HENRY C. BREITHAUPT, Judge.
Decision for Plaintiffs rendered December 7, 2010.
This matter is before the court on the motion for summary judgment of Plaintiffs (taxpayers) and the Response to Motion for Summary Judgment on Affirmative Defense of Defendant Department of Revenue (department).
As shown in the record made in this division, taxpayers, through their counsel W. Scott Phinney (Phinney), filed a complaint in the Magistrate Division of the court against Defendant Marion County Assessor (the county) on August 6, 2007. Through the rest of 2007 and much of 2008, the parties in the litigation worked on pleadings and a stipulation of facts. As to the pace of the case and failure to submit timely status reports, the magistrate assigned to the case expressed concern to both parties.
By October 6, 2008, the parties had agreed to proceed with cross-motions for summary judgment and had agreed on a briefing schedule. The schedule contemplated simultaneous briefing on the cross-motions with initial briefs due January 6, 2009, and reply briefs due February 9, 2009.
On January 6, 2009, Phinney requested a 10-day extension to file his opening brief until January 16, 2009. Phinney's request stated in relevant part:
The county's summary judgment motion was filed January 8, 2009. Taxpayers do not question the timeliness of this filing.
On January 16, 2009, Phinney sent a letter to the court requesting another two business days to file the motion and that the county had no objection. That letter states in relevant part:
On January 22, 2009, Phinney sent another letter to the court. That letter stated in relevant part:
On January 28, 2009, Presiding Magistrate Tanner, knowing only the facts stated above, wrote a letter to Phinney. That letter stated in relevant part:
On February 3, 2009, Phinney was seen by his primary care physician and diagnosed with influenza and given Tamiflu. He presented with a fever and a headache. Phinney complained of right leg pain and the doctor checked his leg, and found tenderness, but no swelling.
On February 5, 2009, Phinney went to his primary care physician complaining about pain, redness and swelling in his leg that lasted four days. His blood tests were abnormal. His physician sent him to the hospital for additional testing. A Venus Doppler test was performed at
On February 5, 2009, Phinney's wife contacted the court and told the court that Phinney had been ill for three days, had gone to the doctor and was on the way to the hospital for further testing and that he would have to be at home with his leg elevated and be unable to work on the brief. Oregon Judicial Information Network (OJIN) event entry 55 indicates that the clerk made an entry that reads "3/02/09 RN." Phinney's wife interpreted statements of court staff as indicating there would not be consequences arising from a failure to file as the court had ordered. The court staff person who took the call states that she did not state or infer that any change to required timelines would be made.
On February 6, 2009, Phinney returned to his primary care physician and had additional medical testing.
On February 8, 2009, Phinney went to the emergency room and was admitted to the hospital. He remained in the hospital until February 13, 2009. At that point, Phinney had been on antibiotics for two days without any relief in swelling, pain or redness to his leg. In addition, he continued to have a low grade fever and upper respiratory symptoms. He was admitted to the hospital with the diagnosis of "right lower extremity cellulitis, which has failed outpatient treatment." He was given intravenous antibiotics and intravenous Tylenol as well as Oxycodone for pain. The primary reason he was hospitalized was for cellulitis in his leg. He was "slow to improve" and given Vancomycin and Bactrim antibiotics as well as pain medicines. While he was in the hospital, he had periodic fevers, cough and shortness of breath despite improvement of his cellulitis. As a result, he was diagnosed with a viral upper respiratory infection. He remained in the hospital from February 8 through 13, 2009.
On February 18, 2009, Phinney returned to his primary care physician. Although the doctor's notes are nearly illegible, they reflect Phinney's statement in his declaration that he was diagnosed with "acute bronchitis" at that time.
Phinney's affidavit states he was physically unable to work between February 2 and March 2, 2009. At no time between February 5, 2009, and the decision of dismissal on February 27, 2009, did Phinney or anyone on his behalf contact the court.
Should taxpayers' case be dismissed for failure to prosecute or disobedience of an order or direction of the magistrate?
Taxpayers argue that the case of Phan v. Morrow, 185 Or.App. 628, 60 P.3d 1111 (2003), controls here and prevents the use of dismissal to enforce the filing schedule set by the magistrate. That position is not well taken. The conclusion of the court in Phan was premised on there being no "statutory or rule-based authority" providing for dismissal. Phan, 185 Or App at 633. That is not the case here as Tax Court Rule-Magistrate Division (TCR-MD) 20 is a rule promulgated pursuant to ORS 305.501(3).
Taxpayers also argue that a dismissal of taxpayers' case pursuant to TCR-MD 20 would constitute a violation of the due process rights of taxpayers. This court again disagrees. The fundamental elements of due process are notice and a right to be heard. Mathews v. Eldridge, 424 U.S. 319,
It seems obvious from the facts that occurred prior to the decision of dismissal that the magistrate concluded that taxpayers' counsel was simply unwilling to comply with the filing schedule to which he had agreed, but with which, for various reasons, he had repeatedly failed to comply. This conclusion might well have been coupled with a concern that such failure or delay prejudiced the other party to the case — a party that had complied with the agreed upon simultaneous briefing schedule.
The court now has the benefit of a more complete record regarding the illness that disrupted the ability of that counsel to meet his prior commitments regarding filing of a motion and supporting papers. This record reveals that counsel was not unwilling to comply with the directions given by the court. Rather, he was unable to do so. This more complete record also reveals that taxpayers' counsel or those acting on his behalf could have made the situation much more clear to the court, especially in light of the numerous prior extensions and the absolute nature of the written notice regarding compliance that had been given.
The court is of the view that the action of the magistrate was completely understandable and, as mentioned above, had been preceded by adequate notice for due process purposes. There was, however, no opportunity for taxpayers to be heard on the matter of dismissal. That was not a failing of the magistrate. It is, if anything, a weakness in the provisions of TCR-MD 20. That weakness in TCR-MD 20, if it be such, is however corrected by the availability of a de novo hearing on the issue in this division.
In a case such as this one, the court exercises this de novo review in the same fashion as though the rule provided,
Upon de novo review of this matter, and with the benefit of information not available to the magistrate, the court concludes that there was good cause for the failure of taxpayers' counsel to submit the documents he had agreed to submit within the already extended time frame. The medical problems of counsel were serious and emergent. Those problems interrupted the ability of counsel and those assisting him to address his caseload requirements.
That said, the court considers it appropriate to admonish those who appear in this court to avoid the problem that arose here.
On de novo review of this matter, the court concludes that taxpayers have shown good cause for their failure to comply with the order of the magistrate. The case will be continued in the Regular Division for decision on the merits. Now, therefore,
IT IS ORDERED that Plaintiff's Motion for Summary Judgment is granted; and
IT IS FURTHER ORDERED that this case is continued for further proceedings.