Property Management Services, Inc. v. PMC Village Inn, Ltd.

764 P.2d 961, 94 Or. App. 187

Opinion

WARDEN, P. J.

Defendant has moved for reconsideration and has petitioned for review of our previous decision in this case.¹ 91 Or App 225, 754 P2d 611 (1988). We hold that we incorrectly awarded a penalty against defendant under ORS 19.160² for having brought an appeal without probable cause. We therefore grant reconsideration, modify our previous opinion by deleting the penalty and adhere to it as modified.

In our previous opinion we stated that the trial court “entered a judgment of strict foreclosure and gave plaintiff a money judgment” and that the amount of the judgment was $1,914,845.70. 91 Or App at 227. We then determined that the judgment was for the recovery of money, that we had affirmed it and that there was no probable cause for taking the appeal. On that view of the facts, we awarded a penalty of $191,484.57.

Our description of the judgment was mistaken. The appeal was from an interlocutory judgment of strict foreclosure, in which the trial court only required defendant to pay the money to the clerk of the court; if it failed to do so within 30 days, it would be foreclosed of its interest in the real property in issue. That is not a judgment “for the recovery of money,” both because it does not purport to award plaintiff a judgment in that amount and because it is interlocutory rather than final. The necessary predicate for the award of a penalty does not exist.

Reconsideration granted; previous opinion modified to delete award of judgment of $191,484.57 pursuant to ORS 19.160 and adhered to as modified.

Footnotes

1

We treat a petition for review as a petition for reconsideration. ORAP 10.10.

2

ORS 19.160 provides:

“Whenever a judgment or decree is affirmed on appeal, and it is for recovery of money, or personal property or the value thereof, the judgment or decree shall be given for 10 percent of the amount thereof, for damages for the delay, unless it appears evident to the appellate court that there was probable cause for taking the appeal.”