Decker v. Klapatch

365 P.3d 1169, 275 Or. App. 992
CourtCourt of Appeals of Oregon
DecidedDecember 30, 2015
Docket13DR0951RO; A155498
StatusPublished
Cited by5 cases

This text of 365 P.3d 1169 (Decker v. Klapatch) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Decker v. Klapatch, 365 P.3d 1169, 275 Or. App. 992 (Or. Ct. App. 2015).

Opinion

TOOKEY, J.

Petitioner appeals an order dismissing a restraining order that he had obtained under the Elderly Persons and Persons with Disabilities Abuse Prevention Act (EPPDAPA), ORS 124.005 to 124.040, against respondent.1 In his first assignment of error, petitioner asserts that the trial court erred by denying his motion for a continuance, which deprived him of the opportunity to present his only witness; in his second assignment of error, petitioner makes the related contention that the trial court erred by refusing to allow him to call his witness. We limit our discussion to the trial court’s denial of petitioner’s motion for a continuance, conclude that the court erred in denying that motion, and reverse and remand.

We begin with a brief overview of EPPDAPA, which allows an elderly person or a person with a disability who has been the victim of abuse to petition the trial court for relief from such abuse if “the person is in immediate and present danger of further abuse from the abuser.” ORS 124.010(l)(a). The petitioner has the burden of proving a claim under EPPDAPA by a preponderance of the evidence. ORS 124.010(2). The trial court is required to hold an ex parte hearing on the petition “on the day the petition is filed or on the following judicial day.” ORS 124.020(1). Upon a showing that the person with a disability has been the “victim of abuse committed by the respondent within 180 days preceding the filing of the petition and that there is an immediate and present danger of further abuse [,]” the court shall, if requested by the petitioner, grant relief for up to one year. ORS 124.020(1). The showing under ORS 124.020(1) may be made by the testimony of various persons, including “[w]finesses to the abuse.” ORS 124.020(3)(c). Within 30 days after a restraining order is served on the respondent, the respondent “may request a court hearing upon any relief granted.” ORS 124.020(9)(a).

In August 2013, petitioner filed a petition for a restraining order against respondent, his former landlord. [994]*994Petitioner had previously obtained a restraining order against respondent under EPPDAPA, but had failed to renew that order within the required time and thus sought another restraining order — the order at issue in this case. In his August 2013 petition, petitioner stated that he had disabilities relating to his speech, left leg, and right hand. He alleged that respondent had placed him in “fear of immediate serious physical injury” and that respondent had “used derogatory or inappropriate names, phrases or profanity, ridicule, harassment *** as to place [petitioner] in fear of significant physical or emotional harm.” According to the petition, respondent had “broken [the] current/expired [restraining] order numerous times” and had “continue [d her] harassment” of petitioner, such that the police were called “approximately] 19 times due to violations.”

After an ex parte hearing, as provided in ORS 124.020(1), the court found that petitioner was a protected person who had been abused by respondent, that the abuse had occurred within the last 180 days, and that petitioner was in immediate danger of further abuse. The trial court granted a restraining order, specifying that respondent be restrained from “abusing, intimidating, molesting, interfering with, or menacing” petitioner; from coming within 300 feet of his residence; or from contacting him by telephone or email.

After the restraining order was served on respondent, respondent requested a hearing under ORS 124.020(9); that hearing took place in October 2013. At the start of that hearing, the court stated, “Alright and just to let everyone know, we do have a block of four cases today so we do have limited time.” The court did not specify how much time petitioner, who appeared pro se, would have to present his case.

Petitioner testified first. He testified that his disabilities included breathing difficulties, a speech impediment, a largely nonfunctional left leg due to a military injury, and post-traumatic stress disorder. According to petitioner, respondent had, among other actions, attempted to run him over, followed him, and reported him to the police over 150 times. Petitioner also testified that he had audio and video evidence in support of his allegations against respondent [995]*995but that, due to problems with his computer, the audio and video files no longer existed.

In addition, petitioner told the court that he had a witness who was in the courtroom that day who would testify in support of his petition. Specifically, petitioner told the court that he had “a witness who will indicate [that respondent intimidated] us while crossing the street.” Petitioner made reference to the witness throughout his testimony, alerting the court to the significance of his witness, stating “I, I’m scared. I, I, I don’t have an abundance of evidence anymore. I, I do have one witness. That’s all I’ve got.” At the end of his testimony, when asked by the court if he had presented everything that he wished to present, petitioner answered, “Except for my witness.”

Respondent’s attorney cross-examined petitioner at length. Approximately halfway through the cross-examination, petitioner asked the court, “Can I call my witness before we close up or?” and the court responded, “I don’t know if you’re gonna have time for witnesses. I need to find out about their side.” Throughout the cross-examination, petitioner testified to the accuracy of his claims against respondent and testified that, because of respondent’s actions, petitioner was afraid for his safety. At the end of his cross-examination, the following exchange took place, in which the court denied petitioner’s motion to continue the case in order to allow him to call his witness:

“ [RESPONDENT’S COUNSEL]: * * * Well, no further questions.
“THE COURT: Alright. Thank you sir. You may step down.
“[PETITIONER]: Thank you Ma’am. Do I leave these here or is this, what do I do with this stuff?
“THE COURT: Those are [respondent’s attorney’s]? Alright, you can give those back to him. Alright and we are really out of time for this hearing. I know that. . .
“[RESPONDENT’S ATTORNEY]: We, we would move
[PETITIONER]: May I Judge, for a minute?
[996]*996“THE COURT: Well, let me address first, [petitioner]. Go ahead.

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Cite This Page — Counsel Stack

Bluebook (online)
365 P.3d 1169, 275 Or. App. 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decker-v-klapatch-orctapp-2015.