Opinion
A8408-05084; CA A38683
Petition for reconsideration filed July 29, 1987
Reconsideration allowed, former opinion modified October 21, 1987
Appeal from Circuit Court, Multnomah County.
Lee Johnson, Judge.
Timothy R. Volpert, Rodney E. Lewis, Jr. and Ragen, Roberts, Tremaine, Krieger, Schmeer, O'Scannlain Neill, Portland, for petition.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
WARREN, J.
Reconsideration allowed; former opinion modified and adhered to as modified.
Appellants petition for reconsideration, ORAP 10.10, arguing that our decision on prejudgment interest was based on an incorrect understanding of the record and represents a departure from prior decisions. 86 Or. App. 74, 739 P.2d 26 (1987). We grant reconsideration to correct our mistake about the record; we adhere to our decision as corrected.
In our decision we said the question of prejudgment interest was raised before trial. Appellants are correct that plaintiff did not raise the issue of prejudgment interest until after trial. Plaintiff first mentioned prejudgment interest in the proposed form of judgment which he submitted on December 6, 1985, 10 days after the trial had been completed. Defendants filed an objection, and the parties submitted memoranda. Our misunderstanding of that part of the record, however, does not affect our decision. At the hearing on the objections, the trial judge stated:
"It seems to me that go around on ancient distinctions between law and equity [doesn't] make much difference, [doesn't] impress me much. I think that there is no question that this was a case for a liquidated amount and I suppose the only question is whether the pleadings — how much money do the pleadings have to give somebody. But I would assume with the liberal rules regarding amendment, I'm going to allow prejudgment interest because I think this case is an appropriate case for it if there ever was one."
We agree with the trial judge that, under ORCP 23, he could treat the pleadings as amended, ORCP 12A, and did not err in awarding prejudgment interest.
Reconsideration allowed; former opinion modified and adhered to as modified.