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Matt Taylor
REDACTED • REDACTED • REDACTED • taylor.matthew.robert@gmail.com
OSB #053930
WRITING SAMPLE
The following is taken from a brief I filed in Jackson County Circuit Court in
2008. I was appointed to represent the respondent in a contempt of court for non-
payment of child support proceeding. The case was somewhat unusual in that the motion
to show cause was filed by a private party rather than by the District Attorney’s office.
The actual issue was the amount of interest my client owed on the unpaid child support.
The public defender’s office was appointed on the case because the respondent was
potentially subject to jail as a sanction. My client was found in contempt and was found
to owe at least some of the interest claimed by the petitioner. The petitioner filed a claim
for attorney fees with the court, but they failed to provide me with any service. They
sought additional time to meet their service requirement. The court did ultimately
impose some attorney fees, but significantly less than the petitioner had requested.
OBJECTION
COMES NOW the respondent through his attorney Matthew R. Taylor and
objects to the plaintiff’s motion under ORCP 12 B and ORCP 15 D.
IN THE ALTERNATIVE, if the court does grant plaintiff’s motion for an
extension, then respondent requests that the court allow respondent to file specific
objections under ORCP 68 C(4)(b) within fourteen days after the court’s ruling on
plaintiff’s motion under ORCP 15 D and ORCP 12 B.
This objection is based on the following Points and Authorities.
POINTS AND AUTHORITIES
The question before the court is whether ORCP 12 B and ORCP 15 D excuse the
petitioner from carelessly failing to serve the adverse party as required by ORCP 68
C(4)(a)(ii). The court should not extend the deadline for service after the 14 day time
limit has expired because the court does not have authority to extend the time limit under
ORCP 12 B. To extend the deadline under ORCP 15 D without requiring the petitioner to
offer a justification for the additional time would be an abuse of discretion. If the court
does find that it has discretion to grant an extension under these circumstances, the court
ought to use its discretion to deny the extension.
I. ORCP 12 B
ORCP 12 B does not provide a basis for excusing the petitioner’s failure to
comply with the requirements of ORCP 68 C(4), because ORCP 12 B only allows the

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court to ignore a defect in the proceedings if the defect does not affect a “substantial
right.” The process outlined in ORCP 68 C(4) is a “substantial right,” and whether the
defendant was actually prejudiced is not relevant. Jaffe v. Principle Company, 215
Or.App. 385, 390 (Oct. 10 2007). CIT Group v. Kendall, 151 Or.App. 231(1997). An
exploration of Jaffe and related cases will reveal first that ORCP 12 B does not excuse a
late filing, second that ORCP 12 B does not excuse lack of service, and third that the
failure to serve the respondent in this case affected his substantial rights.
A. ORCP 12 B, under Jaffe, does not excuse late filing.
Jaffe is the most recent case on point on the relationship between ORCP 12 B and
ORCP 68 C(4). In Jaffe the defendant filed his statement of attorney fees and costs 20
days after the entry of judgment, and the late filing did not create any actual prejudice to
the plaintiff. 215 Or.App. at 389. Jaffe dismissed the defendant’s “lack of prejudice”
argument as failing to address whether the late filing infringed the plaintiff’s substantial
rights. Id.
After examining the three prior cases to address this issue, Jaffe explains that the
process in ORCP 68 C(4) is a substantial right. Id. at 389-390:
The court will disregard a technical flaw in service where the prevailing party
served a statement of costs on the adverse party while omitting to serve a third party
involved in the case. State ex rel. Roberts v. Bomareto Enterprises, 153 Or.App. 183
(1998). In Bomareto the court found neither an infringement on the adverse party’s
substantial rights nor that omission of service to the third party prejudiced the adverse
party. Id. at 189.
However, the court of appeals later distinguishes Bomareto and clarifies the
importance of ORCP 68 C(4) in O’Neal and O’Neal, 158 Or.App. 431 (1999). In
O’Neal the trial judge awarded attorney’s fees before the prevailing party could file a
statement of their costs. The prevailing party then filed a motion to allow entry of a
statement under ORCP 68 C. The trial court, after receiving a copy of the statement
along with the motion, ruled that the statement issue was moot and it would not have
changed the amount of attorney’s fees he would have awarded. Id. at 431. O’Neal
reversed the trial judge and distinguished this situation from the situation in Bomareto.
O’Neal points out the difference between a “technical flaw in service” and “elimination
of the procedure of ORCP 68 altogether.” Id. at 435. O’Neal states, “Denial of this
important process corrupts the system and infringes on the rights of each party.” Id.
Finally Jaffe references Husted v. SCI Oregon Funeral Services, Inc. 209 Or.App.
45 (2006). In Husted the plaintiff prevailed at trial, and submitted a general judgment.
The court struck one line from the judgment based on the defendant’s objection, and then
signed and entered a general judgment. The next day the plaintiff filed a supplemental
judgment reflecting the change, which the judge signed but did not enter. The plaintiff
submitted a statement of attorney fees more than fourteen days after the entry of the
general judgment but within fourteen days of the signing of the supplemental judgment.
The trial judge erroneously found the filing of the statement of attorney fees timely. Id.
at 48. On appeal, the plaintiff cited language in Lumbermen’s v. Dakota Ventures, 157
Or.App. 370 (1998), claiming that ORCP 12 B allows for flexibility on time limitations.
Husted distinguished Lumbermen’s by pointing out that Lumbermen’s dealt with a defect

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in the pleadings not a failure to comply with a time limit. Husted, 209 Or.App at 48.
Husted ultimately held that ORCP 12 B did not excuse the plaintiff’s late filing despite
the confusion created by the supplemental judgment and the fact defendant was only late
by 5 days. Id. at 49.
After reviewing the above cases Jaffe concluded that filing the attorney fee
statement six days late “affected plaintiff’s substantial rights and cannot be disregarded
under ORCP 12 B, because to accept defendant’s interpretation would gut the time limits
imposed in ORCP 68.” 215 Or.App. at 390.
While a technical defect in service may be excused under ORCP 12 B, the line of
cases culminating in Jaffe makes clear that the process in ORCP 68 C is a substantial
right and that the trial courts are to strictly adhere to the time limits it imposes.
B. ORCP 12 B does not excuse a failure to serve the adverse party.
Having established that the procedure under ORCP 68 C is a substantial right, the
next question presented is what abridges that substantial right. The Court of Appeals has
offered significant guidance in answering that question in, among others, Lumbermen’s
and Bomareto (both cited by petitioner and already discussed above).
The facts in Lumbermen’s and Bomareto provide potential bookends for
determining when a substantial right has been abridged. In Bomareto the adverse party
was properly and timely served with the fee statements, but the prevailing party neglected
its duty to serve third parties not in default. The requirement that a third party be served
is not a substantial right of the adverse party. 153 Or.App. at 189. Bomareto can be
paraphrased by saying that an adverse party lacks standing to object to failure of service
as to a third party.
Lumbermen’s, however, involves a failure to follow the most preliminary step in
seeking attorney’s fees. In Lumbermen’s the defendant failed to plead a general right to
attorney’s fees in any of its pleadings as required by ORCP 68 C(2)(b). In addition the
defendant’s right to claim to be the prevailing party was questionable as the plaintiff
moved to dismiss once it felt its concerns had been addressed. The plaintiff would have
sought a judgment in its favor had it known the defendant would seek attorney fees as the
prevailing party based on the plaintiff’s dismissal. Lumbermen’s 157 Or.App. at 376. In
Lumbermen’s the court noted that ORCP 68 C is “tempered by ORCP 12 B,” but “does
not, however, require the trial court to over look all defects.” Id. at 375. In
Lumbermen’s, the fact that the plaintiff had no actual notice was controlling in the court’s
decision that defendant was not entitled to attorney’s fees. Id. at 376. The court then
goes on to reference various cases with the opposite outcome where a right to attorney’s
fees were alleged but the pleading was incomplete in some respect. Id.
Lumbermen’s is not relevant because it deals with a failure to comply with ORCP
68 C(2) and not with ORCP 68 C (4). In the instant case the respondent has not alleged
that petitioner failed to comply with the pleading requirement of ORCP 68 C (2). The
issue at hand is ORCP 68 C(4). Husted is informative on this point. It held that the
analysis in Lumbermen’s did not apply to the issue of timeliness under ORCP 68C (4).
Husted, 209 Or.App at 48. In the instant case the issue is a lack of service under ORCP
68 C (4).

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Lumbermen’s 157 Or.App. at 375 provides a better counterpart than itself to
Bomareto by referencing CIT Group v. Kendall, 151 Or.App. 231(1997). CIT Group
involves a plaintiff who filed a statement of attorney fees within the time required by
ORCP 68 C(4) but failed to file a certificate of service. The defendant was served with
the statement of attorney fees four months later. Id. at 233. CIT Group held that ORCP
12 B did not provide an excuse under those circumstances. Id. at 235.
CIT Group provides additional cases that complete the outline of when ORCP 12
B saves defective service and when it does not. Id. at 233-234. cf Gier’s Liquor v. Assn.
of Unit Owners, 124 Or.App. 365 (1993) (ORCP 12 B does allow a waiver of incorrect
procedure when the party entitled to attorney’s fees files their statement prior to the entry
of judgment.); Murray v. Meyer, 81 Or. App. 432 (1986), (The technical requirements of
ORCP 9 B can be waived when the party actually receives the statement within the
required time period—adverse party served via attorney mail box at courthouse and the
attorney actually received the statement immediately.) CIT Group distinguishes the
results in Murray and Gier’s Liquor, because in both of those instances the adverse party
received actual notice with a full fourteen days to respond, whereas the failure of Notice
in CIT Group could have resulted in a judgment being entered for attorney’s fees
without an opportunity to object. Id. at 235.
CIT Group notes that the court of appeals dealt with almost the same exact issue
in Frederickson v. Ditmore, 132 Or.App. 330 (1995). In Frederickson the issue was
inadequate service of objections to a fee statement. The plaintiff’s had inadequately
served their objections by placing the objections in the defense attorney’s box at the
courthouse. Defense counsel received the objections 16 days after the defense had filed
their fee statement. Frederickson, relying in part on Murray, held that the plaintiff’s
objections could not be considered because the service was inadequate. Id. at 334. [See
also Petersen v. Fielder, 170 Or.App. 305 (2000), holding that judgment announcing that
a party is entitled to attorney’s fees is not final until the amount is determined. Petersen
does not address timeliness or service; but abrogates Frederickson’s separate holding as
to the finality of a judgment awarding attorney’s fees. Petersen, 170 Or.App. at 309.]
C. ORCP 12 B does not excuse petitioner’s error.
Jaffe (along with Frederickson, CIT Group, Lumbermen’s, O’Neal, and Husted)
clearly establishes that the procedures required by ORCP 68 C are substantial rights.
Consolidating the different circumstances where ORCP 12 B does and does not excuse a
failure to comply with ORCP 68 C(4) creates a two part test to determine whether that
substantial right has been abridged. The first part will be actual service, and the second
will be timeliness.
Bomareto, Murray, and Gier’s Liqour all establish that if the adverse party
receives the fee statement within fourteen days after the judgment then ORCP 12 B will
apply. The error in each case did not prevent the adverse party from receiving the
statement within 14 days: in Bomareto, a failure to serve someone other than the adverse
party; in Murray, using the courthouse mailboxes instead of first class mail; in Gier’s
Liqour, being early.
CIT Group, Jaffe, Husted, and Frederickson all establish that a lack of notice
within 14 days, even without actual harm, infringes a substantial right. In Jaffe the notice

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was merely 6 days late. In Husted the notice was merely 5 days late and even the trial
judge was confused as to the relevant time frame. In CIT Group the notice was not
served at all, and the mere fact that the judge could have entered a judgment during the
four months that passed was enough to infringe on a substantial right. Frederickson
matches up with Murray in that both involved service by courthouse mailbox. The
distinguishing characteristic is that in Murray the adverse party actually received the
notice on time; while in Frederickson, ORCP 12 B did not apply because the notice was
just a couple of days late.
Petitioner’s failure to comply with ORCP 68 C(4) does not pass the two elements
to avoid an infringement of respondent’s substantial rights. In the present case petitioner
has admitted to a lack of any service on the respondent. Respondent only became aware
of the filing of the fee statement due to the diligence of his own attorney. Respondent’s
attorney decided to review the court file for a copy of the final judgment and to insure his
own file was in order before closing the file. Had Respondent’s attorney simply closed
the file this issue may well have arisen at some point months from now. Respondent
should not be penalized for his attorney’s diligence. Respondent received a copy of the
statement through his attorney’s efforts 21 days after entry of judgment. The court has
ruled that ORCP 12 B only saves a defective attempt at service when actual service was
received within 14 days, and the court has found ORCP 12 B to not apply to a delay of
just a couple of days. Given that Respondent’s receipt of actual notice of the fee
statement was more than 6 days after the deadline passed and the first attempt at service
by the petitioner was a month and a week after the entry of judgment, respondent’s
substantial rights have been infringed. ORCP 12 B does not apply in these
circumstances. To apply ORCP 12 B here would allow the evil the Jaffe court sought to
prevent when it declared that it would not allow ORCP 12 B to “gut the time limits
imposed by ORCP 68.”
II. ORCP 15 D
ORCP 15 D gives the trial court “discretion” to allow a late filing “upon such
terms as may be just.” The plain language of the rule indicates that the party seeking
refuge under ORCP 15 D must provide some reason for an extension. The analysis under
ORCP 12 B has already established that the respondent has a substantial right to require
the petitioner to comply with the 14 day deadline. Logic dictates that a substantial right
ought not to be abbreviated without some justification beyond an “oversight.”
Several of the cases that deal with the relationship between ORCP 12 B and
ORCP 68 C (4) also address ORCP 15 D. Jaffe does specifically reserve ORCP 15 D as
an issue to be brought up with the trial court or waived. 215 Or.App. at 391. citing
Husted, 209 Or.App. at 49. Both Jaffe and Husted hold that whether to excuse a defect
under ORCP 12B is an issue for the appellate courts and matter of law, while an
enlargement of time under ORCP 15D is an issue for the trial courts. One appellate case
that almost reaches this issue is City of Portland v. The Structure Located at 18 NW 3rd,
150 Or.App. 143 (1997). City of Portland distinguishes Frederickson because
Frederickson did not raise the issue of ORCP 15 D. Id. at 150. The Court of Appeals
notes that the The City filed a motion to extend the time along with an affidavit offering
various justifications. Id. at 147. The Court of Appeals also notes that the defendant did
not assign error to trial courts ruling under ORCP 15 D. The trial court has discretion to

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allow or deny a motion under ORCP 15 D depending on the justification offered by the
moving party.
It would be inconsistent to allow a party to receive an extension under ORCP 15
D after a deadline has passed, simply by acknowledging their mistake, when ORCP 12 B
does not allow a late filing. A more consistent rule would be to require the party seeking
relief under ORCP 15 D to plead or at least make an assertion of good cause. If the
failure to comply with ORCP 15 D was due to some intervening factor such as an illness,
inclement weather, or unforeseen case developments then a court could make a finding of
good cause and excuse the late filing. The simple fact that the decision to grant a motion
under ORCP 15 D is discretionary implies that the trial court needs to make findings of
some sort. If a simple mistake or oversight were sufficient cause, then the Court of
Appeals would not need to be so deferential to the trial court.
Allowing ORCP 15 D to gut ORCP 68 when the court of Appeals has already
ruled that ORCP 12 does not gut the time limits does not make sense. This court should
not allow the petitioner’s carelessness to trump the respondent’s substantial rights.
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