Dickey v. Rehder
244 P.3d 819
Or. Ct. App.2010Background
- Plaintiff obtained a default judgment against defendant on an individual claim arising from a $250,000 promissory note.
- Defendant, personal representative of the husband’s estate, moved to set aside under ORCP 71 B(1) after a default was entered.
- Defendant’s initial motion was defective for lack of a responsive pleading, as required by ORCP 71 B(1) and Duvall v. McLeod.
- Plaintiff opposed and notified the court of the defect; defendant then withdrew the defective motion and refiled a complete ORCP 71 B(1) motion with a responsive pleading.
- The trial court set aside the default, finding excusable neglect and attorney misconduct as bases for relief.
- On appeal, plaintiff challenged the withdrawal/refile process and the merits of excusable neglect; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could permit withdrawal and refiling of an ORCP 71 B(1) motion | Duvall bars withdrawal; no complete motion can be filed later | Trial court may allow withdrawal and refiling to cure defect | Yes, court could allow withdrawal and refilement |
| Whether the refiled motion could raise excusable neglect not raised in the original motion | Raising excusable neglect in refile is improper | Refiled motion can include excusable neglect | Permissible; not an abuse of discretion |
| Whether the court erred in finding attorney misconduct as a basis for relief | Misconduct proven; relief improper if not necessary | Relief proper based on excusable neglect and misconduct | Not reached/necessary to decision because excusable neglect alone sufficed |
Key Cases Cited
- Duvall v. McLeod, 331 Or. 675 (2001) (holding that a motion must be accompanied by a responsive pleading; limits 'accompanying' requirement)
- Bella v. Aurora Air, Inc., 279 Or. 13 (1977) (pre-Duvall context: purpose of filing both motion and answer to show substantial issues)
- Kachaturian v. Kachaturian, 58 Or.App. 497 (1982) (defaulted party must show diligence and meritorious defense)
- Litton v. Char-Olé Ranch, Inc., 281 Or. 687 (1978) (discretion in allowing withdrawal/refiling of motion)
- Gilbert v. Stancorp Financial Group Inc., 233 Or.App. 57 (2009) (discretion to permit withdrawal/refiling; later affirmed)