Anderson v. Cohen ( 2024 )

No. 501 July 17, 2024 823
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Andrew ANDERSON,
an individual,
Plaintiff-Appellant,
v.
Charlene COHEN,
an individual,
Defendant-Respondent.
Deschutes County Circuit Court
21CV28248; A179355
Walter Randolph Miller, Jr., Judge.
Argued and submitted June 3, 2024.
Andrew Anderson argued the cause and filed the briefs
pro se.
Caroline Hopkins argued the cause for respondent.
Also on the brief were Karin L. Schaffer and Wood, Smith,
Henning & Berman, LLP.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
824 Anderson v. Cohen
KAMINS, J.
In this civil suit, plaintiff seeks reversal of the
trial court’s judgment dismissing his claims for breach of
fiduciary duty and negligence for failure to state a claim.
Plaintiff raises seven assignments of error. We affirm.
In his first assignment of error,1 plaintiff contends
that the trial court was required to grant his request for a
“new hearing with oral arguments” on his objections to a
proposed order filed by defendant. See UTCR 5.050(1) (2021)
(“There must be oral argument if requested by the moving
party in the caption of the motion or by a responding party
in the caption of a response.”). Despite its mandatory lan-
guage, UTCR 5.050(1) (2021) does not necessarily require a
court to hold multiple hearings and provide multiple oppor-
tunities for oral argument on a motion. Page v. Parsons, 249
Or App 445, 459, 277 P3d 609 (2012). Additionally, plain-
tiff’s request was not to argue for or against a motion, which
UTCR 5.050(1) (2021) contemplates, but rather to argue his
objections to the order proposed by defendant. See UTCR
5.050(1) (2021) (Oral argument is “requested by the moving
party in the caption of the motion or by a responding party
in the caption of a response.” (Emphasis added.)). Because
the trial court was not required to allow oral argument in
that posture, we reject plaintiff’s first assignment of error.
In his second through sixth assignments of error,
plaintiff contends that the court erred in not granting a con-
tinuance for the hearing on defendant’s motion to dismiss.
We “review a trial court’s denial of a motion for continu-
ance for abuse of discretion.” State v. Thomas, 266 Or App
642, 643, 338 P3d 762 (2014). “If the trial court’s decision
is within the range of legally correct choices and produces
a permissible, legally correct outcome, then the trial court
did not abuse its discretion.” Id. (internal quotations marks
omitted). Whether a denial was improper “depends on the
particular facts of the case and the reasons presented to the
court at the time the request was denied.” Id. at 645. And we
“will not overturn a denial of a * * * motion for continuance
unless” the party demonstrates prejudice. Id at 643.
1
Defendant argues that plaintiff did not preserve this argument; however,
we assume, without deciding, that plaintiff’s argument was preserved.
Nonprecedential Memo Op: 333 Or App 823 (2024) 825
At the hearing on defendant’s motion to dismiss,
plaintiff advanced four arguments in support of a continu-
ance, which he renews on appeal. First, plaintiff argues that
he did not receive notice of the hearing and, therefore, he was
unable to call witnesses or present evidence. Although it is
concerning that plaintiff, an adult in custody, may not have
received notice of the hearing, he is unable to demonstrate
prejudice. Plaintiff filed a response to defendant’s motion,
so he was aware of defendant’s legal arguments and indeed
had responded to them before the hearing. Moreover, when
deciding a motion to dismiss for failure to state a claim, a
court “assume[s] that all well-pleaded facts are true and
give[s] plaintiff the benefit of all favorable inferences that
reasonably may be drawn from those factual allegations.”
Piazza v. Kellim, 360 Or 58, 61, 377 P3d 492 (2016). That is
not a situation where plaintiff needed to subpoena witnesses
or marshal evidence. Accordingly, we reject plaintiff’s first
argument.
In his second argument, plaintiff contends that a
continuance was required because he never received defen-
dant’s reply brief. It is, again, concerning if plaintiff did not
receive defendant’s reply brief. However, as the trial court
reasoned, there was no prejudice, because defendant’s reply
brief did not contain any new substantive arguments-only
an objection to plaintiff’s answering brief and a reiteration
of defendant’s arguments from her opening brief. The trial
court explained its reasons for denying the continuance,
which were “within the range of legally correct choices and”
permissible outcomes. State v. Stull, 281 Or App 662, 666,
386 P3d 122 (2016), rev den, 360 Or 752 (2017).
In his third argument, plaintiff contends that a
continuance was required because he did not have an attor-
ney. However, plaintiff was aware that his second attorney
withdrew forty-five days before the hearing, and he never
attempted to hire a new attorney or notify the court that he
was attempting to do so. Cf. A. D. L. and Lane, 325 Or App
355, 362, 529 P3d 294 (2023) (explaining that the trial court
abused its discretion in not allowing husband’s continuance
because husband “had moved very quickly to find a new
attorney when his former attorney withdrew, had found an
826 Anderson v. Cohen
attorney who was willing to represent him if the trial was
pushed out 30 days, and moved immediately for a 30-day
postponement”). Given those circumstances, the trial court
did not abuse its discretion.
Lastly, plaintiff asserts that a continuance was
required so that he could consult with his criminal defense
attorney to discuss his concerns about self-incrimination.
That concern stems from the fact that plaintiff’s criminal
defense attorney had advised him to assert the privilege
against self-incrimination where appropriate in a pending
dissolution trial. However, once again, plaintiff is not able
to demonstrate prejudice, because his criminal and disso-
lution cases had no bearing on this civil case alleging that
defendant was negligent and breached her fiduciary duty
to plaintiff. Moreover, as noted, the hearing was about the
legal sufficiency of those allegations and did not involve wit-
ness testimony. Accordingly, we conclude that there was no
abuse of discretion in denying a continuance and we reject
plaintiff’s second through sixth assignments of error.
In his seventh assignment of error, plaintiff argues
that the trial court denied his “right to be heard” by muting
him towards the end of the hearing.2 State v. Landon, 283
Or App 131, 132, 388 P3d 1157 (2016) (reviewing “a trial
court’s actions to control the proceedings before it for abuse
of discretion”). That argument is unavailing, because plain-
tiff spoke and argued his positions throughout the hearing;
he was only muted briefly to allow the trial court to finish
delivering its ruling. As such, once again, there was no prej-
udice, and the trial court did not abuse its discretion. See
Dept. of Human Services v. T. S. M, 322 Or App 424, 426,
519 P3d 897 (2022), rev den, 370 Or 740 (2023) (explaining
that the court did not abuse its discretion because it “had
the authority to maintain orderly conduct and did not mute
father’s microphone until father’s comments prevented the
court from communicating with the participants”).
Affirmed.
2
We assume, without deciding, that plaintiff’s argument was preserved.