Mendoza v. Xtreme Truck Sales, LLC

471

Argued and submitted November 28, 2022, reversed and remanded

October 4, 2023

Adi D. MENDOZA,

Plaintiff-Respondent,

v.

XTREME TRUCK SALES, LLC,

an Oregon company,

Defendant-Appellant,

and

HUDSON INSURANCE COMPANY,

a foreign surety company,

Defendant.

Marion County Circuit Court

17CV36085; A177639

537 P3d 563

In this case involving a dispute over a used vehicle that plaintiff purchased

from defendant, the parties went to mandatory court-annexed arbitration, which

resulted in an arbitration award in plaintiff’s favor. The trial court entered a

judgment for plaintiff based on that arbitration award. Defendant then filed a

motion asserting that plaintiff failed “to obtain a judgment more favorable than

the offer to allow judgment” that defendant had made before the parties went

to arbitration, ORCP 54 E(3), and that, consequently, plaintiff was limited to

recovering pre-offer attorney fees and costs and defendant was entitled to

recover post-offer costs. The trial court initially denied the motion as untimely.

We reversed that ruling in Mendoza v. Xtreme Truck Sales, LLC, 314 Or App

87, 497 P3d 755 (2021). On remand, the trial court denied the motion on the

merits. Defendant argues that the trial court exceeded the scope of the remand

or, alternatively, misapplied ORCP 54 E. Plaintiff raises a cross-assignment of

error. Held: The trial court did not exceed the scope of the remand. The court did

err, however, by not considering, as part of its ORCP 54 E(3) analysis, a term in

the arbitration award and judgment requiring plaintiff to return the vehicle to

defendant. The cross-assignment of error is not well taken.

Reversed and remanded.

J. Channing Bennett, Judge.

David Wallace argued the cause and filed the brief for

appellant.

John Gear argued the cause for respondent. Also on the

brief was John Gear Law Office LLC.

472 Mendoza v. Xtreme Truck Sales, LLC

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.*

AOYAGI, P. J.

Reversed and remanded.

______________

* Jacquot, J., vice James, J. pro tempore.

Cite as 328 Or App 471 (2023) 473

AOYAGI, P. J.

This case, which involves an offer of judgment

under ORCP 54 E, is before us for the second time. At issue

is a motion made by defendant Xtreme Truck Sales, LLC,1

asserting that plaintiff failed “to obtain a judgment more

favorable than the offer to allow judgment” that defendant

made before the parties went to arbitration, ORCP 54 E(3),

and that, consequently, plaintiff is limited to recovering

pre-offer attorney fees and costs and defendant is entitled

to recover post-offer costs. The trial court initially denied

the motion as untimely. We reversed that ruling in Mendoza

v. Xtreme Truck Sales, LLC, 314 Or App 87, 497 P3d 755

(2021) (Mendoza I). On remand, the trial court denied the

motion on the merits. Defendant now argues that the trial

court exceeded the scope of the remand or, alternatively,

misapplied ORCP 54 E. Plaintiff raises a cross-assignment

of error. We conclude that the court did not exceed the scope

of the remand, but that it erred in not considering the dis-

position of property in the judgment as part of its ORCP

54 E(3) analysis; we reject the cross-assignment of error.

Accordingly, we reverse and remand.

FACTS

In September 2016, plaintiff purchased a used

Chrysler Pacifica van from defendant for $4,250. She later

came to believe that defendant had misrepresented its acci-

dent history. Plaintiff filed a claim against defendant for

willful misrepresentation in violation of the Unlawful Trade

Practices Act, seeking $9,952 in damages for the purchase

price of the van, repairs, and loss of use. Defendant made an

offer of judgment in the amount of $5,500, including costs

and fees to date. Plaintiff rejected the offer.

The case went through mandatory court-annexed

arbitration on January 8, 2018. See ORS 36.400 (providing,

along with ORS 36.405, for mandatory court-annexed arbi-

tration in certain civil matters involving $50,000 or less). On

January 10, 2018, the arbitrator issued a damages award to

plaintiff. The written award stated that it was a “Judgment/

Award for Plaintiff and against Defendant” and identified

1

Defendant Hudson Insurance Company is not a party to this appeal. For

purposes of this opinion, “defendant” refers solely to Xtreme Truck Sales, LLC.

474 Mendoza v. Xtreme Truck Sales, LLC

plaintiff as the prevailing party. It contained a money award

to plaintiff for damages and stated the amount of the money

award as “$5,300 but as part of the award plaintiff must

return the Chrysler Pacifica to Xtreme Truck Sales, LLC.”

The award was sent to the parties, but not filed with the

court, pending resolution of attorney fees and costs.

On January 15, 2018, plaintiff informed the arbitra-

tor and the parties that the van had sustained substantial

damage on January 5 when it was hit, while parked, by an

intoxicated driver. Plaintiff subsequently agreed to accept

$5,339.48 from the intoxicated driver’s insurance company

for the totaled van. On January 22, 2018, plaintiff sent an

email to the arbitrator and the parties requesting to “slightly

modify the initial arbitration award.” To avoid double recov-

ery and facilitate resolution of the matter, plaintiff proposed

to credit the full amount of the insurance payment to defen-

dant, such that the $5,300 award to plaintiff “stands but the

insurance proceeds offset it at payment when this case ulti-

mately resolves,” which would mean that defendant “ends up

out of pocket nothing on the award to plaintiff.”

In February 2018, the arbitrator heard arguments on

plaintiff’s petition for attorney fees and costs and decided to

award plaintiff $10,553.88 in attorney fees, $656 in costs, and

a $300 prevailing party fee. The arbitrator added that infor-

mation to the previously drafted arbitration award, attached

“Findings Regarding Attorney’s Fees, Prevailing Party Fee,

and Costs,” and filed the award with the court. See ORS

36.425(1) (requiring the arbitrator in court-annexed arbitra-

tion to file the decision with the court). The arbitrator did not

modify the award as plaintiff had requested, or otherwise, to

account for the recent accident. The accident is briefly men-

tioned in the attached findings on fees and costs: “Between the

time of my decision on the merits and the attorney fees peti-

tion, the Pacifica vehicle was totaled in a separate accident.”2

2

That statement is substantively repeated later in the same document: “I am

now filing my arbitration decision. The decision was made prior to the Pacifica

vehicle being totaled. The findings as to attorney fees, prevailing party fee, and

costs was made after the vehicle was totaled.” It appears to be undisputed that

the van was totaled on January 5, before the arbitration began, so it is unclear

whether the arbitrator meant to refer to his learning of the accident, meant to

refer to when the insurance company declared the van totaled, or misunderstood

when the actual accident occurred.

Cite as 328 Or App 471 (2023) 475

On March 19, 2018, the trial court entered a general

judgment, stating that no appeal had been filed and that the

court was therefore entering the arbitration award—which

was attached—as the final judgment of the court. See ORS

36.425(2)(a) (allowing parties 20 days to appeal the arbitra-

tion decision, which triggers the right to a trial de novo of the

action in court). A few days later, defendant filed a motion

under ORCP 68 and ORCP 54 E(3), contending that plain-

tiff was limited to recovering pre-offer attorney fees and

costs and that defendant was entitled to recover post-offer

costs, because plaintiff obtained a judgment less favorable

than defendant’s pre-arbitration offer of judgment. Plaintiff

opposed the motion, arguing only that it was untimely. The

trial court denied the motion as untimely.

Defendant appealed, and, in Mendoza I, we held

that defendant’s motion was timely. Mendoza I, 314 Or App

at 89-90.3 We therefore reversed the order denying the

motion and remanded to the trial court. Id. at 89 (“We con-

clude that defendant is correct that its ORCP 54 E(3) motion

was timely and that the trial court erred in denying it. We

therefore reverse and remand.”); id. at 96 (“Reversed and

remanded.”). We did not provide any specific instructions for

the remand proceedings. See id. at 89-96.

On remand, the trial court heard argument from

both parties on the merits of defendant’s ORCP 54 E(3)

motion. The court then denied defendant’s motion on the

merits, concluding that plaintiff obtained a judgment more

favorable than defendant’s offer. Defendant appeals the

resulting supplemental judgment.

SCOPE OF REMAND

In its first assignment of error, defendant contends

that the trial court exceeded the scope of the remand when

it held a hearing and evaluated the merits of defendant’s

ORCP 54 E(3) motion before ruling on it. According to

3

In response to Mendoza I, the legislature amended ORS 36.425(6) to pro-

vide that any ORCP 54 E claims or defenses must be raised by exception before

the arbitration award is reduced to judgment. Or Laws 2023, ch 16, § 1; see

Testimony, Senate Committee on Judiciary, SB 307, Jan 18, 2023 (statement of

Young Walgenkim, Oregon State Bar Consumer Law Section) (explaining the

impetus for the bill). The amended statute applies to arbitrations commenced on

or after January 1, 2024.

476 Mendoza v. Xtreme Truck Sales, LLC

defendant, plaintiff “waived” the opportunity to oppose the

motion on the merits by initially opposing it only on timeli-

ness grounds, and “[p]laintiff’s waiver established as a set-

tled fact that [p]laintiff had not obtained a judgment more

favorable than Xtreme’s offer of judgment.”

We disagree. “Generally speaking, when our tagline

specifies, in toto, ‘Reversed and remanded,’ the ‘reversed’

part of the tagline negates the appealed judgment or order

and the ‘remanded’ part sends the case back to the lower

tribunal as though the original proceeding did not occur.”

Allen v. Premo, 251 Or App 682, 686, 284 P3d 1199 (2012).

Thus, in this case, we “reversed” the order denying defen-

dant’s ORCP 54 E(3) motion as untimely, and we “remanded”

for the trial court to proceed as though it had never made

that ruling. Mendoza I, 314 Or App at 89, 96. The trial court

correctly understood that to mean that it should proceed to

decide the motion on the merits.

It is true that, in her initial opposition to defen-

dant’s motion, plaintiff argued only that the motion was

untimely. Id. at 90 (“Plaintiff opposed the motion solely on

timeliness grounds; she advanced no argument that the con-

tingency in the arbitrator’s award was satisfied or that she

had, in fact, obtained a judgment in excess of defendant’s

prior offer.”). It was only on remand that plaintiff addressed

the merits. However, had the trial court rejected the proce-

dural argument and reached the merits in the original pro-

ceeding, we are unaware of any authority that would have

required the court to grant the motion automatically—with-

out evaluating the merits, or allowing additional briefing—

on a “waiver” theory. If no such requirement existed in the

original proceeding, then neither did it exist on remand, as

our remand in Mendoza I simply put the proceeding back

in the same posture as it had been before the untimeliness

ruling.

Defendant’s reliance on Skultety v. Humphreys, 247

Or 450, 431 P2d 278 (1967), is misplaced. In that case, a

jury found the defendant liable to the plaintiff for personal

injuries suffered in a car accident, and that finding was

not challenged on appeal. Id. at 458. In reversing for a new

trial on damages, due to an error in the jury instructions on

Cite as 328 Or App 471 (2023) 477

damages, we noted that it was “unnecessary to retry” the

liability issue and that “[t]he new trial will be limited to the

issue of damages recoverable by the plaintiff.” Id. Humphreys

is distinguishable, both because a jury had already decided

liability in the first trial in Humphreys, whereas the trial

court had not decided the merits of defendant’s ORCP 54 E(3)

motion in the first proceeding in this case, and because the

Supreme Court expressly limited the scope of remand in

Humphreys, whereas we simply reversed and remanded for

further proceedings in Mendoza I.

The trial court did not exceed the scope of the

remand by evaluating the merits of defendant’s motion

before ruling on it.4

ORCP 54 E(3) RULING

Defendant’s second assignment of error challenges

the merits of the trial court’s ruling. Defendant argues

that the trial court erred in denying the motion, because

plaintiff “fail[ed] to obtain a judgment more favorable than

the offer to allow judgment” under ORCP 54 E(3). Because

defendant’s argument turns on a legal issue—which terms

of an offer or judgment are to be considered in making the

comparison required by ORCP 54 E(3)—we review for legal

error. Delcastillo v. Norris, 197 Or App 134, 140, 104 P3d

1158, rev den, 338 Or 488 (2005).

ORCP 54 E provides a mechanism for a defendant

to limit potential future liability for the plaintiff’s attor-

ney fees and costs by making an offer of judgment. If the

plaintiff fails to obtain a judgment more favorable than the

4

Although defendant does not appear to rely on it, we acknowledge that

Mendoza I contains some dicta that, in retrospect, could be misleading. Mendoza I

makes clear that the only issues that we were deciding were appealability and

timeliness. 314 Or App at 91 (“The appeal thus raises two issues: First, whether

the trial court’s order denying relief under ORCP 54 E(3) is appealable; and sec-

ond, if so, whether the trial court correctly denied relief on timeliness grounds.”);

see also id. at 92 (framing issue on appeal); id. at 96 (“We conclude that the trial

court erred in denying defendant’s ORCP 54 E(3) motion on timeliness grounds.”).

However, in the introductory paragraph, in summarizing the case, we stated,

“The arbitrator issued a decision, awarding plaintiff less than defendant’s offer.”

Id. at 89. To be clear, that statement was dicta and, as dicta, did not create law

of the case. On remand, the trial court correctly did not view it as resolving an

issue that had not yet been considered by the trial court and that was not before

us in Mendoza I.

478 Mendoza v. Xtreme Truck Sales, LLC

offer, then the plaintiff cannot recover attorney fees or costs

incurred after the offer date, and the defendant is entitled

to costs and disbursements from the offer date. The rule

states, in relevant part:

“E(1) Offer. Except as provided in ORS 17.065 to 17.085,

any party against whom a claim is asserted may, at any

time up to 14 days prior to trial, serve upon any other

party asserting the claim an offer to allow judgment to be

entered against the party making the offer for the sum, or

the property, or to the effect therein specified. * * *

“* * * * *

“E(3) Failure to accept offer. If the offer is not accepted

and filed within the time prescribed, it shall be deemed

withdrawn, and shall not be given in evidence at trial and

may be filed with the court only after the case has been

adjudicated on the merits and only if the party asserting

the claim fails to obtain a judgment more favorable than the

offer to allow judgment. In such a case, the party asserting

the claim shall not recover costs, prevailing party fees, dis-

bursements, or attorney fees incurred after the date of the

offer, but the party against whom the claim was asserted

shall recover from the party asserting the claim costs and

disbursements, not including prevailing party fees, from

the time of the service of the offer.”

ORCP 54 E.

Ruling on an ORCP 54 E(3) motion thus necessar-

ily requires comparing the judgment to the offer that was

made. “To determine whether an offer of settlement under

[ORCP 54 E] was more favorable than the amount of the

judgment, the court must compare both amounts. For com-

parison purposes, the judgment is deemed to include costs

and recoverable attorney fees incurred up to the time of the

offer, and the * * * prevailing party fee recoverable under

[ORS 20.190].” Mulligan v. Hornbuckle, 227 Or App 520, 523,

206 P3d 1078, rev den, 347 Or 42 (2009) (internal citations

omitted).

In this case, it is undisputed that defendant made an

offer of judgment for $5,500, including costs and fees to the

date of the offer, and that plaintiff had incurred $1,830.50 in

Cite as 328 Or App 471 (2023) 479

costs and fees when the offer was made.5 What is disputed is

whether the judgment that plaintiff obtained is more or less

favorable than defendant’s offer.

The general judgment, which simply adopts the

arbitration award, contains an award to plaintiff for “$5,300

but as part of the award plaintiff must return the Chrysler

Pacifica to Xtreme Truck Sales, LLC.” It also awards plaintiff

attorney fees, costs, and the prevailing party fee. If one dis-

regards the van-return requirement, it is readily apparent—

as defendant acknowledges—that the judgment that plain-

tiff obtained ($5,300 plus $1,830.50 plus $300) is more favor-

able than the offer ($5,500).

The point of dispute is the effect of the van-return

requirement. In defendant’s view, the judgment required

plaintiff to return the van to defendant (whereas plaintiff

would have kept the van under defendant’s offer), so the van’s

value must be included in the ORCP 54 E(3) calculation, and

the proper value to use is $5,339.48 (the insurance payment

amount), which completely offsets the $5,300 money award

to plaintiff. It follows, defendant argues, that the judg-

ment that plaintiff obtained ($5,300 minus $5,339.48 plus

$1,830.50 plus $300) is less favorable than defendant’s offer

($5,500). The trial court rejected that argument, although

its reasoning is not entirely clear from the record.

We first consider the fundamental question whether

a trial court conducting an ORCP 54 E(3) comparison should

take into account offers and awards of property, or whether

only offers and awards of money are relevant to the analysis.

We find the answer to that question in ORCP 54 E itself.

ORCP 54 E(1) expressly contemplates offers that consist of or

include the transfer of property. See ORCP 54 E(1) (describ-

ing an offer to allow judgment against the defendant “for

the sum, or the property, or to the effect therein specified”

(emphasis added)). And there is no question that a court may

5

In the original trial court proceeding, defendant calculated plaintiff’s

pre-offer fees as $2,176.75 and pre-offer costs as $198. See Mendoza I, 314 Or App

at 90 (referencing same). However, defendant subsequently identified a miscal-

culation and represents that the correct amount for plaintiff’s pre-offer fees and

costs is $1,830.50. Plaintiff does not appear to dispute that number. In any event,

given the range at issue, the exact amount is not material to our decision.

480 Mendoza v. Xtreme Truck Sales, LLC

award property in a judgment in an appropriate case. Given

the plain text of the rule, it is apparent that trial courts

must consider both monetary and nonmonetary aspects of

an offer or judgment in making the comparison required by

ORCP 54 E(3).

In addition to the rule’s text, we also find persua-

sive the reasoning of several federal courts that have inter-

preted the analogous federal rule of civil procedure, FRCP

68, to require consideration of both monetary and nonmone-

tary aspects of an offer or judgment in deciding whether the

judgment is more favorable than the offer.6 See Vasconcelo v.

Miami Auto Max, Inc., 981 F3d 934, 944 (11th Cir 2020) (“[T]he

non-monetary elements of a judgment should be considered

when comparing it to a Rule 68 offer.”); Reiter v. MTA New

York City Transit Auth., 457 F3d 224, 231 (2d Cir 2006),

cert den, 549 US 1211 (2007) (explaining that nonmon-

etary aspects of an offer or judgment must be considered

in the FRCP 68 analysis, notwithstanding “the difficulty

of comparing a monetary offer and judgment that includes

non-monetary elements”); Andretti v. Borla Performance

Indus., Inc., 426 F3d 824, 837 (6th Cir 2005) (“[A] favorable

judgment and an injunction can be more valuable to a plain-

tiff than damages.”).

Plaintiff argues that considering the van-return

requirement as part of the ORCP 54 E(3) analysis requires

the trial court to “look past the final judgment” or “behind

the dollar amount of the judgment” in a manner contrary to

existing case law. But plaintiff relies for that argument on a

line of case law that is distinguishable.

6

Until 2007, FRCP 68 contained phrasing nearly identical to that in ORCP

54 E, allowing a pretrial offer of judgment “for the money or property or to the

effect specified in the offer,” and requiring a determination of whether “the judg-

ment finally obtained by the offeree is not more favorable than the offer.” FRCP

68 (2006). In 2007, the rule was amended—including by removing the language

that mirrored ORCP 54 E—to make it more readable, without the intention of

changing its meaning. FRCP 68(a), (d) (allowing “an offer to allow judgment on

specified terms” and requiring a determination of whether “the judgment that the

offeree finally obtains is not more favorable than the unaccepted offer”); FRCP 68

Advisory Committee Notes to 2007 Amendment (“The language of Rule 68 has

been amended as part of the general restyling of the Civil Rules to make them

more easily understood and to make style and terminology consistent throughout

the rules. These changes are intended to be stylistic only.”).

Cite as 328 Or App 471 (2023) 481

We have held that a court conducting an ORCP 54

E(3) analysis should not adjust the dollar amount of a money

offer or award to account for Personal Injury Protection

(PIP) benefit reimbursements to the plaintiff’s insurer that

are not reflected in the judgment but will affect how much

of the award the plaintiff personally keeps. Mulligan, 227

Or App at 524-25; Delcastillo, 197 Or App at 141. We have

similarly held that a court conducting an ORCP 54 E(3)

analysis should not adjust the dollar amount of a money

award to account for a settlement with a codefendant that

will affect how much of the award the plaintiff personally

keeps. Quality Contractors, Inc. v. Jacobsen, 154 Or App 343,

349, 963 P2d 30 (1998). As we explained in Delcastillo, 197

Or App at 141, to hold otherwise “would be to impose on

trial courts an obligation to look behind the dollar amount

of a judgment to determine its actual benefit to a plaintiff,”

which “finds support in neither the language of the rule nor

in our case law, which treats the judgment amount as unaf-

fected by offsets (such as PIP reimbursement or settlements)

that are not part of resolution of the merits of the action.”

The present situation is different, because the

requirement that plaintiff return the van to defendant

appears on the face of the judgment and is part of the

resolution of the merits of the action. In each of the cases

discussed above, only money was offered, only money was

awarded, and the legal issue before us was whether the trial

court was required to consider in its ORCP 54 E(3) analysis

a factor external to the judgment—the existence of a set-

tlement or PIP benefit reimbursement requirements—that

had a practical effect on how much money would end up in

the plaintiff’s own pocket. We answered no, as explained

in the opinions in those cases. But nothing in that line of

cases supports construing ORCP 54 E to exclude the consid-

eration of nonmonetary terms in assessing whether a judg-

ment is more favorable than an offer. An offer of property

that appears on the face of the offer or an award of property

that appears on the face of the judgment is fundamentally

different from considerations outside the judgment.

As for how to compare an offer and judgment when

one or both contain nonmonetary terms, we recognize that

482 Mendoza v. Xtreme Truck Sales, LLC

it may be difficult at times. See Reiter, 457 F3d at 231 (rec-

ognizing same); Charles Alan Wright, Arthur R. Miller,

Edward H. Cooper, & Richard D. Freer, 12 Federal Practice

and Procedure § 3006.1 (3d ed 2008) (“The comparison

between Rule 68 offers and judgments is intrinsically more

difficult where one or both involves nonmonetary relief. In

particular, it is difficult to compare monetary relief with

nonmonetary relief, although courts have managed to do

so. * * * Ultimately the courts must try to compare apples

and oranges as best they can.” (Internal footnotes omitted.)).

However, the fact that accounting for nonmonetary terms

may make the ORCP 54 E(3) comparison more challenging

does not excuse doing it, and, for the reasons already dis-

cussed, we reject any argument by plaintiff that trial courts

should simply disregard nonmonetary terms in the analysis.

We similarly reject plaintiff’s suggestion that it is

improper for trial courts to conduct any factfinding in decid-

ing ORCP 54 E(3) motions. None of the authority cited by

plaintiff supports that proposition. Someone needs to do

the factfinding, and the nature of an ORCP 54 E(3) motion

would make it extremely difficult to obtain findings at trial

on issues relevant only to a potential future ORCP 54 E(3)

motion. Moreover, it is well established in analogous federal

case law that a trial court may need to engage in factfinding

to decide an FRCP 68 motion. See, e.g., Hobbs v. Alcoa, Inc.,

501 F3d 395, 398 (5th Cir 2007) (reviewing “[a]ny factual

findings concerning the circumstances under which Rule 68

offers are made” for clear error, and concluding that a mag-

istrate judge’s finding that the value of equitable relief in the

case was de minimis was not clearly erroneous); Vasconcelo,

981 F3d at 944 (“[T]he district court did not clearly err in

its implicit factual finding that Vasconcelo’s non-pecuniary

interest in establishing Miami Auto Max’s liability was not

worth more than the $3,305.60 difference between the jury

verdict and the offer.”); Reiter, 457 F3d at 229 (holding that

the district court’s conclusion that an offer was more favor-

able than the judgment, which included substantial equita-

ble relief, was “clearly erroneous” because it “draws indefen-

sible conclusions about the worthlessness of the equitable

relief [the plaintiff] obtained”).

Cite as 328 Or App 471 (2023) 483

We therefore conclude that the trial court erred

when it compared only the monetary terms of the judgment

and offer in conducting its ORCP 54 E(3) analysis and did

not account for a nonmonetary term of the judgment, i.e.,

the requirement that plaintiff return the van to defendant.

We express no opinion at this time as to how the van should

be valued, as the trial court should address that issue in

the first instance. Defendant argues that the van should be

valued at $5,339.48, based on the insurance payment that

plaintiff received. Plaintiff counters that the insurance pay-

ment does not reflect the van’s actual value, but rather the

market value of that make and model of van without the

defects that prompted this litigation, as well as arguing that

the arbitrator implicitly assigned zero value to the van. We

leave it to the trial court to consider those arguments, con-

duct the necessary proceedings, and determine whether the

judgment as a whole is more or less favorable to plaintiff

than defendant’s pre-arbitration offer.7

Finally, we reject plaintiff’s argument that defen-

dant’s ORCP 54 E(3) argument is foreclosed because defen-

dant did not alert the court to “the problem” in the arbi-

tration award before the general judgment was entered.

Defendant is not contending that there is anything wrong

with the arbitration award or general judgment. Defendant

is arguing that the general judgment is less favorable to

plaintiff than defendant’s offer when one considers all of the

judgment’s terms, including the requirement that plaintiff

return the van to defendant. Toward that end, defendant

makes various arguments as to the meaning of the judg-

ment and the value of the van. But defendant does not argue

that the judgment contains any error or should be modified

in any way.8 Its argument is directed to the proper applica-

tion of ORCP 54 E(3) to the judgment that was entered.

7

Although we do not express any opinion on the value of the van, we do

make two observations. First, the trial court’s task is simplified by the fact that

neither party attaches any value to the van other than its financial value. Second,

the trial court’s task is complicated by the timing of the van accident and by the

fact that the arbitrator never modified the van-return requirement.

8

As part of arguing that defendant needed to take some other action to

preserve its ORCP 54 E(3) arguments, plaintiff argues that the trial court reg-

ister shows a $5,300 lien based on the money award in the judgment, and that

defendant should have alerted the trial court if it believed that register entry was

484 Mendoza v. Xtreme Truck Sales, LLC

CROSS-ASSIGNMENT OF ERROR

In a cross-assignment of error, plaintiff points out

that the reason that her claim qualified for mandatory

court-annexed arbitration was because she sought only

money damages—see ORS 36.405(1)(a) (providing for cir-

cuit courts to refer certain civil actions to mandatory court-

annexed arbitration, including those in which “[t]he only

relief claimed is recovery of money or damages, and no party

asserts a claim for money or general and special damages

in an amount exceeding $50,000, exclusive of attorney fees,

costs and disbursements and interest on judgment”)—and

she argues that it was error for the arbitrator to require her

to return the van to defendant and error for the trial court

to enter a judgment containing that term. Those issues go

to the correctness of the arbitrator’s award and the gen-

eral judgment incorporating it. They cannot be raised in an

appeal of the supplemental judgment denying defendant’s

ORCP 54 E(3) motion.

Reversed and remanded.

incorrect. However, we do not understand defendant to contend that the register is

wrong. ORS 18.150(1) provides that, subject to certain conditions and exceptions,

if a judgment includes a money award, the court administrator shall note in the

court register that the judgment creates a judgment lien. The judgment in this

case includes a money award for $5,300, which is noted in the register. Defendant

does not take issue with that entry, nor is it apparent why it would. To the extent

that plaintiff means to suggest that the arbitrator should have addressed the dis-

position of the vehicle in a different place in the award (rather than writing it into

the money award section), or that the form of judgment was noncompliant, or that

the judgment was misrecorded, those issues are not properly before us, and we do

not view defendant’s ORCP 54 E(3) motion as implicating them.