Indoor Billboard/Nw., Inc. v. TheLaundryList.com

• Docket Number: A177281
• Decision Date: 28 December 2023
• Parties: INDOOR BILLBOARD/NORTHWEST, INC., an Oregon corporation, Plaintiff-Respondent, v. THELAUNDRYLIST.COM, INC., a California corporation, Defendant, and SUPREME LINEN SERVICES, INC., a Florida corporation, Defendant-Appellant.
• Court: Oregon Court of Appeals

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329 Or.App. 789

INDOOR BILLBOARD/NORTHWEST, INC., an Oregon corporation, Plaintiff-Respondent,
v.
THELAUNDRYLIST.COM, INC., a California corporation, Defendant,

and SUPREME LINEN SERVICES, INC., a Florida corporation, Defendant-Appellant.

A177281

Court of Appeals of Oregon

December 28, 2023

Argued and submitted February 22, 2023.

Multnomah County Circuit Court 20CV22976; Leslie G. Bottomly, Judge.

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[329 Or.App. 790] Allison Leonard argued the cause for appellant. Also on the opening brief were Damian & Valori LLP; and Jeanne Sinnott and Wildwood Law Group LLC. On the reply brief were Allison Leonard and Wildwood Law Group LLC.

Dean Alterman argued the cause and filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.

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[329 Or.App. 791] JACQUOT, J.

Defendant Supreme Linen Services, Inc., a Florida corporation, appeals an order denying its motion under ORCP 71 B to set aside a default judgment against it obtained by plaintiff Indoor Billboard/Northwest, Inc. On appeal, defendant contends that the trial court erred in determining that the facts did not demonstrate excusable neglect. We reject that argument without further discussion. Defendant also asserts that the court erred by failing to set aside the default judgment as void for lack of personal jurisdiction. The trial court concluded that it had personal jurisdiction over defendant based on ORCP 4 D. We agree with defendant that the requirements of ORCP 4 D were not satisfied.^[1] Before the trial court, the parties disputed whether the court had personal jurisdiction under additional subsections of ORCP 4, and they reiterate some of those arguments on appeal, but we do not reach those additional issues, because the trial court did not make any findings on the disputed issues of fact. See Sherertz v. Brownstein Rask, 314 Or.App. 331, 341, 498 P.3d 850 (2021), rev den, 369 Or. 338 (2022) (we address an alternative basis for affirmance if it is "properly presented again on appeal and raises a question of law," whereas we remand if the trial court must make additional factual findings). Accordingly, we reverse and remand for the trial court to find the facts and evaluate the parties' contentions about other subsections of ORCP 4.

A default judgment that is void for lack of personal jurisdiction must be set aside. Nelson v. American Home Mortgage Servicing, Inc., 249 Or.App. 555, 558, 278 P.3d 89 (2012). To determine whether an Oregon court can exercise personal jurisdiction over a defendant, both the trial and the appellate courts look to the pleadings and the affidavits of both parties. Munson v. Valley Energy Investment Fund, 264 Or.App. 679, 700, 333 P.3d 1102 (2014). Initially, the "[p]laintiff bears the burden of alleging and proving the facts necessary to establish jurisdiction." Wallace v. Holden, 297 Or.App. 824, 826, 445 P.3d 914, rev den, 365 Or. 557 (2019).

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[329 Or.App. 792] That remains true when a defendant moves to set aside a default judgment as void for lack of personal jurisdiction. Horn and Horn, 97 Or.App. 177, 180, 775 P.2d 338, rev den, 308 Or. 465 (1989).

"We review the trial court's factual findings to determine whether they are supported by any competent evidence, and, where the trial court failed to make express factual findings, we assume that the court found the relevant facts in a manner consistent with its ultimate ruling." Munson, 264 Or.App. at 700-01 (internal quotation marks omitted). Our assumption that the court made implicit findings of fact has two exceptions. First, it does not apply when an implicit factual finding is not necessary to the court's ultimate conclusion. Pereida-Alba v. Coursey, 356 Or. 654, 671, 342 P.3d 70 (2015); see also State v. Lunacolorado, 238 Or.App. 691, 696, 243 P.3d 125 (2010), rev den, 350 Or. 530 (2011) (appellate court may infer a finding of fact "only where we can deduce that the trial court's chain of reasoning must necessarily have included that fact as one of its links"). Second, we defer to a court's implicit factual findings only to the extent that they are supported by the evidence in the record. Pereida-Alba, 356 Or at 671.

In this case, the trial court made few express findings of fact; thus, for the most part, our task is to ascertain what implicit findings were necessary to its analysis and defer to them to the extent that they are supported by evidence. We begin by summarizing the basic facts consistently with the trial court's few explicit findings. We provide additional facts about defendant's relationship with codefendant TheLaundryList.Com, Inc. (Laundry List) further below.

The dispute underlying this litigation arose from plaintiffs purchase of an industrial washing machine that previously belonged to defendant. Laundry List, a seller and broker of industrial laundry equipment, sent plaintiff an email advertising several industrial washing machines for sale. Plaintiff expressed interest in one of the washers, and, in response, Laundry List sent plaintiff a photograph of a meter reading on an industrial washer. At the time, the washer was located at defendant's facility in Florida, and plaintiff sent an agent there. Defendant's agent showed

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[329 Or.App. 793] plaintiffs agent a washer with the same meter reading as the one in the photograph Laundry List had sent.^[2] That is the only direct interaction that took place between defendant and plaintiff.

Laundry List sent plaintiff an invoice for a washer, and plaintiff paid Laundry List for the washer and for shipping to Oregon. Laundry List arranged for shipping and sent a truck to defendant's warehouse in Florida, where defendant loaded several pieces of equipment, including the washer that was later delivered to plaintiff, onto the truck. About a week later, the same truck delivered a washer to plaintiff in Oregon. The washer...