Chase and Chase , 354 Or. 776 ( 2014 )

776 February 13, 2014 No. 9
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of the Marriage of
Steven Allan CHASE,
Petitioner on Review,
and
STATE OF OREGON,
Petitioner below,
and
Cathy Lynn CHASE,
Respondent on Review.
(C981383DR; CA A148342; SC S061222)
En Banc
On review from the Court of Appeals.*
Argued and submitted November 7, 2013.
Clayton C. Patrick, Clayton C. Patrick P.C., Clatskanie,
argued the cause and filed the petition for petitioner on
review.
Howard Hudson, Eugene, argued the cause and filed the
brief for respondent on review.
BREWER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to that court for further proceedings.
______________
*  Appeal from Washington County Circuit Court, Andrew R. Erwin, Judge.
255 Or App 388, 296 P3d 1278 (2013).
Cite as 354 Or 776 (2014) 777
Father sought review of a judgment for unpaid past child support. In the judg-
ment document, the circuit court imposed judgment for the unpaid installments
and accrued interest on each installment, and—pursuant to ORS 82.010(2)(c)—
postjudgment interest on both the amount of the unpaid installments and the
accrued interest. Father appealed, arguing that the circuit court had erred by
imposing postjudgment interest. The Court of Appeals affirmed. Held: After an
initial judgment is entered requiring payment of child support in future recur-
ring installments, interest on unpaid installments is postjudgment, not prejudg-
ment interest, and therefore is not governed by paragraph (2)(c) of ORS 82.010.
The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
778 Chase and Chase
BREWER, J.
Father seeks review of a judgment for unpaid
past child support (the arrearage judgment). In the judg-
ment document, the circuit court imposed judgment for the
unpaid installments and accrued interest on each install-
ment, and—pursuant to ORS 82.010(2)(c)—postjudgment
interest on both the amount of the unpaid installments and
the accrued interest. Father appealed, and, relying on its
own prior case law, the Court of Appeals affirmed. Chase
and Chase, 255 Or App 388, 296 P3d 1278 (2013).
The outcome of this case primarily hinges on the
application of two paragraphs of ORS 82.010(2), which gov-
erns postjudgment interest awards. Paragraph (2)(b) pro-
vides that “[i]nterest on a judgment under this subsection
is simple interest, unless otherwise provided by contract.”
Paragraph (2)(c), on which the circuit court relied, provides
that “[i]nterest accruing from the date of the entry of a judg-
ment shall also accrue on interest that accrued before the
date of entry of a judgment.” For the reasons set out below,
we conclude that the interest at issue in this case is not
interest to which ORS 82.010(2)(c) refers. After an initial
judgment is entered requiring payment of child support in
future recurring installments, interest on unpaid install-
ments is postjudgment, not prejudgment interest, and is not
governed by paragraph (2)(c) of ORS 82.010. We reverse the
decision of the Court of Appeals, reverse the arrearage judg-
ment, and remand to the circuit court.
The pertinent facts are procedural and undisputed.
In 1999, the circuit court entered a general judgment dis-
solving the parties’ marriage. The judgment included a
child support award that required father to make periodic
installment payments to mother on behalf of the parties’
minor children. The monthly amount of the child support
award was modified by a series of supplemental judgments
entered thereafter, and, in two additional instances, the
circuit court entered arrearage judgments for unpaid past
child support. In 2010, after entry of the most recent sup-
plemental judgment modifying the amount of monthly child
support, the Washington County District Attorney issued
a “Notice of Intent to Establish and Enforce Arrears and
Interest,” and father requested an administrative hearing
Cite as 354 Or 776 (2014) 779
on that issue. An administrative law judge (ALJ) issued a
final order that established support arrears, but provided
that “interest should not be added to the child support order.”
The ALJ explained that the establishment of the arrears did
not result in a new judgment but, rather, was “an accounting
procedure which assists the state and the parties in recon-
ciling the books and determining the amount owed.”
Mother petitioned the circuit court for de novo
review of the final order. Based on the Court of Appeals’ con-
struction of ORS 82.010(2)(c) in Mannix and Mannix, 146 Or
App 36, 932 P2d 70 (1997), the circuit court concluded that
it was required to impose interest on the support arrear-
ages, including interest on previously accrued and unpaid
interest. The circuit court therefore entered a judgment
providing that the total amount of arrears was $33,072.01
and that the total amount of “net cumulative interest” was
$16,851.38. The judgment included a money award for the
sum of those two amounts, $49,923.39, and provided that
interest would accrue on that sum at nine percent per annum
from the date that the judgment was entered. As noted, the
Court of Appeals affirmed, and we allowed review.
On review, father first contends that Oregon law
does not authorize the entry of arrearage judgments after
a child support award has been established in a govern-
ing general or supplemental judgment. Accordingly, father
argues that the circuit court lacked authority to enter the
instant arrearage judgment in the first place. Alternatively,
father asserts that the part of the arrearage judgment that
provided for interest on interest was entered in violation of
ORS 82.010(2)(b). In particular, father argues that ORS
82.010(2)(c) was meant to apply only to unpaid interest
that might have accrued before the entry of previous child
support judgments, and here, there was none. According to
father, paragraph (2)(c) merely sets out an exception to the
“general rule” of paragraph (2)(b), which states that, unless
otherwise provided by contract, interest imposed on judg-
ments is “simple interest.”
Mother responds:
“ORS 82.010(2)(c) by its plain wording permits pre-judg-
ment interest to be incorporated in ‘a judgment’ document
780 Chase and Chase
with money award that also then accrues interest from the
date of that later judgment. ORS 82.010(2)(c). In the case
of a support award in an arrearage enforcement action,
that pre-judgment interest would be the interest that
accrues for unpaid support before that unpaid support is
reduced to a supplemental judgment document. Nothing in
ORS 82.010(2)(c) requires that the interest included in ‘a
judgment’—the later judgment—must solely refer to the
general judgment of dissolution or custody which estab-
lished the original support scheme and money award.”
With the parties’ arguments thus framed, the pri-
mary issue before us is one of statutory construction involv-
ing the meaning of ORS 82.010(2).1 Our goal is to deter-
mine the meaning of the statute that the legislature that
enacted it most likely intended. PGE v. Bureau of Labor and
Industries, 317 Or 606, 610, 859 P2d 1143 (1993). To deter-
mine the intended meaning of the statute, we examine its
text, in context, and, where appropriate, legislative history
and relevant canons of construction. State v. Gaines, 346 Or
160, 171-73, 206 P3d 1042 (2009). This court has emphasized
that, in determining the intended meaning of a statute,
“there is no more persuasive evidence of the intent of the
legislature than the words by which the legislature under-
took to give expression to its wishes. Only the text of a stat-
ute receives the consideration and approval of a majority
of the members of the legislature, as required to have the
effect of law. The formal requirements of lawmaking pro-
duce the best source from which to discern the legislature’s
intent, for it is not the intent of the individual legislators
that governs, but the intent of the legislature as formally
enacted into law[.]”
Id. at 171 (citations and internal quotation marks omitted).
We begin, therefore, with the words of the statute at issue.
ORS 82.010(2) provides, in part:
“Except as provided in this subsection, the rate of inter-
est on judgments for the payment of money is nine percent
per annum. The following apply as described:
1
Because the issues are intertwined, we defer resolution of father’s challenge
to the circuit court’s authority to enter the arrearage judgment in the first place
to a later part of our analysis.
Cite as 354 Or 776 (2014) 781
“(a)  Interest on a judgment under this subsection
accrues from the date of the entry of the judgment unless
the judgment specifies another date.
“(b)  Interest on a judgment under this subsection is
simple interest, unless otherwise provided by contract.
“(c)  Interest accruing from the date of the entry of a
judgment shall also accrue on interest that accrued before
the date of entry of a judgment.
“(d)  Interest under this subsection shall also accrue on
attorney fees and costs entered as part of the judgment.
“(e)  A judgment on a contract bearing more than nine
percent interest shall bear interest at the same rate pro-
vided in the contract as of the date of entry of the judgment.”
As discussed, our primary focus is on paragraphs
(2)(b) and (2)(c) of ORS 82.010. On the surface of things,
the meaning of those paragraphs appears to be straightfor-
ward. By its terms, paragraph (2)(b) provides for the accrual
of simple interest after the entry of a judgment. “Simple
interest,” as the term is used in paragraph (2)(b), refers to
“interest paid on the principal only and not on accumulated
interest.” Black’s Law Dictionary 817 (7th ed 1999). Thus,
paragraph (2)(b) provides that, in the absence of a different
contractual arrangement, postjudgment interest accrues on
only the principal amount of a judgment debt, not on inter-
est that accrues on the principal amount of the judgment
debt. Paragraph (2)(c) also pertains to the accrual of post-
judgment interest, but it addresses a different subject than
paragraph (2)(b); that is, paragraph (2)(c) provides for the
accrual of postjudgment interest on interest on the principal
amount of a judgment debt “that accrued before the date of
entry of a judgment.” The combined effect of those provi-
sions is that, when interest “accrued before the date of entry
of a judgment,” postjudgment interest accrues on (1) the
principal amount of the judgment under paragraph (2)(b),
and (2) prejudgment interest under paragraph (2)(c). All the
postjudgment interest is simple interest, because it does not
782 Chase and Chase
compound at the end of designated periods after the entry of
judgment.2
It follows from the foregoing discussion that the
choice between paragraph (2)(b) and paragraph (2)(c) of
ORS 82.010 is not purely alternative. Instead, paragraph
(2)(b) applies (in the absence of a different contractual
arrangement) to all judgments, paragraph (2)(c) applies
to some judgments, and, where paragraph (2)(c) applies,
it combines with paragraph (2)(b) to provide for postjudg-
ment interest on both principal and prejudgment interest.
Thus, the dispositive question is not which of the two provi-
sions applies, but, rather, whether paragraph (2)(c) applies
to the circumstances here. The answer to that question lies
in determining what is meant by the phrase “interest that
accrued before the date of entry of a judgment.” In mother’s
view, as applicable here, that phrase refers to all interest on
father’s unpaid child support obligation that accrued before
the entry of the arrearage judgment itself. In father’s view,
that interpretation confuses the concepts of prejudgment
and postjudgment interest. As father sees things, all the
interest that accrued before the entry of the arrearage judg-
ment had accrued after the entry of previous child support
judgments that, themselves, accrued postjudgment inter-
est. Therefore, father reasons, the accrued interest at issue
here was postjudgment interest, not prejudgment interest
to which paragraph (2)(c) applies. It follows, according to
father, that although paragraph (2)(b) applies, paragraph
(2)(c) does not.
From a purely textual standpoint, the meaning of
the disputed phrase is not obvious, at least in the circum-
stance where—as here—one or more related judgments
preceded the entry of the judgment at issue. However, the
statutory history of ORS 82.010 and the case law underly-
ing its evolution provide a clearer contextual picture. ORS
2
Simple interest stands in contrast to compound interest, which is inter-
est payable on the combined sum of the original principal of a debt and interest
accrued and payable at the end of designated periods, sometimes referred to as
“rests” or “stops.” See Black’s at 467; see also Stephan v. Equitable Sav. and Loan
Ass’n, 268 Or 544, 572, 522 P2d 478 (1974) (describing periodic rest attribute of
compound interest).
Cite as 354 Or 776 (2014) 783
82.010(2)(a) to (e) have existed in their present form since
1987. Or Laws 1987, ch 215, § 18; Or Laws 1987, ch 873, § 26.
Before paragraph (2)(c) was enacted, no statute authorized
an award of postjudgment interest on prejudgment inter-
est. However, in previous decisions, this court had endorsed
such awards where the judgment creditor was entitled to
prejudgment interest. One of those decisions, in particular,
had illuminated the distinct purposes that are served by
prejudgment and postjudgment interest awards.
In Highway Comm. v. DeLong Corp., 275 Or 351,
357-58, 551 P2d 102 (1976), this court stated:
“Interest on a claim or judgment is largely a creature of
statute or Constitution. Only with respect to a narrow cat-
egory of claims does one find a ‘legal right’ to prejudgment
interest at the common law. As for interest on a judgment,
there is no common-law right. Post-judgment interest,
owing its existence to statute, is subject to reasonable stat-
utory regulation limited only by constitutional interdiction.
“ ‘Prejudgment interest is awarded, in the case of injury
to, or the loss or destruction of property, on the theory that it
is necessary to give full compensation for the loss sustained.
Post-judgment interest, on the other hand, is awarded on a
different theory, that is, as a penalty for delayed payment
on the judgment. Typically, then, all interest to which an
aggrieved party is entitled as part of his ‘full compensation’
is incorporated and merged in the judgment.’ ”
Id. (internal citations omitted; internal quotations omitted).
Three years later, in Meskimen v. Larry Angell Salvage Co.,
286 Or 87, 98, 592 P2d 1014 (1979), this court—relying on
DeLong Corp.—reiterated that, “[w]here pre-judgment inter-
est is awarded, it should be made a part of the judgment so
that post-judgment interest will apply to it.”
The legislative history of the 1987 amendments to
ORS 82.010(2) suggests that the new provisions “incorpo-
rate[d] case law on how interest accumulates on judgments.”
Staff Measure Summary, Senate Judiciary Committee, SB
566, Apr 22, 1987. From that statement, we infer that, in
enacting ORS 82.010(2)(b) and (c), the legislature meant to
784 Chase and Chase
codify the common law principles pertaining to the accu-
mulation of interest on judgments that this court previously
had adopted, likely including the principles that this court
had approved in DeLong Corp.
The foregoing contextual history thus clarifies the
nature of the type of interest to which paragraph (2)(c) of
ORS 82.010 refers. In general, such interest is awarded to
fully compensate a judgment creditor for a prejudgment
loss of the use of money or property that otherwise would go
unremedied. DeLong Corp., 275 Or at 358. A typical exam-
ple is the loss of use of money for which interest accrues
on an unpaid promissory note or an overdue account before
the principal amount of the debt is reduced to judgment. As
elaborated below, however, no such predicate exists in the
circumstances of this case; instead, the interest that had
accumulated before the entry of the arrearage judgment
was postjudgment interest that had accrued on unpaid child
support installments. To explain why that is so, we first
consider a fundamental aspect of the nature of a periodic
child support award, namely, that such an award results in
a judgment for each installment as it accrues.
A child support award is a money award. ORS
18.005(2). Such an award can be entered in a limited judg-
ment, a general judgment, or a supplemental judgment. See
generally ORS 18.005(7), (13), (17) (defining three categories
of judgments); ORS 18.038(2) (requiring judgment docu-
ment to indicate judgment type). Regardless of the form of
judgment that it takes, though, such a money award is a
judgment. ORS 18.005(14). In addition:
“The judgment is final as to any installment or payment
of money that has accrued up to the time the nonmoving
party, other than the state, is served with a motion to set
aside, alter or modify the judgment. The court may not set
aside, alter or modify any portion of the judgment that pro-
vides for any payment of money, either for minor children
or for the support of a party that has accrued before the
motion is served.”
ORS 107.135(7).
Cite as 354 Or 776 (2014) 785
The judgment status of a periodic child support
award has two implications that are pertinent here. The first
implication is legal: where due and unpaid, each support
installment represents a judgment obligation and accrues
postjudgment interest. ORS 82.010(2)(b); ORS 18.049.3 The
second implication is practical: where support installments
have not been paid, the operative judgment requiring the
payment of the installments—whether a general judgment
or a supplemental judgment modifying an earlier sup-
port award—does not establish the amount in arrears for
enforcement purposes. In addition, child support awards are
prospectively modifiable, and successive supplemental judg-
ments can be entered over time to document changes in the
amount of a periodic award. As a consequence, in Oregon
Revised Statutes, chapters 25 and 416, the legislature has
enacted a comprehensive statutory scheme to address the
problems of ascertaining and enforcing arrearages and
resolving conflicts arising from the existence of multiple
child support awards.4 An understanding of that statutory
scheme is helpful to a proper resolution of this case.
When a child support obligation is delinquent, ORS
25.167 establishes procedures for determining the amount
of arrearage and for making a record of the arrearage. A
record of support payment arrearage may be established
by an “administrative order issued under ORS 416.427 or
416.429.” ORS 25.167(1)(c). Under ORS 416.429(1), “[t]he
administrator[5] may issue a notice of intent to establish and
3
ORS 18.049 provides, in part:
“After entry of a judgment, the amount owing on the money award por-
tion of a judgment shall be decreased by all payments made by or on behalf
of the judgment debtor against the money award and shall be increased by
interest accruing on the money award.”
4
Consistently with ORS 107.135(7), where a judgment includes a periodic
child support award, and an installment becomes due under the terms of the
award and is not paid, a judgment arrearage lien attaches to the obligor’s real
property in the county or counties in which the judgment is entered or recorded.
ORS 18.005(18); ORS 18.150(3)(b); ORS 18.152(3)(c). We note the existence of,
but do not separately discuss, the procedure set out in ORS 18.238(1) for the sat-
isfaction of a money award that is available where the obligor cannot otherwise
obtain a satisfaction document from a judgment creditor.
5
The “administrator” under ORS 416.427(1) means “either the Administrator
of the Division of Child Support of the Department of Justice or a district attor-
ney” or the authorized representative of either. ORS 416.400(1); ORS 25.010(1).
786 Chase and Chase
enforce arrearages for any support order that is registered,
filed or entered in this state.”6
In accordance with ORS 25.167(1)(c), the amount
of the child support arrearage in this case was initially
established under ORS 416.429. After the administrator—
in this case, the district attorney—issued a notice of intent
to establish and enforce arrears and interest under ORS
416.429(1), father requested a hearing before an ALJ under
ORS 416.427.7 See ORS 416.429(3) (setting out right to hear-
ing). And, when the ALJ rejected mother’s request for “inter-
est on interest,” mother sought a hearing de novo before the
circuit court pursuant to ORS 416.427(6).8
When, in turn, the circuit court entered the instant
arrearage judgment after a hearing, it acted under ORS
25.089, which provides, in part:
“(1)  As used in this section, ‘child support judgment’
means the terms of a judgment or order of a court, or an
order that has been filed under ORS 416.440, that provide
for past or current child support[.]
“(2)(a)  A child support judgment originating under
ORS 416.440 has all the force, effect and attributes of a cir-
cuit court judgment. The judgment lien created by a child
support judgment originating under ORS 416.440 applies
6
If no timely written response and request for hearing is received by the
appropriate office, “the administrator shall enter an order directing that the
amount of the arrearages stated in the notice be entered in the child support
accounting record maintained by the Department of Justice.” ORS 416.429(4).
7
ORS 416.427 provides, in part:
“(2) Except as provided in ORS 416.430, hearings shall be conducted
by an administrative law judge assigned from the Office of Administrative
Hearings.
“* * * * *
“(6)  Appeal of the order of the administrative law judge or any default
or consent order entered by the administrator pursuant to ORS 416.400 to
416.465 may be taken to the circuit court of the county in which the order has
been entered pursuant to ORS 416.440 for a hearing de novo.”
8
ORS 416.440 sets out the procedures for enforcing administrative support
orders, including final orders entered after a hearing before an ALJ under ORS
416.427. If father had not sought review in the circuit court, on entry in the court
register, the ALJ’s order would have had “all the force, effect and attributes
of a judgment of the circuit court[.]” ORS 416.440(3); see also ORS 18.075(8)
(“Administrative orders entered in the register under ORS 416.440 have the
effect provided for in that section.”).
Cite as 354 Or 776 (2014) 787
to all arrearages owed under the underlying order from
the date the administrator or administrative law judge
entered, filed or registered the underlying order under ORS
416.400 to 416.465 or ORS chapter 110.”9
The arrearage judgment that the circuit court
entered in this proceeding provided for past support and,
thus, was a child support judgment under ORS 25.089(1).
Accordingly, we reject father’s argument that the court
lacked authority to enter it.10 The question remains whether
that judgment properly imposed postjudgment interest on
previously accrued interest on the unpaid child support
installments.
In that regard, mother contends that the arrear-
age judgment was independent of the most recently entered
supplemental child support judgment in this case and that
all the interest that had accrued on unpaid installments
under that judgment, previous supplemental judgments, the
general dissolution judgment, and previous arrearage judg-
ments, had accrued “before the date of entry of a judgment”
9
ORS 25.089 further provides, in part:
“(2)(b)  Until the underlying order is filed under ORS 416.440, the order
may not be enforced against and has no lien effect on real property.
“(c)  No action to enforce a child support judgment originating under ORS
416.440 may be taken while the child support judgment is stayed under ORS
416.427, except as permitted in the order granting the stay.
“(3)  In any judicial or administrative proceeding in which child support
may be awarded under this chapter or ORS chapter 107, 108, 109, 110 or 416
or ORS 125.025, 419B.400 or 419C.590, if a child support judgment already
exists with regard to the same obligor and child:
“(a)  A court may only enforce the existing child support judgment, mod-
ify the existing child support judgment as specifically authorized by law or
set aside the existing child support judgment under subsection (6) of this sec-
tion or under the provisions of ORCP 71. If the court sets aside the existing
child support judgment, the court may issue a new child support judgment.
“(b)  The administrator or administrative law judge may only enforce the
existing child support judgment, modify the existing child support judgment
as specifically authorized by law or, with regard to an existing child support
judgment originating under ORS 416.400, move to set aside the existing child
support judgment under subsection (6) of this section or for the reasons set
out in ORCP 71.”
10
Similarly, if the ALJ had entered an order filed under ORS 416.440 that
provided for past child support and that had become final in the absence of circuit
court review, such an order would have qualified as a child support judgment
that had “all the force, effect and attributes of a circuit court judgment.” ORS
25.089(2)(a); ORS 416.440(3).
788 Chase and Chase
within the meaning of ORS 82.010(2)(c). In support of that
assertion, mother contends that the arrearage judgment was
a “governing child support judgment” under ORS 25.091.
That statute provides, in part:
“(1)  As used in this section:
“(a)  ‘Child support judgment’ has the meaning given
that term in ORS 25.089.
“(b)  ‘Governing child support judgment’ means a child
support judgment issued in this state that addresses child
support * * * and is entitled to exclusive prospective enforce-
ment or modification with respect to any earlier child sup-
port judgment issued in this state.”
Mother’s assertion is incorrect, and, with respect,
it is also beside the point. It is incorrect because, although
the arrearage judgment at issue here was a child support
judgment under ORS 25.089(1), it was not a governing child
support judgment; that is, it was not “entitled to exclusive
prospective enforcement or modification with respect to any
earlier child support judgment issued in this state.” ORS
25.091(1)(b). Moreover, as far as the nature of the disputed
interest is concerned, it would not have mattered if the child
support arrearages had been established in a governing child
support judgment.11 As discussed, prejudgment interest to
which ORS 82.010(2)(c) applies must have been imposed to
make a judgment creditor whole for losses suffered before
a judgment is entered. Because child support installments
are judgment obligations, they accrue postjudgment inter-
est under ORS 82.010(2)(b) as a statutory penalty for the
obligor’s failure to pay a judgment when due; such interest
is not imposed to compensate the obligee for a prejudgment
loss. In short, after an initial judgment is entered requiring
payment of child support in future recurring installments,
interest on unpaid installments is postjudgment, not pre-
judgment interest, and is governed by paragraph (2)(b), not
paragraph (2)(c), of ORS 82.010.
For those reasons, we conclude—subject to the
caveat described in the next paragraph—that the arrearage
11
Governing child support judgments can be used to reconcile child support
arrearages. ORS 25.091(8)(d).
Cite as 354 Or 776 (2014) 789
judgment that the circuit court entered in this case merely
should have established the unpaid past child support
amounts that father owed, including accrued interest on
those amounts, as of the date that the arrearage judg-
ment was entered. Postjudgment interest on the arrearage
judgment would then accrue on the unpaid child support
amounts—but not on previously accrued interest on those
amounts—as simple interest under ORS 82.010(2)(b).
There is a final wrinkle, however. As noted, the
total amount of accrued interest specified in the instant
arrearage judgment is $16,851.38. Of that sum, $11,948.80
was “interest on interest” that accrued on previous arrear-
age judgments from which father had failed to appeal, and
$4,902.58 was “interest on interest” that accrued before
entry of the instant judgment but after entry of the last
prior arrearage judgment. Father concedes that his failure
to timely challenge the imposition of “interest on interest”
in previous arrearage judgments from which he failed to
appeal (amounting to $11,948.80) precludes him from now
challenging the inclusion of those previously imposed inter-
est amounts in the instant arrearage judgment. We agree.
It follows that only the sum of $4,902.58—the amount that
falls within the scope of father’s preserved challenge on
appeal—must be subtracted from the judgment.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.