Wong v. Gittings

Under ORS 105.137(7), in an FED action, an automatic default judgment of restitution does not result when a defendant files a late answer, where the answer is filed before the plaintiff requests a default or the court renders judgment in the case.

Defendant appealed a judgment granting restitution of the premises to Plaintiff following an FED action. Both parties appeared for a hearing, where the court ordered Defendant to file an answer by 5:00 p.m. the same day; Defendant filed an answer the following day. A few weeks later, at the next hearing, Plaintiff requested a judgment of restitution pursuant to Washington County Supplemental Local Rule 18.010, which provides, inter alia, that in FED cases a defendant must file an answer by 5:00 p.m. the day of the first appearance and if the defendant fails to do so, the plaintiff may request, and will be granted, a judgment of restitution. At trial, Defendant argued that a late answer alone was not the basis for a default judgment of restitution to be entered against her, and because Plaintiff had not sought an order of default prior to Defendant filing her answer the trial court erred in entering a default against her. The trial court ordered a judgment of immediate restitution of the premises to Plaintiff, finding no good cause for granting Defendant an extension. On appeal, Defendant renewed her argument that a late answer cannot alone be the basis for a default judgment of restitution. The Court held, based on its analysis in Hart v. Hill, 230 Or App 612 (2009), that a late filing is not equivalent to default; because Plaintiff had not moved the court for a default judgment, nor had a judgment been rendered by the court, at the time Defendant filed her answer, Plaintiff was not entitled to a judgment of default at the time the trial court entered the restitution judgment. The Court relied on the text of ORS 105.137(7) and of the trial court’s order for Defendant to file her answer, which substantially repeated the text of the statute, to hold that neither the statute nor the order provided for automatic default for failure to meet the 5:00 p.m. filing deadline; therefore, the trial court erred in rendering a default judgment of restitution of the property to Plaintiff. Reversed and remanded.