McClure v. Lebenbaum

45 P.3d 1038, 181 Or. App. 268, 2002 Ore. App. LEXIS 730

• Court: Court of Appeals of Oregon
• Decided: May 8, 2002
• Docket: 9506-04014; A110667
• Status: Published

Opinions

EDMONDS, P. J.

Plaintiff appeals from a supplemental money judgment in the amount of $118 in favor of the State of Oregon. The judgment represents the amount of filing fees that the trial court deferred when plaintiff filed his action for civil damages against defendant. Plaintiff makes two assignments of error, including that “the Multnomah County Circuit Court abused its discretion when it failed to abide by procedural rules in effect before and during its process in reaching the May 19, 2000, supplemental judgment.” Because we conclude that the above assignment of error is dispositive, we reverse.

In 1995, plaintiff petitioned the circuit court for deferral or waiver of his filing fees. In that petition, he stated:

“Plaintiff understands that the court may, at the conclusion of the proceedings, make a determination of plaintiffs ability to pay all or any portion of the costs applicable to this action. If the court determines that plaintiff is able to pay, the court may order plaintiff to pay all or part of such costs.”

At the bottom of the petition is a form for an order. The form reads:

“This matter having come before the court upon the petition of plaintiff for deferral/waiver of the filing fees and the court being fully advised in the premises;

“It is now, therefore, the order of the court that the filing fees in the above-entitled action are

“[ ] Deferred [ ] Waived until further order of this court.”

The box for “Deferred” is marked with an “X” and the order is signed by a circuit court judge.

In November 1995, the trial court entered a judgment dismissing plaintiffs complaint. The judgment of dismissal is silent about any requirement to pay the deferred filing fees. Then, in May 2000, the trial court entered the money judgment for $118 from which plaintiff appeals. There is no evidence in the record that the court ever notified plaintiff of its intention to enter the judgment or that it held a hearing in open court or otherwise before it entered the May 2000 judgment. The money judgment reads:

“It appearing to the court that fees and court costs in this matter were deferred pursuant to Motion, Affidavit, and Order on file in this case in favor of [plaintiff];

“Further, notice was provided to [plaintiff] at the time such fees and court costs were deferred that the unpaid balance was due according to the terms of such agreement, and that failure to comply with the terms of the agreement would result in the obligation being assigned to the Oregon Department of Revenue for collection, and that a judgment would be entered against the applicant in favor of the State of Oregon pursuant to ORS 21.605(l)(c);

“It further appearing that [plaintiff] has failed, refused, or neglected to comply with the terms of the agreement, therefore,

“It is hereby adjudged that the following money judgment shall be entered^]” (Emphasis added.)

1. The threshold issue is whether the judgment for $118 in favor of the State of Oregon is an appealable judgment over which we have jurisdiction. ORS 19.205(3) provides:

“No appeal to the Court of Appeals shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings that the amount in controversy exceeds $250.”

Jurisdiction turns on whether “the pleadings” in this case are (1) the complaint filed by plaintiff which sought $100,000 in damages or, instead, (2) plaintiff’s petition for the waiver of fees, which would not place more than $250 into controversy. For purposes of ORS 19.205(3), ORCP 13 defines the word “pleadings” in civil cases. ORCP 13 A states that “[t]he pleadings are the written statements by the parties of the facts constituting their respective claims and defenses.” ORCP 13 B provides that the pleadings that are allowed under the Oregon Rules of Civil Procedure (ORCP) are the following: a complaint, a third-party complaint, an answer, a counterclaim, a cross-claim and a reply. ORCP 13 B concludes that “[t]here shall be no other pleading unless the court orders otherwise.” It follows that the only pleading in this case was plaintiffs complaint, which sought damages in excess of the $250 limit imposed by ORS 19.205(3). As a result, we conclude that we have jurisdiction over plaintiffs appeal.

The next question is whether the trial court was authorized to enter the supplemental money judgment for the deferred filing fees under the circumstances of this case. ORS 21.605(l)(a) authorizes the waiver or deferral of fees and court costs payable by a party to a civil action, in whole or in part, if the court “finds that the party is unable to pay all or part of the costs.” ORS 21.605(l)(c) provides, in relevant part:

“In the judgment or other final written disposition of the action or proceeding the court shall note the dollar amount of the fees and costs not waived and then unpaid and that amount shall be a judgment in favor of the public body to which the fees and costs are owed.”

When read together, ORS 21.605(l)(a) and ORS 21.605(l)(c) authorize either a waiver or a deferral of the payment of court costs by a litigant. They also allow a court to waive part of the court costs and defer the remainder. In this case, at the time that plaintiff filed his petition to waive or defer fees, the trial court elected to order deferral of the court costs until the entry of a final judgment pursuant to ORS 21.605(l)(c). However, the final judgment that the court entered in November 1995 dismissing plaintiffs action did not comply with the mandate of ORS 21.605(l)(c) to enter a judgment for the deferred filing fees.

The court later sought to fulfill its duty under ORS 21.605(l)(c) by entering judgment against plaintiff in May 2000 for the amount of the filing fees. However, ORS 21.605(l)(c) requires that the judgment for deferred fees be entered as part of the “final written disposition of the action.” The May 2000 judgment is not the final disposition of the action. That event occurred in November 1995, and that judgment was fully effective, even without the inclusion of the deferred fees. ORS 21.605(l)(c). Consequently, ORS 21.605(l)(c) did not provide the court with authority to enter a judgment for deferred court costs in May 2000.

Moreover, ORS 21.605(l)(a) contemplates a waiver or deferral of part or all of the fees, or both. The court’s initial order deferred all of the fees under section (l)(a). Had it held a hearing before final judgment was entered in November 1995 under ORS 21.605(l)(c), it could have elected to waive all or part of the fees at that time and enter judgment for any amount it did not order waived. There is no suggestion in the record before us that the court held such a hearing or made a decision under the statute at the time the statute requires. Plaintiffs argument that the trial court abused its discretion by failing to abide by the procedural rules that protect a party against being adjudicated a judgment debtor without notice is therefore well taken. In sum, the procedure authorized under ORS 21.605(l)(c) did not authorize entry of judgment for court costs in May 2000 because the final judgment had been entered in the case in 1995.¹

The dissent reasons that ORCP 71 A provides the authority for the trial court to enter the supplemental judgment for court costs in May 2000. ORCP 71A provides:

“Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice to all parties who have appeared, if any, as the court orders. During the pendency of an appeal, a judgment may be corrected as provided in subsection (2) of section B of this rule.”

The persuasiveness of the dissent’s argument turns on whether the trial court’s failure to enter judgment for the court costs in 1995 can be properly characterized as a “clerical” mistake under ORCP 71 A.

The short answer to the dissent’s argument is that the entry of a money judgment against plaintiff under the circumstances of this case is not the kind of “clerical mistake” that ORCP 71A contemplates correcting. Based on the rule’s text and context, a “clerical” mistake is the kind of mistake in a judgment that causes the judgment, through oversight or omission, not to reflect what occurred in the proceeding that led to the judgment. The antithesis occurred in this case. When the court marked an “X” on the order form in 1995 deferring the filing fees, it adopted the language in the petition, that, “[ijfthe court determines that plaintiff is able to pay, the court may order plaintiff to pay all or part of such costs.” (Emphasis added.) The order, patterned after the language of ORS 21.605(l)(a), unambiguously does not impose an obligation to pay all or part of the filing fees at the time of entry of final judgment. Rather, it reserves the authority of the court to waive all or part of the fees at the time of entry of final judgment. No clerk can adjudicate whether a party has an ability to pay part or all of the court costs at the time of entry of final judgment, or decide what amount, if any, should be awarded as a final judgment for the court costs. Only a judge can make those kinds of determinations, and therefore the nature of the omission in the 1995 judgment suggests that it cannot be subsequently remedied by the clerk or the court under ORCP 71 A on the basis that it is a mere clerical mistake.

The case law underlying ORCP 71 A confirms the understanding that the rule is intended to provide a remedy only in those cases where the corrected judgment is entered to conform the judgment to what actually occurred in the original action. Johnson v. Overbay, 85 Or App 576, 581 & n 5, 737 P2d 1251, mod on recons 87 Or App 540, 743 P2d 181,rev den 304 Or 547 (1987); see also Mullinax and Mullinax, 292 Or 416,424,639 P2d 628 (1982) (“The purpose of an amendment correcting a ‘clerical error’ is * * * to make the record speak the truth and conform it to what actually occurred.”). In this case, the necessary element for an authorized correction under ORCP 71 A — evidence in the record that the trial court intended in 1995 to enter a judgment against plaintiff for all of the costs of filing his action — is missing. Consequently, we conclude that the trial court was without authority to enter the judgment for filing fees in the manner that it did.²

Reversed.

1 Although the language of ORS 21.605(l)(c) is mandatory, it does not follow that the court has no discretion under the statute regarding the entry of judgment for court costs. When the statute is read with ORS 21.605(l)(a), which allows the court, at the beginning of the case, to “waive in whole or in part, defer in whole or in part, or both,” the combined effect of the statutes is to authorize both the deferral and the waiver of court costs, either in whole or in part, both upon the filing of the action and upon final judgment.

2 If ORCP 71A is interpreted to allow an amendment to the order to award fees in this case, the rule would have to be applied in such a way as to give notice to plaintiff in order to comply with due process requirements. The imposition of a money judgment against him affects a substantive right. Here, there was no notice to plaintiff that the court intended to enter judgment against him and no hearing was held. Plaintiff was entitled to rely on the assertion in his petition, and the language in the court’s order, that the court would make a determination of his ability to pay before imposing a judgment for fees against him, and that determination never occurred. See Bacote v. Johnson, 333 Or 28, 35 P3d 1019 (2001) (holding that a court must afford the opportunity to be heard before entering judgment for attorney fees after the initial deferral of fees).