*1 1, 2006, Argued May petition and submitted affirmed November for review (342 473) 7,2007 allowed March J. PEEPLES, JASON Appellant, v. LAMPERT, Robert Superintendent, Snake River Institution, Correctional
Respondent. (Control) 02-01-1658M; A122837 PEEPLES, JASON Appellant, BELLEQUE, Brian Superintendent, State Oregon Penitentiary, Respondent.
03-C21423; A125027 (Cases Consolidated)
Before Judge.* Landau, LANDAU, J. dissenting.
Ortega, J.,P.
* Richardson, Landau, J., S. J. vice
LANDAU, J. dismissing judgment appeals his second a
Petitioner petition post-conviction refusal for his relief as sanction for deposition. participate B, D. He ORCP 46 in a scheduled required argues make the that the court failed to any event, the court’s of such a sanction unjustified. We affirm. dismissal as a sanction choice of arose, in decision court’s Because pro- stages part, petitioner’s of conduct at earlier from history petitioner’s begin procedural ceedings, of we with pleaded underlying petitioner’s trial, he criminal case. guilty second-degree rape and one count to one count of second-degree penetration, and he was sen- unlawful sexual imprisonment. tenced to 100 months’ pro petition for filed a se Petitioner year, January September of the same 2002. In relief in petition attorney him, and trial was for filed an amended year eventually for a later. scheduled attorney petitioner’s trial, one week before About petition, which was amended to allow another filed a motion requested day a continu- trial, denied. On the stating wished to amend counsel, new that he wanted ance, pieces evi- petition, three time to obtain and needed his requested. denied his motion The court that he had dence proceed decision not and, on continuance existing petition, the case without the court dismissed the prejudice. pro se filed a second
In November petition attorney petition. an amended filed His new expressed February dissatisfaction After 2004. petition, him counsel wrote with the amended Although petitioner change petition. explained each changes, did not believe his counsel further changes warranted. were further *4 post- depose petitioner, sought and to Defendant scheduling deposi- granted request, court conviction petitioner deposition, May claimed that 2004. At tion for deposed. Defendant’s he was to be realized that he had not posi- understanding that counsel confirmed you understanding you’ve my do indicated that that “It’s tion: today ready deposed it set over wish to have but not feel to a later date. be in the Petitioner answered Is that correct?” affirmative. petition on the then moved to dismiss
Defendant dep- participate petitioner ground his had refused stating an affidavit counsel submitted osition. Defendant’s deposition, participate petitioner had “refused [peti- ready,” claiming “similar that he was pro- prior post-conviction proceed tioner’s] in his refusal to refusing participate ceeding, petitioner in the current lit- igation of his claims.” response, petitioner’s an affi- counsel submitted day deposition, petitioner stating had ofthe
davit objections petition, caus- to the amended clarified one of peti- ing he had misunderstood counsel to conclude that position petition amended. and that the should be tioner’s delay According petitioner’s counsel, wanted to deposition to discuss amend- to allow them more time petition. contended that even ments to the Petitioner also discovery occurred, that a violation had the court concluded appropriate case,” in this “is not the sanction dismissal payment for the court that a lesser such as imposed. reporter’s ask for Petitioner did not time, should be finding. suggest any particular that a did he to the court Nor legal amount to error. failure to make would hearing dismiss, At the on the motion petition. again He also that he needed to amend his stated [the refusing deposed that, “if assis- to be and stated denied attorney deposed general] me[,] I would have tant have would
proceeded.” petition court dismissed
The delayed prejudice. “has The court found with years. proceedings post for almost two conviction his own participate knowledge [Petitioner] that refusal to [Peti- proceedings in dismissal of his case. could result deposition.” participate tioner] The court in his chose not to argued although petitioner explained had not that he *5 participate deposition, transcript, [peti- in “the refused to his attorney’s [petitioner’s] past history tioner’s] statement, and treating request delay for further as a refusal is show his [is] unreasonable, not and well-founded under the circum- stances.” appeal, petitioner
On contends that the trial court dismissing petition. procedural matter, erred in his As a he findings required argues support the that the court failed to make respect dismissal as a sanction.1 With to the merits of petitioner decision, the court’s contends that the court erred was not warranted under the circum- because dismissal argues begin with, he did not stances. Petitioner actually participate deposition, simply in refuse to the but finding time, more and that the court’s to the con- any trary supported by event, is not evidence in the record. In argues, justified construing even if the court was in deposi- participate time as a refusal impose and tion, its decision to the “ultimate sanction” dis- opposed imposing sanction, case, miss the as some lesser (1) justified. We conclude that failed to argument required preserve his that the court was to make peti- specific findings in of its decision to dismiss (2) choosing tion and the court did not err in dismissal as a sanction. post- begin question
We with the whether explain by failing conviction court erred to make argues why imposing it was not a lesser sanction. Petitioner P2d 1196 Victoria, under (1994), imposing the trial court erred as a matter oflaw making findings sanction of dismissal without first appropriate. or Defen lesser sanctions were not available preserve argu responds failed to dant agree ment. We with defendant.
that he refused to be ings review of the motion to order address the ORAP that dismissal was the correct Petitioner dismissing 5.45(3). dismiss, analysis underlying pertinent Here, actually “assigns the third deposed, complaint. ruling. assignment (2) Because the first two noncompliance to the error” post-conviction court’s of error is (1) to the with that rule has not (3) post-conviction to the assignments only proper assignment. court’s failure to ruling of error on defendant’s court’s impeded merely court’s find See our that if a who has party 46 D provides, part,
ORCP deposi- fails to for his appear served with notice proper been may on motion pending “the court in which the action is tion, just, to the failure as are includ- regard make such orders in action authorized under may any others it take ing among B(2) (c) B(2)(a), (b), pro- of this rule.” ORCP 46 subsection vides, part: * * * obey provide per- an order to or “If a fails to * * * pending the action discovery,
mit may the court which just, the failure regard make such orders in others, including among following: “B(2)(a) regarding An order that the matters which designated the order was made or taken to other facts shall be *6 purposes established for the of the action in be order; party obtaining accordance with the claim of the “B(2)(b) An refusing order to allow the disobedient defenses, party prohibiting oppose designated or claims or or party introducing desig- the disobedient from evidence; nated matters in
“B(2)(c) An
striking
pleadings
parts
order
out
or
thereof,
staying
or
proceedings
further
until the order is
obeyed,
dismissing
thereof,
or
part
action or
or
rendering
party[.]”
judgment by
against
a
default
the disobedient
Pamplin,
Court held that a court
Supreme
B(2)(c)
under
dismisses a case as a sanction
ORCP
“must make
of fact and must
that sanc
explain why
willfulness,
faith,
tion is
that a
bad
or fault of
‘just’;
finding
a similar
on the
of the disobedient
is
degree
part
party
seeking
and that a
required;
prejudice
at 437. The
recovery is not
319 Or
court observed
required.”
a court
or
that, although
ordinarily “may”
special
gen
of a
for
special findings,
eral
the absence
B(2)(c)
“the
ORCP 46
is a ‘situa
sanction of dismissal under
tion in
are a
special findings
prerequisite
meaning
which
”
Id.
Mattiza v.
ful
court.’
by
appellate
(quoting
review
(1990)).
Foster,
1, 10,
311 Or
We We does require imposi- trial courts to set forth the rationale for the discovery tion of sanctions for violations. We nevertheless position complain concluded that the defendant was in no stage proceed- about the lack of at that late in the ings. explained reasoning following We our terms: preservation regarding generally require
“Rules
that an
objection be raised earlier rather
than later. McEwen v.
Pharmaceutical,
421,
Ortho
P2d
(1974).
policy
underlying
One of the
reasons
such a rule of
preservation
positions
parties
is to ensure that
of the
presented clearly
parties
to the lower court and that
are
opportunity
particular argument.
not denied the
to meet a
(1995).”
O’Brien,
729, 737,
Davis v.
(2002), similarly arguments predicated we concluded that Pamplin subject ordinary preservation. are to rules of In that plaintiff compel production case, the moved to of documents previous comply and for sanctions for failures to with discov- ery requests. The trial court ordered the defendants to com- ply that, and further ordered if the documents were not timely produced, it defense. would strike an affirmative comply, When the defendants did not the trial court entered striking then filed a an order the defense. The defendants asking impose reconsideration, the court to motion for motion, the and the lesser sanction. The trial court denied appealed. defendants argued appeal,
On trial the defendants that the striking court’s the affirmative ran order defense afoul Pampliris requirement. We concluded that the defen- preserve argument. Citing to Harris, dants had failed failing we noted that the trial court “cannot be faulted Budden, make such one no them.” emphasized that, at Harris, 528. We noted in we had policy preservation, the reasons that underlie the rule of ensuring including positions pre- parties that the of the clearly give sented lower court the need to the trial opportunity courts a fair case,” to avoid the error. also in “So this argue continued, we the “defendants failed to to the Pamplin required any particular trial court that it make findings. they If had but done the court could either appropriate findings imposed have made the or different sanctions.” Id. they
The defendants Budden insisted that had responded done inso their motion for reconsideration. We assuming may even issue be raised for the first “merely reconsideration, time on the defendants’ motion nothing asked the court for a lesser sanction. It said about the requiring any particular findings.” law the court to make Id. Accordingly, at 528-29. we concluded that the defendants preserve failed to their contention that the trial court failing appropriate findings. erred in Id. squarely controlling
Harris and Budden are refusal here. In response petitioner’s participate discovery, opposed defendant moved to dismiss. arguing appropriate motion, Petitioner (among things) other “dismissal is sanction in this case.” Nowhere in opposition papers argument or in his court, to for trial how- any particular ever, is there mention of need find- ings. suggestion Nowhere is there the remotest that the trial legal failing court would commit error in to make them. very presents problems This case thus that we troubling particular, found so Harris and Budden —in the fact that the trial could have addressed parties timely issue had the it. If raised argued Pamplin requires this case had the court make explicit findings availability sanctions, as to the of lesser *8 given opportunity error. have a fair failed to avoid
court would been preserve argument the We conclude that required explicit findings that the trial court was to availability of sanctions. the lesser is
The dissent contends that our reliance on Harris suggesting misplaced that and that Budden was incorrect preservation apply requirement trial rules to the the of imposing of the sanction courts must make before According lim- dissent, to the Harris stands dismissal. requirement may proposition As we that the be waived. ited explicitly principles of noted, however, Harris relied have preservation underlying policy a rule and “the reasons such App preservation.” of 161 Or at 10. We relied on the same noting among important Budden, rationale in rationales providing preservation trial for the rule of App opportunity Budden, error. 181 Or court with an to avoid at 528. acknowledges case, this
The dissent post-conviction opportunity avoid court would have had findings. Nevertheless, it error if failing findings, petitioner merely by to ask for insists that right to issue have waived” his raise the “cannot be said to 13.10(7) contrary. Our rules are to the See ORAP now. own (“A objection, request findings petition, party’s in a failure to * * * any objection reply or constitutes a waiver decision.”). the court’s absence As we the merits of the court’s decision. We turn to improper petitioner argues noted, that dismissal was have because deposed actually because, he did not refuse to be a sanction and was too harsh event, dismissal pay impose obliged “such as court was lesser reporter’s [for] time.” ment the court court’s We review the merits of v. of discretion. Phan dismiss for an abuse decision to (2003). App 633, 60 We review Morrow, 628, P3d to determine court’s factual by they supported in the record. Gable State evidence Oregon, 739, den, 341 712, 126 P3d rev (2006). petitioner’s request for The trial court’s deposed more time constituted a refusal to be on the date supported scheduled is in the record. evidence Petitioner acknowledged deposition ready at the he feel did “not *9 deposed” postpone. post- be Moreover, and wanted to petitioner’s conviction court viewed conduct in the context of having “delayed post proceedings his own for his conviction years.” almost two The court’s view of conduct by supported petitioner likewise petition refusing record: filed first his January for and, relief 2002 after proceed to trial because of dissatisfaction with the pleadings deposed action, his first he refused to be May scheduled in 2004, his refiled action in more than two years ground later, on the that he was still dissatisfied with operative petition. his content of The ample court could infer that had had time petition intentionally causing amend his and that he was delay. hearing Indeed, needless at the on defendant’s motion petitioner complained trying to dismiss, when that he was get petition amended, the court noted opportunities Accordingly, ‘had several to do that.” we con- adequate support post- clude that the record contains for the findings regarding peti- conviction court’s the willfulness of light findings Moreover, tioner’s conduct. of its willfully attempting delay proceedings, was doing nearly years, and had been sion to dismiss the so for two the court’s deci-
petition was not an abuse of discretion. Affirmed. dissenting.
ORTEGA,
J.,P.
agree
majority’s analysis, except regard-
I
with the
ing preservation
findings
the issue of
of the
my
requiring
view,
sanction of dismissal. In
a sanctioned
only
appropriate
not
to raise
the issue
sanction
findings
majority
issue,
but also to
as the
Supreme
interpre-
does, is inconsistent with the
Court’s
Accordingly,
post-
tation of ORCP 46.
I would hold that the
indicating
by failing
findings
conviction court erred
to make
why
required
dismissal,
sanction,
rather than a lesser
was
findings.
and would remand for the court to make
429, 437, 877 P2d
Victoria,
(1994), Court noted
Supreme
impossibility
a sanction under
of dismissal as
assessing
propriety
the facts on which the trial
knowing
ORCP 46 B without
both
“analytical process” through
and the
court based its decision
dismissal,
decided
not some lesser
which the trial court
The
explained:
appropriate.
impor-
context,
“In
this
noted the
a similar
court has
by
‘meaningful
appellate
for
review
tance of
(1990).
10,
Foster,
P2d 723
court.’ Mattiza v.
fees
ORS
attorney
involved an award of
under
Mattiza
20.105(1).
require
expressly
does
Although that statute
required,
this court held that
findings,
reasoning:
“
a request
special
in the absence of
‘Although,
“may”make
spe-
of the
the court
parties,
one
A,
the award of attor-
general findings,
cial or
ORCP
20.105(1) is a
in which
ney fees under ORS
situation
review
special findings
prerequisite meaningful
are a
*10
omitted).
(citations
by
Or at 10
appellate
an
court.’ 311
Mattiza,
“Here, as in
the sanction of dismissal under
B(2)(c)
special
a
in which
are
ORCP 46
is
‘situation
by
appellate court.’
meaningful review an
prerequisite
a
* * *
sanction,
imposing
of
that
an
propriety
To assess the
(1)
facts
needs
know
the historical
on
appellate court
it and
impose
decision to
which the trial court based its
(2)
by
the trial court concluded
analytical process
the
which
those facts and in view of
‘just’
is
in view of
that dismissal
sanctions that are available.”
the other
omitted).
(footnote
thus distin-
In SAIF (1999), den, exception Or 527 we identified rev sanctioned we a general Pamplin: rule of concluded consider to have the trial court had waived party right differently, stat- reads Harris majority sanctions. The lesser rec- findings requirement the special that “we held ing rules of waiver and is to basic subject in Pamplin ognized preservation.” App although at However, 23-24. preservation principles support Harris of referred its analysis, holding phrased was in terms of waiver: “We delay, right conclude her defendant has waived the appeal raise the issue the trial failed to con- a sider less severe sanctions and that it failed to make App of of‘willfulness’ order default.” Or at 11. Framing preserva- simply waiver, as issue (And, pres- simply tion, had been a deliberate. Harris surely good case, ervation a of we could have saved deal dis- much.) by saying explained cussion as We Harris findings, requiring cases, line of earlier all remand for predicated concept meaning- “were on the that to allowfor ful review of the the trial court should have the opportunity proper decide, criteria, first under the what appropriate Here, is an because we sanction. we donot reach that issue right later, discuss defendanthas her waived require trial courtto undertake that consideration.” (emphasis original). Id. at 10 n 13 words, other Harris party properly concluded if a raises the of issue sanc- tions, then the trial court must make about the appropriate sanction. That conclusion consistent with Pamplin, gives and it no to the idea that a sanctioned party specifically request findings. must
Subsequently,
Dykstra,
in Budden
(2002),
pres-
requiring
523,
Pamplin’s that, a statements of whether findings findings “special prerequisite made, are a to for meaningful appellate at an court.” review omitted). (internal quotation marks Here, court raised opposition appropriate to defen- the issue of the sanction. dismiss, he was too dant’s contended dismissal motion that he had if the concluded severe sanction deposed, a lesser sanction should be considered. refused to be The majority is correct had find- opportu- ings, court would have nity findings although its failure to make that lack avoid — meaningfully findings leaves unable review and iden- us tify any regarding itself. 209 Or at error the sanction waived Nevertheless, 25-26. cannot be said have imposition right appellate review of propri- regarding us instructs meaningful ety appellate prerequisite to are a of the sanction requested. regardless have been review, of whether post- Accordingly, 436. I would remand allow at regarding lesser court make whether conviction sanctions would suffice. respectfully
I dissent.