328 P.3d 1284
Or. Ct. App.2014Background
- Plaintiff sued Ron and Linda Miller for goods purchased by their son Ean; claim included breach of contract and unjust enrichment.
- Arbitration was ordered March 2, 2011, with Glenn Null as arbitrator; defendants did not appear.
- Notices and pleadings were sent to Ean Miller at a North 2nd Street La Grande address; Ean lacked authority as attorney and was not an Oregon-licensed attorney.
- Arbitration hearing occurred May 26, 2011; arbitrator awarded plaintiff after finding Ean was not an attorney and granting dismissal of defendants’ answer.
- Judgment was entered July 14, 2011; defendants learned of it through their son and moved to set aside under ORCP 71 B.
- Trial court denied relief; appellate court reverses, finding mistakes by arbitrator and plaintiffs’ counsel in service/notice and orders, requiring relief under ORCP 71 B(1) and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relief is warranted for mistake or excusable neglect | Plaintiff argues defendants’ neglect was not excusable. | Defendants argue neglect was excusable due to reliance on son and misdirected notices. | Relief denied for neglect; but reversed on other grounds due to mistakes by others. |
| Whether improper service/notice tainted the arbitration and judgment | Plaintiff contends proper service occurred; notices sent to last known address. | Defendants contend notices were misdirected to Ean and not to them, violating service rules. | Mistakes by arbitrator and counsel in service required setting aside the judgment. |
| Whether defective pleading by absence of attorney impacted outcome | Plaintiff asserts procedural rules were followed once attorney represented. | Defendants’ answer signed by POA at wrong address; lack of attorney representation affected filing validity. | Defective ORCP 17 A pleading contributed to the outcome; not excusable neglect; but judgment reversal stands for other reasons. |
Key Cases Cited
- National Mortgage Co. v. Robert C. Wyatt, Inc., 173 Or App 16 (Or. App. 2001) (liberal construction of ORCP 71 B to avoid deprivation of a party’s day in court)
- Saldivar v. Roberts, 240 Or App 371 (Or. App. 2011) (facts viewed in favor of party seeking relief under ORCP 71 B(1))
- Blue Horse v. Sisters of Providence, 113 Or App 82 (Or. App. 1992) (pro se neglect generally not excusable under ORCP 71 B)
- Trucke v. Baughman, 210 Or App 448 (Or. App. 2007) (mistake in notifying party about hearing; 71 B relief)
- PGE v. Ebasco Services, Inc., 263 Or App 53 (Or. App. 2014) (abuse of discretion standard in ORCP 71 B appeals)
- State v. Palmer, 35 Or App 125 (Or. App. 1978) (pro se litigants must comply with court rules)
- Marguerite E. Wright Trust v. Dept. of Rev., 297 Or 533 (Or. 1984) (signing requirements for nonattorney filings under ORCP 17 A)