UNION LUMBER CO., an Oregon corporation, dba Bronson Lumber Company, Plaintiff-Respondent,
RON R. MILLER and LINDA MILLER, Defendants-Appellants
Argued and Submitted September 13, 2013
Union County Circuit Court. 100746539. Russell B. West, Judge. (Order). Brian Dretke, Judge. (Supplemental Judgment).
Philip M. Wasley argued the cause for appellants. With him on the briefs was Wasley Law Office, P.C.
Jonel K. Ricker argued the cause for respondent. With him on the brief was Joseph & Ricker, LLC.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[263 Or.App. 620] 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 plaintiff's favor occurred as a result of mistake, surprise, or excusable neglect, as well as the misconduct of plaintiff's attorney. Accordingly, defendants assert the trial court erred in not setting aside the judgment under ORCP 71 B. Because we agree with defendants that the judgment was entered as a result of mistake, we reverse and remand.
We liberally apply ORCP 71 B(1) 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 P.3d 216, rev den, 332 Or. 430, 30 P.3d 1183 (2001). Although we are bound by the court's factual findings on a motion brought under ORCP 71 B(1) 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 [263 Or.App. 621] from the default." Saldivar v. Roberts, 240 Or.App. 371, 375, 246 P.3d 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 plaintiff's 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 plaintiff's 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 ...