395 P.3d 977
Or. Ct. App.2017Background
- Landlord brought a forcible entry and unlawful detainer action under ORS 90.427(3) to evict tenants from residential property.
- Trial court dismissed the case after landlord or his counsel failed to appear at the scheduled 9:00 a.m. trial with 33 minutes of delay.
- Landlord moved under ORCP 71 B(1) to set aside the dismissal as due to excusable neglect or mistake.
- Evidence in support consisted of a three-paragraph attorney declaration stating clerk calendared 9:00 a.m. as 10:00 a.m. and landlord appeared at 10:00 a.m.
- Trial court granted the motion to set aside the judgment based on excusable neglect.
- Tenants appealed, arguing the evidence failed to prove a reasonable excuse; the court reversed and remanded for reentry of the dismissal judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether landlord proved excusable neglect as a reasonable excuse. | Landlord relied on clerk’s calendaring error as excusable neglect. | Landlord provided insufficient facts on how the error occurred and its impact. | No; evidence insufficient to show a reasonable excuse. |
| Whether the totality of circumstances supports relief from judgment. | Totality supports excusable neglect given calendaring mistake. | Record lacks sufficient context of steps taken to avoid such errors. | Not established; evidence incomplete to assess totality. |
| Whether the court erred by granting relief without adequate evidence of procedures to prevent errors. | Procedural safeguards existed; relied on them. | Lack of information about safeguards and prior incidents undermines reliance. | Reversed; remand to reinstate dismissal judgment. |
Key Cases Cited
- Union Lumber Co. v. Miller, 360 Or 767 (Or. 2017) (requires reasonable excuse for failure to appear; totality of circumstances review)
- Hiatt v. Congoleum Industries, 279 Or 569 (Or. 1977) (excusable neglect standard; reasonableness of excuse)
- PGE v. Ebasco Services, Inc., 263 Or App 53 (Or. App. 2014) (burden on movant to show excusable neglect; incomplete evidence defeats relief)
- Wagar v. Prudential Ins. Co., 276 Or 827 (Or. 1976) (reasonableness of precautions and procedures in avoiding neglect)
- Reeves v. Farber, 284 Or App 887 (Or. App. 2017) (analyses multiple trials setting and related diligence in calendaring)