Guenther v. Martinez , 98 Or. App. 735 ( 1989 )

EDMONDS, J.

Defendant appeals from an “amended” judgment that enjoins her from competing with plaintiffs business, and plaintiff cross-appeals. On the merits, we affirm. We write only to discuss a procedural issue that is not raised by the parties.

Judgment was originally entered on February 2,1988. Defendant filed a notice of appeal on February 28. Plaintiff filed her cross-appeal on March 9. On April 22,1988, the trial court held a conference with counsel regarding the appeals and a pending contempt proceeding for an alleged violation of the injunction. The trial court concluded that it had erred in entering judgment. The parties agreed to dismiss their appeals. We allowed their motion to dismiss on May 6. On May 11, the parties jointly moved for an order vacating the February 2 judgment, and the trial court granted their motion. The trial court then reconsidered the entire case, rendered a decision, and memorialized it in an “amended” judgment that is the subject of these appeals.

The issue is whether the trial judge had authority to grant the joint motion of the parties to vacate the original judgment and to grant a new trial when the judgment was vacated more than 55 days after its entry. In United Adjusters, Inc. v. Shaylor, 77 Or App 510, 511, 713 P2d 687, rev den 301 Or 241(1986), we held that a court may only grant a new trial under ORCP 64F¹ and that a motion to reconsider a summary judgment is a motion for a new trial. Because the trial court did not determine the motion to reconsider within 55 days after entry of the judgment, as required by ORCP 64F, the motion was conclusively deemed denied, and the court was without authority to vacate the judgment. By analogy, the dissent would hold here that the trial court lacked authority to grant the parties’joint motion, because more than 55 days had expired from the date of the original judgment.

We hold that, by their stipulation, the parties invoked the authority of the trial court to decide the issues anew and thereby waived any rights accruing under ORCP 64F. ORCP 64F expresses the policy of bringing litigation to a definite conclusion after a decision on the merits has been reached and a motion for a new trial has been made by an aggrieved party. See State ex rel State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or 179, 590 P2d 231 (1979). That policy does not prohibit the parties from jointly agreeing to a new trial. Because of their joint agreement, ORCP 64F is inapplicable.²

Affirmed on appeal and on cross-appeal.

1 ORCP 64F states:

“A motion to set aside a judgment and for a new trial, with the affidavits, if any, in support thereof, shall be filed not later than 10 days after the entry of the judgment sought to be set aside, or such further time as the court may allow. When the adverse party is entitled to oppose the motion by counteraffidavits, such party shall file the same within 10 days after the filing of the motion, or such further time as the court may allow. The motion shall be heard and determined by the court within 55 days from the time of the entry of the judgment, and not thereafter, and if not so heard and determined within said time, the motion shall conclusively be deemed denied.”

2 An example of the ability of litigants to invoke a trial court’s authority to act after judgment is found in ORCP 71C, which recognizes “the power of a court to entertain an independent action to relieve a party from a judgment.” The trial court would have been authorized to decide the issues framed by the parties’ stipulation if new pleadings had been filed in a new action seeking vacation of the judgment. What the parties did by their stipulation was use the previous pleadings in lieu of new pleadings to frame the issues and to avoid the cost of initiating an independent action.