DENKERS v. DURHAM LEASING CO., INC

PER CURIAM

Defendant Hunt appeals from a default judgment entered in an action for breach of contract and deceit, contending that plaintiff's notice of application for a default judgment did not conform to the requirements of ORCP 69B. We agree and reverse and remand.

On November 22, 1983, plaintiff served defendant with a notice of intent to apply for a default order, which indicated that the hearing on the application would be held on November 29, 1983. Plaintiff appeared on November 29, 1983, and the court entered an order of default on that date. On December 1, 1983, the court vacated the order on its own motion to hear defendant's motion to modify an order compelling discovery. The court denied defendant's motion and reentered the order of default.

ORCP 69B(2) provides, in pertinent part:

"* * * If the party against whom judgment by default is sought has appeared in the action or if the party seeking judgment has received notice that the party against whom judgment is sought is represented by an attorney in the pending proceeding, the party against whom judgment is sought (or, if appearing by representative, such party's representative) shall be served with written notice of the application for judgment at least 10 days, unless shortened by the court, prior to the hearing on such application. * * *"

Plaintiff's notice was served on defendant only seven days before the hearing. There is no indication that the ten-day period in ORCP 69B(2) between notice and hearing was shortened by the court.

Reversed and remanded.