Koller v. Schmaing
| Decision Date | 19 December 2012 |
| Docket Number | A136633 (Control), A139232.,050100598 |
| Citation | 254 Or.App. 115,296 P.3d 529 |
| Parties | Daniel G. KOLLER, DVM, dba Companion Pet Clinic, NE 82nd Ave, Plaintiff, Cross–Respondent, v. Maureena SCHMAING, Defendant, Cross–Appellant, and Susan Ford Burns, Defendant. Maureena Schmaing, Counterclaim Plaintiff–Respondent, Cross–Appellant, and Susan Ford Burns, Counterclaim Plaintiff, v. Companion Pet Clinic of NE Portland, LLC; and Daniel G. Koller, DVM, dba Companion Pet Clinic, NE 82nd Ave, Counterclaim, Defendants–Appellants, Cross–Respondents. Daniel G. Koller, DVM, dba Companion Pet Clinic, NE 82nd Ave, Plaintiff–Appellant, v. Maureena Schmaing, Defendant–Respondent, and Susan Ford Burns, Defendant. Maureena Schmaing and Susan Ford Burns, Counterclaim Plaintiffs, v. Companion Pet Clinic of NE Portland, LLC, Counterclaim Defendant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
R. Daniel Lindahl argued the cause for appellants-cross-respondents. With him on the briefs was Lindahl Law Firm, PC.
Meagan A. Flynn argued the cause for respondent-cross-appellant. With her on the briefs were Preston, Bunnell & Flynn, LLP, and Benjamin Rosenthal and Law Offices of Benjamin Rosenthal.
Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.
This appeal arises from a jury verdict in favor of Maureena Schmaing on her counterclaim for wrongful discharge against her employers, Daniel G. Koller, D.V.M., dba Companion Pet Clinic, NE 82nd Ave. (Koller), and Companion Pet Clinic of NE Portland, LLC (Pet Clinic).1 Although the procedural posture on appeal is, as we shall describe, convoluted, the parties' dispute centers on issues which, as amplified below, we ultimately resolve as follows: (1) The only operative judgment, for purposes of our jurisdiction and review, is the original judgment, and not the third corrected general judgment. 2(2) The trial court erred in failing to name Koller, in addition to Pet Clinic, in that judgment as a judgment debtor on the wrongful discharge counterclaim. (3) The trial court correctly denied the motion for directed verdict against the wrongful discharge counterclaim. (4) Koller has failed to establish that any erroneous denial of his asserted right to self-representation requires a new trial as to the counterclaim against him individually. Consistently with those conclusions, we remand to the trial court with direction to designate Koller as an additional judgment debtor on the wrongful discharge counterclaim, but otherwise affirm.3
From February 2002 to June 2, 2004, Schmaing worked as a receptionist at Pet Clinic, which Koller owned and operated as a practicing licensed veterinarian. Schmaing's duties generally consisted of administrative tasks such as answering phones, greeting clients, and managing client information. While she was working at Pet Clinic, Schmaing obtained services, medications, and pet food from the clinic. During the second year of her employment, Schmaing witnessed Koller treat animals in a manner that she believed was abusive and unprofessional. According to Schmaing, Koller would sometimes get frustrated and become violent, angry, and threatening toward an animal that he was treating.
Eventually, Schmaing decided to report Koller to the proper authorities. To that end, on May 3, 2004, accompanied by Miller, a former Pet Clinic employee, Schmaing met with an attorney, Burns. Burns agreed to assist Schmaing in preparing a complaint against Koller to submit to the Oregon State Veterinary Medical Examining Board (veterinary board), which is responsible for investigating complaints against veterinarians “alleged to be practicing in violation of law.” ORS 676.160(19); ORS 676.165(1).
Later that month, Miller informed Koller about the meeting with Burns and Schmaing's assertions that Koller had been “conducting [himself] in an unprofessional and unethical manner” and that he had “euthanized an animal without the client's consent.” On May 27, 2004, Koller confronted Schmaing about the meeting and the negative remarks that Miller had attributed to her. Schmaing responded that she “didn't really know what he was talking about.” Koller then told Schmaing that he believed that Miller was “blackmailing him” and that Koller intended to create a document that Schmaing would need to sign.
When Schmaing returned to work the next day, Koller instructed her to sign a document that he had prepared and titled “ DECLARATION OF MAUREENA SCHMAING,” which consisted of 14 declarations including, as pertinent here:
“9. I have never met nor provided client records from Companion Pet Clinic, NE 82nd Ave. to a Ms. Susan Ford Burns, an Oregon attorney.
“10. I have never taken Gary Miller to Ms. Burns' office in my life.
“11. To my knowledge and belief Dr. Koller has never euthanized an animal without the client's consent.
“12. Gary Miller contacted me after his discharge and wanted me to participate in his plans to ‘get Roller's license.’ I declined because I have not seen Dr. Koller conduct himself in an unethical or unprofessional manner.
“ * * * * *
“I declare under penalty of perjury, under the laws of the State of Oregon that the foregoing is true and correct to the best of my recollection.”
(Capitalization and underscoring in original.)
Schmaing told Koller that she did not have time to sign the declaration, but that she would take it home and “look it over”—which Schmaing did—but she did not sign it. On June 2, 2004, Schmaing returned to work, and Koller insisted that she sign the declaration. Schmaing refused because, among other things, the statements quoted directly above were false and, with respect to declaration number 12, Schmaing informed Koller that she had, in fact, “seen him conduct himself in an unprofessional and unethical manner.” Koller again instructed Schmaing to sign the declaration, and, when she refused, he immediately fired her.
In July 2004, Schmaing submitted a complaint against Koller to the veterinary board.5 On January 14, 2005, Koller filed a complaint, pro se, against Schmaing alleging, inter alia, conversion and shoplifting with respect to services and pet products that Schmaing had obtained and for which she had not paid. Schmaing counterclaimed against both Koller and Pet Clinic for wrongful discharge, intentional infliction of emotional distress, and failure to pay wages. Koller answered the counterclaims, again pro se, asserting as an affirmative defense that he was the real party in interest because Pet Clinic was defunct and “ha[d] been such for the majority of time” that Schmaing had worked at the clinic. Pet Clinic did not separately answer the counterclaim.
As noted in the opening paragraph of this opinion, one of the critical issues presented for our review pertains to Roller's asserted entitlement to represent himself. On the first day of trial, August 17, 2006, at a hearing on the parties' respective in limine motions, Koller informed the court during the following exchange that he intended to represent himself:
Koller never filed the promised brief,6 and the trial proceeded before a jury with Ms. Koller (Roller's wife) jointly representing Koller and Pet Clinic. For the first eight days of trial, Koller never referred to, or reiterated, any request to proceed by representing himself. Then, on August 29, 2006, during the cross-examination of Schmaing, Koller sought to discharge Ms. Koller as his attorney and to represent himself:
The court excluded Koller from the courtroom, and Ms. Koller continued her cross-examination.7
Later the same day, Koller again addressed the court directly regarding an evidentiary dispute. The court admonished Koller that “you are to address the Court through counsel as we have discussed many times.” Ms. Koller responded, ...
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