Union Lumber Co. v. Miller

Failure by an arbitrator and opposing counsel to serve documents related to arbitration and judgment as required by law are mistakes that require a court to set aside a judgment under ORCP 71B.

Union Lumber Co. (Union) sued Ron and Linda Miller (the Millers) for unpaid charges to their account in mandatory arbitration. The Millers’ son purchased building materials by charging the amount to the Miller’s account at Union’s supply store after the Miller’s appointed him to act on their behalf. Their son failed to correctly list the Millers’ address on the answer to Union’s complaint, and the Millers had failed to sign the pleading. Instead, the Miller’s son personally signed and listed his own address on the pleading. As a result, Union and the arbitrator forwarded all correspondence to the Millers’ son and did not properly serve or provide documents to the Millers. As a result, the Millers did not participate in the mandatory arbitration that followed, and appealed the judgment that was entered against them following arbitration. On appeal, the Millers argued their defective answer and failure to participate were excusable neglect. The Court held, because the Millers made the choice to proceed pro se, their failure to properly file their answer and attend the hearing was a risk they chose to take and were not excusable neglect. Nevertheless, the Court held the Millers’ son was not the Millers’ attorney of record, so Union and the arbitrator should have served or provided all documents to defendants directly to their last address of record, which Union and the arbitrator had known throughout the proceedings. Union’s and the arbitrator’s failure to do so violated ORS 36.425(2)(a) which resulted in a violation of the Millers’ right to seek a de novo trial. Reversed and remanded.