ROBERTS, J.
This case involves the application of the language in ORCP 69B.(2) which requires that “[i]f the party against whom judgment [by default] is sought has appeared in the action * * * the party against whom judgment is sought * * * shall be served with written notice of the application for judgment at least 10 days, unless shortened by the court, prior to the hearing on such application.”
An action for breach of contract and deceit was filed in district court in August 1983. Defendant Hunt
was served in Oregon but then moved to Oklahoma. Difficulties with discovery followed. Relying on ORCP 46,
plaintiff filed a motion to compel discovery, requesting,
inter alia,
judgment for plaintiff as a sanction for failure to comply with discovery. On October 28, 1983, the court issued an order compelling discovery and requiring compliance by November 28,1983.
On November 22, 1983, plaintiff served defendant with a Notice of Intent to Apply for a Default Order which stated,
“TAKE NOTICE!!! Plaintiff shall make application to the Court for an Order entering the default of the Defendant CHRIS HUNT in the above-entitled cause pursuant to the prior written notice to counsel delivered on the 31st day of October 1983. Plaintiff shall make said application to the Court by way of Motion on the 29th day of November 1983 at the a.m.
ex-parte
session in room 228 before the Presiding Judge.”
On November 29,1983, plaintiff obtained an
ex parte
order of default on the court’s finding that defendant had failed to comply with the court’s order compelling discovery.
Defendant had previously filed, on November 14, 1983, a motion to modify the order compelling discovery. Because of defendant’s failure to give a 7-day notice as required by local court rules, that motion was not heard until December 1,1983, at which time the court vacated the order of default in order to hear the motion. On December 16,1983, the court denied the motion to modify and again granted plaintiffs motion for order to default
nunc pro tunc
to December 1, 1983.
On January 3, 1984, a hearing was held on defendant’s motion, filed December 9,1983, to set aside the default. The court denied the motion. In the meantime, a
prima facie
hearing had been held on December 14, 1983, to determine plaintiffs damages and on January 13, 1984, a judgment against defendant was granted
nunc pro tunc
to December 14, 1983. The court noted in the judgment that an order of default had been entered on December 1,1983.
The Court of Appeals reversed the trial court, holding that the notice failed to conform to the 10-day notice requirement of ORCP 69B.(2) because the notice was given only seven days before the order of default was granted.
ORCP 69A. provides for “Entry of default” by the clerk or the court. ORCP 69B. addresses “Entry of default judgment.” ORCP 69B. is divided into two subsections. Subsection (1), which provides for entry of default judgment “[b]y the clerk” lists the circumstances under which this procedure may be accomplished. Subsection (2), which sets forth entry of judgment by default “[b]y the court” requires that when a party against whom judgment is sought has appeared in the action or the party seeking judgment has notice that the opposing party is represented by an attorney, that party shall be served with written notice of the application for judgment at least 10 days prior to the hearing on the application, unless the time period is shortened by the court, prior to the hearing on application.
It is apparent from ORCP 69 that an “entry of default” and an “entry of default judgment” are two separate events.
An entry of default is the first step leading to a judgment by default. No notice is required under ORCP 69A. for an entry of default. There is no question in this case that defendant was entitled to the notice required in ORCP 69B.(2) for entry of the judgment by default. The question is whether, under these facts, that notice was given.
Plaintiff first claims that a letter of October 31 from him to defendant’s attorney gave that notice. The letter is not a part of the record, but plaintiff argues that reference to it in the record is adequate. Regardless of whether the reference to the letter is adequate, we conclude that the provision of ORCP 69B.(2) stating that the party or the party’s representative against whom judgment is sought “shall be served with written notice” is clear in its requirement. If refers to service as specified in ORCP 9.
The letter cannot substitute for service as specified by statute.
Plaintiff served defendant with the notice of application for an order on November 22,1983. The notice stated that plaintiff “* * * shall make application to the Court for an
Order
entering the default of the Defendant. * * *” (Emphasis added.) On November 29, 1983, seven days later, an order of default was entered. The Court of Appeals reversed the trial court because defendant had not received the required 10-day notice, thus indicating that a 10-day notice is required for an order of default. We conclude that the Court of Appeals’ interpretation is not a proper reading of ORCP 69B.(2).
ORCP 69B.(2) refers to “application for judgment” without any accompanying explanation of precisely what is meant by the language. Former ORS 18.080(1) (b)
(repealed by
Or Laws 1981, ch 898, § 53), one of the sources for the current rule, provided:
“* * * [T]he clerk, upon written motion of the plaintiff being filed, shall enter the default of the defendant,
and thereafter the plaintiff may apply to the court for the relief demanded in the complaint.
The court shall, upon such application, give judgment for the amount prayed for in the complaint, or the relief demanded in the complaint, unless it is necessary, to enable the court to give judgment or carry the same into effect, to take proof of any matter of fact, in which case the court may order the entry of judgment to be delayed until such proof is taken. * * *.” (Emphasis added.)
This early version of ORCP 69B.(2) states that upon entry of default, the plaintiff “may apply” for a judgment award of the relief demanded in the complaint. We interpret this to mean that the hearing at which the court determines whether a judgment by default should be granted is the hearing which must be preceded by 10 days notice as contemplated by ORCP 69B.(2). The commentary to the draft of Proposed Rules 67 through 74 states: “Rule 69B. covers the
Free access — add to your briefcase to read the full text and ask questions with AI
ROBERTS, J.
This case involves the application of the language in ORCP 69B.(2) which requires that “[i]f the party against whom judgment [by default] is sought has appeared in the action * * * the party against whom judgment is sought * * * shall be served with written notice of the application for judgment at least 10 days, unless shortened by the court, prior to the hearing on such application.”
An action for breach of contract and deceit was filed in district court in August 1983. Defendant Hunt
was served in Oregon but then moved to Oklahoma. Difficulties with discovery followed. Relying on ORCP 46,
plaintiff filed a motion to compel discovery, requesting,
inter alia,
judgment for plaintiff as a sanction for failure to comply with discovery. On October 28, 1983, the court issued an order compelling discovery and requiring compliance by November 28,1983.
On November 22, 1983, plaintiff served defendant with a Notice of Intent to Apply for a Default Order which stated,
“TAKE NOTICE!!! Plaintiff shall make application to the Court for an Order entering the default of the Defendant CHRIS HUNT in the above-entitled cause pursuant to the prior written notice to counsel delivered on the 31st day of October 1983. Plaintiff shall make said application to the Court by way of Motion on the 29th day of November 1983 at the a.m.
ex-parte
session in room 228 before the Presiding Judge.”
On November 29,1983, plaintiff obtained an
ex parte
order of default on the court’s finding that defendant had failed to comply with the court’s order compelling discovery.
Defendant had previously filed, on November 14, 1983, a motion to modify the order compelling discovery. Because of defendant’s failure to give a 7-day notice as required by local court rules, that motion was not heard until December 1,1983, at which time the court vacated the order of default in order to hear the motion. On December 16,1983, the court denied the motion to modify and again granted plaintiffs motion for order to default
nunc pro tunc
to December 1, 1983.
On January 3, 1984, a hearing was held on defendant’s motion, filed December 9,1983, to set aside the default. The court denied the motion. In the meantime, a
prima facie
hearing had been held on December 14, 1983, to determine plaintiffs damages and on January 13, 1984, a judgment against defendant was granted
nunc pro tunc
to December 14, 1983. The court noted in the judgment that an order of default had been entered on December 1,1983.
The Court of Appeals reversed the trial court, holding that the notice failed to conform to the 10-day notice requirement of ORCP 69B.(2) because the notice was given only seven days before the order of default was granted.
ORCP 69A. provides for “Entry of default” by the clerk or the court. ORCP 69B. addresses “Entry of default judgment.” ORCP 69B. is divided into two subsections. Subsection (1), which provides for entry of default judgment “[b]y the clerk” lists the circumstances under which this procedure may be accomplished. Subsection (2), which sets forth entry of judgment by default “[b]y the court” requires that when a party against whom judgment is sought has appeared in the action or the party seeking judgment has notice that the opposing party is represented by an attorney, that party shall be served with written notice of the application for judgment at least 10 days prior to the hearing on the application, unless the time period is shortened by the court, prior to the hearing on application.
It is apparent from ORCP 69 that an “entry of default” and an “entry of default judgment” are two separate events.
An entry of default is the first step leading to a judgment by default. No notice is required under ORCP 69A. for an entry of default. There is no question in this case that defendant was entitled to the notice required in ORCP 69B.(2) for entry of the judgment by default. The question is whether, under these facts, that notice was given.
Plaintiff first claims that a letter of October 31 from him to defendant’s attorney gave that notice. The letter is not a part of the record, but plaintiff argues that reference to it in the record is adequate. Regardless of whether the reference to the letter is adequate, we conclude that the provision of ORCP 69B.(2) stating that the party or the party’s representative against whom judgment is sought “shall be served with written notice” is clear in its requirement. If refers to service as specified in ORCP 9.
The letter cannot substitute for service as specified by statute.
Plaintiff served defendant with the notice of application for an order on November 22,1983. The notice stated that plaintiff “* * * shall make application to the Court for an
Order
entering the default of the Defendant. * * *” (Emphasis added.) On November 29, 1983, seven days later, an order of default was entered. The Court of Appeals reversed the trial court because defendant had not received the required 10-day notice, thus indicating that a 10-day notice is required for an order of default. We conclude that the Court of Appeals’ interpretation is not a proper reading of ORCP 69B.(2).
ORCP 69B.(2) refers to “application for judgment” without any accompanying explanation of precisely what is meant by the language. Former ORS 18.080(1) (b)
(repealed by
Or Laws 1981, ch 898, § 53), one of the sources for the current rule, provided:
“* * * [T]he clerk, upon written motion of the plaintiff being filed, shall enter the default of the defendant,
and thereafter the plaintiff may apply to the court for the relief demanded in the complaint.
The court shall, upon such application, give judgment for the amount prayed for in the complaint, or the relief demanded in the complaint, unless it is necessary, to enable the court to give judgment or carry the same into effect, to take proof of any matter of fact, in which case the court may order the entry of judgment to be delayed until such proof is taken. * * *.” (Emphasis added.)
This early version of ORCP 69B.(2) states that upon entry of default, the plaintiff “may apply” for a judgment award of the relief demanded in the complaint. We interpret this to mean that the hearing at which the court determines whether a judgment by default should be granted is the hearing which must be preceded by 10 days notice as contemplated by ORCP 69B.(2). The commentary to the draft of Proposed Rules 67 through 74 states: “Rule 69B. covers the
judgment entry after the separate entry of default.” Council on Court Procedures, Oregon Rules of Civil Procedure and Amendments, Preliminary Drafts and Final Draft 41 (October 15,1979).
Judgment for plaintiff was not entered until January 13,1984. The
prima facie
hearing on December 14, 1983, and the order of default entered
nunc pro tunc
on December 1, 1983, culminated in this money judgment to plaintiff. The hearing which had to be preceded by the 10-day notice was the
prima facie
hearing on damages held December 14, 1983, because this constituted the “application for judgment.”
We conclude that plaintiffs notice for an order entering the default does not fulfill the statutorily required notice for an application for judgment by default. Defendant was entitled to service of a 10-day notice that plaintiff intended to take a judgment by default as the result of the order of default. The rule envisions a final opportunity for a defendant to avoid a judgment by default. He does not have that opportunity unless the statutory notice is given.
As did the Court of Appeals, we order that this case be remanded to the trial court with instructions to set aside the judgment, not because the notice of entry of default was deficient, but because plaintiff gave defendant no notice that he intended to take a judgment by default. The Court of Appeals is affirmed and the case is remanded to the trial court with instructions to set aside the judgment.