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Reeves v. Plett

Court of Appeals of Oregon

April 19, 2017

Jerry C. REEVES, Plaintiff-Respondent,
v.
Monty PLETT and Shieree Plett, et al., Defendants-Appellants.

          Submitted February 16, 2017

         Clackamas County Circuit Court 16LT00515; Thomas J. Rastetter, Judge.

          Harry D. Ainsworth fled the brief for appellants.

          Kathleen Marie Moura fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case summary: Plaintiff landlord brought this forcible entry and wrongful detainer action to recover possession of residential premises that he rented to defendant tenants. Landlord did not show up for trial at the time it was scheduled. The trial court waited 33 minutes and then entered a judgment dismissing the case. Landlord fled a motion to set aside the judgment under ORCP 71 B(1) on the ground that the failure to appear at trial resulted from "mistake, inadvertence, surprise, or excusable neglect, " and the trial court entered an order setting aside the general judgment of dismissal. Tenants now appeal that order, assigning error to the trial court's conclusion that landlord presented legally suffcient evidence to permit the court to set aside the judgment under ORCP 71 B(1). Held: Landlord's evidence did not suffce to meet his burden of establishing that landlord had a reasonable excuse for failing to appear at trial. Accordingly, the trial court erred in concluding that landlord established excusable neglect.

         Reversed and remanded.

          LAGESEN, J.

         Plaintiff landlord brought this forcible entry and wrongful detainer (FED) action to recover possession of residential premises that he rented to defendant tenants. See ORS 105.110; ORS 105.124. When landlord did not show up for trial, the trial court waited 33 minutes and then entered a judgment dismissing the case. Later, on landlord's motion under ORCP 71 B(1), the trial court entered an order setting aside that judgment of dismissal on the ground that it resulted from "mistake, inadvertence, surprise, or excusable neglect." Tenants appeal that order, asserting that the trial court erred in concluding that landlord's showing of "mistake, inadvertence, surprise, or excusable neglect" was legally sufficient under ORCP 71 B to permit the court to set aside the judgment. We agree and reverse.[1]

         ORS 19.205(3) gives us jurisdiction over this appeal. MarvEbel Johnson. P.C. v. Elmore. 221 Or.App. 166, 169, 189 P.3d 35, rev den, 345 Or 301 (2008) (holding that an ORCP 71 B order setting aside a judgment is appealable under ORS 19.205(3)). The pertinent facts are procedural and not disputed. Landlord brought this eviction action under ORS 90.427(3) to evict tenants from residential real property. After the initial hearing, the trial date was set over once at the request of tenants and then, at landlord's request, it was again set over to March 3 at 9:00 a.m. The court sent written notice of the trial date and time to both parties by mail. The day before trial, the court left telephone messages with the lawyers for both parties reminding them of the upcoming trial.

         On the day of trial, neither landlord nor landlord's lawyer appeared at 9:00 a.m. When, 33 minutes later, there was still "no sign of [landlord] or his attorney, " the trial court entered a judgment dismissing the case and permitting tenants to file for attorney fees under ORCP 68.

         One week later, landlord moved under ORCP 71 B(1)[2]to set aside the judgment of dismissal. He argued that he had missed the trial date due to "excusable neglect" within the meaning of the rule and asked the court to set aside the judgment. The evidence in support of his claim of excusable neglect consisted, in its entirety, of the following three paragraphs contained in a declaration from his lawyer:

"1. I am the attorney representing [landlord] and make this Declaration in support of his Motion to Set Aside Dismissal of Complaint and Judgment and Motion to Reset Trial Date.
"2. [Landlord] was set for a 9:00 am trial on March 3, 2016. [Landlord's] clerk mistakenly calendared the ...

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