Saldivar v. Roberts
2011 Ore. App. LEXIS 18
| Or. Ct. App. | 2011Background
- Plaintiff filed suit June 15, 2008 and served defendants July 21, 2008; defendants did not respond or appear.
- The trial court granted a default order August 29, 2008 and a general judgment of default October 1, 2008.
- Plaintiff attempted to enforce by garnishment; garnishment was returned.
- Defendants moved to set aside the default judgment more than a month after entry.
- Defendants submitted Roberts's affidavit describing personal and business stressors affecting attention to the case.
- Trial court granted relief from default, finding excusable neglect due to overwhelming personal/business issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether excusable neglect was shown under ORCP 71 B(1)(a). | Saldivar contends Roberts's personal issues do not amount to excusable neglect. | Roberts argues personal and business turmoil caused neglect constitutes excusable neglect. | No; trial court abused discretion; no excusable neglect. |
| Whether Roberts's explanations constitute a reasonable explanation for inaction. | Factors show no reasonable explanation for ignoring the action. | Roberts's overwhelming circumstances provide a reasonable explanation. | No; explanations not sufficient to establish reasonable explanation. |
| Whether the defendant acted with reasonable diligence after knowledge of the judgment. | Defendants failed to act promptly after default. | Despite delays, there was a reasonable belief not to prosecute imminently. | Not addressed as separate issue beyond excusable neglect finding. |
| Whether a meritorious defense existed to the action. | (Not explicitly pursued as dispositive in this section.) | (Not explicitly pursued as dispositive in this section.) | Meritorious defense required; not satisfied in this context. |
Key Cases Cited
- Terlyuk v. Krasnogorov, 237 Or.App. 546 (2010) (abuse of discretion standard in ORCP 71 B(1)(a) review; liberal construction)
- Gilbert v. Stancorp Financial Group Inc., 233 Or.App. 57 (2009) (liberal construction; light most favorable to movant)
- Stull v. Ash Creek Estates, LLC, 187 Or.App. 63 (2003) (failure to act without reasonable explanation is inexcusable)
- Mary Ebel Johnson, P.C. v. Elmore, 221 Or.App. 166 (2008) (excusable neglect under mistaken circumstance; tender of settlement discussed)
- Reitz v. Coca-Cola, 36 Or.App. 487 (1978) (mistaken assumption; excusable neglect)