Ballinger v. Nooth
295 P.3d 115
Or. Ct. App.2012Background
- Petitioner was convicted of first-degree sodomy and first-degree sexual abuse and pursued post-conviction relief under ORS 138.510 to 138.680.
- Defendant Nooth moved for summary judgment on the ground petitioner could not prove ineffectiveness of trial counsel or prejudice.
- Petitioner’s post-conviction attorney Mahony informed the court, without petitioner’s consultation, that petitioner would not respond to the motion.
- The trial court granted summary judgment and dismissed the action; judgment entered September 28, 2010.
- Petitioner, relying on ORCP 71 B(l)(a), moved for relief from the judgment on November 4, 2010, arguing lack of communication and no opportunity to respond personally.
- The post-conviction court denied relief from the judgment; petitioner timely appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORCP 71 B(l)(a) relief requires a responsive pleading or evidence to support a response to a summary judgment. | Nakamoto argues relief requires a basis and a responsive pleading; lack of notice breached his rights. | Nooth contends attorney’s neglect does not compel relief absent a meritorious response. | Petitioner failed to provide a colorable response or evidence; no abuse of discretion found. |
| Whether the attorney’s unauthorized acts may justify relief from a summary judgment under ORCP 71 B(l)(a). | Petitioner asserts attorney’s conduct exceeded mere negligence and harmed his rights to respond. | Attorney’s mistakes do not automatically qualify for relief unless accompanied by a meritorious defense. | Assumed beyond mere negligence but still required a basis and colorable response; relief denied. |
| Whether the post-conviction court abused its discretion in denying relief from judgment. | Petitioner contends denial was improper due to lack of opportunity to respond. | Defendant argues no complete basis for relief was shown and merits not demonstrated. | No abuse of discretion; the court reasonably denied relief. |
Key Cases Cited
- Fogdall v. Lewis & Clark College, 38 Or App 541 (1979) (requirement to show merit in relief from summary judgment under former rule)
- Dickey v. Rehder, 239 Or App 253 (2010) (ORCP 71 B(l) motion must be complete with responsive pleading)
- Duvall v. McLeod, 331 Or 675 (2001) (ORCP 71 B(l) requires responsive pleading; court abuse if not)
- Bella v. Aurora Air, Inc., 279 Or 13 (1977) (merits of defense matter for setting aside judgment, not form of defense)
- McCarthy v. Oregon Freeze Dry, Inc., 158 Or App 654 (1999) (professional mistakes do not automatically constitute excusable neglect)
- Compton v. Lampert, 226 Or App 420 (2009) (standard for abuse of discretion in ORCP 71 B(l) motions)