Sorenson v. Driver & Motor Vehicle Services Division (DMV)
Sorenson v. Driver & Motor Vehicle Services Division (DMV)
Opinion of the Court
The Driver and Motor Vehicle Service Division (DMV) appeals after the trial court vacated the suspension of petitioner’s driving privileges because DMV did not comply with Uniform Trial Court Rule (UTCR) 10.020(1).
Petitioner was involved in a single-car accident that led to his arrest for driving while under the influence of intoxicants. ORS 813.010. He refused to submit to a Breathalyzer test, and, consequently, DMV suspended his driving privileges. Petitioner requested a hearing before DMV regarding the suspension. DMV upheld the suspension. Thereafter, on January 4, 2002, petitioner served a petition for judicial review by the circuit court on DMV. DMV did not file the record within 30 days from that date as required by UTCR 10.020(1). Accordingly, petitioner moved on February 6 for judgment in his favor as a matter of law and to have the suspension order vacated because of DMVs failure to comply with the rule. Ultimately, DMV filed its record on February 15. However, the trial court granted petitioner’s motion by written order on March 5.
UTCR 10.020(1) provides, in relevant part:
“When a petition is served on the DMV, the DMV must prepare the record of the proceeding, including a transcription of the oral proceedings, or the agreed portion thereof if the parties have stipulated to shorten the record, and all exhibits introduced and made a part of the record at the hearing. * * * The DMV must file the original record with the trial court administrator within 30 days of service of the petition for review. * * * On good cause shown, the court may extend the time for the filing of the record.”
The above issues were not raised by DMV in its initial response to petitioner’s motion. Rather, it argued initially that “[petitioner’s motion must be denied, because good cause supports extending the time for filing of the record under UTCR 10.020(1), and petitioner has not suffered any prejudice as a result of any delay in filing the hearing record.” In support of its argument, DMV asserted that the delay in filing was due to its clerk’s negligence in transposing numbers regarding when the record had to be filed. In an order signed March 5, and entered March 6, the trial court rejected that argument, granted petitioner’s motion for relief and instructed his counsel to prepare a judgment. In the order, it reasoned:
“The question presented is whether the negligence of the clerk is ‘good cause’ for relief from the rules as provided in UTCR 1.100. The court does not find the negligence of the clerk is ‘good cause’ for the court to provide exception to the*168 rules. The petitioner is required to follow the rules of procedure. The court is required to follow the rules of procedure. The court believes the State should be required to follow the rules of procedure. The intent of the Uniform Trial Court Rules, Chapter 10 is to provide speedy due process to a person who[se] driving privileges have been suspended.”
On March 11, 2002, DMV moved for reconsideration and raised for the first time the issue of whether ORS 813.450 constitutes the exclusive authority for a trial court to set aside a suspension order in this context. The implication of DMVs previous response had been that UTCR 10.020(1) authorized the vacation of the suspension order but that the court ought to exercise its discretion under UTCR 1.100 to grant relief from the application of the rule based on good cause shown.
“This is a motion for reconsideration, which is not a rule 64 motion. It is, perhaps, of mysterious origin, but it’s commonly associated in order to bring matters of justice before*169 the Court when issues should be raised during an order or a judgment.”
The trial court denied DMV’s motion for reconsideration without ruling on the procedural argument raised by petitioner and signed an order to that effect on April 9.
DMV’s first assignment of error states, “The circuit court erred in setting aside the suspension without a statutory basis for doing so.” DMV says that this issue was preserved by its motion for reconsideration. We deduce from that statement that, in substance, DMV is seeking review of the order denying its motion for reconsideration. Otherwise, it has not complied with the preservation requirements of ORAP 5.45. Petitioner’s counsel’s argument to the trial court was correct despite DMV’s contrary argument. DMV’s motion for reconsideration made after entry of the March 6 order was the functional equivalent of a motion for a new trial made under ORCP 64 C.
In its second assignment of error, DMV argues that “[t]he circuit court erred in imposing a sanction under UTCR 1.090(2) for actions that did not meet the requirements for such a sanction.” DMV argues that it preserved that issue by arguing in its initial response to petitioner’s motion that petitioner “has not suffered any prejudice as a result of any delay in filing the hearing record” and that its error “is a simple error unlikely to be repeated, not a willful violation of the rule.” UTCR 1.090(1) provides that a court may strike a pleading or other document for failure to file it within the time required by the rules. UTCR 1.090(2) provides:
“For willful and prejudicial resistance or refusal to comply with UTCR or SLR, the court, on its own motion or that of a party after opportunity for a hearing, may award reasonable costs, expenses and attorneys fees incurred by a party, attorney or the court as a result of that failure, strike the offending pleading or other document, or treat as established an allegation or claim.”
DMV concludes that the undisputed evidence that its clerk made a negligent mistake does not rise to the level of a willful refusal to comply with UTCR 10.020 and, therefore, the trial court erred in vacating its suspension order.
The short answer to DMV’s assignment of error is that it did not raise any issue to the trial court under UTCR 1.090 as required by ORAP 5.45. DMV’s initial memorandum
Affirmed.
All references in this opinion are to the 2002 Uniform Trial Court Rules.
Coleman and Coleman, 117 Or App 333, 335, 844 P2d 234 (1992).
UTCR 1.100 provides that “[r]elief from application of these rules * * * in an individual case may be given by a judge on good cause shown if necessary to prevent hardship or injustice.”
In a letter to counsel dated March 21, the trial court expressed regret that it had signed the judgment before hearing oral argument on the motion for reconsideration. It stated that it was not its practice to sign a judgment while a motion for reconsideration was pending and that it had been unaware of the motion for reconsideration because of its trial schedule.
ORCP 64 C provides authority to grant a new trial in an action tried without a jury on any grounds set forth in ORCP 64 B where applicable.
In Carter, the court held that a summary judgment proceeding qualifies as a trial for purposes of ORCP 64 even though ORCP 47 requires a determination that a party is entitled to judgment as a matter of law. 304 Or at 544-46. The trial court ruling in this case determined that petitioner was entitled to judgment as a matter of law because of DMV’s failure to timely file a record.
Our holding in Renfroe followed Carter, in which the court held that a motion for reconsideration functioned as a motion to set aside a judgment and grant a new trial even though the judgment was entered after the motion was filed. The facts in this case are analogous to the facts in Carter. (However, the issue in Carter was whether there existed an appealable order.) In Carter, the order granting summary judgment was entered on February 24, the motion to reconsider the grant of the motion was filed on February 27, the judgment pursuant to the motion for summary judgment was entered on March 3, and the order vacating the judgment from which the appeal was taken was entered on March 20.304 Or at 540. Chief Justice Peterson, in a concurrence in Carter, warned, “The so-called ‘motion for reconsideration’ appears neither in the Oregon Rules of Procedure nor in any other Oregon statute. Lawyers filing motions to reconsider after entry of judgment might better denominate such a motion as a ‘motion asking for trouble[.]’ ”Id. at 546 (Peterson, C. J., concurring).
Reference
- Full Case Name
- In the Matter of the Suspension of the Driving Privilege of KENNETH MYRLE SORENSON v. DRIVER AND MOTOR VEHICLE SERVICES DIVISION (DMV)
- Cited By
- 4 cases
- Status
- Published