source: Caselaw Access Project

license: Public Domain

text:
    STATE of Oklahoma, EX REL. John D. DOAK, Insurance Commissioner, Plaintiff/Appellee, v. RED ROCK INSURANCE COMPANY, a licensed insurer in the State of Oklahoma, Respondent/Appellee, and The Bankers Bank, Appellant.
    Case No. 115,716
    Court of Civil Appeals of Oklahoma, Division No. 1.
    FILED DECEMBER 7, 2018 Mandate Issued: July 3, 2019
    Ryan Leonard, Robert Edinger, Jason A. Reese, EDINGER, LEONARD & BLAKLEY, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellee,
    Jon Epstein, Tami J. Hines, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Oklahoma City, Oklahoma, for Appellant.
   OPINION BY ROBERT D. BELL, PRESIDING JUDGE:

¶1 Appellant, The Bankers Bank, appeals from the trial court's order denying Appellant's proofs of claim in this receivership proceeding to liquidate Respondent, Red Rock Insurance Company. At issue in this proceeding is the interpretation of an insurance contract. For the reasons set forth below, we affirm.

¶2 Appellant is an Oklahoma state banking corporation engaged primarily in the business of making banking and bank-related products and services available to other financial institutions. In 2010, BancInsure, Inc., issued the Extended Professional Liability Policy in question here (Policy) to Bankers Bancorp of Oklahoma, Inc., and certain of its subsidiaries, including Appellant. The Policy provided coverage for, among other things, acts done by Appellant "in the performance of services for or on behalf of a customer." BancInsure later changed its name to Red Rock Insurance Company, Inc.

¶3 LendingTools.com (LT) is a software company that licenses its own banking software systems to financial institutions. In 2010 and 2011, two of LT's customers (UBB and FNBB) chose not to renew their banking software contracts with LT and instead entered into contracts with Appellant. Each of the customers asked Appellant to develop correspondent software systems for them and to customize certain elements of Appellant's software platform.

¶4 In February 2012, Appellant was joined as a co-defendant in a suit filed by LT in Kansas state court. LT's suit alleged Appellant and the Bankers Bank of Kansas (BBOK) entered into a joint venture to develop and sell a banking software product; BBOK executed an agreement with LT that included non-compete and non-disclosure provisions; Appellant and BBOK pursued two of LT's customers (UBB & FNBB) in violation of the non-compete provision; and both UBB and FNBB allowed Appellant and BBOK access to LT's software in violation of the non-disclosure provision. LT sought monetary damages and injunctive relief, asserting claims for breach of contract, tortious interference with contract, misappropriation of trade secrets, civil conspiracy, fraud, and breach of the covenant of good faith and fair dealing.

¶5 In March 2012, Appellant submitted its first claim for coverage to Red Rock in connection with the Kansas litigation. Red Rock denied coverage under the Policy, explaining there were no allegations in the litigation of wrongful acts covered by the Policy. Between July 2012 and January 2014, Appellant renewed its request for coverage multiple times. Each time, Red Rock denied coverage.

¶6 In August 2014, upon application by the Oklahoma Insurance Commissioner and pursuant to the Oklahoma Uniform Insurers Liquidation Act, 36 O.S. 2011 § 1901 et seq ., Red Rock was placed into liquidation and receivership by the District Court of Oklahoma County. Insurance Commissioner John D. Doak was appointed as Receiver. Thereafter, Appellant filed two proofs of claim with the Receiver in an attempt to recover litigation costs and any potential judgment arising out of the Kansas litigation; the first proof of claim represented any loss payment that may arise from the litigation and the second represented attorney fees and defense costs incurred by Appellant in the litigation.

¶7 The Kansas litigation culminated in 2016 with a jury verdict finding Appellant did not breach any alleged contract with LT and did not misappropriate any of LT's trade secrets. Appellant's first proof of claim in the receivership proceeding was thereafter reduced to $0.00 because no liability in the Kansas litigation was established. The second proof of claim sought $7,262,105.22 for Appellant's attorney fees and defense costs. The Receiver recommended denial of the claims.

¶8 Following a hearing, the trial court denied Appellant's proofs of claim. In an exhaustive ruling, the court held the Policy's "professional services" coverage did not apply because the definition of "professional services" was limited to wrongful acts committed by Appellant "in the performance of services for or on behalf of a customer," not against its competitor. The trial court also rejected Appellant's argument that its alleged conduct fell within the scope of an "electronic banking wrongful act" provision of the Policy, because the electronic system at issue was not owned, licensed by or licensed to Appellant. Finally, although of little consequence because the court held no coverage was available to Appellant, the court rejected the Receiver's argument that the "profit or advantage exclusion" barred any coverage for Appellant. From said judgment, Appellant appeals. Oral argument was held before this Court on August 29, 2018.

¶9 In State ex rel. Fisher v. Heritage Nat'l Ins. Co. , 2006 OK CIV APP 119, ¶12, 146 P.3d 815, the Court described litigation brought pursuant to the Insurers Liquidation Act as "a special proceeding in the nature of equity." "Accordingly, the trial court's judgment will be affirmed unless it is against the clear weight of the evidence or is contrary to law or established principles of equity." Id . Further:

An insurance policy is a contract. The rules of construction and analysis applicable to contracts govern equally insurance policies. The primary goal of contract interpretation is to determine and give effect to the intention of the parties at the time the contract was made. In arriving at the parties' intent, the terms of the instrument are to be given their plain and ordinary meaning. Where the language of a contract is clear and unambiguous on its face, that which stands expressed within its four corners must be given effect. A contract should receive a construction that makes it reasonable, lawful, definite and capable of being carried into effect if it can be done without violating the intent of the parties. We review the meaning assigned by the trial court to a contract as a legal question. Questions of law are reviewed by a de novo standard.

May v. Mid-Century Ins. Co. , 2006 OK 100, ¶22, 151 P.3d 132 (footnotes omitted). "A basic rule of insurance law provides that the insured has the burden of showing that a covered loss has occurred, ..." Pitman v. Blue Cross and Blue Shield of Okla. , 217 F.3d 1291, 1298 (10th Cir. 2000).

¶10 At issue in this case is whether Appellant's acts fall within the Policy's coverage definitions. The Policy covers an insured for any "loss that is the result of a claim for a professional services wrongful act ...." The term "professional services wrongful act" is defined by the Policy to mean, inter alia :

any actual or alleged error, misstatement, misleading statement, act or omission, or neglect or breach of duty by the company in the performance of services for or on behalf of a customer ....

¶11 Appellant argues LT's allegations against it in the Kansas litigation fall squarely within the definition of a "professional services wrongful act" because the allegations charged that Appellant committed wrongful acts "in the performance of services for or on behalf of a customer." Stated otherwise, the Kansas suit alleged Appellant committed wrongful acts against LT while Appellant was developing and customizing banking software systems for two of its customers. Appellant does not challenge the trial court's denial of coverage under the "electronic banking wrongful act" Policy provision.

¶12 Receiver argues the trial court properly denied Appellant's claims because the conduct giving rise to the Kansas litigation was not performed by Appellant "for or on behalf of a customer," but rather was performed by Appellant for its own commercial purpose and business advantage. Receiver contends the alleged conduct was not to the detriment of Appellant's customer, but rather was to the detriment of a competitor, "an entity with whom [Appellant] did not have a professional relationship and for whom it did not provide professional services." Receiver insists the alleged unauthorized use by Appellant of LT's trade secrets and confidential information to develop software "is not a mistake or an error inherent in the banking profession, but rather an intentional act by [Appellant] for its own monetary gain, outside the scope of providing professional banking services." Both parties assert the Policy terms are unambiguous.

¶13 We agree with Receiver and the trial court that the Policy does not provide coverage for Appellant's loss. The clear terms and intent of the Policy is to provide coverage for mistakes or errors inherent in the practice of Appellant's profession of providing bank-related products and services to its banking customers. The acts alleged in the Kansas litigation all relate to Appellant's conduct regarding LT. Those allegations included breach of a purported contract with LT, tortious interference with LT's contracts, misappropriation of LT's trade secrets, civil conspiracy with BBOK against LT, fraud committed against LT, and breach of an alleged covenant with LT to deal fairly and in good faith. Accordingly, we hold the acts Appellant was alleged to have performed in the Kansas litigation were not undertaken "in the performance of services for or on behalf of a customer."

¶14 On the basis of the foregoing, we hold the trial court's ruling is neither against the weight of the evidence nor contrary to law or established principles of equity. It is therefore affirmed.

¶15 AFFIRMED.

JOPLIN, J., concurs.

BUETTNER, J., dissents.

¶1 I believe the language of the Policy is clear and unambiguous. Assigning the plain and ordinary meaning to the Policy's terms, the Policy provides coverage for Appellant's acts as alleged in the Kansas litigation. Appellant was alleged to have committed wrongful acts while it was developing and customizing banking software systems for two of its customers. The Policy language does not limit coverage to only alleged wrongs committed against a customer, nor does it appear to provide coverage only for unintentional acts. The term "professional services wrongful act" includes "any ... alleged ... act ... by the company in the performance of services for or on behalf of a customer ..." The alleged wrongful acts by Appellant were "in the performance of services for or on behalf of a customer" within the meaning of the Policy. I would hold that the policy covered the Appellant's claim.


text:
    CIT BANK, N.A., Plaintiff/Appellee, v. The HEIRS, PERSONAL REPRESENTATIVES, DEVISEES, TRUSTEES, SUCCESSORS AND ASSIGNS OF Edward J. MCGEE, Deceased; and the Unknown Successors, the Heirs, Personal Representatives, Devisees, Trustees, Successors and Assigns of Laura McGee, Deceased, and the Unknown Successors; et al., Defendants, and Falconhead Property Owners Association, Inc., Defendant/Appellant.
    Case No. 116,324
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED JUNE 5, 2019 Mandate Issued: July 3, 2019
    A. Grant Schwabe, Brian J. Rayment, KIVELL, RAYMENT AND FRANCIS, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee
    Richard A. Cochran, Jr., RICHARD A. COCHRAN, JR., P.C., Marietta, Oklahoma, for the Edward J. McGee Defendants
    G. Timothy Armstrong, Edmond, Oklahoma, for Defendant/Appellant
   OPINION BY JOHN F. FISCHER, PRESIDING JUDGE:

¶1 The Falconhead Property Owners Association, Inc., appeals a judgment in this foreclosure action granting CIT Bank, N.A. priority over the Falconhead lien. Because the Falconhead lien did not mature into an enforceable lien and was not perfected until after the Bank's mortgage, it is not entitled to priority over the Bank's lien. The judgment of the district court is affirmed.

BACKGROUND

¶2 The real property at issue in this case is located in Love County, Oklahoma, and subject to restrictive covenants described in a Dedication of Restrictions, Conditions, Easements, Covenants, Agreements, Liens and Charges, Falconhead, Phase 1. The Dedication is dated March 10, 1971, and was recorded with the County Clerk on March 15, 1971. Falconhead is a residential and golf course development. Edward and Laura McGee purchased property in 1996 subject to the Falconhead Dedication. The Dedication provided for a lien to secure the payment of any charges assessed by the Falconhead Owners Association.

¶3 On October 4, 2005, the McGees executed an Adjustable Rate Note and Adjustable Rate Home Equity Conversion Mortgage in favor of Financial Freedom Senior Funding Corporation and granted a mortgage on their property in the Falconhead addition to secure repayment of any funds advanced pursuant to the Note. The mortgage was recorded on November 14, 2005, and assigned to CIT Bank on December 8, 2015. The Bank recorded its assignment on January 6, 2016. The Bank filed this action on May 13, 2016, alleging that the McGees had defaulted on the loan. On May 20, 2016, Falconhead recorded a statement of lien with the Love County Clerk alleging that the McGees had failed to pay $1,339.47 in monthly assessments beginning in December 2015.

¶4 The Bank amended its petition to add the Falconhead Owners Association as an additional defendant and moved for summary judgment. Falconhead responded and filed its own motion for summary judgment. The district court granted judgment in favor of both lien claimants. The sole issue in this appeal is whether the Bank's mortgage has priority over the Falconhead lien. The district court subordinated the Falconhead lien to the Bank's mortgage. Falconhead challenged that ruling by filing a motion for new trial, which the district court denied. Falconhead appeals that order and the judgment in favor of the Bank.

STANDARD OF REVIEW

¶5 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment in this case. A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Id . The de novo standard controls an appellate court's review of a district court order granting summary judgment. Carmichael v. Beller , 1996 OK 48, ¶ 2, 914 P.2d 1051. De novo review involves a plenary, independent, and non-deferential examination of the trial court's rulings of law. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp. , 1996 OK 125, n.1, 932 P.2d 1100.

¶6 A trial court's denial of a motion for new trial is also reviewed for abuse of discretion. Head v. McCracken , 2004 OK 84, ¶ 2, 102 P.3d 670. "Where, as here, our assessment of the trial court's exercise of discretion in denying defendants a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness." Reeds v. Walker , 2006 OK 43, ¶ 9, 157 P.3d 100 (footnote omitted).

ANALYSIS

¶7 Neither party disputes the fact that the other party has a valid lien. "A lien is a charge imposed upon specific property, by which it is made security for the performance of an act." 42 O.S.2011 § 1. In this case, both liens were created "[b]y contract of the parties" as authorized by 42 O.S.2011 § 6. The Bank's lien was created by the 2005 mortgage. Falconhead's right to create a lien was established by the 1971 Dedication. The parameters of Falconhead's lien rights are stated in section XVI of the Dedication:

Each purchaser of a lot ... by acceptance of a deed thereto ... whether from [Falconhead] or a subsequent owner ... bind [sic] himself, his heirs, personal representatives and assigns, to pay all charges and assessments as shall be determined and levied upon such lot by and/or purchaser by ... Falconhead Property Owners Association, Inc. ... and the obligation to pay such charges, assessments, interest and costs thereby constitute a lien upon and an obligation running with the land.

Falconhead's lien rights regarding this particular lot were created when the decedents' predecessors in title, Edward and Opal Blacketer, purchased the property from Falconhead. The McGees agreed to be bound by that lien in 1996, when they accepted a deed to the property from the Blacketers. Accord Falconhead Prop. Owners Ass'n v. Fredrickson , 2002 OK CIV APP 67, ¶ 6, 50 P.3d 224. That fact, however, does not resolve the priority issue.

¶8 The Bank contends that its 2005 mortgage has priority over the Falconhead lien because the statement of the Falconhead lien was not recorded until 2016. According to the Bank, Falconhead did not obtain a lien until the McGees failed to pay their assessments. Falconhead contends that its lien was created by the Dedication and because that document was recorded prior to the Bank's mortgage, Falconhead's lien has priority.

¶9 In many respects, Oklahoma lien law is clear: "A lien may be created by contract, to take immediate effect, as security for the performance of obligations not then in existence." 42 O.S.2011 § 9. The Bank's mortgage was created in 2005, when the McGees executed the home equity note and mortgage. Contracts of mortgage are subject to the same provisions of Title 42 applicable to Falconhead's lien. 42 O.S.2011 § 5. Falconhead's lien rights were created in 1971 and affirmed by the McGees when they accepted a deed to the property in 1996. "Other things being equal, different liens upon the same property have priority according to the time of their creation ...." 42 O.S.2011 § 15. However, the 1971 Falconhead lien and the Bank's 2005 mortgage are not equal.

¶10 The Bank's mortgage was granted to secure repayment of a promissory note documenting a loan to the McGees. The Dedication merely documents that the Falconhead Property Owners Association had the future right to assess Falconhead property owners and, on the occurrence of that contingency, the Property Owners Association would have a lien to secure the payment of any assessment.

¶11 Despite the settled nature of Oklahoma law regarding the creation and nature of liens, no Oklahoma case has previously considered the priority of a home owners association's lien for unpaid assessments. We find instructive cases determining the nature and priority of other liens.

¶12 For example, a home owners association's lien is similar to the lien that attaches to real property for payment of ad valorem taxes. See , e.g. , First Nat'l Bank of Tulsa v. Scott , 1925 OK 986, 119 Okla. 106, 249 P. 282 (holding that although ad valorem taxes are assessed as of January 1, the lien securing payment of those taxes does not attach until the amount of the assessment is subsequently determined and the tax becomes due and delinquent). Following this analysis, Falconhead's maintenance fee "lien" as described in the 1971 Dedication was inchoate; "it was not one that could be ascertained as to amount, and paid and discharged ...." Allen v. Henshaw , 1946 OK 51, ¶ 26, 197 Okla. 123, 168 P.2d 625. The Oklahoma Supreme Court has recognized that, although inchoate liens may become certain and attach at some subsequent moment in time, they do not take priority over a previously perfected lien. U.S. v. Home Fed. Sav. & Loan Ass'n of Tulsa , 1966 OK 135, ¶¶ 15-17, 418 P.2d 319 (citing U.S. v. City of New Britain, Conn. , 347 U.S. 81, 86, 74 S. Ct. 367, 371, 98 L.Ed. 520 (1954) ). "Possible contingencies" might arise and prevent an attachment lien from becoming perfected; so, it is merely "lis pendens notice" that a right to perfect a lien exists. Id. ¶ 9 (citing U.S. v. Sec. Tr. & Sav. Bank of San Diego , 340 U.S. 47, 50, 71 S. Ct. 111, 113, 95 L.Ed. 53 (1950) ).

¶13 We also find analogous Oklahoma law governing mechanics and materialmen's liens. Although the record does not disclose the details regarding how the money Falconhead collected after an assessment was used, it appears that at least one use was for the maintenance of the common areas. To that extent, the Falconhead lien would operate in a manner similar to the materialmen's lien provided for in 42 O.S. Supp. 2013 § 141. Even so, "a prior recorded mortgage takes precedence over a materialmen's lien accruing after the recording of such mortgage, even to the extent of attaching to the improvements placed upon the mortgaged premises afterwards by the materialman." Thompson v. Smith , 1966 OK 214, ¶ 17, 420 P.2d 526 (citations omitted).

¶14 Falconhead points out that the Bank's mortgage is a " 'reverse mortgage' made to borrow funds on an existing house." But that fact is not critical, as this Court has previously observed: "A mortgage securing future advances has priority over an intervening lien ... if the mortgagee is obligated under the original agreement to make future advances, such as when the mortgage secures a line of credit ...." Quail Creek Bank, N.A. v. Americrest Bank , 2006 OK CIV APP 42, ¶ 5, 135 P.3d 822 (citing Paschal & Bro. v. Bohannan , 1916 OK 652, 59 Okla. 139, 158 P. 365 ). The Bank stated in its summary judgment submissions that its note "was not in any particular amount, as the amounts advanced under the 'reverse mortgage' loan depended upon the draws the borrower makes on the account." The Bank was obligated to advance funds whenever the McGees asked the Bank to do so.

¶15 Both liens in this case were created by contract. Because the Dedication was recorded in 1971, the Bank had notice of Falconhead's right to perfect its lien when the Bank took an assignment of the McGees' home equity loan and mortgage. However, a review of the County Clerk's title records regarding this property shows that Falconhead did not perfect its lien until May 20, 2018, after the Bank had recorded its mortgage. Consequently, the district court did not err in granting the Bank's mortgage priority over the Falconhead lien and in denying Falconhead's motion for new trial.

CONCLUSION

¶16 Falconhead's lien right on this property was created in 1971 by the Dedication to secure the payment of "charges and assessments." That right was affirmed in 1996, when the McGees accepted a deed subject to that Dedication. However, Falconhead's lien was inchoate and did not mature into an enforceable lien until December 2015, after the McGees failed to pay amounts assessed by the Owners Association. Falconhead perfected its lien on May 20, 2018, well after the Bank's mortgage had been recorded. Because the Bank's lien was "first in time," it takes priority over the 2018 Falconhead lien. See U.S. v. Home Fed. Sav. & Loan Ass'n of Tulsa , 1966 OK 135, 418 P.2d 319. The district court's judgment is affirmed, as is its order denying Falconhead's motion for new trial.

¶17 AFFIRMED .

GOODMAN, J., and THORNBRUGH, J., concur.

      The McGees are now deceased. However, neither their heirs nor their representatives claim any interest in this dispute.

      In 1975, Oklahoma adopted The Real Estate Development Act, 60 O.S.2011 §§ 851 through 857. The Act applies only to home owners associations created after the effective date of the Act and, therefore, does not apply to Falconhead. Further, the Act simply provides that any lien in favor of the owners association "may be foreclosed in any manner provided by law for the foreclosure of mortgages or deeds of trust, with or without a power of sale." 60 O.S.2011 § 852(C).

      Title 42 O.S. Supp. 2013 § 141 provides:
      Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor, furnish material or lease or rent equipment used on said land for the erection, alteration or repair of any building, improvement or structure thereon or perform labor in putting up any fixtures, machinery in, or attachment to, any such building, structure or improvements; or who shall plant any tree, vines, plants or hedge in or upon such land; or who shall build, alter, repair or furnish labor, material or lease or rent equipment used on said land for buildings, altering, or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting such land, shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances in an amount inclusive of all sums owed to the person at the time of the lien filing, including, without limitation, applicable profit and overhead costs.


author: OPINION BY P. THOMAS THORNBRUGH, JUDGE:

text:
    HSBC, USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR the REGISTERED HOLDER OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-NC3, ASSETS BACKED PASS-THROUGH CERTIFICATES, Plaintiff/Appellee, v. Jack TUGGLE and Brenda Tuggle, Defendants/Appellants, and John Doe, as Occupant of the Premises and Jane Doe, as Occupant of the Premises, Defendants.
    Case No. 116,592
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED JUNE 3, 2019 Mandate Issued: July 3, 2019
    John F. Heil, III, Dustin L. Perry, Carson K. Glass, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Tulsa, Oklahoma, for Plaintiff/Appellee
    Michael W. McCoy, MCCOY LAW OFFICE, Broken Arrow, Oklahoma, for Defendants/Appellants
   OPINION BY P. THOMAS THORNBRUGH, JUDGE:

¶1 Jack and Brenda Tuggle (the Tuggles) appeal the district court's denial of their motions to vacate and dismiss following summary judgment against them in a mortgage foreclosure case. On review, we affirm the decisions of the district court.

BACKGROUND

¶2 On January 14, 2016, Appellee HSBC, as trustee of the "Ace Securities Corp. Home Equity Loan Trust" (Trust), filed a petition for foreclosure alleging the Tuggles had defaulted on a mortgage. The petition included the required copy of a facially correct note demonstrating initial standing. The Tuggles responded, pro se , with what amounted to a general denial. Parts of the answer denied HSBC's standing because of a failure to follow "mandatory requirements of the applicable controlling federal regulations." The answer also denied the authenticity of the note; the proper endorsement of the note; and the claim of default. The answer was not verified. On September 3, 2016, HSBC moved for summary judgment. The summary judgment motion contained the required affidavits swearing to the authenticity of the note and the fact of default. The Tuggles did not reply to the summary judgment motion. On January 10, 2017, the district court granted summary judgment in favor of HSBC.

¶3 On February 9, 2017, the Tuggles, now represented, filed a "motion to vacate and to dismiss case," alleging that the six-year statute of limitations on collection after acceleration had run "on the face of the pleadings" because the note had first been declared in default and accelerated in 2010. HSBC responded, noting that a previous foreclosure based on the 2010 acceleration had been dismissed less than a year before the current foreclosure was filed, and hence it had a year to re-file pursuant to 12 O.S. § 100 before any statute of limitations became effective.

¶4 The Tuggles responded with an argument that HSBC was not entitled to use the savings clause because the previous foreclosure had been dismissed on the grounds that the Tuggles had reached an agreement with HSBC to become current on their mortgage payments and pay the cost of suit. Hence, the Tuggles argued, the suit had not "failed other than on the merits" and § 100 was not applicable. The district court was not convinced by this argument, and, on April 6, 2017, denied the motion to vacate and dismiss.

¶5 Undeterred, on August 29, 2017, the Tuggles filed a motion to "dismiss case for lack of standing," and a second motion to vacate. This motion argued (1) that the denial of HSBC's standing and the denial of the authenticity of the note pled in the Tuggles' answer created a jurisdictional question or question of fact that prevented summary judgment; and (2) a complex allegation that the judgment was obtained by fraud, because the foundational documents of the Trust prevent a mortgage and note "not transferred at the same time" being assigned to the Trust, and also imposed time limitations on the Trust accepting assets. The Tuggles argued that the Trust could not hold the note according to its rules of operation, and hence HSBC committed fraud on the court by stating that the Trust was the holder of the note. The trial court remained unconvinced, and denied this motion on December 4, 2017. The Tuggles now appeal.

STANDARD OF REVIEW

¶6 This matter originates in a summary judgment. Summary judgment is reviewed de novo . In this case, however, the journal entry of summary judgment was filed on January 10, 2017, and the Tuggles filed their first motion to vacate on February 9, 2017. Title 12 O.S. § 990.2 provides:

[W]hen a post-trial motion ... to vacate ... is filed within ten (10) days after the judgment, decree or final order is filed with the court clerk, an appeal shall not be commenced until an order disposing of the motion is filed with the court clerk.

¶7 The Tuggles did not file their first motion to vacate within 10 days of the journal entry of summary judgment being filed, and the time to appeal the underlying summary judgment was not tolled. The Tuggles did not file an appeal in this Court until December 4, 2017, eleven months after the summary judgment. The summary judgment is now beyond review. The Tuggles' first motion to dismiss was denied on April 6, 2017. This decision is also now beyond review.

¶8 The only matter for review is, therefore, the Tuggles' second motion to vacate/dismiss alleging a lack of trial court jurisdiction and/or fraud in procuring the judgment. The standard of review for a trial court's ruling either vacating or refusing to vacate a judgment is abuse of discretion. Ferguson Enterprises, Inc. v. Webb Enterprises, Inc ., 2000 OK 78, ¶ 5, 13 P.3d 480 ; Hassell v. Texaco, Inc. , 1962 OK 136, 372 P.2d 233. A clear-abuse-of-discretion standard includes appellate review of both fact and law issues. Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591. An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law, or where there is no rational basis in evidence for the ruling. Fent v. Oklahoma Natural Gas Co ., 2001 OK 35, ¶ 12, 27 P.3d 477. Issues of law such as jurisdictional allegations are therefore reviewed by a de novo standard as part of the abuse-of-discretion inquiry.

ANALYSIS

I. STANDING

¶9 The Tuggles' first argument revolves around a misapprehension of both the requirements announced in Wells Fargo Bank, N.A. v. Heath , 2012 OK 54, ¶ 9, 280 P.3d 328, and the burden on summary judgment. In 2012-2013, the Oklahoma Supreme Court issued several substantive opinions requiring an initial demonstration of the standing of a party to enforce a note and foreclose the associated mortgage. Those opinions held that, in order to demonstrate standing to sue for foreclosure, a plaintiff must have, and demonstrate, a prima facie right to enforce the subject note at the time of filing . Wells Fargo Bank notes:

To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing ... Appellee has the burden of showing it is entitled to enforce the instrument .... Unless the Appellee was able to enforce the note at the time the suit was commenced, it cannot maintain its foreclosure action against the Appellants.

Id. (citation omitted).

¶10 The Supreme Court set a simple procedure to enforce these requirements by requiring that a copy of a suitably endorsed note facially demonstrating possession and a right to enforce (or some other paper demonstrating the rights of a holder) is attached to the petition. Possession of a note facially endorsed in blank, or endorsed to the possessor, is prima facie evidence of ownership and a right to enforce. Cahill v. Kilgore , 1960 OK 88, ¶ 15, 350 P.2d 928.

¶11 The effect of this series of rulings was to require a prima facie showing of a justiciable question before the case commences, a rule made in response to prior situations in which plaintiffs were suing to enforce notes that they did not currently possess, or which had not been endorsed or otherwise assigned to them at the time of suit. This initial showing does not establish a right to enforce as a matter of law, or settle questions as to the validity of the note or its endorsements. It merely establishes a prima facie showing of the right to enforce at the time of filing , and hence, the existence of a justiciable issue. See Deutsche Bank Nat. Tr. Co. v. Roesler , 2015 OK CIV APP 36, ¶ 15, 348 P.3d 707.

¶12 We emphasize this distinction because this Court continues to receive submissions arguing that, post Wells Fargo Bank, N.A. v. Heath , any and all questions regarding the validity or enforceability of a note and mortgage have become "standing" issues, and hence "jurisdictional" issues that can be raised for the first time post-judgment or on appeal. We repeat emphatically that attaching a copy of a facially enforceable note to a petition establishes a prima facie case for standing and satisfies the requirements of Wells Fargo . All further questions regarding the validity of any endorsement, and the legal right of the plaintiff to enforce the note, remain merits questions, not questions of "standing."

¶13 The Tuggles next argue that, even if the petition demonstrated the initial standing required to make the case justiciable, the denials contained in their answer were sufficient to raise a merits issue on summary judgment regarding the right to enforce. "Prima facie evidence is such evidence as in the judgment of law is sufficient to establish a fact, and if not rebutted , remains sufficient to establish that fact." In re Estate of Hardaway , 1994 OK 30, ¶ 15, 872 P.2d 395 (emphasis added; citation omitted). A rebuttal of the prima facie case requires contrary evidence , and allegations and denials in unverified pleadings are not evidence . A party may not simply stand on the allegations or denials of its pleadings as evidence in a summary judgment proceeding. We find no error in the court's decisions that the Tuggles failed to present evidence sufficient to avoid summary judgment.

II. FRAUD

¶14 The Tuggles next argue that HSBC committed fraud during the proceedings, and this requires vacation of the summary judgment. The alleged "fraud" is a claim this Court analyzed in Roesler , 2015 OK CIV APP 36, 348 P.3d 707. As we noted in ¶ 25 of that opinion, the general situation is one in which "the defendant argues that the owner of the note is some form of specialized trust which, according to its trust agreement, can only accept assets during a limited period." "The defendant then argues that the note was not transferred to the trust within this time frame, and hence the trust has no right to hold or enforce according to its internal rules and structure." Id. In Roesler , the defendants characterized this claim as a "standing" issue by arguing that the trust cannot be the holder of the note because holding this asset is contrary to the trust agreement. In this case, the Tuggles resurrect this theory as a "fraud" issue by arguing that the Trust claimed to be the holder or owner of the note when holding this asset is contrary to the Trust agreement, and hence the Trust committed fraud.

¶15 We reach the same conclusion here that we reached in Roesler . Whether the Trust may suffer adverse regulatory or tax consequences, or even be subject to suit by its beneficiaries or owners for accepting a transfer outside of the stated period for accepting assets is not a claim the Tuggles have standing to raise. The note presented was endorsed in blank , and hence is enforceable by its possessor , the Trust, and its Trustee, HSBC, irrespective of whether the Trust's internal regulations may allow the note to be included in Trust assets for other purposes. The Tuggles were given an opportunity to dispute HSBC's right of enforcement in the summary judgment proceeding. They did not do so, and cannot revive this claim of disputed facts or disputed legal effect by characterizing it as fraud. We are properly wary of any attempt to allow collateral attacks on such a basis.

CONCLUSION

¶16 We find no error in the decisions of the district court, and affirm its decisions.

¶17 AFFIRMED .

FISCHER, P.J., and GOODMAN, J., concur.

      If a party may re-litigate questions of contractual rights after a judgment by arguing that the right to enforce any particular provision is a "standing issue" and hence a "jurisdictional issue" that may be raised at any time, the finality of judgments in this area would become largely illusionary.

      The Tuggles essentially argue that a party who does not answer a summary judgment motion may claim, months or years after the fact, that it could have presented contrary facts and the movant thereby committed fraud by characterizing the facts as undisputed . The finality of summary judgment would be seriously impaired if this type of attack is allowed.


author: LAGESEN, P. J.

text:
    Ernie Junior PEREZ, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
    A164434
    Court of Appeals of Oregon.
    Submitted April 6, 2018. May 22, 2019
    Ernie Junior Perez filed the briefs pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the briefs for respondent.
    Jedediah Peterson, O'Connor Weber LLC, Christa Obold Eshleman, and Youth, Rights & Justice filed the joint brief amicus curiae for O'Connor Weber LLC and Youth, Rights & Justice.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

The question presented by this post-conviction appeal is whether petitioner's claim that a juvenile court "must find that [a] youth possesses sufficient adult-like intellectual, social and emotional capabilities to have an adult-like understanding of the significance of his or her conduct, including its wrongfulness and its consequences for the youth, the victim and others" in order to waive a youth into adult court under ORS 419C.349, as required under State v. J. C. N.-V. , 359 Or. 559, 597, 380 P.3d 248 (2016), is one that he reasonably could have raised in his earlier post-conviction proceeding initiated in 2009. Petitioner, who is representing himself in this proceeding, contends that a claim that the juvenile court erroneously failed to apply the waiver standard articulated in J. C. N.-V. could not reasonably have been raised until the Supreme Court decided J. C. N.-V. in 2016, and, therefore, he should be permitted to go forward with that claim in this successive post-conviction proceeding under the escape clause of ORS 138.550(3). The post-conviction court concluded otherwise and dismissed the petition.

To obtain a fuller perspective on the question presented, we requested amicus briefing from O'Connor Weber LLC, a law firm with considerable expertise in Oregon post-conviction law, and from Youth, Rights & Justice, an organization with considerable expertise in Oregon juvenile law. They joined forces and submitted a thoughtful amicus brief, for which we are appreciative. Petitioner and the superintendent then submitted additional responsive briefing, for which we are grateful as well.

Having considered the briefing by all parties, we conclude, for the reasons that follow, that petitioner has not put forth sufficient facts to demonstrate that his J. C. N.-V. claim could not reasonably have been raised in his original post-conviction petition. We therefore affirm the judgment of the post-conviction court dismissing the petition.

FACTUAL AND LEGAL BACKGROUND

Although this case was resolved on a motion to dismiss filed by defendant, the superintendent of the Snake River Correctional Institution, both parties submitted evidentiary exhibits to the post-conviction court in connection with the motion, and the superintendent noted to the court that it had "discretion to convert this motion to dismiss to a motion for summary judgment under ORCP 47 C to the extent that the motion is accompanied by exhibits pertaining to matters outside the pleadings." Because the post-conviction court indicated that it considered all the materials submitted by the parties, we conclude that it is appropriate to view the court's ruling as a summary judgment ruling and review it under that standard of review. Consistent with that standard, stated below, we state the facts in the light most favorable to petitioner, the nonmoving party.

In 2005, at the age of 14, petitioner was involved in a home invasion during which he shot and killed two people. Assisted by counsel, petitioner entered a plea agreement, under which he stipulated to waiver into adult court and then pleaded guilty to four counts of aggravated murder. Accepting the stipulated waiver to adult court, the juvenile court found, as it was required to do under ORS 419C.349(3), that "youth at the time of the offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved." In making that determination, the court relied on a "waiver study" completed by the Marion County Juvenile Department, which included an individual assessment of petitioner. Identifying its methodology, the study explained that it adhered to the criteria approved in Kent v. United States , 383 U.S. 541, 86 S. Ct. 1045, 16 L.Ed. 2d 84 (1966) :

"In considering waiver, this study follows the criteria developed by the Judge of the Juvenile Court of the District of Columbia in connection with the Judges of the U.S. Court and the U.S. Attorney and representatives of the Bar which was published as an appendix to the Kent decision [and] ORS 419C.349."

As the Supreme Court explained in J. C. N.-V. , in Kent , the United States Supreme Court "appended to its decision a set of criteria that juvenile courts in the District of Columbia had used in deciding waiver issues, hinting that due process would be served if juvenile courts based their waiver decisions on such criteria." J. C. N.-V. , 359 Or. at 582, 380 P.3d 248. Our legislature drew the finding required by ORS 419C.349(3) from the Kent criteria, making it "logical to understand [that provision] as requiring an inquiry into the extent to which a juvenile's mental, social and emotional developmental capabilities indicate adult-like capabilities indicative of blameworthiness." Id . at 584, 380 P.3d 248.

After his convictions became final in 2007-following an attempted appeal -petitioner filed a petition for post-conviction relief in early 2009. In that petition, petitioner alleged claims of inadequate and ineffective assistance of both trial and appellate counsel. Although one ground for relief alleged that trial counsel "erroneously advised petitioner to stipulate to *** a remand hearing to adult court and forgo the protections of a juvenile waiver hearing under ORS 419C.352," petitioner did not allege that the juvenile court had applied the wrong legal standard in accepting his stipulated waiver to adult court. In December 2011, the post-conviction court granted the petition in part, ordering a modification of petitioner's sentence, but otherwise denied post-conviction relief.

On May 26, 2016, the Supreme Court decided J. C. N.-V. , 359 Or. 559, 380 P.3d 248. Thereafter, petitioner filed the instant petition. He alleges that, in view of J. C. N.-V. , the juvenile court's acceptance of his stipulated waiver violated Article I, section 20, of the Oregon Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The post-conviction court dismissed the petition on the superintendent's motion, concluding that the new petition was both untimely and successive. In so doing, the court rejected petitioner's contention that he was entitled to the benefit of the "escape clauses" of ORS 138.510(3) and ORS 138.550(3), which allow for the filing of an untimely or successive petition asserting grounds that "could not reasonably have been raised" in a timely filed initial petition.

On appeal, petitioner does not dispute that the petition is both untimely and successive. Instead, he contends that his asserted grounds for relief could not reasonably have been raised within the two-year limitations period for seeking post-conviction relief once his convictions were final, and also could not reasonably have been raised in his first post-conviction proceeding, entitling him to the benefit of the statutory escape clauses. Pointing to the fact that the Supreme Court's decision in J. C. N.-V. supplies the foundation for his claims, petitioner argues that he could not reasonably have raised them until 2016, after the Supreme Court issued its decision in J. C. N.-V . Petitioner's central thesis is that J. C. N.-V. so changed the law regarding waivers to adult court under ORS 419C.349 that he could not reasonably have raised his challenge to the juvenile court's acceptance of his stipulated waiver until after the decision was issued, and thus could not have raised his claim in his first post-conviction proceeding.

In response, the superintendent, relying on our decision in Hardin v. Popoff , 279 Or. App. 290, 304, 379 P.3d 593, rev. den. , 360 Or. 465, 384 P.3d 151 (2016), asserts that the decision in J. C. N.-V. did not alter the law in a way that was "novel, unprecedented, or surprising" and, therefore, cannot serve as a basis for invoking the escape clauses. In the superintendent's view, the legal principles stated in J. C. N.-V. are ones, as a general matter, that petitioner reasonably could have anticipated and raised in a timely filed post-conviction petition. The superintendent argues that J. C. N.-V. turned on a straightforward application of Oregon's statutory construction principles-an examination of text, context, and legislative history-all of which would have been available to petitioner at the time of his original petition for post-conviction relief. In essence, because the principles that drove the decision in J. C. N.-V. are ones that were, in theory, available to be argued at the time of petitioner's original post-conviction proceeding, a claim that the juvenile court erred by not applying those principles reasonably could have been raised before the decision in J. C. N.-V. as a matter of law and, thus, are ones that reasonably could have been raised in timely filed post-conviction petitions even before the Supreme Court's decision in 2016. The superintendent also points out that petitioner was litigating his first post-conviction proceeding at the same time that the youth in J. C. N.-V. was litigating the proper interpretation of the waiver standard in the juvenile court and then in the Court of Appeals.

Amici urge a less categorical approach. They argue that "whether a claim 'reasonably could have been raised' in a timely or earlier petition depends on the circumstances of each case." In support of that proposition, they point to the Supreme Court's decision in Verduzco v. State of Oregon , 357 Or. 553, 566, 355 P.3d 902 (2015), which explained that the pertinent inquiry under the statutory escape clauses is not whether "a petitioner conceivably could have raised the grounds for relief in an earlier petition. Rather, the question is whether the petitioner reasonably could have raised those grounds for relief earlier, a question that calls for a judgment about what was 'reasonable' under the circumstances." Id . Amici then contend that, in view of the particular circumstances that confronted petitioner, we should conclude that he could not reasonably have raised his contentions regarding the proper waiver standard in his initial post-conviction proceeding.

STANDARD OF REVIEW

As noted, we understand the post-conviction court to have treated the superintendent's motion as one for summary judgment, in light of the fact that the parties submitted evidence in connection with the motion, which the court considered. We review the trial court's grant of summary judgment to determine whether there is no genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C. That standard is met when, "viewing the evidence in the record and all reasonable inferences that may be drawn from it in favor of the nonmoving party, no reasonable factfinder could return a verdict for the nonmoving party." Chapman v. Mayfield , 358 Or. 196, 204, 361 P.3d 566 (2015).

ANALYSIS

As amici correctly observe, under Verduzco , "the question whether a claim reasonably could have been raised earlier will vary with the facts and circumstances of each claim." Verduzco , 357 Or. at 571, 355 P.3d 902. Adopting our court's formulation of the inquiry in Long v. Armenakis , 166 Or. App. 94, 101, 999 P.2d 461 (2000), the Supreme Court explained:

" 'The touchstone is not whether a particular question is settled , but whether it reasonably is to be anticipated so that it can be raised and settled accordingly. The more settled and familiar a constitutional or other principle on which a claim is based, the more likely the claim reasonably should have been anticipated and raised. Conversely, if the constitutional principle is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising, then the more likely the conclusion that the claim reasonably could not have been raised.' "

Verduzco , 357 Or. at 571, 355 P.3d 902 (quoting Long , 166 Or. App. at 101, 999 P.2d 461 (emphases in Long )).

Applying that standard in Verduzco , the court concluded that the petitioner in that case had not demonstrated that his claim regarding the adequacy of his counsel's advice about the immigration consequences of his guilty plea under the Sixth Amendment to the United States Constitution, as interpreted in Padilla v. Kentucky , 559 U.S. 356, 130 S. Ct. 1473, 176 L.Ed. 2d 284 (2010), was one that could not reasonably have been raised in an initial post-conviction proceeding where the petitioner had, in fact, asserted an analogous claim in his original post-conviction proceeding, even before Padilla was decided. Verduzco , 357 Or. at 572, 355 P.3d 902. In addition, the court also noted that the proceedings in Verduzco were contemporaneous with those in Padilla , another fact indicating that a Padilla -type claim reasonably could have been raised in the petitioner's first post-conviction proceeding. Id. at 557-59, 355 P.3d 902.

By contrast, in Chavez v. State of Oregon , 364 Or. 654, 438 P.3d 381 (2019), the Supreme Court concluded that the petitioner in that case could not reasonably have raised a Padilla claim in a timely filed original petition for post-conviction relief. Distinguishing Verduzco , the court noted that the petitioner in Chavez did not, in fact, raise a Padilla -type claim in a timely filed initial petition for post-conviction relief. Id. at 663, 438 P.3d 381. Further, the petitioner in Chavez would have had to have raised a Padilla -type claim five years before the petitioners in Verduzco and Padilla , at a time when the law almost universally deemed such a claim not cognizable, to present it in a timely filed original petition. Id.

This case, in our view, is more in line with Verduzco than Chavez . The Supreme Court's conclusion in J. C. N.-V. that ORS 419C.349(3) required a juvenile court to "find that the youth possesses sufficient adult-like intellectual, social and emotional capabilities to have an adult-like understanding of the significance of his or her conduct, including its wrongfulness and its consequences for the youth, the victim, and others" turned, not insignificantly, on the court's recognition that the legislature had drawn that provision from the criteria appended to the Kent decision. J. C. N.-V. , 359 Or. at 597, 380 P.3d 248. Although the court ultimately concluded that the waiver analysis under ORS 419C.349(3) is more focused than it is under the parallel Kent criteria from which the legislature drew ORS 419C.349(3), the court characterized the statute as a "commitment to the kind of inquiry contemplated by the Kent criterion." Id. at 585, 380 P.3d 248.

Here, the waiver study submitted to the juvenile court in connection with petitioner's stipulated waiver states affirmatively that it used the Kent criteria to evaluate the waiver under ORS 419C.349. If petitioner believed that those criteria were being misapplied, and that the court was not properly conducting the inquiry in a way that was consistent with the legislature's "commitment to the kind of inquiry contemplated by the Kent criterion," petitioner reasonably could have raised the issue at that time and, certainly, by the time of his first post-conviction proceeding. The waiver study put at issue the application of the Kent criteria, making it reasonably possible for petitioner to raise any issues regarding the juvenile court's inquiry under those criteria long before the Supreme Court's decision in J. C. N.-V. ; in fact, given that the waiver study was based on the Kent criteria, it is not wholly implausible to think that, but for petitioner's stipulation to the waiver into adult court, the court would have conducted "the kind of inquiry contemplated by the Kent criterion" that the J. C. N.-V. court held is required. Beyond that, similar to the case in Verduzco , petitioner was litigating his first post-conviction proceeding concurrently with the juvenile court proceedings and a portion of the appellate proceedings in J. C. N.-V. , another fact that tends to suggest that petitioner's J. C. N.-V.

claim is one that reasonably could have been raised in his original post-conviction proceeding.

Under those circumstances, petitioner has not adduced facts that would permit the conclusion that his J. C. N.-V. claim is one that falls within the statutory escape clauses of ORS 138.510 and ORS 138.550. On the contrary, the undisputed facts tend to suggest that petitioner's claim is one that reasonably could have been raised at the time of the underlying juvenile court proceedings.

For those reasons, the post-conviction court did not err when it dismissed the petition as untimely and successive.

We reject without discussion petitioner's remaining assignments of error.

Affirmed.

      ORS 419C.349(3) explains that one of the findings a juvenile court must make to waive a juvenile into adult court is that "[t]he youth at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved."

      The appeal was dismissed for lack of jurisdiction.

      Petitioner also alleged that, in the light of J. C. N.-V. , his criminal trial counsel rendered constitutionally inadequate and ineffective assistance of counsel in violation of Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. In his brief on appeal, he has abandoned that claim, noting that he "is convinced that this claim is meritless and will not pursue it."

      ORS 138.510(3) provides, in pertinent part, that "[a] petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the [date the petitioner's conviction becomes final], unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition."

      ORS 138.550(3) provides, in pertinent part:
      "All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition."

      Amici also have developed several additional arguments as to why we should reverse, including (1) that petitioner's juvenile status should bear on the question whether he reasonably could have raised a claim for purposes of the escape clause, notwithstanding the fact that he was represented by counsel in his direct criminal proceedings and first post-conviction case; and (2) that Article I, section 20, requires that the limitations period under ORS 138.510 be tolled for juveniles, in view of the tolling granted to children within the juvenile court's jurisdiction under ORS 419C.615. We do not consider those contentions because no party developed them below and they are unpreserved for that reason.


text:
    Deonna EBERHARDT, an individual, Plaintiff-Appellant, v. PROVIDENCE HEALTH AND SERVICES - OREGON, a domestic nonprofit corporation, dba Providence Milwaukie Hospital, and Mark Nyysti Roberts, DO, an individual, Defendants-Respondents.
    A162183
    Court of Appeals of Oregon.
    Argued and submitted April 12, 2018. July 10, 2019
    Shenoa Payne, Portland, argued the cause for appellant. Also on the opening brief was Shenoa Payne Attorney at Law PC. Also on the reply brief was Richardson Wright, LLP.
    Lindsey H. Hughes, and George S. Pitcher, Portland, argued the cause for respondents. Also on the joint brief were Hillary A. Taylor, Keating Jones Hughes, P.C., Rachel A. Robinson, and Lewis Brisbois Bisgaard & Smith LLP.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

In this medical malpractice action, plaintiff alleges that defendant Roberts, a doctor, negligently failed to diagnose her with deep vein thrombosis, resulting in the impairment of her left leg, causing economic and noneconomic damages. Plaintiff also alleges defendant Providence Milwaukie Hospital is vicariously liable for that alleged negligence. The trial court dismissed the complaint with prejudice after granting defendants' motions for summary judgment on the ground that plaintiff failed to submit an affidavit from an expert who was available and willing to testify that Roberts's conduct failed to meet the standard of care. We affirm.

The pertinent facts are procedural. Plaintiff filed this action in December 2012. She was represented by counsel at the time. Defendants each moved for summary judgment on the ground that, among other things, plaintiff would be unable to come forward with sufficient evidence to give rise to a genuine dispute of material fact on her negligence claim because, in their view, she would be unable to find a medical expert who would testify that Roberts's conduct breached the applicable standard of care or that any negligence on his part caused plaintiff's injuries. In response, plaintiff, through counsel, submitted an ORCP 47 E affidavit in which plaintiff's counsel certified that "plaintiff has retained an expert witness who is qualified, willing and available to testify to admissible facts or opinions that would create a question of fact as to the issues raised" by defendants' motions. Defendants then alerted the court by letter that "the issues raised in defendants' motions have now been resolved and a hearing is no longer necessary."

Shortly thereafter, the trial court reset the scheduled trial date from August 25, 2014, to August 3, 2015. In March 2015, plaintiff's counsel moved to withdraw because family caregiving obligations precluded him from continuing to represent plaintiff. Plaintiff consented to the withdrawal, and the court allowed the motion. Plaintiff then moved to set over the trial. Plaintiff represented that she had spoken with an attorney in Seattle "who has indicated that he would represent me but only if there were a setover of the trial date." The court granted the motion, setting trial for August 22, 2016.

In December 2015, counsel for defendant Roberts contacted the Seattle lawyer who plaintiff had said she planned to retain. That lawyer stated that he was still evaluating whether to take the case and that defendants should consider plaintiff to be unrepresented. Defendants then renewed their summary judgment motions. Defendant Roberts contended that there was reason to believe that plaintiff no longer had an expert witness to support her claim. Defendant Providence also pointed out that, because plaintiff was not represented by counsel, under Due-Donohue v. Beal , 191 Or. App. 98, 80 P.3d 529 (2003), plaintiff could not rely on an ORCP 47 E affidavit to create a factual dispute on a matter for which expert testimony was required. Instead, defendants asserted, plaintiff "must present actual admissible evidence from a qualified medical expert to show that defendants violated the standard of care and that, but for defendants' negligence, she would not have suffered the alleged harm."

The trial court scheduled a hearing on the motions for January 21, 2016. Plaintiff did not file a response to the motions before that date. At the hearing, plaintiff requested a setover of the hearing, again representing that she planned to retain the Seattle lawyer "on Saturday afternoon." Defendants objected to the postponement, argued that plaintiff had not demonstrated good cause, and pointed out that the case had been going on for more than three years. The trial court ruled that "a limited postponement of the hearing on these motions is appropriate under the circumstances" and reset the hearing for March 16. The court then told plaintiff that there would be no further postponements and that, "in advance of that hearing, you will have to respond in writing to the motions if you want to defeat them." The court further explained to plaintiff that she, or any lawyer she retained, needed to comply with all rules of procedure. It then set February 21, 2016, as the date for plaintiff's written response to the motions for summary judgment and stated that defendants could file replies "in the usual course."

Plaintiff did not retain the Seattle lawyer by the time of the next hearing. In response to defendants' motions, she filed a "Motion to Dismiss Summary Judgment," representing that she would call "Dr. Hany Atallah to testify to all elements of cause of action of medical malpractice." She attached a copy of a letter from Dr. Atallah addressed to "MedExpertwitness.com, Inc." in which Atallah expressed an opinion that defendants "deviated from the acceptable standards of care in their medical care and treatment" of plaintiff and that those deviations caused plaintiff "to suffer permanent damages and harm."

In reply, defendants argued that Atallah's unsworn letter did not comply with the requirements of ORCP 47 for a number of reasons and, thus, did not create a dispute of fact. Defendant Providence also pointed out that plaintiff had not submitted any evidence relating to its alleged vicarious liability for Roberts's conduct and that it was entitled to summary judgment for that additional reason.

At the start of the hearing on the motions for summary judgment, the trial court inquired whether there had been any further filings following defendants' replies. The parties responded that there had not been, although plaintiff said, "I was going to file stuff, but I talked to your-your assistant and she said just hold off to file. I have some more paperwork." The court responded that it was "past the point for filing anything in addition to the response." Plaintiff did not tell the court what her additional paperwork was. She simply argued that the court should let the case go forward. She acknowledged that the Seattle attorney that she previously had referenced was not admitted to practice in Oregon and said that she had started looking for other lawyers. She explained that she wanted to go to trial in August and would have a lawyer by then, and also that she had medical experts.

The trial court granted defendants' motions for summary judgment. It ruled that plaintiff's evidence-that is, the Atallah letter-was not admissible and was "not anything that, under the rules, I can consider." Thus, it concluded, "on the basis of the record that's before me, I have no recourse but to grant their motions and enter judgment for the Defendants, which will terminate the lawsuit." The court directed defendants to prepare an appropriate order and judgment.

As directed by the trial court, defendants prepared the proposed order and judgment. Plaintiff objected, contending that the court should make findings addressing why the ORCP 47 E affidavit submitted through her prior counsel did not create a genuine issue of material fact. In addition, she contended:

"Findings should be included regarding the court's denial of Plaintiff's request to consider the affidavits of experts retained by Plaintiff. Prior to the hearing, Plaintiff, who is pro se , was told by the judge's staff that she would be able to present these affidavits at the hearing. Copies of the affidavits are attached as Exhibit 2. These affidavits raise genuine issues of material fact precluding summary judgment."

Plaintiff attached a sworn and notarized copy of the letter from Atallah, which had been notarized on February 22, 2016, as well as a declaration from another doctor, Goldstein, which had been notarized on March 14, 2016. Defendants responded that plaintiff's objections raised new issues that had not been addressed at the summary judgment hearing and that the court should enter the order on summary judgment and the general judgment in the form proposed.

The trial court issued its own written order on the summary judgment motion. It noted that plaintiff's objection was "not actually an objection to the proposed order but rather an argument against the ruling or for reconsideration of it. As such, it is either untimely or improper. See SLR 5.045." The court observed further that the sworn and notarized document that plaintiff submitted with her objection had been executed after the deadline that the court had given her for responding to defendants' motions for summary judgment, although the court had informed plaintiff at the January hearing that no further postponements would be allowed. Thereafter, the court entered a general judgment in favor of defendants.

On appeal, plaintiff raises two assignments of error: (1) that the trial court erred by granting defendants' motions for summary judgment; and (2) that the trial court "erred in denying plaintiff's request to amend the Atallah Affidavit in opposition to [the] motion for summary judgment." Plaintiff does not, however, contend that the trial court's grant of summary judgment was incorrect on the record that it had before it at the time that it ruled. That is, plaintiff does not argue that the trial court was wrong to conclude that the unsworn Atallah letter was not sufficient to create a dispute of fact. Instead, she contends that the trial court abused its discretion under ORCP 12 B by not disregarding that unsworn status which, in plaintiff's view, was "at most, a minor technical defect." Alternatively, she contends that she requested to submit a sworn copy of the Atallah letter at the hearing and that the court abused its discretion by not accepting it. Thus, boiled down to its essence, plaintiff's contention on appeal is that the trial court should have given her more time to submit competent, admissible evidence in response to defendants' motions for summary judgment. We review a trial court's ruling on such an issue for abuse of discretion. See, e.g. , Johnson and Johnson , 277 Or. App. 1, 12-13, 370 P.3d 526 (2016) (reviewing trial court's denial of post-trial motion to supplement the record for abuse of discretion); Caro v. Hansen , 128 Or. App. 267, 273, 875 P.2d 512 (1994).

As an initial matter, as defendants point out, plaintiff's contentions on appeal do not appear to be preserved. Plaintiff did not cite ORCP 12 B to the trial court. Plaintiff also never asked the trial court to allow her to file a notarized copy of the Atallah letter, at least not in any clear way. Although she alluded to the fact that she had additional "stuff" to file at the hearing, she never explained what that "stuff" was. And, even in her objections to the proposed form of order and judgment, she did not ask the court to allow her to file the sworn copy of the letter; she merely requested that the court make "findings" as to why the notarized copy of the letter and the additional affidavit from Goldstein, both submitted after the court made its ruling, did not create a dispute of fact.

Regardless, the trial court did not abuse its discretion by granting summary judgment without giving plaintiff additional time to submit a sworn copy of the Atallah letter. The court had already granted plaintiff additional time to file her response and made it clear to plaintiff that it would not allow any additional postponements. The Atallah letter is dated January 20, which would have given plaintiff ample time to obtain a sworn copy of the letter before the court's February 21 deadline. Yet, as the court observed in ruling on plaintiff's objections to the form of order and judgment, the Atallah letter was not notarized until after that deadline. Finally, plaintiff has never supplied any explanation as to why she could not meet the court's February 21 deadline. Under those circumstances, the court did not abuse its discretion when it did not continue the summary judgment proceedings or otherwise permit plaintiff to file the sworn Atallah letter after the summary judgment hearing.

On appeal, plaintiff suggests that her pro se status means that the trial court should have afforded her greater leeway than it did. Although we are mindful of the challenges that self-represented litigants face, the court afforded plaintiff a substantial amount of leeway when it gave plaintiff an extra month to respond to defendants' summary judgment motions. In view of the length of time that the case had been pending, the fact that plaintiff spent almost a year representing that she was retaining a Seattle lawyer who, it turns out, was not admitted to practice in Oregon, defendants' legitimate interests in not being subjected to further delay, and the fact that plaintiff supplied no justification for not meeting the court's deadline, the trial court's handling of the summary judgment proceedings was within its discretion.

Affirmed.

      Plaintiff contends that the unsworn letter could create a dispute of fact had defendants not objected to the fact that it was not sworn.


author: TOOKEY, J.

text:
    Rick Roy BOHANAN, Petitioner-Appellant, v. Brigitte AMSBERRY, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
    A165661
    Court of Appeals of Oregon.
    Submitted June 1, 2018. May 30, 2019
    Rick Bohanan filed the briefs for appellant pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

In this proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680, petitioner appeals a limited judgment imposing filing fees. In his sole assignment of error, petitioner contends that the post-conviction court erred "in issuing a limited monetary judgment against" him. For the reasons that follow, we affirm.

"Appellate review of post-conviction proceedings is limited to questions of law appearing in the record." Dillard v. Premo , 296 Or. App. 798, 803, 441 P.3d 609 (2019). We review petitioner's arguments accordingly.

The pertinent facts are not in dispute. Petitioner filed a petition for post-conviction relief pursuant to ORS 138.510 to 138.680. Along with his petition, petitioner filed a motion requesting the "waiver or deferral of all filing fees and court costs associated with the initiation and prosecution of this post-conviction proceeding and for the appointment of suitable counsel to represent petitioner in this proceeding." The motion explained that petitioner had "no tangible assets nor moneys to draw upon to pay the costs associated with initiating and prosecuting this action." Attached to petitioner's motion was a statement detailing the then current balance of, and the transactions in, petitioner's inmate trust account.

Subsequently, the post-conviction court issued an order allowing petitioner to file the petition for post-conviction relief "without immediate payment of the filing fee." The order further provides that "[t]he filing fee is not waived[,] but shall be drawn from and charged against the [petitioner's] Department of Corrections Trust Account per ORS 138.590(a) & (b)." That order also appointed counsel for petitioner.

The post-conviction court then issued a limited judgment captioned "JUDGMENT RE: DEFERRED FEES," which imposed "[f]iling [f]ees" in the amount of $ 252. (Uppercase in limited judgment.)

On appeal, petitioner raises three arguments as to how the post-conviction court purportedly erred. First, petitioner contends that, because petitioner is proceeding as a "financially eligible person" pursuant to ORS 138.590, "the executive director of the public defense services is required to pay [petitioner's] filing fee," not petitioner. Second, petitioner contends that the post-conviction court "imposed a $ 252 monetary filing fee under the presumption that this is what is required," but that that presumption was erroneous. Third, petitioner contends that the post-conviction court's "monetary judgment was issued without notice nor opportunity for hearing and without making any findings related to petitioner's ability to pay the filing fee," which petitioner contends "has been held to be improper in numerous other similar contexts."

As context for resolution of petitioner's arguments, we first consider two statutes, ORS 138.560 and ORS 138.590, which we set out in pertinent part below. In construing those statutes, our goal is to discern the legislature's intent, and to do so, we examine the text of the statute in context, along with relevant legislative history and, if necessary, canons of construction. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009). "Further, perhaps to state the obvious, any previous construction of the statute is relevant to our analysis." State v. Hutchins , 281 Or. App. 495, 501, 383 P.3d 399 (2016).

ORS 138.560(1) provides, in pertinent part:

"A proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680 shall be commenced by filing a petition with the clerk of the circuit court for the county in which the petitioner is imprisoned ***. Except as otherwise provided in ORS 138.590, the petitioner must pay the filing fee established under ORS 21.135 at the time of filing a petition under this section."

ORS 138.560(1) thus establishes a filing fee for petitions seeking post-conviction relief pursuant to ORS 138.510 to 138.680 and requires that that fee be paid by a petitioner at the time the petition is filed, except as otherwise provided in ORS 138.590.

ORS 138.590, in turn, provides, in pertinent part:

"(1) Any petitioner who is unable to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 ***
may proceed as a financially eligible person pursuant to this section upon order of the circuit court ***.
"(2) If the petitioner wishes to proceed as a financially eligible person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding ***, including, but not limited to, the filing fee required by ORS 138.560 ***. ***
"*****
"(6) When a petitioner has been ordered to proceed as a financially eligible person, the expenses which are necessary for the proceedings upon the petition in the circuit court *** shall be paid by the public defense services executive director from funds available for the purpose. ***
"*****
"(8)(a) When a petitioner has been authorized to proceed as a financially eligible person, all court fees in the circuit court, except for the filing fee required by ORS 138.560, are waived.
"(b) When a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioner's trust account if the petitioner is an inmate in a correctional facility."

Thus, for petitioners who are "unable to pay the expenses of a proceeding," ORS 138.590 creates an exception to the requirement under ORS 138.560(1) that the filing fee be paid at the time the petition is filed. ORS 138.590(1), (8). In that circumstance, "all court fees in the circuit court" other than the filing fee are waived; the filing fee, however, "is not waived but may be drawn from, or charged against, the petitioner's trust account if the petitioner is an inmate in a correctional facility." ORS 138.590(8)(b). Consequently, ORS 138.590(8)(b) authorizes the post-conviction court to do what it did in this case-viz. , order that petitioner's filing fee be drawn from and charged against petitioner's inmate trust account. Baldeagle v. Lampert , 185 Or. App. 326, 332 n. 1, 59 P.3d 545 (2002) (noting " ORS 138.590(8)(b) gives the court the right to collect the filing fee from petitioner's inmate trust account").

The legislative history of ORS 138.560 and ORS 138.590 confirms that that is the correct understanding of the statutory scheme governing filing fees for proceedings for post-conviction relief brought pursuant to ORS 138.510 to 138.680. ORS 138.560 and ORS 138.590 were amended in 1995 by House Bill (HB) 2492 (1995). Or Laws 1995, ch 657, §§ 4-5. Prior to that amendment, ORS 138.560 did not require that petitioners pay a filing fee and ORS 138.590 provided for waiver of "all fees in the circuit court" for indigent petitioners. ORS 138.560 (1993) ; ORS 138.590(7) (1993).

But in 1995, the legislature decided to make a change and passed HB 2492. HB 2492 amended ORS 138.560 to require that petitioners petitioning for post-conviction relief pay "a $ 25 dollar filing fee at the time of filing a petition," except "as otherwise provided in ORS 138.590." Or Laws 1995, ch 657, § 4. HB 2492 also amended ORS 138.590 to provide that, when "a petitioner is allowed to file a petition without payment of the fee required by ORS 138.560 due to inability to pay, the fee is not waived but may be drawn from, or charged against, the petitioner's trust account if the petitioner is an inmate in a correctional facility." Id. § 5.

Testifying before the Senate Judiciary Committee in support of HB 2492, then Representative Kevin Mannix explained "[t]he problem that we're trying to address [in HB 2492] is simply this: a person who is incarcerated is usually indigent and will qualify to file petitions with the court as an indigent and that means that the person does not have to pay anything." Tape Recording, Senate Judiciary Committee, HB 2492, May 16, 1995, Tape 167, Side A (statement of Rep Mannix). Representative Mannix explained that this was a problem because many of the petitions filed by inmates were "frivolous" and those frivolous petitions required the "the state to use attorney time and require[d] the court to use court time to deal with [these petitioners'] complaints." Id. Representative Mannix also noted that there were no provisions at that time

"for the court to say, although you are technically indigent, we are going to say that since you do have some resources and since you already are provided room and board courtesy of the state or the county that there are some resources that you are going to have to tap into if you want to use court time."

Id. Representative Mannix further explained:

"The[ ] provisions [added by HB 2492] say that the state can tap into [an inmate's] canteen account, which usually has 25, 50, 75 dollars in it, in order to pay for [the inmate's] access to the court and allows the government to have a lien on the canteen account for that amount.
"In effect, it is requiring the inmates to be serious enough about going to court to be willing to put their canteen accounts in jeopardy to proceed with the court proceeding."

Id.

In support of HB 2492, Representative Mannix also provided the Senate Judiciary Committee with a letter from Marion County Circuit Court Judge Paul Lipscomb. In the letter, Judge Lipscomb explained that he was "enthusiastic about those sections of the bill which attempt to put the brakes on the spiraling growth of the post conviction and habeas corpus cases" filed "by convicted criminal offenders demanding relief from the court." Exhibit E, Senate Judiciary Committee, HB 2326/2492, May 16, 1995 (letter by Judge Lipscomb). Judge Lipscomb supported the amendments because, in his view, "[m]ost of these cases are frivolous, wasteful of our court and criminal justice resources, and a perversion of the important social goal that post conviction cases are designed to protect: [e]nsuring the integrity of the fair and just determination of guilt and innocence in our courts." Id. Judge Lipscomb expected "that forcing prisoners to bear even a small portion of the costs of their post conviction and habeas cases will effectively discourage many of them from filing cases they themselves know to be frivolous," and he did not "think it would discourage any of the meritorious cases, so long as the fees and costs imposed were within the limited means available to the prisoner through his/her canteen account." Id.

In sum, we understand the legislative history of HB 2492 to reveal that the purpose was to ensure that petitioners had a modicum of skin-in-the-game when filing petitions for post-conviction relief pursuant to ORS 138.510 to 138.680 to, in turn, ensure that proceedings seeking post-conviction relief would be "brought responsibly." See Tape Recording, Senate Judiciary Committee, HB 2492, May 16, 1995, Tape 167, Side A (statement of Rep Mannix).

With that background in mind, we turn to petitioner's first argument-viz. , that because petitioner is proceeding as a "financially eligible person" pursuant to ORS 138.590, "the executive director of the public defense services is required to pay [petitioner's] filing fee," not petitioner.

Petitioner posits that pursuant to ORS 138.590(6) the "expenses necessary for the proceeding" must be paid by the public defense services executive director. In petitioner's view, "filing fees" are such an "expense," because ORS 138.590(2) "states in unambiguous terms that the expenses of a post-conviction proceeding include the 'filing fee.' "

The difficulty with petitioner's argument is that ORS 138.590(6) requires only that public defense services pay "the expenses which are necessary for the proceedings upon the petition." (Emphasis added.) Because ORS 138.590(8)(b) permits the post-conviction proceeding to move forward without payment of the filing fee by charging the fee "against the petitioner's trust account," actual payment of the filing fee is not "necessary" for the "proceedings upon the petition." Moreover, petitioner's proffered interpretation of ORS 138.590 is inconsistent with the legislative history of ORS 138.590, which, as described above, was intended to ensure that indigent incarcerated petitioners, who have or will have assets in their inmate trust accounts, bear some cost if they wish to bring proceedings for post-conviction relief pursuant to ORS 138.510 to 138.680.

Consequently, we reject petitioner's contention that the trial court erred by requiring that petitioner, rather than the the public defense services executive director, pay the filing fee associated with petitioner's petition for post-conviction relief.

We next address petitioner's second argument-viz. , that the post-conviction court "imposed a $ 252 monetary filing fee under the presumption that this is what is required," but that that presumption was erroneous. More specifically, petitioner contends " ORS 138.560 does not itself set any monetary amount for a post-conviction proceeding filing fee." Instead, in petitioner's view, ORS 138.560 "adopts ORS 21.135 by reference," and the filing fee imposed by ORS 21.135 can be waived or deferred under ORS 21.682 if a judge finds a party is unable to pay all or any part of the fee. We are not persuaded by petitioner's second argument.

ORS 21.135(1) establishes the filing fee for certain actions, including for proceedings for post-conviction relief brought pursuant to ORS 138.510 to 138.680. ORS 138.560(1) ; ORS 21.135(1), (2). It provides, in pertinent part:

"[A] circuit court shall collect a filing fee of $ 252 when a complaint or other document is filed for the purpose of commencing an action or other civil proceeding ***."

ORS 21.682(1) gives judges authority to waive or defer fees and court costs payable to the court in civil actions or proceedings. It provides, in pertinent part:

"A judge may waive or defer all or part of the fees and court costs payable to the court by a party in a civil action or proceeding, *** if the judge finds that the party is unable to pay all or any part of the fees and costs."

Seemingly, the text of ORS 21.682(1), read in isolation, would allow a post-conviction court to waive the filing fee in a post-conviction proceeding brought pursuant to ORS 138.510 to 138.680. But, " 'we do not consider the meaning of a statute in a vacuum; rather, we consider all relevant statutes together, so that they may be interpreted as a coherent, workable whole.' " State v. Edmonds , 364 Or. 410, 420, 435 P.3d 752 (2019) (quoting Unger v. Rosenblum , 362 Or. 210, 221, 407 P.3d 817 (2017) ).

As relevant here, the Supreme Court has instructed that " 'when one statute deals with a subject in general terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, while giving effect to a consistent legislative policy.' " Id. at 421, 435 P.3d 752 (quoting State v. Guzek , 322 Or. 245, 268, 906 P.2d 272 (1995) ). "That interpretive canon, referred to as 'the specific controls the general,' has in Oregon been codified by ORS 174.020(2)." Id. That statute provides that,

"[w]hen a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent."

ORS 174.020(2).

As the Supreme Court explained in Edmonds , "[t]he reason for that doctrine is that 'the specific provision comes closer to addressing the very problem posed by the case at hand and is thus more deserving of credence.' " 364 Or. at 421, 435 P.3d 752 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 183 (2012)); see also id. at 422, 435 P.3d 752 (noting the doctrine is often applied in the context of a " 'general permission that is contradicted by a specific prohibition' " (quoting Scalia & Garner, Reading Law at 183)).

Considering the statutes at issue in this case, we conclude that ORS 138.590(8), not ORS 21.682(1), controls waiver of filing fees in proceedings for post-conviction relief pursuant to ORS 138.510 to 138.680 when a petitioner is "unable to pay" such fees. As a general matter, ORS 21.682(1) provides trial courts with the authority to waive fees and court costs where a party is "unable to pay" such fees and costs. By contrast, ORS 138.590(8), discussed above, deals specifically with filing fees in proceedings for post-conviction relief pursuant to ORS 138.510 to 138.680 when a petitioner is "unable to pay," and directs that, in such circumstance, the filing fee is "not waived." If we construed ORS 21.682(1) to control waiver of filing fees in proceedings for post-conviction relief, then the legislature's more specific treatment of that subject in ORS 138.590(8) would be rendered a nullity. As a result, ordinary principles of statutory construction lead us to conclude that ORS 138.590(8), not ORS 21.682(1), controls waiver of filing fees in proceedings for post-conviction relief when a petitioner is unable to pay such fees.

That conclusion is also supported by the legislative history of ORS 138.590, which, as described above, was intended to ensure that indigent incarcerated petitioners, who have or will have assets in their inmate trust accounts, bear some cost if they wish to bring proceedings for post-conviction relief pursuant to ORS 138.510 to 138.680.

Accordingly, we reject petitioner's argument that the post-conviction court erred when it "imposed a $ 252 monetary filing fee under the presumption that this is what is required." As the above analysis demonstrates, ORS 21.682(1) does not authorize a trial court to "waive" all or part of the filing fee in a proceeding for post-conviction relief pursuant to ORS 138.510 to 138.680.

We turn next to petitioner's third argument-viz. , that the post-conviction court's "monetary judgment was issued without notice nor opportunity for hearing and without making any findings related to petitioner's ability to pay the filing fee." Petitioner contends such "unilateral action has been held to be improper in numerous other similar contexts." We are not persuaded by petitioner's third argument.

First, we note petitioner had both notice and opportunity to be heard on waiver and deferral of fees and court costs, including the filing fee: he moved for the post-conviction court to "waive[ ] or defer[ ] *** all filing fees and court costs associated with the initiation and prosecution of this post-conviction proceeding." Second, petitioner's suggestion that the post-conviction court erred because it did not make "findings related to petitioner's ability to pay the filing fee" is not well taken. It is precisely because petitioner was "unable to pay the expenses of a proceeding" that the post-conviction court had authority to charge the filing fee against petitioner's inmate trust account. ORS 138.590(1), (8). Third, although petitioner cites numerous cases where we determined that a trial court erred by imposing fees without considering a party's ability to pay, see, e.g. , State ex rel Palacios v. Rea , 179 Or. App. 431, 432, 39 P.3d 289, rev. den. , 334 Or. 491, 52 P.3d 1057 (2002), the cases cited by petitioner did not involve filing fees in proceedings for post-conviction relief pursuant to ORS 138.510 to 138.680, and, consequently, were not proceedings to which ORS 138.590(8) applied.

In light of our analysis above, we affirm the post-conviction court's limited judgment.

Affirmed.

      HB 2492 also added a provision providing for recovery of the filing fee if the petitioner prevails. Or Laws 1995, ch 657, § 4.

      Though Judge Lipscomb's letter references House Bill (HB) 2326 (1995), it was submitted to the Senate Judiciary Committee by Representative Mannix in support of HB 2492. HB 2326 contained proposed amendments to ORS 138.560 and ORS 138.590 similar to those ultimately enacted by HB 2492.

      We note that HB 2492 established a filing fee of $ 25 for proceedings for post-conviction relief pursuant to ORS 138.510 to 138.680. Or Laws 1995, ch 657, § 4. Currently, the filing fee for such proceedings is $ 265. ORS 21.135. Petitioner notes, "[f]inancial circumstances differ," and, "[f]or some people," the filing fee "is an hourly wage," while, for others, "it represents more than a year's income." Although we take note of petitioner's point in our analysis, it is not our role to second-guess the legislature's policy choice regarding the amount of the filing fee in proceedings for post-conviction relief. See State v. Vasquez-Rubio , 134 Or. App. 646, 653, 897 P.2d 324 (1995), aff'd , 323 Or. 275, 917 P.2d 494 (1996) (noting "it is not for us to second-guess the legislature's policy choice"). We also note that petitioner has not raised a constitutional challenge to the amount of the filing fee.

      Amendments to ORS 21.135 that increased the filing fee from $ 252 to $ 265 became effective on October 1, 2017. Or. Laws 2017, ch 663, §§ 2, 10. Those amendments do not apply to this case. Throughout this opinion, references to ORS 21.135 and other statutory provisions, unless otherwise noted, are to the version in effect in July 2017, when petitioner filed his petition in this case.

      ORS 21.682(1) further provides that "[w]aiver or deferral under this section of the fees or court costs of an inmate *** is subject to ORS 30.642 to 30.650," which pertains to actions by inmates "against a public body." See ORS 30.642 ; ORS 30.643. "Action against a public body" expressly excludes "petitions for post-conviction relief under ORS 138.510 to 138.680." ORS 30.642(1).

      This is particularly true in light of our case law indicating that, generally, a trial court abuses its discretion when it denies a fee waiver for a party that is unable to pay such fees. See, e.g. , State ex rel Baker v. Cook , 171 Or. App. 719, 720, 16 P.3d 1184 (2000).