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Matt Taylor REDACTED • REDACTED • REDACTED • taylor.matthew.robert@gmail.com

OSB #053930

WRITING SAMPLE

The following is taken from a brief I filed in Jackson County Circuit Court in 2008. I was appointed to represent the respondent in a contempt of court for non-payment of child support proceeding. The case was somewhat unusual in that the motion to show cause was filed by a private party rather than by the District Attorney’s office. The actual issue was the amount of interest my client owed on the unpaid child support. The public defender’s office was appointed on the case because the respondent was potentially subject to jail as a sanction. My client was found in contempt and was found to owe at least some of the interest claimed by the petitioner. The petitioner filed a claim for attorney fees with the court, but they failed to provide me with any service. They sought additional time to meet their service requirement. The court did ultimately impose some attorney fees, but significantly less than the petitioner had requested. OBJECTION COMES NOW the respondent through his attorney Matthew R. Taylor and objects to the plaintiff’s motion under ORCP 12 B and ORCP 15 D. IN THE ALTERNATIVE, if the court does grant plaintiff’s motion for an extension, then respondent requests that the court allow respondent to file specific objections under ORCP 68 C(4)(b) within fourteen days after the court’s ruling on plaintiff’s motion under ORCP 15 D and ORCP 12 B. This objection is based on the following Points and Authorities. POINTS AND AUTHORITIES The question before the court is whether ORCP 12 B and ORCP 15 D excuse the petitioner from carelessly failing to serve the adverse party as required by ORCP 68 C(4)(a)(ii). The court should not extend the deadline for service after the 14 day time limit has expired because the court does not have authority to extend the time limit under ORCP 12 B. To extend the deadline under ORCP 15 D without requiring the petitioner to offer a justification for the additional time would be an abuse of discretion. If the court does find that it has discretion to grant an extension under these circumstances, the court ought to use its discretion to deny the extension. I. ORCP 12 B ORCP 12 B does not provide a basis for excusing the petitioner’s failure to comply with the requirements of ORCP 68 C(4), because ORCP 12 B only allows the

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court to ignore a defect in the proceedings if the defect does not affect a “substantial right.” The process outlined in ORCP 68 C(4) is a “substantial right,” and whether the defendant was actually prejudiced is not relevant. Jaffe v. Principle Company, 215 Or.App. 385, 390 (Oct. 10 2007). CIT Group v. Kendall, 151 Or.App. 231(1997). An exploration of Jaffe and related cases will reveal first that ORCP 12 B does not excuse a late filing, second that ORCP 12 B does not excuse lack of service, and third that the failure to serve the respondent in this case affected his substantial rights. A. ORCP 12 B, under Jaffe, does not excuse late filing. Jaffe is the most recent case on point on the relationship between ORCP 12 B and ORCP 68 C(4). In Jaffe the defendant filed his statement of attorney fees and costs 20 days after the entry of judgment, and the late filing did not create any actual prejudice to the plaintiff. 215 Or.App. at 389. Jaffe dismissed the defendant’s “lack of prejudice” argument as failing to address whether the late filing infringed the plaintiff’s substantial rights. Id. After examining the three prior cases to address this issue, Jaffe explains that the process in ORCP 68 C(4) is a substantial right. Id. at 389-390: The court will disregard a technical flaw in service where the prevailing party served a statement of costs on the adverse party while omitting to serve a third party involved in the case. State ex rel. Roberts v. Bomareto Enterprises, 153 Or.App. 183 (1998). In Bomareto the court found neither an infringement on the adverse party’s substantial rights nor that omission of service to the third party prejudiced the adverse party. Id. at 189. However, the court of appeals later distinguishes Bomareto and clarifies the importance of ORCP 68 C(4) in O’Neal and O’Neal, 158 Or.App. 431 (1999). In O’Neal the trial judge awarded attorney’s fees before the prevailing party could file a statement of their costs. The prevailing party then filed a motion to allow entry of a statement under ORCP 68 C. The trial court, after receiving a copy of the statement along with the motion, ruled that the statement issue was moot and it would not have changed the amount of attorney’s fees he would have awarded. Id. at 431. O’Neal reversed the trial judge and distinguished this situation from the situation in Bomareto. O’Neal points out the difference between a “technical flaw in service” and “elimination of the procedure of ORCP 68 altogether.” Id. at 435. O’Neal states, “Denial of this important process corrupts the system and infringes on the rights of each party.” Id. Finally Jaffe references Husted v. SCI Oregon Funeral Services, Inc. 209 Or.App. 45 (2006). In Husted the plaintiff prevailed at trial, and submitted a general judgment. The court struck one line from the judgment based on the defendant’s objection, and then signed and entered a general judgment. The next day the plaintiff filed a supplemental judgment reflecting the change, which the judge signed but did not enter. The plaintiff submitted a statement of attorney fees more than fourteen days after the entry of the general judgment but within fourteen days of the signing of the supplemental judgment. The trial judge erroneously found the filing of the statement of attorney fees timely. Id. at 48. On appeal, the plaintiff cited language in Lumbermen’s v. Dakota Ventures, 157 Or.App. 370 (1998), claiming that ORCP 12 B allows for flexibility on time limitations. Husted distinguished Lumbermen’s by pointing out that Lumbermen’s dealt with a defect

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in the pleadings not a failure to comply with a time limit. Husted, 209 Or.App at 48. Husted ultimately held that ORCP 12 B did not excuse the plaintiff’s late filing despite the confusion created by the supplemental judgment and the fact defendant was only late by 5 days. Id. at 49. After reviewing the above cases Jaffe concluded that filing the attorney fee statement six days late “affected plaintiff’s substantial rights and cannot be disregarded under ORCP 12 B, because to accept defendant’s interpretation would gut the time limits imposed in ORCP 68.” 215 Or.App. at 390. While a technical defect in service may be excused under ORCP 12 B, the line of cases culminating in Jaffe makes clear that the process in ORCP 68 C is a substantial right and that the trial courts are to strictly adhere to the time limits it imposes. B. ORCP 12 B does not excuse a failure to serve the adverse party. Having established that the procedure under ORCP 68 C is a substantial right, the next question presented is what abridges that substantial right. The Court of Appeals has offered significant guidance in answering that question in, among others, Lumbermen’s and Bomareto (both cited by petitioner and already discussed above). The facts in Lumbermen’s and Bomareto provide potential bookends for determining when a substantial right has been abridged. In Bomareto the adverse party was properly and timely served with the fee statements, but the prevailing party neglected its duty to serve third parties not in default. The requirement that a third party be served is not a substantial right of the adverse party. 153 Or.App. at 189. Bomareto can be paraphrased by saying that an adverse party lacks standing to object to failure of service as to a third party. Lumbermen’s, however, involves a failure to follow the most preliminary step in seeking attorney’s fees. In Lumbermen’s the defendant failed to plead a general right to attorney’s fees in any of its pleadings as required by ORCP 68 C(2)(b). In addition the defendant’s right to claim to be the prevailing party was questionable as the plaintiff moved to dismiss once it felt its concerns had been addressed. The plaintiff would have sought a judgment in its favor had it known the defendant would seek attorney fees as the prevailing party based on the plaintiff’s dismissal. Lumbermen’s 157 Or.App. at 376. In Lumbermen’s the court noted that ORCP 68 C is “tempered by ORCP 12 B,” but “does not, however, require the trial court to over look all defects.” Id. at 375. In Lumbermen’s, the fact that the plaintiff had no actual notice was controlling in the court’s decision that defendant was not entitled to attorney’s fees. Id. at 376. The court then goes on to reference various cases with the opposite outcome where a right to attorney’s fees were alleged but the pleading was incomplete in some respect. Id. Lumbermen’s is not relevant because it deals with a failure to comply with ORCP 68 C(2) and not with ORCP 68 C (4). In the instant case the respondent has not alleged that petitioner failed to comply with the pleading requirement of ORCP 68 C (2). The issue at hand is ORCP 68 C(4). Husted is informative on this point. It held that the analysis in Lumbermen’s did not apply to the issue of timeliness under ORCP 68C (4). Husted, 209 Or.App at 48. In the instant case the issue is a lack of service under ORCP 68 C (4).

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Lumbermen’s 157 Or.App. at 375 provides a better counterpart than itself to Bomareto by referencing CIT Group v. Kendall, 151 Or.App. 231(1997). CIT Group involves a plaintiff who filed a statement of attorney fees within the time required by ORCP 68 C(4) but failed to file a certificate of service. The defendant was served with the statement of attorney fees four months later. Id. at 233. CIT Group held that ORCP 12 B did not provide an excuse under those circumstances. Id. at 235. CIT Group provides additional cases that complete the outline of when ORCP 12 B saves defective service and when it does not. Id. at 233-234. cf Gier’s Liquor v. Assn. of Unit Owners, 124 Or.App. 365 (1993) (ORCP 12 B does allow a waiver of incorrect procedure when the party entitled to attorney’s fees files their statement prior to the entry of judgment.); Murray v. Meyer, 81 Or. App. 432 (1986), (The technical requirements of ORCP 9 B can be waived when the party actually receives the statement within the required time period—adverse party served via attorney mail box at courthouse and the attorney actually received the statement immediately.) CIT Group distinguishes the results in Murray and Gier’s Liquor, because in both of those instances the adverse party received actual notice with a full fourteen days to respond, whereas the failure of Notice in CIT Group could have resulted in a judgment being entered for attorney’s fees without an opportunity to object. Id. at 235. CIT Group notes that the court of appeals dealt with almost the same exact issue in Frederickson v. Ditmore, 132 Or.App. 330 (1995). In Frederickson the issue was inadequate service of objections to a fee statement. The plaintiff’s had inadequately served their objections by placing the objections in the defense attorney’s box at the courthouse. Defense counsel received the objections 16 days after the defense had filed their fee statement. Frederickson, relying in part on Murray, held that the plaintiff’s objections could not be considered because the service was inadequate. Id. at 334. [See also Petersen v. Fielder, 170 Or.App. 305 (2000), holding that judgment announcing that a party is entitled to attorney’s fees is not final until the amount is determined. Petersen does not address timeliness or service; but abrogates Frederickson’s separate holding as to the finality of a judgment awarding attorney’s fees. Petersen, 170 Or.App. at 309.] C. ORCP 12 B does not excuse petitioner’s error. Jaffe (along with Frederickson, CIT Group, Lumbermen’s, O’Neal, and Husted) clearly establishes that the procedures required by ORCP 68 C are substantial rights. Consolidating the different circumstances where ORCP 12 B does and does not excuse a failure to comply with ORCP 68 C(4) creates a two part test to determine whether that substantial right has been abridged. The first part will be actual service, and the second will be timeliness. Bomareto, Murray, and Gier’s Liqour all establish that if the adverse party receives the fee statement within fourteen days after the judgment then ORCP 12 B will apply. The error in each case did not prevent the adverse party from receiving the statement within 14 days: in Bomareto, a failure to serve someone other than the adverse party; in Murray, using the courthouse mailboxes instead of first class mail; in Gier’s Liqour, being early. CIT Group, Jaffe, Husted, and Frederickson all establish that a lack of notice within 14 days, even without actual harm, infringes a substantial right. In Jaffe the notice

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was merely 6 days late. In Husted the notice was merely 5 days late and even the trial judge was confused as to the relevant time frame. In CIT Group the notice was not served at all, and the mere fact that the judge could have entered a judgment during the four months that passed was enough to infringe on a substantial right. Frederickson matches up with Murray in that both involved service by courthouse mailbox. The distinguishing characteristic is that in Murray the adverse party actually received the notice on time; while in Frederickson, ORCP 12 B did not apply because the notice was just a couple of days late. Petitioner’s failure to comply with ORCP 68 C(4) does not pass the two elements to avoid an infringement of respondent’s substantial rights. In the present case petitioner has admitted to a lack of any service on the respondent. Respondent only became aware of the filing of the fee statement due to the diligence of his own attorney. Respondent’s attorney decided to review the court file for a copy of the final judgment and to insure his own file was in order before closing the file. Had Respondent’s attorney simply closed the file this issue may well have arisen at some point months from now. Respondent should not be penalized for his attorney’s diligence. Respondent received a copy of the statement through his attorney’s efforts 21 days after entry of judgment. The court has ruled that ORCP 12 B only saves a defective attempt at service when actual service was received within 14 days, and the court has found ORCP 12 B to not apply to a delay of just a couple of days. Given that Respondent’s receipt of actual notice of the fee statement was more than 6 days after the deadline passed and the first attempt at service by the petitioner was a month and a week after the entry of judgment, respondent’s substantial rights have been infringed. ORCP 12 B does not apply in these circumstances. To apply ORCP 12 B here would allow the evil the Jaffe court sought to prevent when it declared that it would not allow ORCP 12 B to “gut the time limits imposed by ORCP 68.” II. ORCP 15 D ORCP 15 D gives the trial court “discretion” to allow a late filing “upon such terms as may be just.” The plain language of the rule indicates that the party seeking refuge under ORCP 15 D must provide some reason for an extension. The analysis under ORCP 12 B has already established that the respondent has a substantial right to require the petitioner to comply with the 14 day deadline. Logic dictates that a substantial right ought not to be abbreviated without some justification beyond an “oversight.” Several of the cases that deal with the relationship between ORCP 12 B and ORCP 68 C (4) also address ORCP 15 D. Jaffe does specifically reserve ORCP 15 D as an issue to be brought up with the trial court or waived. 215 Or.App. at 391. citing Husted, 209 Or.App. at 49. Both Jaffe and Husted hold that whether to excuse a defect under ORCP 12B is an issue for the appellate courts and matter of law, while an enlargement of time under ORCP 15D is an issue for the trial courts. One appellate case that almost reaches this issue is City of Portland v. The Structure Located at 18 NW 3rd, 150 Or.App. 143 (1997). City of Portland distinguishes Frederickson because Frederickson did not raise the issue of ORCP 15 D. Id. at 150. The Court of Appeals notes that the The City filed a motion to extend the time along with an affidavit offering various justifications. Id. at 147. The Court of Appeals also notes that the defendant did not assign error to trial courts ruling under ORCP 15 D. The trial court has discretion to

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allow or deny a motion under ORCP 15 D depending on the justification offered by the moving party. It would be inconsistent to allow a party to receive an extension under ORCP 15 D after a deadline has passed, simply by acknowledging their mistake, when ORCP 12 B does not allow a late filing. A more consistent rule would be to require the party seeking relief under ORCP 15 D to plead or at least make an assertion of good cause. If the failure to comply with ORCP 15 D was due to some intervening factor such as an illness, inclement weather, or unforeseen case developments then a court could make a finding of good cause and excuse the late filing. The simple fact that the decision to grant a motion under ORCP 15 D is discretionary implies that the trial court needs to make findings of some sort. If a simple mistake or oversight were sufficient cause, then the Court of Appeals would not need to be so deferential to the trial court. Allowing ORCP 15 D to gut ORCP 68 when the court of Appeals has already ruled that ORCP 12 does not gut the time limits does not make sense. This court should not allow the petitioner’s carelessness to trump the respondent’s substantial rights.

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