JOHNSON & LECHMAN-SU, P.C., a professional corporation, Plaintiff-Respondent,
Gayle Anne STERNBERG, Defendant-Appellant
Submitted March 6, 2015
Multnomah County Circuit Court 120302944. Youlee Y. You, Judge.
Gayle A. Sternberg filed the briefs pro se.
Richard A. Weill filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[272 Or.App. 244] NAKAMOTO, J.
Plaintiff, law firm Johnson & Lechman-Su, PC, filed this action in 2012 to foreclose on a personal property lien to collect its unpaid attorney fees from defendant Sternberg, its former client, for work performed in a marital dissolution action. Below, the trial court granted plaintiff summary judgment on its claim and entered a general judgment foreclosing plaintiff's lien, awarding plaintiff $61,725 plus prejudgment interest in the amount of $10,745, as well as plaintiff's attorney fees and costs. Sternberg appeals that judgment, arguing, among other things, that the trial court erred in granting plaintiff's motion for summary judgment. We reverse and remand.
The facts are entirely procedural. Lechman-Su, an attorney with the law firm, represented Sternberg in a dissolution action. Sternberg failed to pay the attorney fees associated with that action and, in 2011, she filed a malpractice action against Lechman-Su. Meanwhile, also in 2011, plaintiff filed a lien on, among other things, Sternberg's investment account, claiming an amount of $61,725 plus interest for the unpaid attorney fees and costs for Sternberg's dissolution action.
In 2012, plaintiff initiated this action to foreclose the lien on Sternberg's investment account. Sternberg, who was representing herself then, and is representing herself on appeal, asserted as a defense to payment that plaintiff and Lechman-Su had committed legal malpractice. On that same basis, she asserted a counterclaim for damages.
In the spring of 2012, the trial court in Sternberg's malpractice action entered a judgment dismissing all of her claims with prejudice under ORCP 21 A(8) (failure to state a claim) or ORCP 21 A(9) (untimely claim). Soon after that, plaintiff filed a motion for summary judgment in this case, asserting that it had properly filed its lien for payment of attorney fees and that it was entitled to a judgment in its favor given that Sternberg's malpractice action had been dismissed with prejudice. Specifically, plaintiff argued that, with
" all malpractice allegations removed from her Answer, [Sternberg] has failed to 'fairly meet the substance of the [272 Or.App. 245] allegations denied.' ORCP 19A . As a result, all allegations of the complaint should be deemed admitted. Once the affirmative defense (malpractice) has been removed by application of res judicata, this court could grant plaintiff judgment on the pleadings. [Sternberg] has failed to make any allegations to support any affirmative defense."
In May 2012, Judge Cook, who was originally assigned to hear the motion, granted plaintiff's motion for summary judgment. However, in July 2012, Judge Cook set aside the order granting summary judgment following Sternberg's motion for change of judge. In August, a second judge, Judge You, considered plaintiff's motion for summary judgment and held a hearing at which Sternberg was given the opportunity to present her argument.
At the hearing on the motion, the trial court asked Sternberg what legal defense she had to plaintiff's claim for attorney fees. Sternberg insisted that she had raised triable issues of fact in her response to plaintiff's summary judgment motion regarding her attorney's malpractice in the dissolution action. ...