Preview:

FILED: September 12, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
JUDY JOHNSON, an individual, Plaintiff-Appellant,
v.

SUNRIVER RESORT LIMITED PARTNERSHIP,
a foreign limited partnership,
dba Sunriver Lodge & Resort,
Defendant-Respondent.

Deschutes County Circuit Court 10CV0455MA
A147729
A. Michael Adler, Judge.
Argued and submitted on June 26, 2012.
Brian J. MacRitchie argued the cause for appellant.  With him on the brief was Hurley Re,

P.C.

Ryan J. McLellan argued the cause for respondent.  With him on the brief were W.
Michael Quillen, and Smith, Freed & Eberhard, P.C.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
HADLOCK, J.
Affirmed.

1  HADLOCK, J.  
2  Plaintiff appeals the trial court's order setting aside a default judgment in  
3  plaintiff's favor.  The trial court relieved defendant from default under ORCP 71 on the  
4  ground that the default had resulted from defendant's excusable neglect.  For the reasons  
5  set forth below, we affirm.  
6  In reviewing a trial court's decision to grant relief from default, we are  
7  bound by the court's factual findings if they are supported by any evidence in the record.  
8  Terlyuk v. Krasnogorov, 237 Or App 546, 553, 240 P3d 740 (2010), rev den, 349 Or 603  
9  (2011). For purposes of this appeal, the historical facts largely are undisputed.  Plaintiff  
10  alleges that she fell in defendant's store and suffered injuries as a result of defendant's  
11  negligence.  In July 2008, defendant's insurer, Zurich North America (Zurich NA),  
12  received notice of plaintiff's claim against defendant.  That claim was assigned to claims  
13  adjuster Lorene Smith.  In early 2009, Smith sent a letter to plaintiff's attorney denying  
14  liability for the claim.  In February 2010, a different attorney notified Zurich NA, by letter  
15  directed to Smith, that he would be representing plaintiff in connection with the accident.  
16  Smith acknowledged that representation letter in March.  In May, plaintiff's attorney sent  
17  another letter to Smith, asserting that he would be filing a complaint on plaintiff's behalf.  
18  Smith informed one of defendant's employees, Sally Heise, that she should watch for a  
19  complaint that might be served on defendant.  
20  Plaintiff filed her complaint in late May 2010.  On June 11, plaintiff's  
21  summons and complaint was served on defendant's registered agent, CT Corporation  

1  Systems.  The summons notified defendant that it was required to appear in the case  
2  within 30 days. A few days later, Smith received courtesy copies of the summons and  
3  complaint from plaintiff's lawyer.  At around the same time, CT Corporation sent  
4  defendant copies of the summons and complaint with which it had been served.  
5  On June 16, 2010, another of defendant's employees, Rachel Pederson, e

Download A147729.pdf

Oregon Law