Parker v. Burnes

ORCP 71 B(1) permits a court to relieve a party from judgement due to newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 64(f), such motions must be made within one year of notice of judgment.

Plaintiff appealed an order denying a motion to set aside judgement and reinstate his defamation claims. Plaintiff asserted the court failed to give sufficient consideration to Senate Concurrent Resolution 22 (2021) which found Plaintiff was damaged by Defendants' defamatory allegations and relief was not precluded by the time limitations of ORCP 71 because Defendants fraudulently concealed evidence. ORCP 71 B(1) permits a court to relieve a party from judgement due to newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 64(f), which ordinarily requires motions to be made within one year of notice of judgment. Tolling for fraudulent concealment requires the claiming party to show the breaching party fraudulently concealed the fact of their breach and the party’s wrongful conduct prevented the discovery of the breach. MAT, Inc. v. American Tower Asset Sub, LLC, 312 Or App 7, 16, 493 P3d 14 (2021) (citing Chaney v. Fields Chevrolet, 264 Or 21, 26-27, 503 P2d 1239 (1972)). The Court found that even if fraudulent concealment could toll the one year time limit of ORCP 71 B, Plaintiff failed to provide evidence to sustain a claim of fraudulent concealment.  Additionally, the Plaintiff could not receive relief under ORCP 71 C because the trial court does not have authority to vacate a judgment for “intrinsic fraud”. Finally, the Court found Plaintiff previously signed a release of claims which barred further pursuit of such claims against Defendants. Affirmed.