Union Lumber Co. v. Miller

328 P.3d 1284, 263 Or. App. 619, 2014 WL 2769188, 2014 Ore. App. LEXIS 815
CourtCourt of Appeals of Oregon
DecidedJune 18, 2014
Docket100746539; A152241
StatusPublished
Cited by3 cases

This text of 328 P.3d 1284 (Union Lumber Co. v. Miller) 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
Union Lumber Co. v. Miller, 328 P.3d 1284, 263 Or. App. 619, 2014 WL 2769188, 2014 Ore. App. LEXIS 815 (Or. Ct. App. 2014).

Opinion

SERCOMBE, J.

Defendants appeal an order denying their motion to set aside a judgment in favor of plaintiff. The judgment, which awarded plaintiff damages, was entered following an arbitration that was conducted without defendants’ participation. Among other things, defendants assert that their absence from the arbitration and the consequential judgment in plaintiffs favor occurred as a result of mistake, surprise, or excusable neglect, as well as the misconduct of plaintiffs attorney. Accordingly, defendants assert the trial court erred in not setting aside the judgment under ORCP 71 B.1 Because we agree with defendants that the judgment was entered as a result of mistake, we reverse and remand.2

We liberally apply ORCP 71 B(l) so as to avoid the deprivation of a party’s day in court “when it can be done without doing violence to the regular disposition of litigation.” National Mortgage Co. v. Robert C. Wyatt, Inc., 173 Or App 16, 23-24, 20 P3d 216, rev den, 332 Or 430 (2001). Although we are bound by the court’s factual findings on a motion brought under ORCP 71 B(l) if they are supported by any evidence, Or Const, Art VII (Amended), § 3, one aspect of the liberal construction of the rule is that we view “the facts in the light most favorable to the party seeking relief [621]*621from the default.” Saldivar v. Roberts, 240 Or App 371, 375, 246 P3d 91 (2011). We set out the facts consistently with those principles.

Plaintiff owns and operates building supply stores in northeast Oregon. In June 2002, defendant Ron Miller entered into an open account agreement with plaintiff for building supply purchases. In July 2010, plaintiff brought an action on that account against defendant Ron Miller and his wife, defendant Linda Miller, for the cost of goods purchased by defendants’ son, Ean Miller. The complaint in Union County Circuit Court Case No. 100746539 set out claims for breach of contract and unjust enrichment, alleging that Ean Miller purchased building supplies at plaintiffs stores, charging the cost of the purchases to the account with his father’s authority, and that the materials were used to improve defendants’ properties in Union County. The complaint sought $17,865 in damages as the “current unpaid balance on Defendant Ron Miller’s account.” The complaint was personally served on defendant Linda Miller at the Millers’ home in Burlington, Wisconsin, on August 3. Substituted service was obtained on her husband at that location in November 2010.

Each defendant sent a “power of attorney” to plaintiffs attorney, appointing Ean Miller as “my true and lawful attorney * * * to answer the complaint filed in Case No. 10-07-46539 * * * hereby ratifying and confirming all that my attorney lawfully does or causes to be done by virtue hereof.” On August 30, Ean Miller filed the powers of attorney and defendants’ answer and counterclaim with the court. The answer asserted that the purchases were by Ean Miller and not to his father’s account or for his parents’ benefit. The counterclaim pleaded that collection on the debt was stayed by the filing of Ean Miller’s voluntary bankruptcy petition. The pleading was signed by “Ean Miller P.O.A.” and identified “Defendant’s Address” as “2816 N 2nd St., La Grande, OR 97850.”

The court referred the case to mandatory arbitration on March 2, 2011. See ORS 36.405(l)(a) (requiring referral for civil actions “where all parties have appeared” and the only relief claimed is damages in an amount not [622]*622exceeding $50,000). The court appointed Glenn Null as the arbitrator of the case. The notice of that appointment shows that it was copied to Jonel Ricker (plaintiffs counsel) and to “Ron Miller, etal [sic].” Later, the arbitrator sent letters to Ricker and to “Ean Miller POA,” notifying them of potential hearing dates, the rates of his charges for services, and the time and place of the hearing. Those letters were sent to Ean Miller at the North 2nd Street address set out in defendants’ answer to the complaint. Ricker sent his prehearing statement of proof to Ean Miller at that same address.

The arbitration hearing occurred on May 26, 2011. Defendants did not appear or participate in the hearing. The arbitrator issued a “decision and arbitration award” the next day, again mailing a copy of the decision to Ricker and to “Ean Miller POA” at the North 2nd Street address. The decision notes that evidence was received and testimony taken at the hearing, plaintiffs exhibits and prehearing statement of proof were considered, and that “the bankruptcy defense [is] ineffective for Defendant because Defendant is not under bankruptcy protection.” The arbitrator also found that “Ean Miller is not an attorney licensed to practice law in the State of Oregon” and granted “Plaintiffs oral motion to dismiss Defendant’s Answer” on the grounds that “Ean Miller is not authorized by Oregon law” to file a pleading on defendants’ behalf. The decision concludes with an award that, “[hjaving heard the motions and testimony and fully reviewing the evidence received [,] it is the conclusion of this arbitrator that Plaintiff prevails on both claims for relief.”

On June 16, 2011, plaintiffs counsel prepared and filed with the court a proposed judgment, attorney fee petition, and cost bill, serving copies of those documents on Ean Miller by mail to the North 2nd Street address. The court signed the judgment on July 14. Defendants learned of the judgment from their son shortly thereafter.

Defendants retained counsel and moved to set the judgment aside under ORCP 71 B. Defendants argued three grounds for relief: (1) mistake, inadvertence, surprise, or excusable neglect in failing to appear at the arbitration hearing; (2) misconduct by plaintiffs counsel in failing to send pleadings, notices, and correspondence to them as required [623]*623by court rules; and (3) that the judgment was void because it was taken by default without notice to defendants and because notice of the arbitration hearing had not been posted as required by ORS 36.420(1).

More specifically, defendants and Ean asserted in their declarations that (1) the notices and pleadings in the case had been sent to Ean and not to defendants individually; (2) Ean’s authority to act on behalf of defendants was limited by the power of attorney to signing and filing their answer to plaintiffs complaint (“It was [our] intent to defend the remainder of this matter personally.”); (3) Ean changed his residence shortly after the answer was filed, filed a forwarding address with the post office, but never received documents related to the case until notice of the entry of the judgment was mailed to him; (4) after the case was filed, defendant Ron Miller called an employee of plaintiff, and “[s]he told me she was aware the allegations against me and my wife were false and I assumed that the case would be dropped”; (5) the building supplies had been charged to Ean’s account and had not been used to improve defendants’ properties; and (6) Ean’s debt to plaintiff for the purchased supplies had been discharged in his bankruptcy.

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Cite This Page — Counsel Stack

Bluebook (online)
328 P.3d 1284, 263 Or. App. 619, 2014 WL 2769188, 2014 Ore. App. LEXIS 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/union-lumber-co-v-miller-orctapp-2014.