Shriner's Hospital for Children v. Cox

Pursuant to ORCP 21 G(1), “defenses of lack of personal jurisdiction and insufficient or improper service will be ‘waived’ if a defendant does not assert them in a timely fashion. See ORCP 21 G(1) (providing that a defendant will waive those defenses if they are not raised either in an ORCP 21 motion or in the first responsive pleading).

Petitioner, Shriner’s Hospital for Children (“Shriner’s”), obtained a default judgment against Defendant to collect on an unpaid note. Prior to awarding Shriner’s the default judgment, the trial court failed to resolve the issue of whether Defendant had actually been personally served. Instead, the trial court determined Defendant was “personally aware” of the default judgment case and ordered the proceeds from Defendant’s separate malpractice case to be used to satisfy the default judgment. On appeal, Defendant moved to set aside Shriner’s default judgment for lack of service, under ORCP 71(B)(1), and submitted a sworn affidavit stating he was out of town on the date Shriner’s alleged Defendant was personally served. On Appeal, the Court of Appeals vacated the trial court’s order and remanded the case for the trial court to decide whether Defendant had or had not been personally served. On review, the primary issue was “whether defendant can be judicially estopped from moving to set aside a default judgment entered without proper service.” On review, Shriner’s argued Defendant did more than “acknowledge” the existence of the default judgment; he relied on its validity so that the jury in his malpractice case could use it to determine and award him damages. Shriner’s argued Defendant could not take two different positions in two different proceedings. Pursuant to ORCP 21 G(1), “defenses of lack of personal jurisdiction and insufficient or improper service will be ‘waived’ if a defendant does not assert them in a timely fashion. SeeORCP 21 G(1) (providing that a defendant will waive those defenses if they are not raised either in an ORCP 21 motion or in the first responsive pleading). The Court concluded, based on the trial court’s findings, Defendant was estopped from setting aside the default judgment.

Reversed and Remanded.