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Lehman v. Bielenberg

Summarized by: 

Date Filed: 07-10-2013
Case #: A149985
Hadlock, J. for the Court; Schuman, P.J.; and Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A149985.pdf

Civil Procedure: Failure to file responsive pleadings does not entitle the opposing party to a default judgment unless the opposing party complies with the requirements of ORCP 69.

Lehman appealed the lower court's general judgment of dismissal. Stafford and her husband created a revocable living trust, with Lehman as the trustee.  Bielenberg wanted to appoint a conservator and guardian for Stafford.  Lehman and Stafford filed a counterclaim (to which Bielenberg did not reply) asking for a judgment declaring the trust valid, compensation for caregiving and trustee services, and attorney fees.  A court visitor determined that there was no need to appoint a conservator and guardian.  The parties agreed not to appoint a conservator and guardian and the trial court dismissed the petition but allowed a hearing to determine attorney fees.  Lehman appealed, arguing that the trial court did not address his counterclaims and should have entered a judgment in his favor.  The Court held that Lehman was not entitled to a default judgment on his counterclaim because he did not fulfill the requirements of ORCP 69 to file a motion for order of default.  In addition, Lehman did not preserve the error because he did not object to the trial court’s general judgment of dismissal.  Lehman also is not entitled to challenge attorney fees at this time since the judgment specifies that they will be determined "subsequent to rule 68 hearing."  Affirmed.