Moser v. DKN Ind. ( 2004 )

WOLLHEIM, J.

Plaintiff appeals from a judgment entered after the trial court reduced the amount of damages requested in the prayer of plaintiffs complaint, following the entry of an order of default. We review for abuse of discretion and affirm.

Plaintiff received unsolicited telephone calls from defendant, seeking plaintiffs business. Plaintiff asked defendant to stop the calls but, despite defendant’s statement that the calls would stop, they continued. Plaintiff then filed a complaint against defendant, alleging claims of breach of contract, harassment, and negligence. For each claim, plaintiff alleged similar damages: noneconomic damages of $1,000 and punitive damages of $1,000 for a total of $6,000 on the three claims, plus reasonable costs and disbursements.

Defendant was properly served but did not appear. Plaintiff moved for a default order and judgment and included an affidavit in support of the default judgment. The affidavit stated that plaintiff was entitled to damages of $6,000 plus costs and disbursements of $141. The trial court, without a hearing, granted plaintiff an order of default and entered a final judgment, but it reduced the award of damages to $500. Plaintiff requested reconsideration and submitted another affidavit. In the second affidavit, plaintiff stated that he “does agree with the [trial court] that the asked for amount of $6,000.00 may have been somewhat unreasonable” but asked the trial court to reconsider its reduction in damages. The court denied reconsideration.

On appeal, plaintiff argues that the trial court erred in failing to award the full amount of damages, $6,000, or to award a lesser, but reasonable, amount of damages. The gravamen of plaintiffs assignment of error is that the trial court should not have reduced the amount of damages without providing plaintiff some explanation.¹

ORCP 69 B governs the entry of a default judgment. ORCP 69 B(2) requires a plaintiff to submit an affidavit concerning the amount of damages. The trial court has discretion to conduct a hearing “to determine the amount of damages.” Id. ORCP 69 B(3) requires that the judgment “shall be for the amount due as shown by the affidavit.” However, the trial court “may determine the truth of any matter upon affidavits,” ORCP 69 B(2), and thus the trial court is not required to enter the amount requested in the affidavit if it determines that “the amount due as shown by the affidavit,” ORCP 69 B(3), is not correct.

Plaintiffs prayer requested punitive damages of $3,000 — $1,000 on each of the three claims. Plaintiff was not entitled to recover any punitive damages because he failed to comply with ORS 18.535(2), which provides that, “[a]t the time of filing a pleading with the court, the pleading may not contain a request for an award of punitive damages.” In order to allege punitive damages, plaintiff would have had to move for an order allowing the filing of an amended complaint. Such a motion requires affidavits and documentation supporting the claim for punitive damages. ORS 18.535(2). The trial court was correct in not awarding plaintiff any amount for punitive damages.

Plaintiffs prayer requested noneconomnic damages of $3,000 — $1,000 on each of the three claims. Plaintiff was not entitled to recover noneconomic damages on his breach of contract claim because noneconomic damages are generally not recoverable on a breach of contract claim. Keltner v. Washington County, 310 Or 499, 504, 800 P2d 752 (1990).

Each of the remaining claims, harassment and negligence, alleges noneconomic damages of $1,000. The trial court could have treated plaintiffs prayer as seeking duplicate damages and could have concluded that plaintiffs total noneconomic damages did not exceed $1,000. Neither the complaint nor the affidavits explained why plaintiff was entitled to $1,000 in noneconomic damages. Plaintiff failed to give the trial court sufficient information establishing the amount of damages. Plaintiff did not request a hearing before the trial court. Without a request for findings of fact, the trial court could have determined that $500 adequately compensated plaintiff for his noneconomic damages. The trial court did not err.

Affirmed.

1 Plaintiff also makes other assignments of error, which we reject without discussion.