M. A. v. Mouktabis

487 P.3d 449, 311 Or. App. 750

• Court: Court of Appeals of Oregon
• Decided: May 26, 2021
• Docket: A172955
• Status: Published

Opinion

Submitted April 2, reversed and remanded May 26, 2021

M. A., Petitioner-Respondent, v. Nour Eddine MOUKTABIS, Respondent-Appellant. Clackamas County Circuit Court 18PO11790; A172955 487 P3d 449

Kathie F. Steele, Judge. Nour Eddine Mouktabis filed the brief pro se. Andrew W. Newsom waived appearance for respondent. Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge. PER CURIAM Reversed and remanded. Cite as 311 Or App 750 (2021) 751

PER CURIAM Petitioner obtained a restraining order against respondent under the Family Abuse Protection Act (FAPA). ORS 107.718. Respondent sought to have the FAPA order set aside under ORCP 71, alleging misrepresentation, fraud, and newly discovered evidence, among other things. Respondent requested an evidentiary hearing, or, in the alternative, oral argument on the motion. The trial court denied the motion without holding a hearing. Respondent appeals, assigning error to the trial court’s denial of his motion and request for a hearing. Although petitioner did not file a brief on appeal, petitioner did file a notice of probable mootness. Having con- cluded that the matter is not moot, we agree that respon- dent was entitled to a hearing on the motion to set aside the order. See UTCR 5.050(1); Zehr v. Haugen, 318 Or 647, 652, 871 P2d 1006 (1994) (“UTCR 5.050(1) requires a trial court to grant oral argument if it is requested in the form specified.”). We further conclude that the court’s error sub- stantially prejudiced respondent’s rights, and we therefore reverse and remand for further proceedings. Id. (holding that failure to grant oral argument under UTCR 5.050(1) is reversible error if it substantially affected the appellant’s rights); State ex rel Frohnmayer v. Bicar, Inc., 119 Or App 458, 461, 850 P2d 1163 (1993). Reversed and remanded.