Union Lumber Co. v. Miller?????

No. 2 January 20, 2017 767
IN THE SUPREME COURT OF THE
STATE OF OREGON
UNION LUMBER CO.,
an Oregon corporation,
dba Bronson Lumber Company,
Petitioner on Review,
v.
Ron R. MILLER
and Linda Miller,
Respondents on Review.
(CC 10-07-46539; CA A152241; SC S062459)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 23, 2016.
Jonel K. Ricker, Joseph and Ricker, LLC, filed the brief
for petitioner on review.
Philip Wasley, Wasley Law Office, PC, LaGrande, argued
the cause and filed the brief for respondents on review.
BREWER, J.
The decision of the Court of Appeals is reversed. The
order of the circuit court denying defendants’ motion to set
aside the general judgment and the supplemental judgment
awarding costs and attorney fees to plaintiff are affirmed.
______________
*  Appeal from Union County Circuit Court, Russell B. West, Judge. 263 Or
App 619, 328 P3d 1284 (2014).
768 Union Lumber Co. v. Miller
Case Summary: Defendants, who had relied upon their nonlawyer son to file
an answer for them in the action and did not receive notices and pleadings mailed
to them thereafter, moved under ORCP 71 B(1) to set aside a general judgment
against them on the grounds of mistake and inexcusable neglect. The circuit
court denied the motion. On appeal, the Court of Appeals reversed, concluding
that the judgment was entered through mistakes made by plaintiff and a court-
appointed arbitrator in the service of case-related documents on defendants at
the address listed in the answer filed by the son, not at their residence. Held:
(1) The trial court did not err in concluding that defendants were not entitled to
relief from the judgment due to excusable neglect because their choice to rely on
their son was not reasonable and their son’s failure to receive case-related docu-
ments by mail was not excusable; (2) the trial court did not err in concluding that
defendants were not entitled to relief from the judgment due to their mistaken
belief that their son could represent them because defendants did not take rea-
sonable steps to protect their interests; (3) a party’s “last known address,” for
purposes of ORCP 9 B, is the most recent place at which another party knows
that the party can be found or communicated with; and (4) because defendants
authorized their son to file an answer for them in which their address was listed
as their son’s, mailing case-related documents to that address was not a mistake
under ORCP 71 B.
The decision of the Court of Appeals is reversed. The order of the circuit court
denying defendants’ motion to set aside the general judgment and the supplemen-
tal judgment awarding costs and attorney fees to plaintiff are affirmed.
Cite as 360 Or 767 (2017) 769
BREWER, J.
The question in this case is whether the trial court
erred in denying defendants’ motion under ORCP 71 B(1)
to set aside a general judgment entered against them on
grounds of excusable neglect and mistake. The Court of
Appeals reversed the trial court’s ruling, concluding that
the judgment was entered as a result of mistakes made by
plaintiff and a court-appointed arbitrator with respect to
the service of case-related documents on defendants. Union
Lumber Co. v. Miller, 263 Or App 619, 625, 328 P3d 1284
(2014). Because we conclude that defendants were not enti-
tled to relief from the judgment on the grounds asserted, we
reverse the decision of the Court of Appeals and affirm the
trial court’s order denying defendants’ motion to set aside
the judgment.1
I.  FACTS AND PROCEDURAL HISTORY
On review of an order denying a motion to set aside
a judgment, we set out the undisputed facts in the light
most favorable to the moving party. See Wershow v. McVeety
Machinery, 263 Or 97, 103, 500 P2d 696 (1972) (so viewing
facts on review of motion to set aside default judgment).
However, we accept the trial court’s findings of disputed fact,
if there is evidence to support those findings. See Hiatt v.
Congoleum Industries, 279 Or 569, 576, 569 P2d 567 (1977)
(“If grounds are apparent which could cause the trial court
to suspect the uncontradicted statements in the affidavit,
the trial court does not need to accept such statements as
correct.”).
In June 2002, defendant Ron Miller entered into
an open account agreement with plaintiff, the owner and
operator of building supply stores, for the purchase of build-
ing supply materials. In July 2010, plaintiff filed an action
for breach of contract and unjust enrichment against Ron
Miller and his spouse Linda Miller, seeking $17,865 as
the unpaid balance on the account. The complaint alleged
that defendants’ son, Ean Miller, had purchased building
1
Defendants also appealed from a supplemental judgment awarding plain-
tiff the costs and attorney fees that it incurred in resisting the motion to set aside
the general judgment. We reject without discussion defendants’ challenge to the
supplemental judgment.
770 Union Lumber Co. v. Miller
materials from plaintiff, charging those materials to the
Miller account with his father’s authority. The complaint
further alleged that the materials that Ean purchased were
delivered to properties that defendants owned and were
used to improve those properties and that, for several years,
defendants had paid the charges that Ean had made on the
account.
Plaintiff personally served Linda Miller with sum-
mons and complaint at defendants’ residence in Wisconsin,
on August 3, 2010. After Linda was served with the sum-
mons and complaint, defendants each signed powers of
attorney authorizing Ean “to answer the complaint filed in
[this case].” On August 30, 2010, Ean filed an answer for
defendants, attaching the two powers of attorney as exhib-
its. The answer denied that Ean had authority to charge
building materials to his father’s account and denied that
the materials that Ean had purchased were used to improve
defendants’ properties. The answer affirmatively alleged
that Ean had purchased the materials and incurred the
charges for work done on other people’s property. In a coun-
terclaim, the answer further alleged that collection of the
account was stayed by Ean’s voluntary bankruptcy petition.
The answer was signed “Ean Miller P.O.A.” and it desig-
nated defendants’ address as “2816 N 2nd St., La Grande,
OR 97850.” Ean filed the answer in the circuit court, and the
case was assigned to court-annexed arbitration pursuant to
ORS 36.405(1)(a).2
Ron was served with summons and complaint
by substitute service on Linda at their Wisconsin resi-
dence address in November 2010. In April 2011, the court
appointed an arbitrator, copying the notice of appointment
to “Jonel Ricker [plaintiff’s attorney], Ron Miller, etal [sic].”
The arbitrator then sent notices of potential hearings dates,
2
ORS 36.405 provides, in part:
“(1)  Except as provided in ORS 30.136, in a civil action in a circuit court
where all parties have appeared, the court shall refer the action to arbitra-
tion under ORS 36.400 to 36.425 if either of the following applies:
“(a) The only relief claimed is recovery of money or damages, and no
party asserts a claim for money or general and special damages in an amount
exceeding $50,000, exclusive of attorney fees, costs and disbursements and
interest on judgment.”
Cite as 360 Or 767 (2017) 771
his arbitration rates, and a hearing date and location to
plaintiff’s counsel and to “Ean Miller POA” at the La Grande
address. Plaintiff’s counsel sent a prehearing statement of
proof to defendants at the La Grande address as well.
Neither defendants nor Ean participated in the arbi-
tration proceeding. At the hearing, plaintiff orally moved to
strike defendants’ answer on the ground that Ean was not
licensed to practice law in the state of Oregon and, there-
fore, lacked authority to represent defendants in the action.
The arbitrator granted that motion, then received plaintiff’s
evidence and heard testimony from plaintiff’s witnesses.3
The next day, the arbitrator issued a decision and
award, which was mailed to plaintiff’s counsel and to defen-
dants at the La Grande address. In the decision and award,
the arbitrator determined that plaintiff was entitled to
recover the amount sought on its claims, and the arbitrator
directed plaintiff’s counsel to prepare a general judgment in
accordance with findings of fact and conclusions of law that
the arbitrator made in support of his decision. Plaintiff’s
counsel filed a proposed general judgment and money
award, attorney fee statement, and statement of costs and
disbursements with the court on June 16, 2011. Plaintiff’s
counsel mailed copies of those documents to defendants at
the La Grande address. The court entered the general judg-
ment and money award on July 14, 2011. On July 18, 2011,
Ean received a notice of entry of judgment that the court
had mailed to the La Grande address.
After receiving the notice of entry of judgment, Ean
contacted defendants, who then obtained counsel and filed
a motion to set aside the judgment under ORCP 71 B(1).4 In
3
Defendants do not challenge the arbitrator’s decision to strike their answer.
4
ORCP 71 B provides, in part:
“(1) By motion. On motion and upon such terms as are just, the court
may relieve a party or such party’s legal representative from a judgment
for the following reasons: (a) mistake, inadvertence, surprise, or excusable
neglect; (b) newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 64 F; (c) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the judgment is void; or (e) the judgment
has been satisfied, released, or discharged, or a prior judgment upon which it
is based has been reversed or otherwise vacated, or it is no longer equitable
772 Union Lumber Co. v. Miller
the motion, defendants generally asserted that the judgment
should be set aside due to mistake, inadvertence, surprise,
or excusable neglect that resulted in defendants’ failure to
defend the action.5 More particularly, defendants argued
that they “should be excused from failing to appear” because
(1) case-related documents were mailed to Ean’s address,
not defendants; (2) Ean had moved his residence and had
not received his mail; and (3) Ean was authorized only to file
the answer on defendants’ behalf, not to otherwise defend
them in this action. Because they had given Ean authority
only to file the answer, defendants argued that case-related
documents should have been mailed to them at their resi-
dence address in Wisconsin.
In support of their motion, defendants each filed
declarations stating that they did not know that Ean could
not lawfully file an answer for them. They further averred
that the authority that they had granted to Ean under the
powers of attorney extended only to filing the answer and
that they otherwise had intended to personally defend the
action. Defendants also stated that they had not received
any case-related communications from Ean, plaintiff, or the
court until Ean notified them that the judgment had been
entered. Ron also declared that he and Ean had discussed
the case weekly and that they had wondered why they
had not heard anything about the case. In addition, Ron
described a phone call in which an employee of plaintiff had
told him that she was aware that the allegations against
that the judgment should have prospective application. A motion for reasons
(a), (b), and (c) shall be accompanied by a pleading or motion under Rule 21 A
which contains an assertion of a claim or defense. The motion shall be made
within a reasonable time, and for reasons (a), (b), and (c) not more than one
year after receipt of notice by the moving party of the judgment. A copy of a
motion filed within one year after the entry of the judgment shall be served
on all parties as provided in Rule 9 B, and all other motions filed under this
rule shall be served as provided in Rule 7. A motion under this section does
not affect the finality of a judgment or suspend its operation.”
5
Defendants also generally asserted that the judgment should be set aside
due to (1) fraud, misrepresentation, or other misconduct by plaintiff in failing to
send pleadings and notices to defendants at their Wisconsin address as required
by ORCP 9; or (2) the judgment being void or voidable either because it was a
default judgment taken against defendants without notice to them under ORCP
69, or because the judgment was not supported by a finding of fact that defen-
dants owed plaintiff money. Because defendants have not developed those argu-
ments, we reject them without discussion.
Cite as 360 Or 767 (2017) 773
him were false. Because of that phone call, Ron stated that
he had assumed that the action would be dropped.
In a separate declaration, Ean stated that, after he
had filed the answer on behalf of his parents, he had moved
but had not notified the court or plaintiff’s counsel of his
new address, although he had filed a forwarding address
notice with the post office. Ean further declared that he had
not received any case-related documents from anyone until
he received the notice of entry of judgment on July 18, 2011.
Ean also confirmed Ron’s declaration that the two had dis-
cussed the matter regularly and that they both had won-
dered why they had not received any case-related informa-
tion. According to Ean, he had assumed, like his father, that
the matter had been dropped. In addition, Ean stated that
he had had a separate account with plaintiff, that he had
charged the subject building materials to his own account,
that the materials he had purchased were not used to
improve his parents’ properties, and that his debt had been
discharged in bankruptcy.
At the hearing on their motion to set aside the
judgment, defendants focused on two arguments that were
intertwined. First, defendants argued that the judgment
should be set aside on the ground that they were excusably
unaware of the existence of the arbitration proceeding and
the subsequent general judgment on the arbitrator’s award
because they had not been properly served with case-related
documents beyond the summons and complaint.6 Second,
6
ORCP 9 provides, in part:
“A Service; when required. Except as otherwise provided in these rules,
every order; every pleading subsequent to the original complaint; every writ-
ten motion other than one that may be heard ex parte; and every written
request, notice, appearance, demand, offer to allow judgment, designation
of record on appeal, and similar document shall be served upon each of the
parties. No service need be made on parties in default for failure to appear
except that pleadings asserting new or additional claims for relief against
them shall be served upon them in the manner provided for service of sum-
mons in Rule 7.
“B Service; how made. Whenever under these rules service is required or
permitted to be made upon a party, and that party is represented by an attor-
ney, the service shall be made upon the attorney unless otherwise ordered
by the court. Service upon the attorney or upon a party shall be made by
delivering a copy to that attorney or party; by mailing it to the attorney’s or
party’s last known address; by electronic service as provided in section H of
774 Union Lumber Co. v. Miller
defendants asserted that the judgment should be set aside
because plaintiff’s counsel had not served defendants with
case-related documents, despite knowing that Ean was
not an attorney. According to defendants, because plaintiff
knew that Ean was not an attorney, plaintiff was required
to serve all documents on defendants at their own residence
address pursuant to ORCP 9.
In response, plaintiff argued that defendants were
not entitled to relief because (1) all notices were mailed to
the address designated in the answer that defendants had
authorized Ean to file; (2) no documents that were mailed
to that address were ever returned to plaintiff’s counsel,
the court, or the arbitrator, making it implausible to believe
that Ean had not received them; and (3) Ean received the
notice of entry of judgment, which indicated that he likely
had received the other notices mailed to the La Grande
address as well. Plaintiff asserted that, after the answer
was filed, plaintiff had engaged in arbitration as instructed
by the court and had complied with all applicable procedural
requirements in the case.
In denying defendants’ motion, the trial court con-
cluded that defendants had had a reasonable opportunity to
defend the action, but had failed to diligently protect their
interests. The court explained:
“I’m really not very sympathetic to [defendants’] position
* * * because [defendants] were served. They chose not to
get an attorney. They chose to rely on their son. And the
matter went all the way through to arbitration. And, now,
they come in and claim a problem when they could have
solved the entire thing by getting an attorney in the first
place and jumping through all the hoops.
“To set this aside will require plaintiff[ ] to go back to
square one and then file it all over again, incurring addi-
tional expense, which they could have avoided if [defen-
dants] had properly got an attorney and filed the proper
response.
this rule; or, if the party is represented by an attorney, by facsimile commu-
nication or by e-mail as provided in section F or G of this rule. * * * A party
who has appeared without providing an appropriate address for service may
be served by filing a copy of the pleading or other document with the court.”
Cite as 360 Or 767 (2017) 775
“* * * * *.
“So, it’s not exactly a default judgment in the strictest,
in the traditional sense here. I mean, they had notice. They
were served. They went to arbitration. I mean, they chose
to have their son do it. Even though it was improper, that’s
what their choice was. So, now, they’re saying they didn’t
know. I guess I just don’t buy that.”
The court reasoned, “I mean, it was their choice not to retain
counsel, correct? Had they retained counsel, they would
have been aware of [the arbitration proceeding], wouldn’t
they, in all likelihood?” As the court saw it, “the reason they
didn’t appear [at the arbitration hearing] was they chose to
go through their son for whatever reason, rightly or wrongly.
But that was their choice.”7
On appeal, defendants argued before the Court of
Appeals that they had been mistaken in believing that Ean
could file an answer for them; that Ean’s failure to receive
notices from the court, plaintiff, and the arbitrator was
inadvertent; and that their failure to appear and defend was
excusable because they had taken steps to answer the com-
plaint, but that process failed due to their mistaken belief
that Ean could file an answer for them.
Plaintiff responded that defendants’ inaction in not
personally appearing and in not following up on the case
after the answer was filed constituted inexcusable neglect.
Further, plaintiff asserted that ORCP 9 B required it to
serve defendants at their last known mailing address—
the La Grande address—that they had designated in the
answer that Ean filed. In plaintiff’s view, defendants had
directed all mailings to be sent to the La Grande address,
defendants had never notified plaintiff or the court of any
change in their address, and plaintiff, the arbitrator, and
the court had complied with defendants’ direction by mail-
ing notices to that address.
7
When defendants’ counsel noted that defendants had intended that Ean
would only file the answer and that they would thereafter defend the matter per-
sonally, the trial court asked why defendants did not get an attorney at that
point. Defendants’ counsel answered that defendants had never heard anything
further about the proceedings. The trial court responded that nothing had pre-
vented defendants from coming to the courthouse and asking to see the court file.
776 Union Lumber Co. v. Miller
The Court of Appeals reversed the trial court’s rul-
ing. The court first concluded that defendants’ decision to
authorize Ean to file an answer to the complaint and their
failure to attend to the case and monitor its progress were
inexcusably rather than excusably neglectful; accordingly,
the Court of Appeals held that the trial court had not erred
in denying relief on the ground of excusable neglect. Union
Lumber Co., 263 Or App at 627.
However, the Court of Appeals ultimately concluded
that relief was compelled by mistakes that plaintiff and the
arbitrator had made—namely, that, contrary to ORCP 9 B,
they had mailed prescribed notices and other case-related
documents to defendants at the La Grande address, rather
than to defendants’ residence address in Wisconsin. Id. at
629. Although the answer that Ean had filed had listed the
La Grande address as defendants’ address, it was significant
to the Court of Appeals that plaintiff had perfected substi-
tute service on Ron Miller at the Wisconsin address after
the answer had been filed. It followed, the court explained,
that defendants’ last known address was their residence
address in Wisconsin. Id. at 628. According to the Court of
Appeals, defendants’ failures to appear and participate in
the arbitration, to object to the proposed judgment, and to
seek a de novo trial under ORS 36.425(2)(a),8 were prod-
ucts of mistakes plaintiff’s counsel and the arbitrator made
in failing to serve defendants with notices and other docu-
ments as required by ORCP 9 B. Id. at 627.
Moreover, the Court of Appeals determined that,
because the action had been conducted in a manner that
was inconsistent with procedural rules that require ade-
quate notice and an opportunity to be heard, setting aside
the judgment would correct significant irregularities in the
proceedings. Id. at 629. Accordingly, the Court of Appeals
concluded that the trial court had erred in failing to set
aside the judgment under ORCP 71 B on the ground of mis-
take. Id.
8
ORS 36.425(2)(a) provides that, in a court-annexed arbitration proceeding,
a party against whom relief is granted may file a written notice of appeal and
request a trial de novo.
Cite as 360 Or 767 (2017) 777
On review, plaintiff asserts that it was appropri-
ate to treat the La Grande address identified in defendants’
answer as their “last known address” for purposes of ORCP
9. In plaintiff’s view, it would be inequitable to set aside the
judgment, inasmuch as defendants did not diligently protect
their interests in the action or provide plaintiff, the arbi-
trator, and the trial court with an updated mailing address
during the course of the litigation.
In response, defendants assert that the Court of
Appeals was correct in concluding that plaintiff’s and the
arbitrator’s mistakes in failing to properly serve defendants
with case-related documents under ORCP 9 B required the
trial court to set aside the judgment. In addition, defen-
dants reiterate their core argument before the trial court
and Court of Appeals that excusable neglect justified setting
aside the judgment. We allowed review to consider the appli-
cation, insofar as they are implicated here, of the doctrines
of excusable neglect and mistake as grounds for relief under
ORCP 71 Barb.
II. ANALYSIS
A.  Standard of Review
As noted and as pertinent here, ORCP 71 B pro-
vides that a trial court may, “upon such terms as are just,”
grant a motion to set aside a judgment that was entered due
to “mistake, inadvertence, surprise, or excusable neglect.”9
A decision under ORCP 71 B can implicate multiple stan-
dards of review. For example, a trial court’s decision can rest
on findings of disputed fact. An appellate court will defer to
a trial court’s express or implied findings of disputed fact
underlying its legal determinations. Hiatt, 279 Or at 575;
see also Coleman v. Meyer, 261 Or 129, 135-36, 493 P2d 48
(1972). Second, the question whether a cognizable ground
for relief has been shown must be decided in accordance
with established legal principles. Rogue Val. Mem. Hosp. v.
Salem Ins., 265 Or 603, 606, 510 P2d 845 (1973).10 Thus,
90
The procedural requirements of ORCP 71 B that the motion be filed timely
and with an accompanying pleading containing a defense are not at issue in this
case. See Union Lumber Co., 263 Or App at 624.
10
Rogue Valley construed former ORS 18.160 (1979), repealed by Or Laws
1981, ch 898, § 53, which was substantially identical to ORCP 71.
778 Union Lumber Co. v. Miller
the question whether a party seeking relief from a judgment
has offered a reasonable excuse for failing—on account of
neglect, surprise, inadvertence, or mistake—to appear or
otherwise defend its interests, is a legal question that we
review for errors of law. See Hiatt, 279 Or at 576-77 (where
trial court’s excusable neglect ruling is reversed, appellate
court has made overriding legal determination as to reason-
ableness of excuse). Finally, where a trial court determines
that a cognizable ground for relief has been shown, the deci-
sion whether to grant relief requires the court to exercise
its discretion and, if it decides to grant relief, to do so on
terms that are just. Stevenson v. U.S. National Bank, 296
Or 495, 498, 677 P2d 696 (1984). In exercising such discre-
tion (again, where a cognizable ground for relief has been
established), this court has stated that “the courts are lib-
eral in granting relief, for the policy of the law is to afford
a trial upon the merits when it can be done without doing
violence to * * * established rules of practice that have grown
up promotive of the regular disposition of litigation.” Wagar
v. Prudential Ins. Co., 276 Or 827, 833, 556 P2d 658 (1976)
(quoting McFarlane v. McFarlane, 45 Or 360, 363, 77 P. 837
(1904)).
To summarize: Conclusions that a trial court
reaches under ORCP 71 B as to whether a moving party’s
neglect, inadvertence, surprise, or mistake constitute cog-
nizable grounds for relief, are legal rulings that an appellate
court reviews for errors of law. If, in the course of reaching
such a conclusion, a trial court makes express or implied
findings on issues of disputed fact, an appellate court will
accept those findings if they are supported by evidence in
the record. If the trial court concludes that a moving party
has shown a cognizable ground for relief from the judgment,
the court must make a further discretionary decision, con-
sistent with principles promotive of the regular disposition
of litigation, whether and, if so, on what terms, to relieve the
party from the judgment. An appellate court reviews such a
ruling for abuse of discretion.
As noted, defendants in this case argue that the
judgment should be set aside under ORCP 71 B(1) based on
multiple overlapping grounds. In general, defendants’ argu-
ments before the trial court and on appeal and review have
Cite as 360 Or 767 (2017) 779
conflated the grounds of mistake, inadvertence, surprise,
and excusable neglect, and have treated those terms inter-
changeably. Cf. Terlyuk v. Krasnogorov, 237 Or App 546, 551
n 3, 240 P3d 740 (2010) (noting that motions to set aside
judgments simply cited “mistake, inadvertence, surprise or
excusable neglect” and conflated that phrase as though it
was one word). That said, reasonably understood, defendants
have essentially argued throughout that any omissions on
their part constituted excusable neglect or were mistakes
and that errors that plaintiff, the arbitrator, and the trial
court made in serving them with case-related documents
required relief from the judgment. Accordingly, for purposes
of our review, we conclude that defendants have adequately
raised and developed arguments based on two grounds for
relief under ORCP 71 B: Excusable neglect and mistake. We
now address those arguments.
B.  Excusable Neglect
Defendants assert that their failure to adequately
protect their interests in this action was due to excusable
neglect because, although they took steps to answer the
complaint, that process failed on account of their errone-
ous belief that Ean had legal authority to file an answer
for them, and because they reasonably assumed that notices
and pleadings would be mailed to them or to Ean and that
Ean’s failure to receive his mail was excusable. Although
not precisely on point (because an answer actually was filed
in this action), those arguments are similar to arguments
that other defendants have made in cases where they either
took steps or had procedures in place to respond to service
of a summons and complaint, but the process failed and a
default judgment was taken against the defendants for fail-
ure to appear.
For example, in Wagar, 276 Or 827, the defendant’s
agent for service of process in Oregon was served with sum-
mons and complaint; on the same day, the agent mailed the
summons and complaint to the defendant’s legal depart-
ment in Los Angeles for assignment to defense counsel in
Oregon. The summons and complaint never arrived in the
defendant’s legal department, however, and the defendant
was unaware that the complaint had been filed until after a
780 Union Lumber Co. v. Miller
default judgment was entered. At the hearing on the defen-
dant’s motion to set aside the default judgment, an attorney
from its legal department testified that the defendant’s sys-
tem for responding to legal actions had not failed in almost
20 years. The trial court, however, concluded that the mail-
ing by defendant’s agent of the summons and complaint by
ordinary mail, without any follow up procedure, constituted
inexcusable neglect. On review, this court held that the trial
court had erred in denying the motion to set aside the judg-
ment because, although mail service is imperfect, it was the
method on which society relied, and the defendant had pro-
ceeded in a reasonable manner to protect its interests. Id. at
833.
In another case, Lowe v. Institutional Investors
Trust, 270 Or 814, 529 P2d 920 (1974), service was made
on an assistant to the defendant’s executive vice president.
The assistant stated in an affidavit that he routinely for-
warded legal documents served on him to the defendant’s
legal department with an explanatory memorandum, plac-
ing a copy of the memorandum in his files. However, he had
no recollection of receiving service in the action at hand
and had found no record of it in his files. In those circum-
stances, this court held that the trial court had not erred
in denying a motion to set aside the default judgment. Id.
at 819.
In contrast to Lowe, in Hiatt, 279 Or 569, the
defendant’s mailroom employee received the summons and
complaint. His instructions were to forward any legal doc-
uments to the legal department, which he usually did. In
that case, however, the legal department did not receive the
summons and complaint, and the mailroom employee had
no memory of receiving process, so he was unable to explain
what had happened. Noting that that explanation was plau-
sible, this court concluded that those facts amounted to
excusable neglect as a matter of law and reversed the trial
court’s denial of the motion to set aside the judgment. Id. at
577. In so concluding, this court distinguished Lowe because
that case involved personal service on a corporate execu-
tive whose duties included acting as the corporate agent to
receive service of process. Id. at 578.
Cite as 360 Or 767 (2017) 781
Wagar, Lowe, and Hiatt illustrate that reasonable
but ineffectual actions taken in response to service of pro-
cess may establish excusable neglect. See McFarlane, 45 Or
at 363 (if moving party presents “reasonable grounds excus-
ing * * * default,” courts generally grant relief). It was rea-
sonable in Wagar for the defendant to follow its established
practices and use the mail system, which was the means
of communication generally relied on in broader society.
And, it was reasonable in Hiatt for the defendant to rely
on a mailroom employee to forward legal documents to the
legal department. In Lowe, however, it was not reasonable
for the defendant’s corporate executive who was responsible
for receiving service to lose the summons and complaint and
not retain any record of them.
Although those cases each involved default judg-
ments and corporate defendants, the principle of reason-
ableness that they illustrate also applies in this case, where
defendants’ ultimate failure to appear and defend was analo-
gous to a default. Any actions taken or omitted by defen-
dants must have been reasonable to show that their neglect
was excusable.
As noted, defendants argue that they reasonably
assumed that notices and pleadings would be mailed to
them or to Ean and that Ean’s failure to receive his mail
was excusable. And, as further noted, in affidavits support-
ing defendants’ motion, Ron and Ean both asserted that
they had discussed the case weekly and had wondered why
they had not received further information. Defendants and
Ean also stated that they had not received any case-related
documents from the court, plaintiff, or the arbitrator before
Ean received the notice of entry of judgment.
The trial court, however, concluded as a matter
of law both that defendants’ choice to rely on their son—a
nonlawyer who had no legal authority to represent them—to
protect their interests was not reasonable and that Ean’s
failure to receive case-related documents by mail was not
excusable. As to the first point, although defendants claimed
that they had authorized Ean only to file an answer for them
but otherwise had intended to defend the action themselves,
the trial court further concluded that defendants had failed
782 Union Lumber Co. v. Miller
to exercise reasonable diligence by not contacting the court
or plaintiff’s attorney to ascertain the status of the action.
Although Ron Miller stated that he had talked to one of
plaintiff’s employees and had assumed that the case would
be dropped, the trial court concluded that it was unreason-
able for defendants not to have contacted the court or plain-
tiff’s attorney to ascertain the status of the case.
In reaching the legal conclusion that defendants’
choice to rely on their son was unreasonable, the trial court
did not err. Although defendants had a right to proceed pro
se in defending the action, their choice to use Ean to file an
answer on their behalf and to allow him to designate his
own address as theirs, together with their failure to contact
the court or plaintiff’s attorney to ascertain the status of the
case after the answer was filed, were particularly unreason-
able in light of the length of time—nearly 11 months—that
transpired between the filing of their answer (August 30,
2010) and Ean’s receipt of the notice of entry of judgment
(July 18, 2011).11 See Coleman, 216 Or at 135 (“hardly cred-
ible” that a defendant would not contact attorney for over
four months if the defendant believed that attorney was
handling matter).
As to defendants’ argument that neither they nor
Ean had received any case-related documents from plain-
tiff or the court, evidence in the record supported the trial
court’s finding that “I guess I just don’t buy that.” In view
of the fact that Ean acknowledged having received the
notice of entry of the general judgment that was mailed to
the La Grande address, the trial court reasonably inferred
that, despite their denials, Ean and defendants likely had
in fact received earlier case-related documents sent by mail
to the same address and had ignored them. See id. at 135-
36 (uncontradicted statements in the defendants’ affidavits
that they did not realize default could be taken against them
did not have to be taken at face value where defendants’
interest in litigation may tempt them to testify falsely); see
also Hiatt, 279 Or at 576.
11
Moreover, Ron Miller was served with summons and complaint by sub-
stituted service in November 2010, so defendants knew that the matter had not
been dropped at that point in time.
Cite as 360 Or 767 (2017) 783
Based on the facts that it found, the trial court did
not err in concluding, as a matter of law, that defendants’
neglect in failing to protect their interests was inexcusable.
It follows that the court did not err in denying defendants’
motion to set aside the general judgment on the ground of
excusable neglect.
C.  Mistake
We turn to defendants’ argument that the judgment
should have been set aside on the ground of mistake because
they erroneously had believed that their son—a layperson—
had legal authority file an answer for them.12 This court has
not often addressed mistake as a ground for setting aside
a judgment under ORCP 71 B(1). In cases where this court
has concluded that a judgment should be set aside due to
mistake, however, the moving party invariably had taken
reasonable steps to protect its interests. See, e.g., Newbern v.
Gas-Ice Corporation, 263 Or 250, 254, 501 P2d 1294 (1972)
(holding that trial court did not err in setting aside judgment
where attorney mistakenly but reasonably believed motion
for judgment on pleadings pertained to different action
between same parties when he stated that plaintiff would
not contest motion); Federal Reserve Bank of S.F. v. Weant,
113 Or 1, 4-5, 231 P. 134 (1924) (holding that trial court
erred in denying motion to set aside judgment where defen-
dant failed to appear due to mistaken but reasonable belief
that separate bankruptcy proceeding terminated plaintiff’s
right to proceed with foreclosure); McFarlane, 45 Or at 363-
65 (holding that trial court erred in denying motion to set
aside default judgment where attorney made mistake of law
by specially appearing to challenge jurisdiction, but did not
file answer, because strategic course that attorney pursued
was only way to present questions vital to defense).
In this case, the trial court concluded as a matter
of law that defendants’ failure to diligently protect their
interests precluded relief from the judgment. We agree. As
discussed, defendants did not contact the court or plaintiff’s
attorney to ascertain the status of the case during the 11
12
As elaborated below, the Court of Appeals reversed the trial court’s ruling
on the ground of mistake, albeit based on a somewhat different theory of mistake
than the one that defendants have argued throughout this case.
784 Union Lumber Co. v. Miller
months between the filing of the answer and when they
received notice of entry of judgment. Nor did defendants pro-
vide plaintiff, the trial court, or the arbitrator, with a differ-
ent mailing address from the one that Ean had designated
for them in the answer that he filed. In sum, irrespective of
defendants’ erroneous belief that their son could represent
them, defendants did not take other reasonable steps that
would have protected their interests. Under those circum-
stances, the trial court did not commit legal error in denying
the motion to set aside the judgment based on the purported
mistake on which defendants have relied.
Nevertheless, the Court of Appeals concluded that
the judgment must be set aside due to a different set of mis-
takes. In the Court of Appeals’ view, the judgment should
have been set aside because notices and other case-related
documents were not mailed to defendants’ “last known
address” as required by ORCP 9 B. Although defendants did
not specifically couch such an argument in terms of mis-
take before the trial court, as noted, defendants did com-
plain about the mailing of case-related documents to the
La Grande address, rather than to their residence address
in Wisconsin.13 Because, broadly interpreted, defendants’
arguments before the trial court could be understood as
asserting that mailing errors made by plaintiff and the
arbitrator qualified as cognizable mistakes under ORCP 71
B, we address the rationale on which the Court of Appeals
reversed the trial court’s ruling.14
Because the Court of Appeals’ decision depended on
its understanding of the meaning of ORCP 9 B, we review
13
In their brief and at oral argument, defendants stated that plaintiff’s
alleged failure to properly serve them under ORCP 9 B should be characterized
as fraud, misrepresentation, or misconduct pursuant to ORCP 71 B(1)(c), rather
than mistake under ORCP 71 B(1)(a). Nothing in the record suggests any such
intentional misconduct on the part of plaintiff.
14
This court previously has held that a mistake under ORCP 71 B need not be
made by the moving party. State v. Ainsworth, 346 Or 524, 533-34, 213 P3d 1225
(2009) (“Under [former] ORS 18.160[ (1979)], a court could ‘relieve a party from a
judgment * * * taken against him through his mistake, inadvertence, surprise or
excusable neglect.’ ORCP 71 B, in contrast, permits a trial court to relieve a party
from judgment based on ‘mistake, inadvertence, surprise, or excusable neglect,’
without regard to who made the mistake (or other error) and without regard to
whether judgment was taken ‘through’ that mistake (or other error).” (Emphasis
in original.)).
Cite as 360 Or 767 (2017) 785
that court’s construction of the rule as a matter of law. See
Russell v. Sheahan, 324 Or 445, 449, 927 P2d 591 (1996).
As noted, ORCP 9 B requires case-related documents to be
mailed to an unrepresented party’s “last known address.” To
determine the meaning of that phrase in a rule such as ORCP
9 that was promulgated by the Council on Court Procedures,
we examine the text, context, and history of the rule to dis-
cern the intent of the Council on Court Procedures.15 A.G.
v. Guitron, 351 Or 465, 479, 268 P3d 589 (2011). Nothing
in the text or context of ORCP 9 specifies how a party serv-
ing case-related documents is to determine the “last known
address” of another party. But the phrase consists of words
of common usage, to which we ascribe their ordinary mean-
ings. PGE v. Bureau of Labor and Industries, 317 Or 606, 611,
859 P2d 1143 (1993). The word “last” means “most recent.”
Webster’s Third New Int’l Dictionary 1274 (unabridged ed
2002) (defining “last” as, inter alia, “most recent”). “Known”
means “that is apprehended or perceived by the mind or
senses.” Id. at 1253. That term is broad enough to encom-
pass knowledge acquired from any source. In the realm of
civil litigation, the most common source of knowledge of a
party’s address ordinarily is notice that the party provides
to the court and other parties. See, e.g., UTCR 2.010(14)
(providing that a “self-represented party whose court con-
tact information changes must immediately provide notice
of that change to the trial court administrator and all other
parties”). Finally, as pertinent here, “address” means “the
designation of a place (as a residence or place of business)
where a person or organization may be found or commu-
nicated with.” Webster’s at 25. Thus, a party’s last known
address under ORCP 9 B must be a particular location, but
that location is not limited—either by the text or context of
the rule—to the party’s residence address. Cf. ORCP 7 D(4)
(a)(i)(A) (authorizing service by mail in motor vehicle acci-
dent cases at “any residence address provided by that defen-
dant at the scene of the accident” (emphasis added)). In sum,
the last known address of a party for purposes of ORCP 9 B
is the most recent place at which another party knows that
the party can be found or communicated with.
15
We note that neither party has offered a statutory construction analysis of
ORCP 9 to ascertain the meaning of the term “last known address.”
786 Union Lumber Co. v. Miller
That common-sense meaning is supported by
the history of ORCP 9. That rule was promulgated by the
Council on Court Procedures in 1978 and modeled after
FRCP 5 and Rhode Island Rule of Civil Procedure 5, which
described the same practice generally followed in Oregon
at the time. Council on Court Procedures, 4 Legislative
History Relating to Promulgation of Oregon Rules of Civil
Procedure (1/1/78 through 12/31/78), June 28, 1978 Draft
and Proposed Comment to Rule 6, 33 (1979). Oregon’s pre-
vious procedural requirements for service by mail were
codified in former ORS 16.790 (1977), which was replaced
by ORCP 9. Council on Court Procedures, Staff Comment
to Rule 9, reprinted in Frederic R. Merrill, Oregon Rules
of Civil Procedure: A Handbook 28-29 (1981). Former ORS
16.790 (1977) provided for service by mail to a party’s “reg-
ular office address, or [the party’s] address as last given by
[the party] on any document which [the party] has filed in
the cause and served on the party making service by mail.”
If the party did not maintain a regular office or if the party’s
filed documents did not specify an address, service by mail
could be accomplished at the party’s usual place of abode.
Former ORS 16.790 (1977).
It is notable that former ORS 16.790 (1977)
expressly provided that a party’s address for purposes of
mailing case-related documents could be the address last
given in the party’s filed submissions. Because the Council
on Court Procedures intended for ORCP 9 to generally fol-
low Oregon’s then-current procedures for service by mail,
the address that a party includes in pleadings filed with the
court can be the party’s “last known address” under ORCP 9
B. That is particularly true where, as in this case, pursuant
to court rule, an unrepresented party is required to keep the
trial court advised in writing of the party’s current mailing
address. See UTCR 2.010(14); see also Union and Wallowa
Circuit Court Supplementary Local Rule (SLR) 2.012(2).
In this case, plaintiff, the arbitrator, and the court mailed
pleadings and notices to the La Grande address that was
last provided as “defendants’ address” in the answer that
Ean filed pursuant to the powers of attorney that defen-
dants had executed. That address was the only address that
Cite as 360 Or 767 (2017) 787
defendants or Ean ever provided to plaintiff, the arbitrator,
and the trial court.16
It is true, as the Court of Appeals pointed out,
that Ron Miller was served with summons and complaint
at defendants’ residence in Wisconsin after Ean filed the
answer designating the La Grande address as defendants’
mailing address. However, irrespective of the address pro-
vided in the answer, plaintiff was required to perfect sub-
stituted service of summons and complaint on Ron Miller
at his residence address. See ORCP 7 D(2)(b).17 ORCP 7
D(2)(b) permits substituted service of summons and com-
plaint at a person’s “dwelling house or usual place of abode.”
Plaintiff’s compliance with that requirement did not neces-
sarily mean that defendants’ residence address for purposes
of substituted service of summons and complaint was their
“last known address” for purposes of ORCP 9 B. The com-
ment to Rule 9 indicates that that rule governs the “serv-
ing and filing of papers subsequent to the summons and
original complaint.” Council on Court Procedures, Staff
Comment to Rule 9, reprinted in Merrill, Oregon Rules of
Civil Procedure: A Handbook at 28-29. In the answer that
defendants authorized Ean to file, defendants designated
the La Grande address as their address for purposes of
serving them with post-summons and complaint documents
under ORCP 9, even though their residence address in
Wisconsin was the proper address for substituted service of
16
It bears emphasis that, in their declarations, defendants stated that they
had not heard anything from Ean, the court, or plaintiff, until Ean informed
them that the judgment had been entered. If they had not expected that case-re-
lated documents would be sent to the La Grande address, they would not have
had any reason to expect Ean to receive case-related documents for them.
17
ORCP 7 D(2)(b) allows for substituted service and provides:
“Substituted service may be made by delivering true copies of the sum-
mons and the complaint at the dwelling house or usual place of abode of the
person to be served to any person 14 years of age or older residing in the
dwelling house or usual place of abode of the person to be served. Where
substituted service is used, the plaintiff, as soon as reasonably possible, shall
cause to be mailed by first class mail true copies of the summons and the com-
plaint to the defendant at defendant’s dwelling house or usual place of abode,
together with a statement of the date, time, and place at which substituted
service was made. For the purpose of computing any period of time prescribed
or allowed by these rules or by statute, substituted service shall be complete
upon the mailing.”
(Emphasis added.)
788 Union Lumber Co. v. Miller
summons and complaint. In doing so, defendants designated
the La Grande address as their “last known address” for
purposes of ORCP 9 B.
Defendants have not drawn our attention to any
principle—and we are aware of none—that prevented them
from designating the La Grande address as such through
their attorney in fact, irrespective of his lack of authority to
represent them as an attorney at law in this action. Under
the presenting circumstances, we conclude as a matter of
law—based on our construction of ORCP 9 B—that plain-
tiff and the arbitrator did not make mistakes within the
contemplation of ORCP 71 B(1) by mailing post-summons
and complaint case-related documents to defendants at the
La Grande address.
Even if that were not so, though, we cannot ignore
the role that defendants played in facilitating the pur-
ported mistakes on which the Court of Appeals relied. If the
La Grande address had not been designated in defendants’
answer, the only address that plaintiff, the arbitrator, and
the court would have had for defendants would have been
the address where service of summons and complaint was
perfected in Wisconsin. However, defendants authorized
and directed Ean to file the answer on their behalf, and
that answer designated the La Grande address as defen-
dants’ address. Defendants do not contend that they were
unaware that Ean made that designation, nor do they con-
tend that they ever took any steps to change that designa-
tion. In short, even if plaintiff, the circuit court, or the arbi-
trator were mistaken in treating the La Grande address as
defendants’ last known address, defendants were complicit
in those mistakes. Therefore, we conclude that, even if the
La Grande address had not been defendants’ last known
address for purposes of ORCP 9 B, the trial court would not
have abused its discretion in denying defendants’ motion
to set aside the judgment based on the theory of mistake
on which the Court of Appeals relied. See King v. Mitchell,
188 Or 434, 441, 214 P2d 993 (1950) (“ ‘If the moving party
makes a clear and unquestionable showing that he has a
good defense or cause of action on the merits, of the benefit
of which he has been deprived without fault on his part, the
court has no discretion to deny him relief, and should it do
Cite as 360 Or 767 (2017) 789
so, its action will be set aside, and proper relief ordered by
the appellate court.’ ” (Quoting A.C. Freeman, 1 A Treatise
on the Law of Judgments § 291, 578 (5th ed 1925) (emphasis
added)).
In sum, we conclude that (1) the trial court did not
commit legal error in concluding that defendants were not
entitled to relief from the judgment in this action on the
grounds of excusable neglect and mistake on which defen-
dants relied; (2) the Court of Appeals erred in concluding
based on ORCP 9 B that plaintiff and the arbitrator mis-
takenly failed to mail case-related documents to defendants’
last known address; (3) even if case-related documents
mistakenly had not been mailed to defendants’ last known
address under ORCP 9 B, the trial court would not have
abused its discretion in denying defendants’ motion based
on their complicity in and facilitation of those mistakes; and
(4) the trial court therefore did not err in denying defen-
dants’ motion to set aside the judgment.
The decision of the Court of Appeals is reversed. The
order of the circuit court denying defendants’ motion to set
aside the general judgment and the supplemental judgment
awarding costs and attorney fees to plaintiff are affirmed.