Greenwood Prods., Inc. v. Greenwood Forest Prods., Inc., 050302553
Decision Date | 02 July 2014 |
Docket Number | A135701.,050302553 |
Citation | 330 P.3d 662,264 Or.App. 1 |
Parties | GREENWOOD PRODUCTS, INC., an Oregon corporation; and Jewett–Cameron Lumber Corp., an Oregon corporation, Plaintiffs–Respondents Cross–Appellants, v. GREENWOOD FOREST PRODUCTS, INC., an Oregon corporation; Jim Dovenberg, an individual; and Bill Lefors, an individual, Defendants–Appellants Cross–Respondents. |
Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Maureen Leonard and Ron D. Ferguson filed the briefs for appellants-cross-respondents.
Robert D. Newell, Kevin H. Kono, and Davis Wright Tremaine LLP filed the answering cross-opening brief for respondents-cross-appellants. With them on the supplemental brief was Timothy R. Volpert.
Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.
This case is on remand from the Oregon Supreme Court, which reversed, in part, our prior decision and remanded the case to us for further proceedings concerning three assignments of error that we either had no occasion to address in light of our disposition or need to readdress in light of its decision.1Greenwood Products v. Greenwood Forest Products, 238 Or.App. 468, 242 P.3d 723 (2010)(Greenwood I), rev'd in part and rem'd,351 Or. 604, 273 P.3d 116 (2012) ( Greenwood II ). The dispositive issue on remand concerns the denial of defendants' motion for a new trial under ORCP 64 B(4).2 For the reasons that follow, we conclude that defendants are entitled to a new trial on plaintiffs' breach of contract claim, based on “newly discovered” evidence. Accordingly, we reverse and remand in part on appeal and affirm on cross-appeal.
The Supreme Court has previously described the circumstances that gave rise to this case—as well as two other legal actions and a disciplinary proceeding—in Greenwood II and in its decision reprimanding plaintiffs' attorney for his conduct in litigating this case, In re Newell, 348 Or. 396, 234 P.3d 967 (2010). We take the background facts from our decision in Greenwood I and the Supreme Court's decisions in Greenwood II and Newell, supplemented as necessary with the undisputed facts pertinent to the issue on remand.
4
351 Or at 609–11, 273 P.3d 116 ( ).
Those circumstances gave rise to three legal actions—including this case. First, in 2004, Forest Products brought a conversion action against Fahey.5Newell, 348 Or. at 399, 234 P.3d 967. Second, in March 2005, plaintiffs brought this action against defendants “asserting breach of contract and equitable claims for reformation or rescission of the promissory notes” and defendants asserted counterclaims, “including a claim based on plaintiffs' failure to pay the entire face value of their promissory notes to Forest Products.” Greenwood II, 351 Or. at 612, 273 P.3d 116. Third, in April 2005, after being contacted by Forest Products, the district attorney brought criminal charges for theft against Fahey, who hired attorney Andrew Coit to represent him. Newell, 348 Or. at 399, 234 P.3d 967. As we will explain shortly, 264 Or.App. at 11–12, 330 P.3d at 667–68, immediately after his sentencing following the trial in this case—that is, the civil action between plaintiffs and defendants—Fahey executed an affidavit that was the focus of defendants' new trial motion based on newly discovered evidence.
In January 2006, Fahey pleaded guilty to 10 counts of theft. Newell, 348 Or. at 399, 234 P.3d 967. “As part of the plea agreement, Fahey agreed to cooperate with [Forest Products'] efforts to locate missing assets, and the trial court delayed the sentencing hearing to give Fahey time to carry out his part of the plea agreement.” Id. Fahey's sentencing was scheduled for May 2, 2006—approximately one week before trial was scheduled to begin in this case. On May 1, Coit “moved to continue Fahey's sentencing.” Id. at 400, 234 P.3d 967.
Thereafter, plaintiffs' attorney, Robert Newell, learned about the request to set over Fahey's sentencing in the criminal action and that defendants had subpoenaed Fahey to testify in the trial in this case. Id. On Friday, May 5, Newell had a subpoena served on Fahey for a deposition that was scheduled to begin 14 hours later on Saturday morning at 9:00 a.m.6Id. at 400–01, 234 P.3d 967. Although Newell served defendants' attorney, Ron Ferguson, with notice of the deposition, he “did not attempt to notify Coit [, Fahey's criminal attorney,] that he had subpoenaed Fahey.” 7Id. at 401, 234 P.3d...
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Greenwood Prods., Inc. v. Greenwood Forest Prods., Inc.
...was material for defendants, and that defendants exercised reasonable diligence in attempting to produce the evidence at trial. Greenwood Products v. Greenwood Forest Products , 264 Or App 1, 330 P3d 662 (2014) (Greenwood III) .3 Because we conclude that, irrespective of whether the proff......
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Greenwood Prods., Inc. v. Greenwood Forest Prods., Inc., 050302553
...P.3d 723 (2010) (Greenwood I ), rev'd in part and rem'd, 351 Or. 604, 273 P.3d 116 (2012) (Greenwood II ), on remand, 264 Or.App. 1, 330 P.3d 662 (2014) (Greenwood III ), rev'd and rem'd, 357 Or. 665, 359 P.3d 219 (2015) (Greenwood IV ). A recitation of the facts would not benefit the bench......