Rains v. Stayton Builders Mart, Inc.

310 P.3d 1195, 258 Or. App. 652
CourtCourt of Appeals of Oregon
DecidedSeptember 25, 2013
Docket06C21040; A152100
StatusPublished
Cited by6 cases

This text of 310 P.3d 1195 (Rains v. Stayton Builders Mart, Inc.) 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
Rains v. Stayton Builders Mart, Inc., 310 P.3d 1195, 258 Or. App. 652 (Or. Ct. App. 2013).

Opinion

HADLOCK, J.

In the trial court, third-party defendant Weyerhaeuser Company moved, under ORCP 71 B(l)(c) and ORCP 71 C, to set aside several judgments against it, asserting that the judgments had been obtained through fraud on the court. The trial court denied the motions, ruling that the motion under ORCP 71 B(l)(c) was untimely and that the court lacked jurisdiction to hear the motion under ORCP 71 C because of a pending appeal. Weyerhaeuser appeals, challenging those rulings. We agree with both of the trial court’s challenged rulings and, therefore, affirm.

The facts material to our disposition of this appeal are not in dispute. Plaintiff Kevin Rains was a subcontractor on a project on which defendant Five Star Construction, Inc., was the general contractor. Rains was injured while working on that project when a board that he was walking on 16 feet above the ground broke, causing him to fall. Rains and his wife sued Five Star and Stayton Builders Mart, Inc. (Stayton), which had supplied the board.1 Stayton then filed a third-party complaint against Weyerhaeuser for indemnity.2 Plaintiffs later obtained default judgments against Five Star for a total of more than $18 million.

Plaintiffs’ claims against Stayton went to trial. The verdict form instructed the jury to apportion the fault between Weyerhaeuser, Stayton, and Rains if it found that plaintiffs had been damaged. Five Star was not included on the verdict form, either in the caption or in the apportionment instruction. The jury found that plaintiffs had been damaged in amounts totaling more than $9 million. It apportioned 45 percent of the fault to Weyerhaeuser, 30 percent to Stayton, and 25 percent to Rains.

The trial court later found for Stayton on its indemnity claim against Weyerhaeuser. It awarded Stayton $2 million.

[656]*656In May 2010, the court entered separate limited judgments on plaintiffs’ claims and Stayton’s indemnity claim. In July 2010, the court entered a limited judgment awarding plaintiffs their costs and disbursements, payable by Stayton and Weyerhaeuser. In January 2011, the court entered a general judgment in which it awarded Stayton its attorney fees in connection with the indemnity claim. Weyerhaeuser filed notices of appeal from each of those judgments, and the resulting appeal is pending in this court.

In February 2012 — more than a year after it had received notice of each of the judgments — Weyerhaeuser filed motions to set aside the judgments under ORCP 71 B(l)(c) and ORCP 71 C. Weyerhaeuser asserted that, the month before, it had learned of an agreement between plaintiffs, plaintiffs’ attorney, and Five Star that plaintiffs had not disclosed. That agreement included a covenant by plaintiffs not to execute upon their default judgments against Five Star. In exchange, Five Star had agreed to retain plaintiffs’ attorney to prosecute any claims it might have relating to Five Star’s liability insurance.3 The agreement further provided that, if Five Star recovered any money as a result of those claims, it would pay its litigation expenses, its sole shareholder would receive 10 percent of the amount remaining after those expenses were paid, and plaintiffs would receive the remaining 90 percent as satisfaction of their judgments against Five Star.

Citing ORS 31.815, Weyerhaeuser asserted that its share of the liability likely would have been reduced had the agreement been disclosed.4 In support of its motions to set aside the judgments against it, Weyerhaeuser contended that plaintiffs’ failure to disclose the agreement constituted fraud on the court and the other parties.

[657]*657The trial court denied the motions. It concluded that the motion under ORCP 71 B(l)(c) was untimely because more than one year had elapsed since Weyerhaeuser had received notice of the judgments. With respect to ORCP 71C, the court concluded that, because the appeal from the judgments was pending in this court, it lacked authority to grant the motion.

On appeal, Weyerhaeuser separately assigns error to the denial of each motion. We consider those assignments in turn. With respect to ORCP 71 B(l)(c), Weyerhaeuser acknowledges that the rule provides that a motion to set aside a judgment on grounds of fraud must be made “not more than one year after receipt of notice by the moving party of the judgment.” It argues, however, that ORCP 71 B(2) overrides that time limit by providing that a “motion under sections A or B may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court.” Weyerhaeuser contends that, under that provision, a motion to set aside a judgment may be made at any point during the time an appeal is pending. As context supporting that interpretation, Weyerhaeuser cites the original version of ORCP 71 B(2), under which a motion to set aside a judgment while an appeal was pending was expressly “subject to the time limitations of subsection (1) * * *.” Weyerhaeuser notes that that express limitation was eliminated in 1988. It concludes, “The fact that that reference to the one-year rule was deliberately removed from the current version * * * indicates a clear intent of the drafters of that rule that any motion brought pursuant to ORCP 71 B(l) could now be brought while an appeal is pending[.]”

Plaintiffs respond that the phrase “[a] motion under sections A or B” in ORCP 71B (2) means a motion that meets all of the terms of the applicable section, including the one-year time limit in section B(l)(c). They also contend that, if the one-year limit does not apply, Weyerhaeuser’s motion was defective because it was not accompanied by a pleading or motion under ORCP 21 A, as required by ORCP 71 B(l).

The parties’ arguments concerning the applicability of the one-year time limit in ORCP 71 B(l) call into question the meaning of subsection B (2). We construe the rules of civil [658]*658procedure using the same analytical method that applies to statutory construction. Gottenberg v. Westinghouse Electric Corp., 142 Or App 70, 73, 919 P2d 521 (1996). That is, we consider the text of the rule in context as well as any legislative history that we find useful and, if necessary, maxims of construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). Context includes other provisions and prior versions of the rule as well as related rules and statutes. Jones v. General Motors Corp., 325 Or 404, 411, 939 P2d 608 (1997). Our task in interpreting a rule of civil procedure is to discern the intent of the Council on Court Procedures, which promulgates the rules. Gottenberg, 142 Or App at 73; see also Waddill v. Anchor Hocking, Inc., 330 Or 376, 382 n 2, 8 P3d 200 (2000), adh’d to on recons, 331 Or 595, 18 P3d 1096 (2001) (“[U]nless the legislature amended the rule at issue in a particular case in a manner that affects the issues in that case, the Council’s intent governs the interpretation of the rule.”). To that end, the legislative history that we consider is generally the history of the proceedings before the council. A. G. v. Guitron, 351 Or 465, 479, 268 P3d 589 (2011).

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366 P.3d 390 (Court of Appeals of Oregon, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
310 P.3d 1195, 258 Or. App. 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rains-v-stayton-builders-mart-inc-orctapp-2013.