*1 25,1983 Argued August and submitted affirmed October BROYLES, review, Respondent BROWN, OF ESTATE Petitioner on review.
(TC A8103-01329,*
29607)
A25385,
CA
SC
App 662,
See also 62 Or
App *2 Griffin, the cause and filed Oswego, argued E. Lake
James on review. petition petitioner and briefs Portland, Cox, Lake Rogers, James Richard M. Richard on review. argued respondent the cause Oswego, petition and Portland, response to the filed Rogers, M. on review. respondent brief for
JONES, J. J., opinion. Lent, dissenting filed J., dissenting opinion. Campbell, filed JONES, J. presents question
This case proper pro- cedure and test to be in deciding used whether a should be assessed under ORS 19.160 for pursuing without probable cause. The Court of Appeals plain- allowed tiffs motion the assessment of such a penalty. We affirm.
Plaintiff Broyles injured when the car in which she was was hit riding by a car driven Carroll Brown.1 trial,
At where Broyles sought damages per- for her injuries, sonal she during testified cross-examination as fol- lows: “Q. [by defense long How was it after counsel]
impact, crash, pulled up you? that Mr. Brown’s car beside
“A. Just a matter of seconds.
“Q. Okay. down, Was his window too? Yes,
“A. it was.
“Q. say anything you Did he then? — said, “A. me’, Yes. He said he ‘You hurt something. *3 — said, I said, And then ‘What?’ And he said [the driver] something about, your on’, signal ‘You didn’t have turn and said, ‘Yes, I engaged.’ did. It’s still [the driver] I “And then asked him for his name and his insurance company.”
Defense counsel immediately moved for a mistrial. though Even the trial court advised plaintiff that he believed the verdict would not appeal, plaintiff stand on resisted a mistrial. The trial court stated: up, [plaintiffs
“Your verdict won’t stand counsel.] * * * *
“* * * I anything grant would do in the world not to open I’m suggestion; mistrial. I but have never known inteijection case that survived of insurance into it and survived on
* * * * 1Brown died from unrelated causes. This court allowed a motion substitute Slininger personal representative. Arthur as counsel, your put it’s risk. You on suppose,
“I a sense You professional witnesses. must have inordi- four or five expense the case.” nate amount involved then ruled: court [plaintiffs counsel], I’m right, going “All to overrule the — you person deny I think are the motion for mistrial. — you person you I and for mistrial. think are the motion greatest your bearing going risk in client are the ones that’s, I obviously you go And desire to ahead. ahead assume, your hope I part. it works a considered on position you. grave I have concern about the our out well for —” take, try all guess court but I we can do will disregard plaintiffs jury The court instructed the continued. mention of insurance and the trial trial, Following defen- jury plaintiff. found plaintiffs reference to insurance stipulated dant inadvertent.2 appealed, contending that the trial
Defendant mistrial, and grant motion for a required law to its alternative, denying it abused its discretion of defen- plaintiffs injection mistrial motion for non-responsive answer. company dant’s insurance in a company nor the insurance Neither the defendant to obtain a supersedeas filed bond. Plaintiff was company in order to the insurance garnishment against writ portion judgment. collect a of her 1983, 16, days prior argument to oral
On March two filed a Appeals, the merits before the Court of on The Court percent penalty. of a 10 motion for assessment arguments grant on the failure to Appeals heard oral 18,1983, possibility a 10 mistrial on March but case was affirmed without not discussed. The penalty was 662, 13,1983. App opinion April an affidavit Appeals Court of received May On *4 for the of the motion plaintiffs support the motion. and allowed percent “penalty,” assessment of a 10 states, brief, appellant’s for the “Defendant concedes In defendant plaintiffs part, injection purpose was inadvertent on of this stipulation effect.” to that defendant has entered into Defendant’s counsel filed an affidavit in opposition which was May 9,1983. received petitioned
Defendant court, this presenting as the sole issue the propriety of the assessment. The statute in question, 19.160, ORS states: judgment “Whenever a or decree is affirmed on recovery and it is money, personal property or the thereof, value or decree shall be for 10
percent
thereof,
of the amount
delay,
for the
appears
unless it
evident to the
court that there was
appeal.”
cause for
Plaintiff argues that the court should use an objective
standard in determining this assessment and
only
inquiry
should be whether the appeal
genuine
raises a
question of law.
If
not,
it does
then the appeal was taken
without
penalty
and the
should be assessed. Affidavits concern-
ing the subjective
intent of the
would be irrelevant.
plain
reading of the statute justifies this inter
pretation. However, as far
Hanner,
back as
v.
Jennings
Coffin
Co.,&
(1857),
In Dari-Delite, Inc., 491 P2d (1971), cause existed for the and the of a “long- continued and calculated scheme defendant prevent enforcement of a obligation valid for which defendant had no proper defense.” These facts were extreme and aggravated; therefore, plaintiffs we held were entitled to the additional amount percent of 10 damages. as Id. 366-67. We reiterated purpose that the of the statute impose was to penalty to discourage frivolous proba- taken without ble cause purpose delay. Id. at 370. decline, today,
We past to follow cases prior imposition of the 10 penalty a determination
800 delay” “in bad “purposes the were taken for or that 10 simply provides percent a assesssment faith.” The statute Further, reference to “bad damages delay.” “for for there is no is to delay”; “probable the reference “purposes faith” or there percent 10 assessment will be unless cause.”3 The probable appeal. for the taking cause written, appeal might is Under this statute as it money delay payment the sole to of a purpose taken for advantage favor- appellant that can take judgment so decision, 10 no pending appellate able rates but interest appellant if the could assessment would be allowed percent Also, an probable appeal. cause for the prove that there was in bad faith to vent emotions could case appellant he,or she principle result to demonstrate that over bad or Yet, if the legally, appellant if not correct. morally, probable cause for the proved legal there was ultimately percent appropriate. 10 assessment would be appeal, no 19.160, reviewing applying To sum ORS up, determine: appellate court should recovery money (1) for or judgment Was the below personal property, the value thereof? or
(2) appellate judgment? Did the court affirm that (3) so, impose 10 If shall record, finds, from delay, for unless the court otherwise, probable briefs, there was cause argument or appeal. is no would when there probable Lack of cause exist standard appeal. objective objective legal basis 3 probable already in the cause We that there was not have mentioned 252, 498 Dari-Delite, Inc., 359, 491 (1971), Stirling 262 P2d 1168 case of v. Or Chenoweth, (1938), the defendant In Harlow v. Supreme appealed court to the from the district court the circuit $395.25 Court, pregnant negatives. reply were all basis denials contained on the that the Plant, absolutely appeal. P to the In Loveland v. There was merit claiming judge appealed should instructed that the trial have the defendant contributory negligence passenger plaintiff-passenger guilty if the would be Simply operation the automobile. control over the failed exercise reasonable absurdity stating proposition proves was no cause its and there gloss legal usage that are mere There reason to continue words is no discussing plainly written statute. a reasonable cause of looks at determining problem involved in lawyer’s perspective. probable cause is not based on is or whether belief that acted in the honest whether con- any reasonable would existed, but whether cause appeal possessed legal points asserted clude that legal merit. mean appeal” does not “probable
The term or that reversible for reversal of the probable cause presented It a case in errors were committed. means there assign, are assigned, may grounds has or which debatable, rational, doubt, over open to or are which Iverson, may arise. State reasonable or honest discussion *6 (1954). 117, Idaho 278 205 probable
An
represents
taken without
cause
process.
time-consuming
disruptive
judicial
and
use
appeal ties
resources and diverts attention
up judicial
Such an
already
of work at the Court of
from the
burdensome volume
Thus,
Appeals.
result
in the sanctions
should
Marriage
ORS 19.160
it
cause.
In re
Cf.,
when
has
637, 183
508, 516,
Flaherty,
Rptr
Cal
Cal
P 867 argues
Plaintiff
that there was no
cause to
believe that
prevail
defendant could
Appeals,
in the Court of
Orchards,
based on Blake v.
348,
Webster
249 Or
“* * * If insurance is not intentionally relevant and is case, injected into the the trial grant court must a motion for mistrial if it does not it has committed reversible error. Taylor, Leishman v. 546, (1953). 199 Or If relevant, insurance is not but has through come into the case inadvertence, grant whether or not to is in mistrial Arnstein, discretion of the trial court. Denton v. 54-56, largely This discretion is uncon- permit trolled this court. We the trial court to decide Morrison, has been created. Wells v. prejudice whether or not (1927).” Id. at 354-55. P256 Defendant present stipulated case mention of insurance inadvertent, yet argues it was inadvertent, intentional. It cannot If be both. it obviously was and, therefore, intentional whether or not grant mistrial is within the Further, discretion of the trial court. “injected insurance was never into the case.” All fact was, plaintiff said “And then I asked him for his name and his company.” insurance No answer was ever ques- tion.
Answering questions the three set forth in this (1) opinion, the judgment (2) below was for recovery money; appellate (3) court judgment; affirmed that and the Court Appeals found there was no probable cause for taking the appeal.
The decision of the Court Appeals to assess 10 percent of the amount of the judgment damages delay for for is affirmed.
LENT, JT.,dissenting.
I agree in says substance with what the that majority ORS 19.160 means. The text of the statute requires that the judgment1 delay specified damages if a for must money personal or for on and that affirmed “appears property it evident” unless or the value thereof taking appellate cause for that there was court may only appeal. look to made in I believe argument the briefs and the record on and support there to determine if the claims of error probable cause for the meaning agree majority as to the
P with the appeal” “probable as the insofar cause for term opinion Iverson, 76 Idaho draws State many perception, it was accurate Whether not reluctance, bar did that this court’s when trial believe appeals, give judgment under this was the court direct perceived to be statute was one- ORS 19.160was because the Many of cases which came to this court were sided. plaintiffs in for taken personal injuries. unsuccessful actions against only money judgment such an usually disbursements, a com- was for costs and paratively therefore, and, an additional 10% was small sum appealing case, a the case. In that kind of not deterrent to appealing however, another deterrent to without plaintiff usually very did not cause existed in a real sense. The necessary pay transcript or for the have the means to fee of an lawyer attorney appeal. If had the case on the trial contingent basis, not interested a investing fee he for which could discern further time in an prevent In order to the defendant cause. plaintiff judgment pending appeal, enforcing would inexpensive supersedeas bond, have item. It is clear to another to obtain me the statute was not one-sided. present at time. A Even less so is it one-sided judgment against disbursements is for costs and judg- money, increasingly recent times and against plaintiffs for defen- sums ments include substantial and fees, to costs either in addition dants’ disbursements or of 10% to
as a thereof. addition decrees, provides speaks judgments 67A. both but ORCP 1ORS 19.160 “judgment” includes a decree. *8 judgment may defendant’s well be as sizeable as judgment the damages delay for by as was allowed of Appeals Court in the case at Even the judgment bar. when in the trial court for the defendant for costs and disbursements is little more nominal, than temptation to plaintiff to with- out probable particularly cause is not inviting. cost out, transcript fees and for a ordinarily must laid attempt in an gain new trial on a cause which the already has lost once.
My for refusing join reason the majority, despite my substantially belief correctly construes statute, regard is a of for the doctrine stare decisis. As out, Campbell pointed Justice has this early court has from an upon time the statute a engrafted judicial gloss which makes application bad, of the depend good, statute or faith of the appellant appeal might or whether the been have taken purpose delay. gloss erroneously That applied, legislature but it is there. Had the been not in with accord command, by treatment its it could have made that known appropriate As I an legislative action. have written on earlier occasion, statute, when the court in construing errs as distinguished from a constitutional provision or the common law, legislative correction should be department made government. my Newton, separate opinion See State 788, 815,
CAMPBELL, J., dissenting.
I adopted dissent. The majority has a new rule interpreting Appeals. 19.160 ORS and affirms the Court of I disagree with the new rule and to favor old continue rule. For Appeals. those reasons I would reverse the Court of An percent damages assessment of 10 should not be imposed against the defendant in this case.
ORS 19.160 almost the same form identical has been a Deady During our laws since the Code.1 Deady
1§531 Code: “Whenever a or decree affirmed on and the same be for recovery money personal property thereof, or or the value per decree shall be ten centum of the amount thereof for for the delay, appears appellate unless it evident to the court that there was (The appeal.” opposite margin cause for section has it in the the date of 11, 1862”). “Oct developed law through its case time, this period under penalty of a assessment following test court to assess who desired party statute: A there was both that prove *9 was taken appeal and that the appeal probable cause required that obligation. We delay of a valid to enforcement parts of the test. meet both party support the by this court cases three different At least above test. Dari-Delite, Inc., 359, Or 491 P2d Stirling
In v. 262 (1972), 1168, 252, 494 we said at 370: P2d 753 previously purpose that of ORS 19.160 “We have also held impose penalty discourage a to frivolous taken purpose delay, as in this probable cause for the of without case.” Chenoweth, (1938): 343,
In
158
P2d
Harlow v.
Or
75
937
** *
proper
believe that
for
“We
this is
instance
invoke
** *
penalty
per
frivolous
of 10
cent
for the reason
apparent
appeal
purpose
that it is
was taken for the
that
delay
any probable
Or
of
and without
cause.” 158
at 349.
Plant,
619,
(1930):
In Loveland v.
Or
P 219
132
287
* *
*
*
* *
appeal
appears
“The
is frivolous and trivial. It
that
appeal
purposes
taken
the instant action was for the
of
* * *
* * *
delay.
per
is allowed an additional 10
[T]he
delay
cent
as
caused
* *
appeal
*.”
Or
622.
132
at
253,
ing departed an has the above cases. Oregon part law. See Apparently territorial of the a similar statute existed as Hanner, Co., (1857). Jennings & 1 Or v. Coffin stare decisis has been The doctrine of ignored.
going off’ previous “write test which delay.”2 “purposes taken
Although
this court has
directly,
said so
examination
equated
cases indicated that we have
“lack
cause” with “frivolous”
and “bad faith” with “for
delay.” See Shaw v.
Corp.,
Supply
purpose
Pacific
Chenoweth,
Harlow v.
508, 113
Cobb
supra;
Or
(1941);
S,.
Co.,
P.
Ry.
v.
& S.
150 Or
(1935;
Christensen,
Co.,
Inc. v.
Hansen
549, 21
(1933);
142 Or
P2d 195
McCulley v.
Bakery,
Homestead
460, 18
(1933);
Plant,
Elliott,
Loveland v.
supra; State ex rel Swalko v.
Manary Runyon,
(1925);
P
“The involved in determining whether the is not based on cause is not whether the *10 probable existed, acted in the honest belief that but any whether reasonable would conclude of that points legal appeal possessed asserted legal on merit.” 295 Or at 801.
Michael S. Oberman writing Brooklyn in 47 Law Rising Review 10573 (Coping II; With Caseload Defining the 1981) Frivolous Civil Appeal, page at 1070: * ** procedural evidencing “Absent a context abuse or bad conduct, faith imposed sanctions should not be for insuffi- initial, ciency of the of merits an direct A course of may, very question, conduct legal context of close appear advocacy; in ‘long to be determined the context of the may dilatory shot’ the same ploy. conduct be seen as a response majority’s agree in 2This footnote is to the footnote number 3.1 with the Dari-Delite, Inc., Stirling majority probable appeal v. that there was no cause to Chenoweth, supra, Plant, supra, supra. My point Harlow and Loveland v. is that all proposition impose percent three cases stand that in order to appeal 19.160, proof under what now ORS must be “no there that there was appeal appeal delay.” and that purposes cause”for the was taken “for majority part has overruled those cases because it has scuttled the second test. Appellate 3The law review article centers on Rule 38 of the Federal Rules of Procedure. That rule is: frivolous, appeal may “If a court of shall determine that an it award just damages single appellee.” or double costs for [*] * * [*]
“Nonethless, primary should not be a test focus strength and the correctness Judging the of the merits merits. every litigator’s opinion, while a district court If, faith, good an science. calling, is far from an exact may prevail persuasion power of attorney that the concludes overturned, may that and a district if face sanctions attorney should not and his or her client * * borne ultimately *. The costs follows affirmance appen- today, including printing the brief and by fees, significant weighing are a factor well as dix as appeal.” against heavily pursuit of non-meritorious Flaherty, Rptr 183 Cal Marriage In 3d See Re Cal (1982).4 proof this court which previous test delay” took into purposes taken “for that to the “good faith” of the addition account question of “lack of cause.”5 from this reported
This writer can find no
civil cases
court,
cases, which define
prosecution
other than malicious
adopts a
“probable
cause.” The
now
definition
Iverson,
State v.
the effect
76 Idaho
“probable
require grounds
does
appeal”
cause for
open
are
only grounds “that
judgment,
the reversal of the
but
debatable,
rational,
doubt,
or are
or over which
reasonable
may
arise.”
“(2) Knowingly is under a defense that unwarranted advance claim or law, may existing except if it can such claim or defense that he advance modification, extension, supported by good argument an faith added.) existing (Emphasis reversal of law.” defendant, in its brief Appeals, in the Court of assignment said that its first presented error the following question: “Does a in denying trial court abuse its discretion motion promptly
mistrial
voluntary interjection
made
company by
plaintiff
defendant’s insurance
non-
responsive answer?”
Orchards,
In Blake v. Webster
348,
249 Or
(1968),
court,
considering
consequences of the
trial,
introduction
insurance
a jury
into
said:
“If insurance is
intentionally injected
not relevant and is
into
case,
grant
the trial court must
a motion for
if
mistrial and
it does not it has committed reversible error.
Leishman
Taylor,
199 Or
If insurance is not
relevant,
inadvertence,
but has
through
come into the case
grant
whether or not to
a mistrial
is in the discretion of the
Arnstein,
trial court. Denton v.
28, 54-56, 250
(1952).”
The defendant stipulated plaintiffs that the remarks as to insurance were inadvertent and it is not trying bring under half first of the Blake v. Webster Orchards, test. The supra, only defendant appealing under second half the test claiming the trial court abused his discretion by refusing grant mistrial.
It is admitted that appealing discretionary call by trial judge places on the short end winning odds of but it does not necessarily follow the appeal is without cause. Inc.,
In Baker v. Dairy, Brookmead the defendant appealed claiming abuse of discretion judge denying trial a motion file amended day answer of the trial. We affirmed the trial court, but denied the motion for of a assessment 19.160, under ORS stating: “This not such a groundless appeal penalty.” as to invoke the “Further, majority opinion states: fact ” ‘injected insurance was never into the (Emphasis case.’ original.) transcript at 802. The shows that immedi- ately examination, after the volunteered on cross then I him “And asked for his name and his insurance
809 company”, lawyer the defendant moved for mistrial. — What more was he to do the plaintiff wait until further company? volunteered the name of the Lindemann, 316, 320, 527 In Lunski v. P2d questions plaintiffs asking counsel defendant whether defendant had a sign indicating whether insurance was sold at his office and whether an insurance was business part of his real estate business were “injecting considered insurance” into the case.
If this case were being previous decided under our law, case there would be ample evidence to show that appeal was not taken “for the purpose delay.”6 The defen- dant’s could have interpreted the judge’s trial remarks on the record as a strong recommendation to appeal. The experienced trial judge said: * ** “Your up, [plaintiffs verdict won’t stand I’m counsel].
open any suggestion; I but have never known of a case that interjection survived of insurance into it and survived on * * * appeal. I grave position have concern about our * * appellate court will take *.” The record shows that the defendant was in fact represented by an insurance company. plaintiffs The judg- against ment the defendant as a result of jury’s verdict was $20,000. the sum of represented who the defen- dant employed by was company. insurance The insurance policy had a $15,000. limit of The insurance company had a good duty faith to adequately represent the insured defendant. The defendant’s attorney, when faced with the judg- excess $5,000, ment of must thought have about the possibility of a malpractice action if he did plaintiff, imposition penalty, 6The in her motion and affidavit for the of a cited Labato, (1980). Parries v. App and relied P2d This case can be distinguished. cases, plaintiff In both obtained in excess policy appealed insurance limits. The defendants both cases to the Court of Parries, Appeals. posted supersedeas plaintiff Neither defendant In bond. levied by way garnishment, company appealed garnish execution and the insurance proceedings paying ment principal to avoid until the case garnishment clearly was only decided. The from the frivolous and intended delay. appealed principal There was no asessed when defendants case. Labato, Parries App In this case when the garnisheed defendant, company paid the insurance it face amount of the
policy $15,000. sum (1) overrules our because:
I dissent (2) previous that our law, To demonstate case long-standing there basis, (3) That event case law had sound — it this case cause for the defendant’s words “are majority’s which in presents grounds rational, debatable, doubt, which or are over open to may arise.” honest discussions reasonable or