Richard E. GRUDZIEN and Christine A. Grudzien, husband and wife, Plaintiffs-Appellants,
Larry ROGERS, an individual, Defendant-Respondent.
and submitted August 7, 2018
Columbia County Circuit Court 16CV02654; Ted E. Grove, Judge.
D. Ropp argued the cause for appellants. On the brief was
Jeremy R. James.
appearance for respondent Larry Rogers.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
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.
Or.App. 674] HADLOCK, P. J.
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.
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).
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.
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
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."
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 ...