310 P.3d 1195
Or. Ct. App.2013Background
- Kevin Rains (plaintiff/subcontractor) sued Five Star (general contractor) and Stayton (board supplier) after a fall; Stayton third‑partied Weyerhaeuser for indemnity.
- Plaintiffs obtained default judgments against Five Star for >$18 million; Stayton proceeded to trial against Weyerhaeuser and plaintiffs, with a jury apportioning fault (45% Weyerhaeuser, 30% Stayton, 25% Rains) and awarding >$9 million in damages.
- Trial court later entered limited and general judgments (costs, disbursements, attorney fees); Weyerhaeuser appealed those judgments and the appeals remain pending.
- More than a year after receiving notice of the judgments, Weyerhaeuser moved under ORCP 71 B(1)(c) and ORCP 71 C to set aside several judgments, alleging plaintiffs had concealed a covenant not to execute (an agreement with Five Star that would have reduced Weyerhaeuser’s share under ORS 31.815).
- Trial court denied the ORCP 71 B(1)(c) motion as untimely (beyond the one‑year filing limit) and denied relief under ORCP 71 C for lack of jurisdiction while the appeal is pending; Weyerhaeuser appealed those rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORCP 71 B(2) allows filing/decision of a fraud motion more than one year after notice while an appeal is pending | ORCP 71 B(2) should be read to incorporate all requirements of section B(1), including the one‑year limit (so motion is untimely) | ORCP 71 B(2) removed the prior express time‑limit reference in 1988; therefore motions under B can be filed/decided at any time while an appeal is pending | Court held the one‑year filing limit in ORCP 71 B(1)(c) still applies; Weyerhaeuser’s ORCP 71 B motion was untimely |
| Whether ORCP 71 C preserves trial court authority to set aside a judgment for fraud on the court while an appeal is pending | Trial court lacked authority; plaintiffs argued appellate jurisdiction divests trial court | Weyerhaeuser argued ORCP 71 C (and ORS 19.270(5)(a)) preserves inherent trial court power to grant relief for fraud despite an appeal | Court held ORCP 71 C does not authorize relief while an appeal is pending; trial court lacked jurisdiction to grant ORCP 71 C relief during appeal |
Key Cases Cited
- Gottenberg v. Westinghouse Electric Corp., 142 Or. App. 70 (1996) (rules of civil procedure are construed like statutes; Council intent guides interpretation)
- PGE v. Bureau of Labor and Industries, 317 Or. 606 (1993) (statutory/rule construction principles and context matter)
- State v. Gaines, 346 Or. 160 (2009) (use of statutory‑interpretation framework)
- Koller v. Schmaing, 254 Or. App. 115 (2012) (trial court lacks authority to modify judgments under ORCP 71C while appeal pending)