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L & A Designs, LLC v. Navarro

Court of Appeals of Oregon

May 3, 2017

L & A DESIGNS, LLC, an Oregon limited liability company, Plaintiff-Appellant,
v.
Brian NAVARRO, an individual; and Northwest Truck and SUV Accessories, Inc., dba Northwest Running Boards, an Oregon corporation, Defendant-Respondents.

          Argued and Submitted August 26, 2015.

         Clackamas County Circuit Court CV13030115; Thomas J. Rastetter, Judge.

         Eric K. Helmy argued the cause for appellant. With him on the briefs was N.W. Business Law LLC.

          Charles J. Paternoster argued the cause for respondents. With him on the brief was Parsons Farnell & Grein, LLP.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary: Plaintiff appeals from a judgment dismissing a civil action. The trial court entered the judgment as a sanction after plaintiff twice failed to appear for scheduled settlement conferences. Plaintiff argues that the record does not support the trial court's determination that plaintiff's failure to appear at the second, rescheduled settlement conference was willful. Plaintiff also makes two unpreserved arguments. First, plaintiff contends that the trial court plainly erred by dismissing the action without holding a hearing; second, it argues that the court erred by dismissing the action without making findings on the record regarding how plaintiff's failure to appear was prejudicial. Held: Because the record amply supports the trial court's finding that plaintiff willfully failed to appear at the rescheduled settlement conference, the trial court did not err when it determined that plaintiff's failure to appear was willful and sanctioned plaintiff for it. Plaintiff's first unpreserved argument does not establish that the trial court plainly erred, and the Court of Appeals determined that it would not exercise its discretion to address plaintiff's second, unpreserved argument, even if that argument established plain error.

         Affirmed.

          HADLOCK, C. J.

         The first time that plaintiff failed to appear for a scheduled settlement conference in the civil action it had brought against defendants, the trial court imposed a $250 sanction. The trial court later rescheduled the settlement conference for a date in April 2014. When plaintiff failed to appear at the rescheduled settlement conference, the court dismissed the action. On appeal from the resulting judgment of dismissal, plaintiff argues that the record does not support the trial court's determination that plaintiff's failure to appear at the rescheduled settlement conference was willful. Plaintiff also makes unpreserved arguments that the trial court erred by dismissing the action without holding a hearing and without making findings on the record regarding how plaintiff's failure to appear was prejudicial. We affirm.

         Most of the facts we set forth below are procedural and undisputed. Where the facts are disputed, we describe them in keeping with the trial court's findings, to the extent that the record supports those findings. Cf. Uhde and Uhde, 260 Or.App. 284, 287, 317 P.3d 337 (2013), rev den, 329 P.3d 771 (2014) (where trial court sanctioned party for failing to comply with a discovery order, we reviewed to determine whether there was "evidence from which the trial court could find that" the party had failed to comply with the order).

         Plaintiff filed a civil action against defendants in March 2013 that included claims for breach of contract and promissory estoppel.[1] Defendants answered.

         In May 2013, the trial court issued notices stating that a settlement conference would take place on November 5, 2013, and that the case was set for trial in December 2013. The settlement conference notice stated that the parties and their trial attorneys were required to "be personally present at the settlement conference, unless excused in advance by the Court for good cause." (Underscoring in original.)

         The notices sent to plaintiffs counsel were returned as undeliverable. According to the Oregon Judicial Information Network, the court then updated the address for plaintiff's counsel "PER OSB" and-in July 2013-resent the notices of the dates for the settlement conference and trial.

         Neither plaintiff nor its attorney appeared in person for the November 2013 settlement conference, although the court eventually reached plaintiff's counsel by telephone. Defense counsel asked that the case be dismissed as a sanction for plaintiff's failure to appear. The court denied that request but entered an order awarding defendants $250 in attorney fees "to be payable by both Plaintiff and its attorney"; that sanction was "based on Plaintiffs failure to appear at the settlement conference."[2]

         In mid-November, the parties filed a stipulated motion to set over the trial, stating that the parties requested postponement "because they wish to have additional time to participate in a settlement conference." The trial was rescheduled for early March 2014. In mid-February 2014, the parties filed another setover motion, again emphasizing their desire to participate in a settlement conference. In the same motion, the parties asked that trial be set "to a date certain of April 30, 2014." The court granted that motion.

         On March 13, the court scheduled a settlement conference for April 8. The next day, plaintiffs counsel sent defense counsel a "Notice of Unavailability" in which he listed a range of dates-including both April 8 and April 16- on which plaintiff would not be available for a settlement conference. Plaintiff subsequently asserted that its lawyer had also filed that document with the court; however, the trial court register does not reflect that the document was filed at that time.[3]

          The trial court register reflects that, on April 7, the court rescheduled the settlement conference to April 16, two weeks before the scheduled April 30 trial. The pertinent register entry states "stipulated reset from 4/8, " but the record does not reflect the basis for that register entry.

         From April 8 through April 10, the parties' lawyers had an email exchange in which they discussed discovery issues and the advisability of seeking another postponement of trial. On April 9, plaintiff's counsel told defense counsel that he would prefer "to keep the current trial date" but that "one more reset is ok." Defense counsel responded on April 10, stating that he would be "happy to keep the settlement conference on April 16th as scheduled, " but observing that, "if past history is a guide, the Court will take off the April 16 conference and reschedule for later" (presumably he anticipated that the setover request would be granted). He also observed that rescheduling the settlement conference "might be preferable to [plaintiff's counsel] if [plaintiff] is still unavailable on April 16th."

         In keeping with that email exchange, the parties filed another stipulated motion to set over the trial date on April 11, yet again emphasizing their desire to participate in a settlement conference, and noting that the settlement conference was scheduled to occur on April 16:

"The parties by stipulation move to set over trial in this matter currently set for April 30, 2014 to allow the parties to participate in a Judicial Settlement Conference. A Judicial Settlement Conference was originally scheduled for February 7, 2014, but cancelled by the Court due to weather conditions. This settlement conference has now been rescheduled to April 16, 2014. The parties believe that the assistance of the Court at the settlement conference would be extremely helpful and may well result in resolution of the case. The parties further believe that a brief set-over of the trial date would increase the likelihood of settlement rather than the parties having to bear the time and expense of gearing up for trial under the current timetable. There have been two prior postponements."

(Emphases added.)

         That motion was unavailing. On April 14, a legal assistant with defense counsel's firm emailed plaintiff's counsel, stating that she had just spoken with the circuit court's calendaring clerk, who "advised * * * that the judge has DENIED the motion to continue the trial date and that everyone is expected to be at the ...


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