No. 33	                                          July 25, 2013	849
33 Or Ebasco Services, Inc.
353 v.
PGE
2013                                                                        July 25, 2013




                                        IN THE SUPREME COURT OF
                                          THE STATE OF OREGON

                               PORTLAND GENERAL ELECTRIC COMPANY,
                                         an Oregon corporation,
                                          Plaintiff-Respondent,
                                          Petitioner on Review,
                                                    v.
                                       EBASCO SERVICES, INC.,
                                         fka Esicorp, Inc.; et al.,
                                               Defendants,
                                                   and
                                  LEXINGTON INSURANCE COMPANY,
                                          Defendant-Appellant,
                                         Respondent on Review.
                                                EECI, INC.,
                                            a Nevada corporation,
                                            Third-Party Plaintiff,
                                                     v.
                                      GENERAL ELECTRIC COMPANY,
                                        a New York Corporation; et al.,
                                           Third-Party Defendants.
                                  (CC CV05120776; CA A143752; SC S060584)

                              En Banc
                              On review from the Court of Appeals.*
                              Argued and submitted April 29, 2013.
   Brian R. Talcott, Dunn Carney Allen Higgins and
Tongue, LLP, Portland, argued the cause for petitioner on
review. With him on the brief were Thomas H. Tongue and
Bridget D. Lynn.
   David M. Axelrad, Horitz & Levy LLP, Encino, California,
argued the cause for respondent on review. On the brief were
______________
	   *  Appeal from Clackamas County Circuit Court, Robert D. Herndon, Judge.
248 Or App 91, 273 P3d 165 (2012)
850	                                      PGE v. Ebasco Services, Inc.

Stephen F. Deatherage and Daniel F. McNeil, Bullivant
Houser Bailey, PC, Portland.
    BREWER, J.
   The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.

     Plaintiff Portland General Electric Company (PGE) seeks review of a Court
of Appeals decision that reversed and remanded a trial court order denying
defendant Lexington Insurance Company’s motion under ORCP 71 to set aside a
default judgment entered against it in PGE’s favor, on the ground that the trial
court lacked jurisdiction to enter the default judgment. On review, the issues are
(1) whether a default judgment awarding monetary relief violates ORCP 67 C if
the underlying complaint did not state the specific amount of money or damages
being sought; and (2) if so, whether such a defect renders the judgment merely
voidable and therefore not subject to collateral attack or, instead, renders the
judgment void and therefore subject to challenge at any time. Held: The default
judgment violated ORCP 67 C however, that violation did not render the judgment
void because Lexington had multiple prejudgment opportunities to challenge the
defect in the pleadings before filing the present appeal. In such circumstances,
due process does not demand the nullification of the default judgment by means
of a collateral challenge such as this appeal.
    The decision of the Court of Appeals is reversed, and the case is remanded to
the Court of Appeals for further proceedings.
Cite as 353 Or 849 (2013)	851

	       BREWER, J.
	        Plaintiff Portland General Electric Company (PGE)
seeks review of a Court of Appeals decision that reversed and
remanded a trial court order denying defendant Lexington
Insurance Company’s motion under ORCP 71 to set aside a
default judgment entered against it in PGE’s favor, on the
ground that the trial court lacked jurisdiction to enter the
default judgment. On review, the issues are (1) whether a
default judgment awarding monetary relief violates ORCP
67 C if the underlying complaint did not state the specific
amount of money or damages being sought; and (2) if so,
whether such a defect renders the judgment merely voidable
and therefore not subject to collateral attack or, instead,
renders the judgment void and therefore subject to challenge
at any time. We conclude that the default judgment did vio-
late ORCP 67 C in the asserted respect. However, we also
conclude that, in the circumstances of this case, the rule vio-
lation did not render the judgment void. Accordingly, we
reverse the decision of the Court of Appeals and remand to
that court for further proceedings.
	         The pertinent facts are procedural and not in dis-
pute. A former employee of PGE brought a personal-injury
action against PGE based on asbestos exposure. In December
2005, after settling that action, PGE sued certain insurers
that had issued insurance policies to PGE for the period during
which the exposure had occurred. In its complaint, PGE
alleged that it had entered into a confidential settlement
agreement in the underlying asbestos personal injury case;
that it had tendered its claims to its insurers; that it had
fulfilled its obligations under the policies or was excused from
any such obligations; that the policies provided coverage for
the claims resulting in the settlement; and that PGE’s insurers
had breached the insurance contracts by failing to indemnify
PGE for the settlement. In the prayer of the com-plaint,
PGE sought a judgment providing that the insurers were
“liable to reimburse [PGE] regarding the settlement of the
underlying lawsuit.” Lexington was one of the insurers, and
it was a party to a policy providing coverage not to exceed
$5 million. Because it had only a 16-percent share in that
policy, Lexington had a maximum exposure of $800,000.
852	                                      PGE v. Ebasco Services, Inc.

However, PGE did not allege any specific amount of mon-
etary loss or damages that resulted from Lexington’s breach
of its indemnity obligation. Although a copy of the pertinent
insurance policy was attached to the complaint as an exhibit,
PGE did not allege that it was seeking damages equivalent
to the liability limit under that policy. Moreover, PGE’s com-
plaint did not specify the amount of money for which PGE had
settled the underlying asbestos-exposure litigation, stating
instead that the settlement amount had been “reasonable.”
	       In 2006, PGE served the complaint on a New York
law firm specified in the policy as an authorized agent for
service of process on the subscribing insurers. That firm
forwarded the complaint to another law firm, which filed
an answer on behalf of other insurers but not on behalf of
Lexington, because it did not represent Lexington. All the
other solvent insurer defendants appeared and defended,
but Lexington did not.
	         About three years after PGE filed its original com-
plaint, it moved for an order of default and for a limited judg-
ment of default against Lexington for $800,000, plus costs
and attorney fees. That motion was served on the firm that
represented the other subscribing insurers, but it was not
served on Lexington.1 The motion included a declaration that
PGE’s loss in the underlying personal-injury action exceeded
“the $800,000 policy limit provided by Lexington.” In
January 2009, the trial court granted PGE’s motion and
entered an order of default and limited judgment on default
against Lexington for $800,000, plus $26,865 in costs and
attorney fees. Lexington learned of the default judgment
almost immediately, and it retained counsel to review the
matter.
	        Lexington did not appeal the judgment. Rather, it
brought a collateral challenge to it. In July 2009, Lexington
filed a motion to set aside the default judgment under ORCP
71. In that motion, Lexington sought relief solely on the
grounds of its asserted excusable neglect in failing to appear

	1
        PGE was not required to serve Lexington with its motion for default under
ORCP 69, nor was it required to provide notice to Lexington under ORCP 69 B(2),
because Lexington had filed neither an appearance nor written notice of intent to
file an appearance.
Cite as 353 Or 849 (2013)	853

and the trial court’s “inherent discretion.” The trial court
concluded that Lexington had failed to provide a reasonable
explanation for its failure to appear and, accordingly, denied
the motion. The court later entered a supplemental judgment
awarding PGE additional costs and attorney fees.
	         Lexington appealed both the supplemental judg-
ment and the order denying its motion to set aside the
limited judgment of default. On appeal, Lexington asserted
for the first time that the trial court had lacked jurisdiction
to enter the default judgment awarding monetary relief on
the ground that PGE had failed to comply with ORCP 67 C.2
Lexington argued that, because PGE had not demanded a
specific amount of monetary relief in its complaint, the
default judgment awarded an amount “exceeding the amount
prayed for in the pleadings.” In Lexington’s view, that defect
rendered the entire judgment void.3 PGE responded that
the complaint had provided Lexington with “all of the infor-
mation necessary to allow it to understand the claim being
asserted and to assess its risk of not appearing.” In partic-
ular, PGE relied on the complaint’s allegation that the sub-
scribing insurers had breached a specific $5 million insur-
ance policy—attached as an exhibit to the complaint—
that outlined Lexington’s 16-percent share and $800,000
exposure limit.
	         The Court of Appeals concluded that the default
judgment was void because PGE had failed to state a specific
amount of damages in its complaint. PGE v. Ebasco Services,
Inc., 248 Or App 91, 100-01, 273 P3d 165 (2012). Relying on
its prior decision in Montoya v. Housing Authority of Portland,
	2
        ORCP 67 C provides:
    	    “Every judgment shall grant the relief to which the party in whose favor it
    is rendered is entitled. A judgment for relief different in kind from or exceeding
    the amount prayed for in the pleadings may not be rendered unless reasonable
    notice and opportunity to be heard are given to any party against whom the
    judgment is to be entered.”
	3
       Lexington also argued on appeal that (1) the trial court had lacked juris-
diction to enter the default judgment because PGE had filed an amended com-
plaint seeking additional relief in the form of attorney fees, and it never served
Lexington with the amended complaint; and (2) the trial court had erred in denying
Lexington’s motion to set aside the default judgment on the ground of excusable
neglect. Because it deemed Lexington’s unpreserved jurisdictional challenge to be
dispositive, the Court of Appeals did not address Lexington’s alternative arguments.
854	                              PGE v. Ebasco Services, Inc.

192 Or App 408, 416, 86 P3d 80 (2004), the court concluded
that ORCP 67 C imposes a jurisdictional requirement, such
that a trial court lacks jurisdiction to enter a default judg-
ment in any amount where the underlying complaint failed
to specify the amount of monetary relief sought. Ebasco
Services, 248 Or App at 100. In Montoya, the Court of Appeals
had considered whether a default judgment was void for
lack of jurisdiction because, in violation of ORCP 67 C, the
amount of damages awarded exceeded the amount pleaded.
In concluding that the rule had been violated and that the
defect was jurisdictional, the court explained:
   “  reaching a conclusion as to what statutory provisions
    ‘In
   are jurisdictional, a distinction may be made between pro-
   cedures which are required both by statute and also by
   the due process clause of the constitution on the one hand,
   and procedures required by statute alone, over and beyond
   anything rendered necessary by the constitution, on the
   other. * * * Those requirements of statute which are essen-
   tial to due process are, of course, jurisdictional, and we
   think that statutory requirements over and beyond the bare
   necessities of due process may also be jurisdictional, but
   only if it is the legislative intent to make them so.’ ”
192 Or App at 415-16 (quoting Frederick v. Douglas Co.
et al., 176 Or 54, 63-64, 155 P2d 925 (1945)). The court
reasoned that ORCP 67 C is jurisdictional because awarding
more than the amount prayed for by default without notice
and the opportunity to be heard is the functional equivalent
of taking a default judgment on a complaint without service
of process. Id. at 416. Thus, the court held that the default
judgment was void to the extent that it awarded monetary
relief exceeding the amount prayed for in the complaint. Id.
	        In this case, the Court of Appeals extended its
reasoning in Montoya to the circumstance where PGE’s com-
plaint had not provided Lexington with notice “that [PGE]
sought to recover any particular amount in damages from
[Lexington].” Ebasco Services, 248 Or App at 100. The court
concluded that the insurance policy attached to the com-
plaint did not cure the posited defect because the complaint
did not otherwise state that PGE sought the maximum
amount allowed under the policy or indicate that the under-
lying asbestos-exposure case had been settled for more than
Cite as 353 Or 849 (2013)	855

that amount. Id. The court ultimately concluded that the
default judgment was void, and it directed the trial court on
remand to vacate the default order; the court also vacated the
supplemental judgment awarding attorney fees, costs, and
disbursements. Id. at 100-01. PGE petitioned for recon-
sideration, arguing that the default judgment should be left
intact insofar as it adjudged Lexington liable for breach of
contract. The Court of Appeals denied reconsideration.
	         On review, PGE asserts that ORCP 67 C imposes
procedural requirements that do not implicate a trial court’s
jurisdiction and, accordingly, that the Court of Appeals
erred in concluding that the default judgment was void. PGE
urges that entry of the default judgment in this case was
consistent with due process because the underlying complaint
had adequately informed Lexington of the nature of the claim
and the amounts potentially at issue. Finally, PGE asserts
that, in any event, the default judgment should not be deemed
void as to its adjudication of Lexington’s liability for breach
of contract because, in that respect, the judgment did not
differ from the relief sought in the complaint.
	         Lexington responds that the Court of Appeals deci-
sion in Montoya was correct and that the result reached
in this case flows logically from that analysis. Lexington
observes that this court has stated that a trial court lacks
jurisdiction to adjudicate a matter where notice to the defen-
dant “is so defective that it does not satisfy the requirement
of due process.” Hood River County v. Dabney, 246 Or 14, 21,
423 P2d 954 (1967). According to Lexington, fundamental
principles of due process required PGE to give notice in its
complaint of the amount of monetary relief that it sought, so
that Lexington could make an informed decision whether to
incur the expense of defending against the action. Because
the complaint failed to give such notice, Lexington asserts
that entry of the default judgment violated its due process
rights and deprived the trial court of jurisdiction to enter a
default judgment. Moreover, Lexington argues that the pos-
ited defect necessarily infected the entire default judgment,
rendering it void.
	        We begin our analysis by noting what is not in dis-
pute on review: the trial court had subject matter jurisdiction
in this action and, because Lexington was properly served
856	                                       PGE v. Ebasco Services, Inc.

with summons and the original complaint,4 the court also
had personal jurisdiction over Lexington. See School Dist.
No. 1, Mult. Co. v. Nilsen, 262 Or 559, 566, 499 P2d 1309
(1972) (holding that an Oregon court has subject matter
jurisdiction over an action if constitution, statute, or com-
mon law tells court to do something about specific kind of
dispute presented); Woods v. Carl Karcher Enterprises, Inc.,
341 Or 549, 556-57, 146 P3d 319 (2006) (service of summons
and complaint gives “the court personal jurisdiction over the
defendant, imposing on the defendant a number of immedi-
ate obligations (such as filing an appearance and responding
to the complaint) and a host of potentially adverse conse-
quences”). Generally speaking, when a trial court has both
subject matter jurisdiction and personal jurisdiction, its
judgment, even if erroneous, is not void. State ex rel English
v. Multnomah County, 348 Or 417, 440, 238 P3d 980 (2010);
State v. McDonnell, 343 Or 557, 563, 176 P3d 1236 (2007).
	In McDonnell, we explained that a void judgment is
one that “has no legal force or effect” and can be attacked
“at any time and any place, whether directly or collaterally”;
a voidable judgment, in contrast, is one that “is irregular
or erroneous” although it is “rendered by a court having
jurisdiction.” 343 Or at 562 (quoting Black’s Law Dictionary
861 (8th ed 2004)). A voidable judgment may be attacked
through only a direct appeal or a cognizable collateral chal-
lenge, for example, under ORCP 71 B.5 See Ketcham v. Selles,
304 Or 529, 534-35, 748 P2d 67 (1987) (purported default
judgment that did not qualify as judgment because it did not
resolve all issues among all parties was voidable, not void,
and could not be collaterally attacked in a proceeding to
execute judgment); see also Johnson v. Johnson, 302 Or 382,
394, 730 P2d 1221 (1986) (entertaining, albeit denying on
merits, collateral challenge to dissolution judgment on ground
of extrinsic fraud under ORCP 71 C). Congruently with that
distinction, principles relating to preservation of error do not

	4
       As noted, PGE properly served the agent whom Lexington had identified in
the insurance policy.
	5
       ORCP 71 (B)(1) provides, in part, that “the court may relieve a party or such
party’s legal representative from a judgment for *  * (a) mistake, inadvertence,
                                                      * 
surprise, or excusable neglect[.]”
Cite as 353 Or 849 (2013)	857

apply to void judgments; those principles do, however, apply
to the assertion of error with respect to judgments that are
merely voidable. Ailes v. Portland Meadows, Inc., 312 Or 376,
383, 823 P2d 956 (1991).
	       With that background in mind, we turn to the ques-
tion whether the default judgment in this case violated
ORCP 67 C. We begin with the text of ORCP 67 C itself,
which provides:
    	 “Every judgment shall grant the relief to which the
    party in whose favor it is rendered is entitled. A judgment
    for relief different in kind from or exceeding the amount
    prayed for in the pleadings may not be rendered unless
    reasonable notice and opportunity to be heard are given to
    any party against whom the judgment is to be entered.”

ORCP 18 B, which sets out the pleading rule that ORCP 67 C
reinforces, requires that a complaint contain “[a] demand of
the relief which the party claims” and, “if recovery of money
or damages is demanded, the amount thereof shall be
stated.”6 PGE concedes that its claim for breach of contract
sought recovery of money or damages for purposes of both
the ORCP 18 B requirement that an amount be pleaded and
the ORCP 67 C prohibition against a judgment exceeding the
amount prayed for in the complaint. PGE does not, however,
concede that the default judgment violated ORCP 67 C.7
Accordingly, we briefly turn to that issue.
	      As discussed, the claim in question was for breach
of an insurance contract, seeking monetary relief from
Lexington in the unspecified amount of the settlement that
PGE had paid in the underlying asbestos-exposure personal
	6
      The original staff comment to ORCP 67 C demonstrates the connection
between the two rules:
    “In a case where money damages are claimed, the damages recoverable are
    limited to the prayer. Note that ORCP 18 B requires a statement in the prayer
    of the amount of damages claimed.”
Fredric R. Merrill, Oregon Rules of Civil Procedure: 1984 Handbook 154 (staff
comment).
	7
       In a footnote in its brief on review, PGE suggests that it is “questionable”
whether the default judgment implicated ORCP 67 C because the complaint did
not seek any specific amount of money or damages. Because PGE has not developed
any argument pertaining to that suggestion, we do not consider it further.
858	                              PGE v. Ebasco Services, Inc.

injury case, together with associated costs and attorney fees.
PGE notes that the complaint incorporated the pertinent
insurance policy as an exhibit, and the policy reflected that
Lexington’s pro rata share of the policy limits was 16 percent
of $5 million, or $800,000. Based on those references, PGE
asserts that the complaint sufficiently stated the amount of
monetary relief that PGE sought. We disagree.
	        The fact that—albeit inartfully—the complaint
implicitly might have capped PGE’s primary damages at
Lexington’s pro rata share of the policy limits, is not the same
as stating the amount of money or damages demanded. In
fact, the complaint did not demand money or damages in the
amount of $800,000 or, as required by ORCP 18 B, in any
stated amount. Accordingly, we conclude that the default
judgment violated ORCP 67 C because the complaint did not
seek any amount of damages.
	        The greater challenge is to determine the effect of
that violation in the circumstances of this collateral attack
on the default judgment. Both before and after the adoption of
the Oregon Rules of Civil Procedure, this court generally has
treated erroneously entered judgments as voidable, rather
than void. For example, in Travelers Insurance Co. v. Staiger,
157 Or 143, 69 P2d 1069 (1937)—an action to recover on a
promissory note—the plaintiff obtained a judgment against
the defendants that included certain amounts for costs and
disbursements, and the defendants did not timely appeal.
Id. at 146. Subsequent enforcement of the judgment resulted
in the sale of the defendants’ property. Id. The defendants
objected to the sale, arguing that the judgment was void
because it had awarded costs and disbursements when
no cost bill had ever been filed, in violation of the cost bill
provisions of the 1930 Oregon Code. Id. at 146-47. The trial
court overruled the defendants’ objections, and the defen-
dants appealed. Id. at 147. This court acknowledged that
the trial court might have erred in awarding costs and dis-
bursements without the required cost bill, but nonetheless
affirmed, stating:
   “If the relief awarded or recovery authorized by a judgment
   is excessive, either as being greater than the amount
   demanded, greater than the facts or the evidence would jus-
   tify, or as improperly including interest, costs, or counsel
Cite as 353 Or 849 (2013)	859

   fees[,] *  * it is erroneous and voidable, but may not be
            * 
   impeached in a collateral proceeding.”

Id. at 148 (quoting 34 CJ, Judgments, 564 § 864).
	        Similarly, in Rajneesh Foundation Intl. v. McGeer,
303 Or 139, 144 n 3, 734 P2d 871, adhered to on recons,
303 Or 371, 737 P2d 593 (1987), this court concluded that a
default judgment was not subject to collateral attack on the
ground that the pleadings were insufficient to support it.
See also Rogue Val. Mem. Hosp. v. Salem Ins., 265 Or 603,
615, 510 P2d 845 (1973) (judgment based on hospital lien
not filed within specified statutory period not subject to
collateral attack); Walling v. Lebb, 140 Or 691, 692, 15 P2d
370 (1932) (failure of complaint to state claim does not sub-
ject subsequent judgment to collateral attack); cf. Booth v.
Heberlie, 137 Or 354, 356, 2 P2d 1108 (1931) (judgment
entered prematurely “could be attacked only by motion in
the original case”).
	        As noted, those decisions confirm that, generally
speaking, when a trial court has both subject matter juris-
diction and personal jurisdiction, its judgment, even if
erroneous, is not void. State ex rel English, 348 Or at 440;
McDonnell, 343 Or at 563. To be sure, that conclusion is a
qualified one. First, in certain circumstances, it is necessary
to construe a statute to determine whether the legislature
intended to impose a limitation on the trial court’s authority
to exercise its jurisdiction. In that instance, a violation of
the statute may render the judgment void. For example, in
Dabney, the issue was whether a tax lien foreclosure statute
requiring 60-days’ notice before foreclosure imposed such a
limitation on the trial court’s power. 246 Or at 21-22. After
examining the statute’s text and context, this court concluded
that the legislature did not intend the notice requirement to
limit the court’s authority to exercise its jurisdiction, thereby
resulting in a void judgment. Id.
	      ORCP 67 C is a rule of civil procedure promulgated
by the statutorily created Council on Court Procedures.
ORCP 1.735(1). Applying the precepts that ordinarily apply
860	                                        PGE v. Ebasco Services, Inc.

to the interpretation of statutes, the interpretation of such a
rule requires a determination of the Council’s intent. A. G.
v. Guitron, 351 Or 465, 479, 268 P3d 589 (2011).8 There is
no indication in ORCP 67 or any other provision of the
Oregon Rules of Civil Procedure that the Council intended
that a violation of the rule would render an ensuing default
judgment “void” or otherwise deprive the court of authority
to exercise its jurisdiction in the absence of a constitutional
violation. See Dabney, 246 Or at 22 (concluding that, absent
due process violation, there was no indication that legislature
intended violation of statutory notice requirement to result
in void judgment); see also Rogue Val. Mem. Hosp., 265 Or at
616 (1973) (concluding that, in the absence of a “clear indi-
cation” that the legislature intended for statutory time pro-
visions for filing a lien to impose “jurisdictional” require-
ments, court would infer that a judgment based upon such a
lien is voidable, not void).
	       Second, a statutory violation that also deprives a
party of due process may render a judgment void. As
explained below, however, the default judgment in this case
does not implicate concerns of constitutional dimension.
	          As dictated by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution, it
is well established that the state may not deprive a person
of life, liberty, or property without “notice and opportunity
for hearing appropriate to the nature of the case.” Mullane
v. Central Hanover Bank & Tr. Co., 339 US 306, 313, 70 S Ct
652, 94 L Ed 865 (1950); Koskela v. Willamette Industries,
Inc., 331 Or 362, 378, 15 P3d 548 (2000). An appropriate
hearing is one that is provided “at a meaningful time and
in a meaningful manner.” Armstrong v. Manzo, 380 US 545,
552, 85 S Ct 1187, 14 L Ed 2d 62 (1965); State ex rel Juv.
Dept. v. Geist, 310 Or 176, 189-90, 796 P2d 1193 (1990).

	8
       An exception exists for situations where the legislature “amended the rule at
issue in a particular case in a manner that affects the issues in that case.” Waddill
v. Anchor Hocking, Inc., 330 Or 376, 382 n 2, 8 P3d 200 (2000), adhered to on recons,
331 Or 595, 18 P3d 1096 (2001). Here, ORCP 67 C was promulgated by the Council
on Court Procedures in 1980. See Merrill, Oregon Rules of Civil Procedure: 1984
Handbook 156. Although it has been amended by the Council on Court Procedures,
it has not been the subject of legislative amendment, nor have any amendments
materially changed the text at issue in this case.
Cite as 353 Or 849 (2013)	861

	        This court has previously recognized that, even
where a trial court has personal and subject matter jurisdic-
tion, a violation of due process notice requirements may
deprive the court of “jurisdiction” to enter an order or judg-
ment. State ex rel Hall v. Hall, 153 Or 127, 55 P2d 1102 (1936)
(stating that, in the absence of notice, the trial court lacked
jurisdiction to modify an order addressing support provisions
of a divorce decree). Used in that way, the word “jurisdiction”
is a term of art intended to convey that the violation was so
significant as to render the resulting judgment void. But not
every defect in notice renders a judgment void. Instead, it is
only when the notice “is so defective that it does not satisfy
the requirements of due process” that the court does not have
authority to enter a judgment. Dabney, 246 Or at 21. That is,
due process requires reasonable notice to a defendant before
a default judgment or order may be entered against it, but not
necessarily strict compliance with the applicable procedural
statutes and rules. See Restatement (Second) of Judgments § 2
cmt e (1982) (“A notice-giving effort may comply with Consti-
tutional requirements under the Due Process Clause and
yet fail to comply with the requirements of an applicable
statute or rule of court.”).
	          Dabney, which was an action to quiet title to land,
illustrates the point. There, the county acquired title to
land from the defendant’s predecessor in interest through a
tax foreclosure proceeding in 1928. The published summons
in the foreclosure proceeding had been defective because it
afforded the landowner only six weeks in which to appear,
rather than the 60 days required by statute. In 1963, the
defendant learned of that defect and challenged the plain-
tiff’s title. 246 Or at 17. The issue on appeal was whether
that challenge was barred by ORS 312.220, which pro-
vided that a decree of foreclosure for delinquent taxes “is
conclusive evidence of its regularity and validity in all
collateral proceedings,” and ORS 312.230, which barred any
action challenging a tax foreclosure decree, unless it was
commenced within specified time limits. Applying those
statutes, the court stated that “the decree must be regarded
as valid unless on constitutional grounds we must hold
that the legislature lacks the power to declare valid a tax
862	                                         PGE v. Ebasco Services, Inc.

foreclosure decree defective for lack of jurisdiction.” 246 Or
at 20.
	        The court in Dabney revisited prior decisions in
which it had held that the legislature could enact statutes
barring challenges to tax foreclosure decrees that were merely
irregular due to “nonjurisdictional” defects, but could not so
insulate decrees that were void for lack of “jurisdiction.” Id.
at 20-21. The court reexamined those cases and, after dis-
cerning a legislative purpose to strictly limit challenges to
tax foreclosures, held that all defects in the underlying tax
foreclosure proceedings were “nonjurisdictional” unless they
deprived the taxpayer of due process. Id. at 22. The court also
held that the notice that the owner had received, although
insufficient to comply with the tax foreclosure statutes, was
sufficient to satisfy the demands of due process. Id. at 25-26.
Because there was no due process violation, the court con-
cluded that the statutes of limitation barred the defendant’s
challenge. Id.9
	        This court’s decision in Scarth v. Scarth, 211 Or 121,
315 P2d 141 (1957), illustrates a circumstance in which the
failure to comply with a statutory notice requirement did
result in a due process violation and a void judgment. In that
case, the trial court modified without notice the defendant’s
child support obligation. The defendant appealed, “contending
that the court had no jurisdiction of him in that he had no
proper notice or opportunity to be heard, amounting to a
denial of due process of law.” Id. at 125. This court noted that,
based on the applicable statute, the trial court had contin-
uing personal and subject matter jurisdiction relating to the
	9
       The court, however, chose to broaden the basis of its decision:
    “Although we could rest our decision solely upon the ground that the defect
    in the summons was nonjurisdictional and that, therefore the foreclosure
    decree is free from collateral attack, in the interest of carrying out the clearly
    indicated legislative purpose to give the ‘utmost stability’ to tax titles we pre-
    fer to rest our decision upon the broader ground that even if the defect in the
    proceedings is jurisdictional for failure to meet either legislative or con-
    stitutional requirement deemed essential to jurisdiction, it was within the pur-
    pose and power of the legislature in enacting ORS 312.220 and ORS 312.230 to
    bar the delinquent owner from attacking the foreclosure decree.”
246 Or at 26. The breadth of the court’s ultimate holding in that case does not
detract from our reliance here on its initial conclusion, which was a foundational
holding of the case.
Cite as 353 Or 849 (2013)	863

defendant’s support obligations and that the court retained
the power to modify that portion of the original judgment. Id.
However, this court held that the retention of such jurisdiction
did not mean that the court could act without further notice
to the defendant. Id. at 126. Because the modification order
affected the defendant’s personal rights, due process entitled
him to reasonable notice and an opportunity to be heard. Id.
In so concluding, this court relied in part on Hall, in which
the court had held that an order modifying the support pro-
visions of a divorce decree entered without notice to the defen-
dant was an insufficient foundation for a subsequent judg-
ment of contempt. Similarly, the court relied on Griffin v.
Griffin, 327 US 220, 66 S Ct 556, 90 L Ed 635 (1946), in
which the United States Supreme Court had held that “an
order docketing arrears of alimony as a judgment, without
notice to the defendant, was held wanting in due process.”
Scarth, 211 Or at 126. In relying on those decisions, this
court in Scarth clarified the relationship between due process
requirements and a court’s retention of ongoing jurisdiction
over the defendant:
    “In both the Hall case and the Griffin case, * * * it was said
    that in the absence of notice the court had no jurisdiction to
    make the order. But since the required notice may be some-
    thing less than would be needed to give personal jurisdiction
    at the commencement of the suit, the question is not strictly
    one of jurisdiction but merely the adequacy of notice to war-
    rant the court in exercising the jurisdiction which it has.”
211 Or at 127 (emphasis in original; internal citations and
footnote omitted).
	        With reference to the general notice problem pre-
sented in this case, cases decided under the parallel federal
rule, FRCP 54(c)10 —and comparable state rules of civil pro-
cedure—have held that, when a complaint demands a
specific amount of damages, due process prohibits a default
judgment from awarding additional damages. See, e.g.,
Compton v. Alton Steamship Co., 608 F2d 96, 104 (4th Cir
1979); Producers Equip. Sales, Inc. v. Thomason, 15 Kan
App 2d 393, 399, 808 P2d 881 (1991). The same is true
	10
        FRCP 54(c) provides, in pertinent part, that “[a] default judgment must not
differ in kind from, or exceed in amount, what is demanded in the pleadings.”
864	                                PGE v. Ebasco Services, Inc.

when a default judgment awards a different type of relief
than that sought in the claimant’s operative pleading. The
rationale for those decisions is that, insofar as due process
is concerned, a default judgment cannot (1) award monetary
relief that is greater than the specific amount pleaded; or
(2) provide other relief that is different in kind from the
relief sought in the pleadings, because the defendant could
not reasonably have expected that its exposure to liability
would exceed that amount or be different in kind. The lead-
ing commentators on the federal rule have explained the
“theory of this provision” as follows:
   “[T]he defending party should be able to decide on the basis
   of the relief requested in the original pleading whether to
   expend the time, effort, and money necessary to defend the
   action. It would be fundamentally unfair to have the com-
   plaint lead defendant to believe that only a certain type
   and dimension of relief was being sought and then, should
   defendant attempt to limit the scope and size of the potential
   judgment by not appearing or otherwise defaulting, allow
   the court to give a different type of relief or a larger damage
   award.”
Charles Alan Wright, Arthur R. Miller, and Mary Kay Marie
Kane, 10 Federal Practice and Procedure: Civil § 2663 (3d ed
2008) (footnote omitted).
	        In this case, by contrast, those concerns are not implic-
ated. First, Lexington does not assert that the default judg-
ment awarded a different kind of relief than was sought in
the complaint in this case. In its complaint, PGE sought
indemnity for the amount that it paid to settle the under-
lying asbestos claim and for its costs and attorney fees in
defending that claim. The default judgment awarded pre-
cisely that relief. Instead, the sole focus of Lexington’s due
process argument is on the amount of monetary relief that
the default judgment awarded. However, the defect in notice
concerning the amount of PGE’s claimed damages was
apparent on the face of the complaint when Lexington was
served with a copy of it and the required summons. Multi-
ple prejudgment options to remedy that defect were at
Lexington’s disposal. For example, Lexington could have
moved to make the complaint more definite and certain
Cite as 353 Or 849 (2013)	865

pursuant to ORCP 21 D. Alternatively, if it thought that the
defect was so egregious as to constitute a failure to state facts
sufficient to constitute a claim for relief, Lexington could
have moved to dismiss on that ground pursuant to ORCP 21
A(8).11 Yet it took neither action.
	         In these circumstances, Lexington’s challenge comes
too late. Unlike a case in which a variance exists between the
amount of damages sought in a complaint and the amount of
a subsequent default judgment, or in which a post-judgment
modification of an existing obligation is obtained without notice
to the obligor, Lexington had multiple prejudgment oppor-
tunities over a period of years to challenge the very defect
that it failed to raise before filing the present appeal. That
is, the defect that ultimately triggered a violation of ORCP
67 C in this case was the predicate violation of ORCP 18 B
based on PGE’s failure to state the amount of monetary relief
that it sought in its complaint. Service of the complaint itself
provided Lexington with notice of that defect, and the Oregon
Rules of Civil Procedure provided it with ample opportun-
ities for a predefault hearing at a meaningful time and in a
meaningful manner.
	        Stated differently, the complaint in this case could
not have led Lexington to believe that “only a certain type
and dimension of relief was being sought,” so that it could
“attempt to limit the scope and size of the potential judgment
by not appearing or otherwise defaulting.” Wright, Miller, &
Kane, 10 Federal Practice and Procedure § 2663. In such
circumstances, due process does not demand the nullification
of the default judgment by means of a collateral challenge. It
follows that the Court of Appeals erred in concluding other-
wise. Accordingly, it is necessary to remand the case to that
court to address Lexington’s remaining arguments that
the default judgment is void because PGE filed an amended
complaint seeking additional relief in the form of attorney fees
but never served Lexington with that pleading or, alter-
natively, that the trial court erred in denying Lexington’s
	11
       Although not pertinent to the adequacy of prejudgment notice, we note
that Lexington also did not move to set aside the judgment under ORCP 71 on
the ground of surprise. See ORCP 71 B(1) (providing, in part that “the court may
relieve a party or such party’s legal representative from a judgment for * * * (a) mis-
take, inadvertence, surprise, or excusable neglect” (emphasis added)).
866	                           PGE v. Ebasco Services, Inc.

motion to set aside the default judgment on the ground of
excusable neglect.
	       The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings.
