Peeples v. Lampert

• Decision Date: 01 November 2006
• Docket Number: 02-01-1658M.,03-C21423.,A125027.,A122837 (Control).
• Citation: 146 P.3d 352,209 Or. App. 17
• Parties: Jason J. PEEPLES, Appellant, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent. Jason Peeples, Appellant v. Brian Belleque, Superintendent, Oregon State Penitentiary, Respondent.
• Court: Oregon Court of Appeals

146 P.3d 352

209 Or. App. 17

Jason J. PEEPLES, Appellant, v. Robert LAMPERT, Superintendent, Snake River Correctional Institution, Respondent.

Jason Peeples, Appellant v. Brian Belleque, Superintendent, Oregon State Penitentiary, Respondent.

02-01-1658M.

A122837 (Control).

03-C21423.

A125027.

Court of Appeals of Oregon.

Argued and Submitted May 2, 2006.

Decided November 1, 2006.

Patrick M. Ebbett argued the cause for appellant. With him on the briefs was Chilton, Ebbett & Rohr, LLC.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondents. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before ORTEGA, Presiding Judge, and BREWER, Chief Judge, and LANDAU, Judge.^*

LANDAU, J.

Petitioner appeals a judgment dismissing his second petition for post-conviction relief as a sanction for his refusal to participate in a scheduled deposition. ORCP 46 B, D. He argues that the court failed to make the required findings in support of such a sanction and that, in any event, the court's choice of dismissal as a sanction was unjustified. We affirm.

Because the post-conviction court's decision arose, in part, from petitioner's conduct at earlier stages of the proceedings, we begin with the procedural history of petitioner's case. In petitioner's underlying criminal trial, he pleaded guilty to one count of second-degree rape and one count of second-degree unlawful sexual penetration, and he was sentenced to 100 months' imprisonment.

Petitioner filed a pro se petition for post-conviction relief in January 2002. In September of the same year, an attorney filed an amended petition for him, and trial was eventually scheduled for a year later.

About one week before trial, petitioner's attorney filed a motion to allow another amended petition, which was denied. On the day of trial, petitioner requested a continuance, stating that he wanted new counsel wished to amend his petition, and needed time to obtain three pieces of evidence that he had requested. The court denied his motion for continuance and, on petitioner's decision not to proceed on the existing petition, the court dismissed the case without prejudice.

In November 2003, petitioner filed a second pro se petition. His new attorney filed an amended petition in February 2004. After petitioner expressed dissatisfaction with the amended petition, his counsel wrote to him and explained each change in the petition. Although petitioner requested further changes, his counsel did not believe that any further changes were warranted.

Defendant sought to depose petitioner, and the post-conviction court granted the request, scheduling the deposition for May 2004. At the deposition, petitioner claimed that he had not realized that he was to be deposed. Defendant's counsel confirmed that understanding of petitioner's position: "It's my understanding that you've indicated that you do not feel ready to be deposed today but wish to have it set over to a later date. Is that correct?" Petitioner answered in the affirmative.

Defendant then moved to dismiss the petition on the ground that petitioner had refused to participate in his deposition. Defendant's counsel submitted an affidavit stating that petitioner had "refused to participate in the deposition, claiming that he was not ready," and that "similar to [petitioner's] refusal to proceed in his prior post-conviction proceeding, petitioner is refusing to participate in the current litigation of his claims."

In response, petitioner's counsel submitted an affidavit stating that, on the day of the deposition, petitioner had clarified one of his objections to the amended petition, causing counsel to conclude that he had misunderstood petitioner's position and that the petition should be amended. According to petitioner's counsel, petitioner wanted to delay the deposition to allow them more time to discuss amendments to the petition. Petitioner also contended that even if the court concluded that a discovery violation had occurred, dismissal "is not the appropriate sanction in this case," and that a lesser sanction, such as payment for the court reporter's time, should be imposed. Petitioner did not ask for any particular finding. Nor did he suggest to the court that a failure to make findings would amount to legal error.

At the hearing on the motion to dismiss, petitioner again stated that he needed to amend his petition. He also denied refusing to be deposed and stated that, "if [the assistant attorney general] would have deposed me[,] I would have proceeded."

The post-conviction court dismissed the petition with prejudice. The court found that petitioner "has delayed his own post conviction proceedings for almost two years. [Petitioner] had knowledge that refusal to participate in court proceedings could result in dismissal of his case. [Petitioner] chose not to participate in his deposition." The court explained that, although petitioner argued that he had not refused to participate in his deposition, "the transcript, [petitioner's] attorney's statement, and [petitioner's] past history show that treating his request for further delay as a refusal is not unreasonable, and [is] well-founded under the circumstances."

On appeal, petitioner contends that the trial court erred in dismissing his petition. As a procedural matter, he argues that the court failed to make the findings required to support dismissal as a sanction.¹ With respect to the merits of the court's decision, petitioner contends that the court erred because dismissal was not warranted under the circumstances. Petitioner argues that, to begin with, he did not actually refuse to participate in the deposition, but simply requested more time, and that the court's finding to the contrary is not supported by evidence in the record. In any event, petitioner argues, even if the court was justified in construing his request for time as a refusal to participate in the deposition, its decision to impose the "ultimate sanction" and dismiss the case, as opposed to imposing some lesser sanction, was not justified. We conclude that (1) petitioner failed to preserve his argument that the court was required to make specific findings in support of its decision to dismiss the petition and (2) the court did not err in choosing dismissal as a sanction.

We begin with the question whether the post-conviction court erred by failing to make findings to explain why it was not imposing a lesser sanction. Petitioner argues that, under Pamplin v. Victoria, 319 Or. 429, 877 P.2d 1196 (1994), the trial court erred as a matter of law in imposing the sanction of dismissal without first making findings that lesser sanctions were not available or appropriate. Defendant responds that petitioner failed to preserve the argument. We agree with defendant.

ORCP 46 D provides, in part, that if a party who has been served with proper notice fails to appear for his deposition, "the court in which the action is pending on motion may make such orders in regard to the failure as are just, including among others it may take any action authorized under subsection B(2)(a), (b), and (c) of this rule." ORCP 46 B(2) provides, in part:

"If a party * * * fails to obey an order to provide or permit discovery, * * * the court in which the action is pending may make such orders in regard to the failure as are just, including among others, the following:

"B(2)(a) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

"B(2)(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;

"B(2)(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party[.]"

In Pamplin, the Supreme Court held that a court that dismisses a case as a sanction under ORCP 46 B(2)(c) "must make findings of fact and must explain why that sanction is `just'; that a finding of willfulness, bad faith, or fault of a similar degree on the part of the disobedient party is required; and that a finding of prejudice to the party seeking recovery is not required." 319 Or. at 437, 877 P.2d 1196. The court observed that, although a court ordinarily "may" make special or general findings in the absence of a request for special findings, "the sanction of dismissal under ORCP 46 B(2)(c) is a `situation in which special findings are a prerequisite to meaningful review by an appellate court.'" Id. (quoting Mattiza v. Foster, 311 Or. 1, 10, 803 P.2d 723 (1990)).

In SAIF v. Harris, 161 Or.App. 1, 983 P.2d 1066, rev. den., 329 Or. 527, 994 P.2d 128 (1999), however, we held that the special findings requirement recognized in Pamplin is subject to basic rules of waiver and preservation. In Harris, the plaintiff moved for judgment against the defendant on the ground that the defendant had committed various discovery violations. The defendant did not respond to the motion, and the trial court entered judgment as the plaintiff requested. Nearly a year later, the defendant moved for relief on the ground that the trial court had neglected to make the findings required by Pamplin. The trial court denied relief.

We affirmed. We began by noting that Pamplin does require trial courts to set forth the rationale for the imposition of sanctions for discovery violations. We nevertheless concluded that the defendant was in no position to complain about the lack of findings at that late stage in the proceedings. We explained our reasoning in the following terms:

"Rules regarding preservation generally require that an objection be raised earlier rather...