L & A DESIGNS, LLC, an Oregon limited liability company, Plaintiff-Appellant,
Brian NAVARRO, an individual; and Northwest Truck and SUV Accessories, Inc., dba Northwest Running Boards, an Oregon corporation, Defendant-Respondents.
and Submitted August 26, 2015.
County Circuit Court CV13030115; Thomas J. Rastetter, Judge.
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.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
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.
HADLOCK, C. J.
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.
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).
filed a civil action against defendants in March 2013 that
included claims for breach of contract and promissory
estoppel. Defendants answered.
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.)
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.
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
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
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.
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.
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."
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
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 ...