and submitted November 15, 2018.
Multnomah County Circuit Court 15CV06417. Jerome E. LaBarre,
Jonathan Henderson argued the cause for appellant. Also on
the briefs were Carl R. Rodrigues and Davis Rothwell Earle
& Xóchihua, P. C.
Willard E. Merkel argued the cause for respondent. Also on
the brief was Merkel & Associates.
DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock,
Judge pro tempore.
Summary: In this second appeal arising from a binding
arbitration award in tort litigation, defendant appeals from
both an order denying her relief from a judgment under ORCP
71B(1)(e) and the underlying judgment. After the first
appeal, and before the trial court entered a new judgment as
instructed on remand, defendant moved for satisfaction of the
judgment. The trial court denied defendant's motion on
the ground that it lacked authority, at that time, to
determine whether defendant had satisfied the judgment. The
court then entered a judgment for plaintiff reflecting the
full amount awarded by the arbitrator and stating that
defendant was entitled to a credit for any payments
determined to have been made by defendant's insurer.
Defendant subsequently moved for satisfaction of that
judgment under ORCP 71B(1)(e), providing evidence that her
insurer had paid the remaining amount due. Plaintiff
contested the motion, arguing that it was an impermissible
motion for reconsideration of defendant's pre-judgment
motion for satisfaction. The trial court denied the motion on
the basis that it was an impermissible motion for
reconsideration under a local rule. Defendant argues that the
trial court erred in denying her ORCP 71B(1)(e) motion on
that ground. Held: Defendant's motion did not
seek reconsideration of an earlier ruling. The motion instead
sought the credit to which defendant was [301 Or.App. 160]
entitled by the terms of the judgment. Accordingly, the trial
court erred when it denied defendant's motion on that
Or.App. 161] HADLOCK, J. PRO TEMPORE
moved under ORCP 71 B(1)(e) for relief from a judgment,
contending that the judgment had been satisfied. The trial
court denied the motion on the ground that it was an
impermissible motion for reconsideration. Defendant appeals
from both the underlying judgment and the order denying her
ORCP 71 B(1)(e) motion. For the reasons set out below, we
conclude that the trial court erred when it determined that
defendant's motion impermissibly sought reconsideration
of an earlier ruling. Accordingly, we reverse and remand.
pertinent facts are procedural and undisputed. This is the
second appeal arising from tort litigation related to a motor
vehicle accident in which plaintiff was injured. As we
explained in the first appeal, after plaintiff filed a civil
action in circuit court, the parties agreed to submit the
claim to binding arbitration. Lawrence v. Bailey,
279 Or.App. 356, 357, 379 P.3d 863 (2016) (Lawrence
I). The arbitrator ultimately awarded plaintiff a total
of $9, 074.50, including $2, 324.00 in medical expenses, and
stated that it was his intent that any amount that had been
paid by insurance would be paid only "one time."
Id. at 358. Following a proceeding to confirm the
award, the circuit court entered a judgment for $6, 944.50,
reflecting a $2, 130.00 credit for payment that defendant
asserted her insurer had made to plaintiffs health care
providers. Id. at 359-61. On plaintiffs appeal, we
held that the arbitration award "recognized that
defendant was entitled to a credit for medical expenses that
she had paid to plaintiffs health care providers,"
although the arbitrator "did not establish the amount of
that credit anywhere in the award." Id. at 362.
Because the arbitrator had not established the amount of the
credit to which defendant was entitled, we explained, the
circuit court "should have entered an order and judgment
that reflects all that the arbitrator actually decided and
only that-i.e., plaintiff had damages of $9, 074.50
and defendant was entitled to a credit for medical expenses
that her insurer had already paid." Id. at 363.
We reversed and remanded for entry of a judgment so stating.
In doing so, we observed that processes remained available
for determining the amount of the credit:
[301 Or.App. 162] "To the extent that leaves open the
issue of the amount of credit to which defendant is entitled,
satisfaction and enforceability of the judgment may be
affected, and presumably any future dispute as to whether
defendant has satisfied that judgment can be dealt with in
the proceedings provided for enforcement of a judgment in a
civil proceeding. See ORS 36.715 (judgment
confirming an arbitration award may be 'enforced as any
other judgment in a civil action')."
remand, the parties submitted competing proposed forms of
judgment. Before any new judgment was entered, defendant
moved in February 2017 for a satisfaction of judgment, based
on her assertions that her insurer had paid plaintiffs health
care providers $2, 130.00 in 2012 and that defendant had
subsequently paid the remaining $6, 944.50, which had
resulted in entry of a partial satisfaction of judgment in
2015. Defendant accordingly sought an order recognizing full
satisfaction of the judgment. As authority for that motion,
defendant cited former ORS 18.410 (1995),
repealed by Or Laws 2003, ch 576, § 580, which
she described as the statute that "sets out the
procedure for the court to determine if a judgment has been
satisfied or, if not satisfied, to determine the payment
needed to fully satisfy a judgment."
March 2017 hearing on defendant's motion and the proposed
forms of judgment, plaintiff argued that there could not be
"satisfaction of a judgment that hasn't been
entered." Plaintiff also pointed out that
former ORS 18.410 (1995) had been repealed. In
addition, she asserted that the attachments to
defendant's motion (which consisted largely of
correspondence between the parties' lawyers) did not
amount to evidence of the amount that defendant's insurer
had paid. The trial court denied defendant's motion and
ultimately, in keeping with our holding in Lawrence
I, entered a judgment that included a money award in the
amount of $9, 074.50 and stated that defendant "shall ...