate for necessary action, failure of corporation to appear due to neglect of subordinate is “excusable neglect.” Wood v. James W. Fowler Co., 168 Or App 308, 7 P3d 577 (2000)

Requirement that motion for relief be “accompanied by” responsive pleading or motion to dismiss means pleading or motion to dismiss must be filed at same time as motion for relief. Duvall v. McLeod, 331 Or 675, 21 P3d 88 (2001)

“Judgment” means circuit court judgment. Lincoln Loan Co. v. City of Portland, 335 Or 105, 59 P3d 521 (2002)

Where party responsible for responding to complaint or motion is unable to explain failure to respond, unidentified cause of failure is not excusable neglect. Stull v. Ash Creek Estates, LLC, 187 Or App 63, 66 P3d 515 (2003)

Requirement that party file motion within reasonable time and discretion of trial court in acting on motion do not apply to motion to set aside void judgment. Estate of Selmar A. Hutchins v. Fargo, 188 Or App 462, 72 P3d 638 (2003)

ORCP 54D, requiring that court dismiss subsequent action where same claim was previously dismissed with prejudice, does not prevent court from reinstating subsequent action where dismissal of first claim is reversed. Palmquist v. Flir Systems, Inc., 207 Or App 365, 142 P3d 94 (2006)

Where trial court previously granted summary judgment, newly discovered evidence must be sufficient to controvert grounds on which summary judgment was actually granted and all previously asserted alternative grounds on which court could have granted summary judgment. Wah Chang v. PacifiCorp, 212 Or App 14, 157 P3d 243 (2007)

This rule is applicable to adoption judgments. J.B.D. v. Plan Loving Adoptions Now, Inc., 218 Or App 75, 178 P3d 266 (2008), Sup Ct review denied

Trial court has no inherent authority to set aside one judgment and enter another when court does so for sole purpose of extending time for appeal. State v. Ainsworth, 346 Or 524, 213 P3d 1225 (2009)

When default constitutes negligent mistake, trial court does not abuse its discretion when excusability of neglect is implicit in trial court’s ruling. Terlyuk v. Krasnogorov, 237 Or App 546, 240 P3d 740 (2010), Sup Ct review denied

Where petitioner fails to file responsive pleading simultaneously with motion for relief, court ruling to allow petitioner to withdraw does not bar future, proper filing of motion. Dickey v. Rehder, 239 Or App 253, 244 P3d 819 (2010), Sup Ct review denied

Failure of party to timely file motion for relief from judgment does not deprive court of subject matter jurisdiction over motion. Unifund CCR Partners v. Kelley, 240 Or App 23, 245 P3d 694 (2010)

Failure to comply with notice requirements before filing motion for judgment o f relief on basis that judgment is void is not mere procedural defect that renders judgment voidable. Unifund CCR Partners v. Kelley, 240 Or App 23, 245 P3d 694 (2010)

ORCP 71C

NOTES OF DECISIONS

Where nothing in order or any part of record indicates that sole purpose for setting aside judgment was to extend time for appeal, even though that was result, trial court’s grant of motion to set aside judgment and issue another was authorized by this rule and ORCP 71A. Stevenson v. U.S. National Bank, 296 Or 495, 677 P2d 696 (1984)

Trial court abused discretion when it amended final judgment by striking punitive damages against surety when surety had been sued directly by party who had been defrauded by automobile dealer and when surety had tendered defense to dealer’s counsel who failed to assert defense on behalf of surety. Condliff v. Priest, 82 Or App 115, 727 P2d 175 (1986)

Where wife had made no showing of fraud or overreaching by husband, her failure to request covenant not to compete in default judgment of dissolution is not sufficient basis to allow court to modify judgment. Renninger and Renninger, 82 Or App 706, 730 P2d 37 (1986)

Test for fraud is identical under either this section or ORCP 71B. Johnson v. Johnson, 302 Or 382, 730 P2d 1221 (1986); Wimber v. Timpe, 109 Or App 139, 818 P2d 954 (1991)

Where there was no evidence or claim of extraordinary circumstances, court had no authority to modify property division portion of dissolution judgment. Wills and Wills, 94 Or App 546, 765 P2d 1260 (1988)

Where prior judgment was not ambiguous, amendment was not technical one to correct error made by court and it did not arise from extraordinary circumstances, trial court erred by modifying property provision in prior dissolution judgment. Trickel and Trickel, 100 Or App 722, 788 P2d 489 (1990)

Perjury is intrinsic fraud and does not justify relief from judgment under this rule. JRD Development Joint Venture v. Catlin, 116 Or App 182, 840 P2d 737 (1992), as modified by 118 Or App 502, 848 P2d 136 (1993)

When court made initial order to seal records under ORS 137.225 on June 3 and 5, 1991, state filed motion to modify order on August 16, 1991, and court ruled on motion in early November 1991, court amended order within reasonable time. State v. Smith, 117 Or App 320, 843 P2d 1015 (1992), Sup Ct review denied

Court does not have inherent authority to modify judgment absent technical mistakes or extraordinary circumstance such as extrinsic fraud. Horrocks and Horrocks, 124 Or App 233, 862 P2d 540 (1993), Sup Ct review denied; City of Canby v. Rinkes, 154 Or App 364, 961 P2d 291 (1998)

Because action to relieve party from judgment is independent of action that created judgment, actions may have different prevailing parties entitled to attorney fees. Stein v. Burt & Vetterlein, P.C., 150 Or App 484, 946 P2d 1168 (1997), Sup Ct review denied

Where appeal period had not expired and appeal had not been taken, trial court retained authority to modify judgment that did not conform with law. Patrick v. State of Oregon, 178 Or App 97, 36 P3d 976 (2001)

Fact that stipulated judgment may be erroneous under subsequent decision by another court does not constitute extraordinary circumstance allowing court to relieve party from judgment. Kneefel v. McLaughlin, 187 Or App 1, 67 P3d 947 (2003)

This rule is applicable to adoption judgments. J.B.D. v. Plan Loving Adoptions Now, Inc., 218 Or App 75, 178 P3d 266 (2008), Sup Ct review denied

Court may set aside judgment due to fraud upon court committed by person other than party to action. MBNA America Bank v. Garcia, 227 Or App 202, 205 P3d 53 (2009)