- Court: Oregon Court of Appeals
- Area(s) of Law: Evidence
- Date Filed: 04-19-2017
- Case #: A161806
- Judge(s)/Court Below: Lagesen, J. for the Court; Ortega, P.J.; & Egan, J.
Defendant (Tenants) appeal from an order granting Plaintiff’s (Landlord) motion to set aside the trial court’s previous judgment of dismissal. Tenants assigned error to the trial court's conclusion that Landlord presented legally sufficient evidence for the court to set aside the judgment under ORCP 71 B(1). On appeal, Tenants argued that the evidence presented by Landlord was insufficient, as a matter of law, to permit the court to find Landlord’s failure to appear was “excusable neglect” within the meaning of ORCP 71 B(1). Under ORCP 71 B(1), as a matter of law, for a party to prove it is entitled to relief from a trial court’s judgment of dismissal on the ground “excusable neglect” the party must demonstrate that it had “a reasonable excuse for failing—on account of neglect . . .—to appear or otherwise defend [its] interests.” Union Lumber Co. v. Miller, 360 Or 767, 778 (2017). In this case, Landlord brought a forcible entry and wrongful detainer (FED) action to recover possession of a residential premises from Tenants. Landlord did not appear for trial, and the court dismissed the case. At a later date, Landlord filed a motion to set aside the trial court’s judgment of dismissal under ORCP 71(B)(1) claiming that Landlord’s failure to appear was the result of “mistake, inadvertence surprise, or excusable neglect.” Landlord’s only evidence presented in this motion was that Landlord’s clerk mistakenly calendared the time of the trial as 10:00 am, instead of the actual time which was set for 9:00 am. The Court of Appeals held, “Landlord's evidence did not suffice to meet his burden of establishing that landlord had a reasonable excuse for failing to appear at trial.” Reversed and Remanded