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Grudzien v. Rogers

Court of Appeals of Oregon

November 7, 2018

Richard E. GRUDZIEN and Christine A. Grudzien, husband and wife, Plaintiffs-Appellants,
v.
Larry ROGERS, an individual, Defendant-Respondent.

          Argued and submitted August 7, 2018

          Columbia County Circuit Court 16CV02654; Ted E. Grove, Judge.

          Mark D. Ropp argued the cause for appellants. On the brief was Jeremy R. James.

          No appearance for respondent Larry Rogers.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Plaintiffs, whose property adjoins defendant's property and is burdened by a private easement that gives defendant access to his property, fled a motion seeking remedial sanctions based on allegations that defendant had violated the terms of a stipulated judgment concerning the easement. In response, defendant fled an ORCP 71 (B)(1) motion to set aside the judgment, asserting that defendant had never in fact stipulated to the judgment. The trial court granted defendant's motion. Plaintiffs appeal, assigning error to the trial court's order vacating the judgment, arguing that defendant had stipulated to the judgment through his attorney, who had apparent authority to stipulate to the judgment on defendant's behalf. Held: Because defendant's attorney had apparent authority to stipulate to the judgment on defendant's behalf, including the terms enjoining the parties from engaging in certain behavior, the trial court erred when it set aside the judgment on the ground that the attorney lacked actual authority to agree to those injunctive terms.

         Reversed and remanded.

         [294 Or.App. 674] HADLOCK, P. J.

         Plaintiffs and defendant own adjoining properties. Plaintiffs' property is burdened by a private easement that gives defendant access to his property. In 2016, a dispute over the parties' uses of that easement led to litigation in which plaintiffs alleged that defendant had, among other things, improperly obstructed the easement and damaged plaintiffs' fencing and other property. The parties settled the dispute, and a stipulated general judgment was entered that awarded damages to plaintiffs. The judgment also included provisions for permanent injunctive relief, prohibiting the parties from engaging in certain specified conduct. Later, plaintiffs filed a motion seeking remedial contempt sanctions based on allegations that defendant had engaged in behavior that violated terms of the judgment. In response, defendant filed an ORCP 71 B(1) motion to set aside the judgment, which the trial court granted after a hearing. Plaintiffs appeal, assigning error to the trial court's order vacating the general judgment. For the reasons set out below, we reverse and remand.

         For purposes of the issues on appeal, the historic and procedural facts are undisputed except as noted below. With respect to the few disputed facts, we are bound by the trial court's express and implied factual findings, because the record supports them. Union Lumber Co. v. Miller, 360 Or. 767, 777, 388 P.3d 327 (2017).

         As noted, plaintiffs and defendant own adjacent properties. Plaintiffs' property is burdened by a 60-foot easement that runs along the border of plaintiffs' property, giving defendant access to his property. Following a dispute between plaintiffs and the previous owners of defendant's property in the 1990s, those individuals entered into a "Driveway Easement Use Agreement." Plaintiffs allege that defendant purchased his property subject to that easement agreement. In 2016, plaintiffs filed the present action against defendant. Defendant, represented by attorney Shilling, filed an answer to the complaint. Plaintiffs then filed an amended complaint, which included claims for breach of the easement agreement, timber trespass, conversion, and negligence as well as a request for a permanent injunction enjoining defendant [294 Or.App. 675] from engaging in certain conduct on or related to plaintiffs' property. The amended complaint alleged, among other things, that defendant entered plaintiffs' property without permission, cut down trees and bushes, damaged fencing and a gate, obstructed the easement in a manner that interfered with plaintiffs' access to their property, threatened plaintiffs' son with bodily injury, and menaced plaintiffs' granddaughter by yelling obscenities at her.

         The case was assigned to arbitration and a pretrial conference was scheduled. Before those scheduled proceedings occurred, however, plaintiffs and defendant engaged in settlement negotiations through their attorneys. Email communications between Shilling and plaintiffs' lawyer included discussions of monetary terms as well as proposed terms related to injunctive relief. For example, one email from Shilling to plaintiffs' counsel stated that "we have a deal on the amount of money" and also stated that "the items regarding behavior should be mutual" and that "both parties should agree not to harass the other and/or interfere with their respective use of property." The email exchanges between counsel led to an agreement and to a stipulation for entry of judgment. Plaintiffs' attorney drafted a general judgment that would effectuate the settlement; Shilling approved it. Accordingly, a "stipulation for entry of judgment" was filed with the court. It was signed by plaintiffs and their attorney. Shilling signed on behalf of defendant, who did not personally sign the stipulation. The general judgment, expressly based on the parties' stipulation, was entered in September 2016. In addition to including an award of damages, costs, and attorney fees in plaintiffs' favor, it included provisions for injunctive relief. Specifically, the judgment enjoins defendant from harming plaintiffs' property, otherwise interfering with the existing uses of plaintiffs' property, and unreasonably obstructing plaintiffs' driveway access. The judgment also enjoins both parties from "unreasonably interfering with the use and enjoyment of the other's property" and "harassing, threatening, or intimidating the other party, or any member of that party's family or invitees."

         Several weeks after the judgment was entered, plaintiffs filed a motion to show cause, seeking remedial contempt sanctions against defendant based on an allegation [294 Or.App. 676] that he had violated the terms of the judgment. Defendant did not respond directly to plaintiffs' motion. Rather, through a new attorney (not Shilling), he moved to set aside the general judgment pursuant to ORCP 71 B(1)(a), which relates to assertions of "mistake, inadvertence, surprise, or excusable neglect." The motion did not include an argument beyond quoting ORCP 71 B(1)(a), but was supported by a declaration from defendant in which he asserted that he "did not agree to any injunction," "did not agree to a judgment being entered against [him] for any money damages," and "never gave [his] former attorney authority to confess any judgments against [him]." Defendant stated that the judgment was issued against him without his permission, consent, or knowledge and that "[t]he only thing [he] knew was that the case was settled and that the insurance company was going to pay some money to [plaintiffs]. [He] did not care if the insurance company wanted to spend their money, but [he] certainly did not admit to any fault whatsoever."

         Plaintiffs filed a written response in which they argued that defendant's motion and declaration did not establish a basis for setting aside the judgment. Plaintiffs asserted that the emails between their lawyer and Shilling established, as a factual matter, that Shilling had authority to settle the underlying dispute on defendant's behalf. They also noted that Shilling had authority to sign the stipulation for entry of judgment on defendant's behalf under ORCP 67 F(2). Plaintiffs asserted that, under the circumstances, they (and their lawyer) had no reason to believe that defendant was unaware that Shilling was engaging in settlement discussions on his behalf. Accordingly, plaintiffs argued, even if ...


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