# Mendoza v. Xtreme Truck Sales, LLC

> Court of Appeals of Oregon · October 4, 2023 · 328 Or. App. 471

URL: https://www.frixlaw.com/law-library/cases/10610482

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** October 4, 2023
- **Citations:** 328 Or. App. 471; 537 P.3d 563
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Aoyagi
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10610482. Public record. Not legal advice.