Clock v. Clock

486                  August 21, 2024             No. 585

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                 Ken Grant CLOCK,
                     an individual;
                 Michael Clyde Clock,
                     an individual;
                 Patrick Lewis Clock,
                     an individual;
             and Fruit of the Grain, LLC,
          an Oregon limited liability company,
               Petitioners-Respondents,
                           v.
                 Barry Mark CLOCK,
                     an individual,
                Respondent-Appellant.
           Clackamas County Circuit Court
                 17CV33616; A179803

  Kathie F. Steele, Judge.
  Argued and submitted April 12, 2024.
   David B. Hutchinson argued the cause for appellant.
Also on the briefs was Chenoweth Law Group, PC.
   Christopher K. Dolan argued the cause for respondents.
Also on the brief were Edward H. Trompke and Jordan
Ramis PC.
  Before Shorr, Presiding Judge, Lagesen, Chief Judge,
and Pagán, Judge.
  PAGÁN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)             487

        PAGÁN, J.
         Respondent challenges the trial court’s general
judgment and money award equitably distributing partitioned land that he and his brothers were gifted. Respondent
assigns error to the trial court’s denials of his second motion
for a setover on July 1, 2022, and his renewed motion the
morning of the trial on July 5, 2022, arguing that the trial
court abused its discretion by denying his motions when he
would face substantial prejudice. Petitioners contend that,
because respondent failed to provide notice to the opposing
parties, the trial court did not abuse its discretion in denying the motions to postpone the trial. The trial court’s denials of the motions for failure to serve were legally correct
decisions, and, therefore, we agree with petitioners that the
trial court did not abuse its discretion, and we affirm.
         After an abatement following an order to petition
the property at issue in this 2018 dispute, trial was set in
this case for June 15, 2022. Respondent moved for a setover
on June 14, providing a positive test for COVID-19, and the
trial court granted the motion. After the trial court reset
the trial to July 5, respondent moved for a setover again
on July 1, claiming that his symptoms persisted, and that
his remote location made it impossible for him to participate
in the trial. Respondent did not serve the opposing parties
with that motion, and the trial court denied it the same day.
Respondent, again, moved for a setover on the morning of
trial without serving copies of the motion on the opposing
parties. The trial court denied the motion without making
any findings. In response to a comment about the length of
the case at the end of the trial, the judge stated that “it just
didn’t seem like it made sense” to grant the setover.
          We review the denial of a motion for a setover for
abuse of discretion. State v. Brockway, 

,

 (2024). The trial court did not abuse its discretion if its decision was “within the range of legally correct
choices and produce[d] a permissible, legally correct outcome.” State v. Ferraro, 

, 

(2014) (internal quotation marks omitted). Without an abuse
of discretion, “we may not substitute our judgment for that
of the trial court even if we might have resolved the issue
488                                            Clock v. Clock

differently.” State v. Martinez, 

, 

 (2008). In order to overturn a trial court’s denial of a
motion for a setover, there must be “a showing of both an
abuse of discretion and prejudice to the moving party as
a result of the court’s denial.” State ex rel Dept. of Human
Services v. K. C., 

, 

, rev den,

 (2009). In cases where the trial court did not
make any express factual findings when denying a motion,
we may infer factual findings consistent with its ultimate
decision. Matchey v. Staffing Network Holdings, Inc., 

, 

 (2004), rev den, 

(2005).
         When a party moves for a setover, the movant is
required to serve a copy of the motion on each party of the
case and notify the court with proof of service. ORCP 9 A,
ORCP 9 C(1). In addition to service and notice, the movant
must include pertinent details in the motion. UTCR 6.030(2)
(requiring that a motion for a setover include any dates previously set for trial, the date of each previous postponement,
and whether any party objects to the current requested
postponement). Those procedural rules are significant to the
development of the record because they provide all parties
to the proceeding an informed opportunity to contest the
justification for the requested setover.
         Here, both respondent’s second and renewed
motions for a setover failed to provide any of the above information to the opposing parties, let alone provide notice that
respondent was seeking to delay the trial at all. Given the
mandatory nature of the violated rules and their underlying
principles, a trial court is well within its discretion to deny
a motion for a setover when that motion was not served on
the opposing parties. Indeed, many courts will not allow a
motion to be filed in the first instance if the motion does not
include a certificate of service. Thus, given that a denial of
a motion for failure to serve the opposing party would result
in a legally correct outcome, the trial court acted within its
sound discretion to deny respondent’s motion for a setover.
See K. C., 

.
         Respondent contends that the trial court abused its
discretion by not addressing his justifications for not being
Nonprecedential Memo Op: 

 (2024)                               489

able to participate in the proceedings.1 However, his failure
to serve the motion and to include all of the required information, deprived his adversaries of the opportunity to challenge such justifications. Under the circumstances, it is not
appropriate for us to speculate as to what the record might
have been otherwise. It might even be argued that findings
made in the absence of service, and, thus, an opportunity for
a fulsome confrontation, would be spurious. As noted previously, we must find both an abuse of discretion and prejudice
to reverse a denial of a motion for a setover. Here, the trial
court did not abuse its discretion, and, thus, we do not reach
the issue of prejudice.
           Affirmed.




    1
       Although the trial court offered no express factual findings when denying respondent’s motions, respondent argues that the judge’s statement at the
end of the trial that “it just didn’t seem like it made sense” to grant the setover
amounted to an express factual finding. We reject that assertion. We disagree
that an ambiguous statement that would require us to speculate as to its meaning is an express finding. To the extent that the trial court was making a finding,
however, we see no error in the court concluding that a setover was not appropriate under the circumstances.