Jerry C. REEVES, Plaintiff-Respondent,
Monty PLETT and Shieree Plett, et al., Defendants-Appellants.
Submitted February 16, 2017
County Circuit Court 16LT00515; Thomas J. Rastetter, Judge.
D. Ainsworth fled the brief for appellants.
Kathleen Marie Moura fled the brief for respondent.
Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
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
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
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.
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.
week later, landlord moved under ORCP 71 B(1)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
"2. [Landlord] was set for a 9:00 am trial on March 3,
2016. [Landlord's] clerk mistakenly calendared the ...