Silberman-Doney v. Gargan, 303 P.3d 333

Plaintiff landlord sued for rent and defendants counterclaimed for damages and fees under ORS ch. 90; amounts prepaid into court, arbitrator awarded part to plaintiff, remaining counterclaims to be tried.
On the second trial day, the court ruled on statute of limitations and fees, concluding defendants could be prevailing for attorney fees if they proved monetary damages.
Parties settled on the record after the court’s early rulings, the jury was dismissed, and the court interpreted ORS 90.370(4) to govern attorney fees.
Two days later the court retracted its fee ruling, stating further discussion was needed, and a record meeting followed with undisclosed details.
April 7, 2011, the court issued a letter opinion reversing its fee analysis and proposing either a new settlement conference or a new jury trial, which the parties apparently rejected.
In August 2011 the court entered a general judgment reflecting the settlement, designated defendants as prevailing parties, and reserved ORCP 68 fees; plaintiff then moved for a new trial under ORCP 64 B.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there an irregularity under ORCP 64 B(1)	Plaintiff argues the court’s pretrial and postsettlement actions created an irregularity.	Defendants contend no irregularity occurred; settlement preserved fairness.	No irregularity; settlement and postsettlement rulings did not constitute irregularity under ORCP 64 B(1).
Was there an error in law under ORCP 64 B(6)	Plaintiff claims the later fee ruling and its reversal represented error in law.	Defendants assert no objected-to legal error occurred at trial; no timely objection.	No basis for ORCP 64 B(6) due to lack of objections to the alleged error.
Applicability of ORCP 64 B to settlements mid-trial	Placing judgment based on settlement while allowing for potential new trial was irregular.	Settlement-based judgment does not automatically trigger ORCP 64 B remedies; rule not plainly applicable.	ORCP 64 B does not apply to settlements mid-trial in a way that supports relief here.
Effect of settlement on enforceability given potential mutual mistake	Settlement based on the court’s initial fee ruling could be revisited; mutual mistake potentially undermines enforceability.	Settlement was voluntary and informed; no fundamental mutual mistake.	Remand to reinstate judgment; the majority did not find mutual mistake invalidating the settlement.

McCollum v. Kmart Corp., 228 Or App 101 (2009) (irregularity requires deviation from established rule; settlement context considered procedural)
State v. Swain / Goldsmith, 267 Or 527 (1974) (judge may change disposition between hearing and final action)
Hayes Oyster Co. v. Dulcich, 170 Or App 219 (2000) (court rulings are not final until proper order entered)
Beardsley v. Hill, 219 Or 440 (1959) (memo to judgments not effective until entered)
Clement v. Mills, 245 Or App 308 (2011) (settlement not enforceable if based on fundamental mutual mistake)
City of Canby v. Rinkes, 136 Or App 602 (1995) (binding settlement; open-court agreement)