Stauffer v. Oregon Citizen's Alliance Educational Foundation

153 P.3d 138, 211 Or. App. 11, 2007 Ore. App. LEXIS 241
CourtCourt of Appeals of Oregon
DecidedFebruary 14, 2007
Docket0010-10557; A123221
StatusPublished

This text of 153 P.3d 138 (Stauffer v. Oregon Citizen's Alliance Educational Foundation) 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
Stauffer v. Oregon Citizen's Alliance Educational Foundation, 153 P.3d 138, 211 Or. App. 11, 2007 Ore. App. LEXIS 241 (Or. Ct. App. 2007).

Opinion

EDMONDS, P. J.

Defendants Oregon Citizen’s Alliance Educational Foundation, Lon Mabon, Bonnie Mabon, Opal Van Kommer Foundation, United States Citizen’s Alliance, Yes on 9 Committee, BJM Technical Support, and Oregon Citizen’s Alliance PAC, Inc. (defendants) appeal the trial court’s entry of a money judgment against them following an order of default. ORCP 69 B(2). On appeal, defendants make two assignments of error. First, they argue that they were denied due process of law when the trial court struck their pleadings for discovery violations that had been cured. Second, they argue that “no evidence supports a finding that plaintiff was damaged by defendants.” We affirm.

In 1992, plaintiff obtained a money judgment against other related defendants in an action in Multnomah County Circuit Court. In October 2000, plaintiff filed the instant case, alleging that defendants had fraudulently transferred assets in order to avoid paying the earlier judgment. The trial court found that plaintiff filed a request for production of documents on February 23, 2001, and that defendants failed to provide documents in response or otherwise respond to this request, and failed to appear for their scheduled depositions. Plaintiff, on August 14, 2001, filed a motion to compel production and for sanctions, and a hearing on the motion was held on August 20, 2001, at which defendants were present. The trial court granted the motion to compel and orally ordered defendants to produce the discovery documents on August 27, 2001, and to appear for depositions on August 31, 2001. The dates and times were set in part according to defendants’ wishes. A written order compelling discovery was signed on March 22, 2002, nunc pro tunc to August 20, 2001.

On September 4, 2001, plaintiff filed a motion to strike defendants’ pleadings, to hold defendants in contempt of court, and for other sanctions. The motion alleged that defendant Lon Mabon had telephoned plaintiffs counsel on the morning of August 27,2001, and stated that he would not provide discovery and would not appear for depositions on August 31, and that he acknowledged that he knew he was defying the court’s order.

[15]*15The trial court held a hearing on plaintiffs motion on September 6,2001, at which defendants failed to appear. The trial court made the following record:

“THE COURT: I already noted on the record that I asked the judicial assistant to call the Mahons in regard to their not being here.
“Would you go ahead and report the substance of that conversation?
“THE JUDICIAL ASSISTANT: Sure. I spoke with Lon Mabon. He identified himself. I asked why he wasn’t present for the hearing set for 10:30 this morning.
“And he said that he questioned the jurisdiction, that that has not been addressed, the jurisdiction of the Court. And he questions the validity of [the trial court judge] in his position and the validity of the oath he has taken.
“And that was his reply.”

Thereafter, plaintiff asked the trial court to find that defendants had shown bad faith and willfulness and that the sanction of striking their pleadings was appropriate under Pamplin v. Victoria, 319 Or 429, 877 P2d 1196 (1994). The trial court ruled:

“In terms of sanctions, striking pleadings, the cases tell us[,] is a sanction that should be administered in the most serious case situations, egregious failures to comply with the order to compel. This is all set in the discovery situation.
“And here we have a trial date coming up next month, the middle of next month. And I accept counsel’s representation that there has been no discovery to this point. There certainly isn’t any indication of it in the file. And from our past hearing, there wasn’t any indication by [defendants’ former counsel] or the Mahons that anything had been done.
“An aggravating factor here is the relationship to the trial date, the fact that the defendants are failing to appear today to state their case, and indicating at least on the telephone they have no intention to appear or follow through.
“And I don’t think there is any alternative but to impose the sanction of striking the pleadings.”

[16]*16The trial court’s written order granting the motion to strike defendants’ pleadings was signed and entered on September 20, 2001.1 That same day, defendants filed a notice of removal of the case to federal district court. The case was later returned from federal court to the trial court. After undergoing contempt proceedings, defendants eventually produced the discovery documents and were deposed in March 2002. The order striking the pleadings was amended by the trial court on June 14, 2002, to strike “all past, present and future pleadings.”2 Apparently, on September 24, 2002, plaintiff moved for an order of default, a motion that is reflected in an order of March 27, 2003. In that order, the trial court ruled that:

“In response to plaintiffs motion for default judgment, defendants effectively ask the court to vacate the order striking defendants’ pleadings. While it is true that defendants Lon Mabon and Bonnie Mabon agreed to be deposed and, in fact, were deposed, that action did not happen in a vacuum. It must be considered in the context then existing. Defendants’ failure to comply had been unlawful and contemptuous. It was so egregious in the circumstances that the sanction of incarceration was imposed. The participation in depositions in this case was clearly calculated to obviate the basis for a continuing incarceration sanction in the old case. This is not the case of the contemnors voluntarily and in a timely manner correcting their behavior and then asking in good faith for some consideration for the change in behavior. The time and cost to plaintiff in delay and the obstruction of the orderly conduct of the court’s business remain. There is no reason to believe that but for the incarceration sanction in the 1991 case defendants would have complied.
“There is no compelling reason to vacate the order striking defendants’ pleadings.”

A money judgment against defendants was entered on November 7, 2003, and this appeal followed.

[17]*17In their first assignment of error, defendants argue that they were denied due process of law when their pleadings were struck for a discovery violation that had been cured. Defendants assert that,

“in light of the fact that no defendant was given an adequate opportunity to respond to plaintiffs motion to strike pleadings and no defendant other than Lon Mabon was even given notice of plaintiffs motion, due process requires that respondents be given an opportunity to respond to plaintiffs motion.”

In their pleading in opposition to plaintiffs motion for a judgment of default, however, defendants argued that

“Normally, the sanction of striking pleadings is imposed for discovery violations that cannot be remedied, such as when discovery orders have been disobeyed up to the scheduled day of trial. It is rare, if not unprecedented, for this sanction to be imposed after the complained of discovery violation has been fully remedied, as it has been in this case.

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Related

Pamplin v. Victoria
877 P.2d 1196 (Oregon Supreme Court, 1994)

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Bluebook (online)
153 P.3d 138, 211 Or. App. 11, 2007 Ore. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stauffer-v-oregon-citizens-alliance-educational-foundation-orctapp-2007.