Ballinger v. Nooth

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: NAKAMOTO
• Citation: Ballinger v. Nooth, 254 Or.App. 402, 295 P.3d 115 (Or. App. 2012)
• Decision Date: 27 December 2012
• Docket Number: 10037948P; A146788.
• Parties: Terry Alfred BALLINGER, Petitioner–Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Respondent.

254 Or.App. 402

295 P.3d 115

Terry Alfred BALLINGER, Petitioner–Appellant,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant–Respondent.

10037948P; A146788.

Court of Appeals of Oregon.

Submitted May 4, 2012.

Decided Dec. 27, 2012.

James N. Varner filed the opening brief for appellant. Terry Ballinger filed the supplemental briefs pro se.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the briefs for respondent.

Before HASELTON, Chief Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

In this action for post-conviction relief, the post-conviction court granted defendant's motion for summary judgment and entered judgment after petitioner's attorney, without notifying petitioner, informed the court that he would not file a response. Acting for himself under State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991), and ORAP 5.90, petitioner appeals the denial of his motion for relief from the judgment entered against him, brought under ORCP 71 B(1)(a). Petitioner also raises supplemental assignments of error related to the merits of his action for post-conviction relief, specifically, his sentence. For the following reasons, we affirm.

We state the facts relevant to the ORCP 71 motion, which are undisputed. Petitioner was convicted of first-degree sodomy and first-degree sexual abuse. Following his conviction, petitioner filed a petition for post-conviction relief pursuant to ORS 138.510 to 138.680. In his petition, he claimed that his trial counsel was ineffective by failing to investigate his case and interview witnesses. On September 20, 2010, defendant Nooth, the superintendent of the Snake River Correctional Institution, moved for summary judgment on the ground that petitioner could not prove that his trial counsel was inadequate or that petitioner was prejudiced. On September 27, 2010, a week after the filing of the motion, petitioner's post-conviction attorney, Mahony, sent a letter to the post-conviction court informing it that petitioner would not be filing a response to defendant's motion, even though Mahony had not consulted with or informed petitioner about the summary judgment motion. That day, the post-conviction court signed an order in which it noted that petitioner had “elected not to respond” and granted defendant's motion for summary judgment. On September 28, 2010, the clerk of the court entered the judgment dismissing the action.

On that same day, September 28, petitioner received a letter from Mahony dated September 26. The letter informed petitioner that Mahony was not going to respond to defendant's motion for summary judgment. Approximately one month later, on November 4, 2010, petitioner filed a motion for relief from the judgment with a supporting memorandum of law, contending that he should be granted relief because Mahony had failed to communicate with him and he had not been provided an opportunity to personally respond to defendant's motion. Petitioner relied on ORCP 71 B(1)(a), which provides that, upon a party's 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 * * *. A motion for reasons (a), * * * shall be accompanied by a pleading or motion under Rule 21 A which contains an assertion of a claim or defense. * * *.”

Petitioner also filed an affidavit in support of his motion. In the affidavit, petitioner testified to the sequence of events stated above. He also affirmed that, if he had known about defendant's motion, he would have responded to it. He did not include, with his motion for relief from the judgment, a proposed response to defendant's motion for summary judgment or include any evidence of how his trial attorney in the criminal case was ineffective.

Defendant filed a memorandum in response, arguing that petitioner had not identified a specific ground for relief from the judgment. Defendant did not controvert the salient factual background, namely, that Mahony had not consulted with petitioner and that petitioner was not informed that defendant had filed a summary judgment motion until a judgment had already been entered in defendant's favor. The postconviction court denied petitioner's motion for relief from the judgment with a handwritten notation of “no legal basis” on petitioner's motion, and petitioner timely appealed.

On appeal, petitioner again asserts that the post-conviction court should have allowed him to respond to the summary judgment motion because Mahony neither consulted with petitioner nor gave him the opportunity to file a pro se response before sending his letter to the court. Although petitioner's assignment of error states that the post-conviction court erred in granting summary judgment without allowing him an opportunity to file a response, petitioner's arguments challenge the post-conviction court's denial of his motion for relief from the judgment. Defendant counters that challenge by asserting that petitioner, through his attorney, had a chance to respond to defendant's summary judgment motion but is bound by his attorney's failure to file a response on his behalf. Defendant relies on the proposition that “professional mistakes, negligence, or inadvertence of an attorney do not constitute the ‘mistakes, inadvertence, surprise, or inexcusable neglect’ necessary to set aside a judgment” under ORCP 71 B(1)(a), citing McCarthy v. Oregon Freeze Dry, Inc., 158 Or.App. 654, 658, 976 P.2d 566 (1999), rev'd on other grounds,334 Or. 77, 46 P.3d 721 (2002). Defendant also argues that petitioner was required to provide evidence on the merits of the summary judgment motion when he sought relief from the judgment.

We review the denial of the motion for relief from the judgment for abuse of discretion. Compton v. Lampert, 226 Or.App. 420, 422, 203 P.3d 924,rev. den.,346 Or. 589, 214 P.3d 821 (2009). By its terms, ORCP 71 B(1) requires that a motion to set aside a judgment for mistake, inadvertence, surprise, or inexcusable neglect be “accompanied by a pleading or motion under Rule 21 A” that “contains an assertion of a claim or defense.” A court “abuses its discretion by considering an ORCP 71 B(1) motion that is not ‘complete,’ that is, that does not contain a responsive pleading[.]” Dickey v. Rehder, 239 Or.App. 253, 259, 244 P.3d 819 (2010), rev. den.,349 Or. 664, 249 P.3d 1282 (2011) (the defendant obtained relief from a default judgment pursuant to ORCP 69 C and ORCP 71 B(1) after submitting a corrected ORCP 71 B(1) motion with a responsive pleading); see also Duvall v. McLeod, 331 Or. 675, 680, 21 P.3d 88 (2001) (holding that a motion under ORCP 71 B(1) must be accompanied by a responsive pleading and that the trial court abused its discretion by setting aside the default judgment without the accompanying pleading). This case, though, concerns a summary judgment motion, not a pleading. See,ORCP 13 (defining and describing “pleadings”). Petitioner had earlier filed a pleading, a petition for post-conviction relief, asserting that his trial counsel was ineffective. Rule 71 B(1) is not clear on its face that a response to a summary judgment motion is necessary when moving for relief from the summary judgment.

We assume, without deciding, that the action of petitioner's attorney in essentially conceding the summary judgment motion, without prior consultation with petitioner or even notice to him of the existence of the motion and petitioner's option to submit a response himself, went beyond mere negligence, professional mistake, or inadvertence and was an unauthorized act in breach of duties to his client that could justify the granting of relief from the summary judgment. Despite that assumption, however, we agree with defendant that petitioner was required to provide the postconviction court with at least some basis for his anticipated response to defendant's summary judgment motion when petitioner sought relief from the judgment under ORCP 71 B(1)(a). We so conclude based on case law construing the statutory antecedent to ORCP 71 B, formerORS 18.160 (1979), repealed by Or. Laws 1981, ch. 898, § 53, and the commentary to the rule by the Council on Court Procedures.

FormerORS 18.160 provided,...