Van Neubarth v. Fhuere ( 2024 )

No. 308 May 8, 2024 549
This is a nonprecedential memorandum opinion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
AARON VAN NEUBARTH,
Plaintiff-Appellant,
v.
Corey FHUERE,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
17CV35309; A180862
Courtland Geyer, Judge.
Submitted April 3, 2024.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Jona J. Maukonen, Assistant Attorney General, waived
appearance for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
550 Van Neubarth v. Fhuere
AOYAGI, P. J.
In August 2017, plaintiff filed a petition for writ
of habeas corpus, along with a motion to waive or defer fil-
ing fees and costs. On September 13, 2017, the trial court
granted the motion in part, entering a limited judgment in
which it deferred payment of the $252 filing fee. The case
proceeded, and, in April 2018, the court dismissed the writ.
An appeal followed, which was soon dismissed. Nearly five
years later, in January 2023, plaintiff filed in the trial court
a motion to substitute the named defendant, in which he
noted his intent to file a motion to vacate in the future. The
court denied that motion on February 1, 2023. Plaintiff then
filed a motion seeking “waiver of filing fees and court costs
necessary to proceed with a motion to vacate this judgment.”
The trial court denied that motion on February 28, 2023.
The two February orders are essentially identical. Each
denies the motion at issue, based on findings that the order
of dismissal was entered in April 2018, that the judgment of
dismissal was entered in April 2018, and that the appellate
judgment was entered in July 2018.
Plaintiff appeals the denial of his February 2023
motion to waive filing fees and court costs.1 He argues that
the trial court abused its discretion by failing to explain its
ruling, where the supporting documentation established
that plaintiff meets the financial requirements for fee
waiver. As we have explained:
“Although [ORS 21.682], by its terms, grants a trial court
discretion to deny a requested fee waiver, we have held
that, where an applicant’s submissions show that the appli-
cant is eligible for a fee waiver, in the absence of competing
evidence or ‘any findings of fact or conclusions of law pro-
vided by the court to explain its decision,’ a court’s denial
of a requested waiver is an abuse of discretion. Stanwood v.
Multnomah County, 135 Or App 58, 61, 898 P2d 196 (1995).
Said another way, under Stanwood, where an application
for a fee waiver governed by ORS 21.682 demonstrates that
a person is financially eligible, the court lacks the discre-
tion to deny it without further developing the record or pro-
viding an explanation for the denial.”
1
Respondent does not appear on appeal.
Nonprecedential Memo Op: 332 Or App 549 (2024) 551
Bondick v. Lane County Circuit Court, 315 Or App 600, 601-
02, 501 P3d 91 (2021).
The problem with plaintiff’s argument is that the
trial court did explain its ruling. It made express findings—
all to the effect that the case was long resolved—and denied
the motion based on those findings. Notably, the court relied
on the same findings to deny plaintiff’s fee-waiver motion
that it had relied on only weeks earlier to deny plaintiff’s
motion to substitute. Because the court made findings of
fact to explain its decision, it necessarily did not abuse its
discretion in the manner addressed in Bondick.
Plaintiff briefly argues in the alternative that, if the
trial court denied the fee-waiver motion “because the case
was completed,” that too was error, because ORS 21.682(1)
contains “no time limit” and does not “say when the appli-
cation must be made.” If plaintiff had sought a waiver of
past-incurred fees, and the court had denied the motion as
untimely, that argument would merit consideration. But
plaintiff sought a waiver of future fees and costs attendant
to a potential motion to vacate a judgment entered five years
earlier, and the court denied the motion on the grounds that
the case was long closed. If the trial court erred in doing so,
plaintiff has failed to identify and articulate the error in the
court’s reasoning.
Affirmed.