Submitted October 4, 2013.
C122592CV. Washington County Circuit Court. Michele C. Rini, Judge pro tempore.
Martin Allen Johnson filed the brief Pro se.
No appearance for respondent Mathew Tryee Johnson.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[271 Or.App. 308] NAKAMOTO, J.
Plaintiff, a self-represented litigant both in the trial court and on appeal, appeals a judgment dismissing his action for breach of contract and breach of fiduciary duty. Plaintiff contends that, after he timely filed a motion for default with all supporting documents needed for a default order against defendant, who had not appeared in the action, the trial court improperly failed to grant the motion and then erroneously dismissed his action for want of prosecution under UTCR 7.020(3). We conclude that the trial court erred when it rejected plaintiff's motion sua sponte for lack of a proposed order, because submission of such an order was not a requirement under any statute, court rule, or court order. Accordingly, the trial court lacked a basis to dismiss plaintiff's action for want of prosecution under UTCR 7.020(3), and we reverse.
The relevant facts are primarily procedural. Plaintiff is serving a sentence in state prison. In April 2012, plaintiff filed a civil action against defendant, his brother, alleging that defendant had coerced their mother into removing plaintiff as a beneficiary of her trust before her death in 2010 and that defendant was violating fiduciary duties as trustee of the trust. Plaintiff served defendant with the summons and complaint in May 2012. Defendant did not respond to or appear in the action.
In August 2012, the trial court issued a notice to plaintiff that the court would dismiss his action under UTCR 7.020(3) for want of prosecution unless he took appropriate steps to prosecute the action. As relevant, UTCR 7.020(3) provides that,
" [i]f proof of service has been filed and any defendant has not appeared by the 91st day from the filing of the complaint, the case shall be deemed not at issue and written notice shall be given to the plaintiff that the case will be dismissed against each nonappearing defendant for want of prosecution 28 days from the date of mailing of the notice unless one of the following occurs:
" (a) An order of default has been filed and entry of judgment has been applied for."
[271 Or.App. 309] Plaintiff then timely filed a combined motion for an order of default and a judgment by default, with supporting documents. However, plaintiff did not include a proposed order of default. The court did not act on the motion, apparently because there was no order for the judge to sign or supporting documents. Thereafter, on October 31, 2012, the court entered a general judgment of dismissal for failure to prosecute the action under UTCR 7.020(3).
On appeal, plaintiff argues that the trial court erred, because he " clearly had filed a Motion for Default [under] ORCP 69 with an affidavit under oath *** and supporting documents in Exhibits pages 1 to 135[.]" Plaintiff further contends that, " [w]hen a trial court purports to act under the UTCRs, it must follow them," citing Francke v. Gable, 121 Or.App. 17, 20, 853 P.2d 1366 (1993). Plaintiff also argues that the default " should have been granted as a simple matter and course of ...