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Stronach v. Ellingsen
Citations: 814 P.2d 175; 108 Or. App. 37; 1991 Ore. App. LEXIS 1039Docket: 16-89-00451; CA A65015
Court: Court of Appeals of Oregon; June 26, 1991; Oregon; State Appellate Court
Richard Stronach, the appellant, appealed the dismissal of his personal injury complaint against Mary Lewis Ellingsen, the respondent, with prejudice and the award of attorney fees to the defendant. The case was argued in front of the Court of Appeals of Oregon, which affirmed the trial court's decision. In August 1989, Ellingsen requested Stronach’s medical records related to the injury claim. Stronach provided some discovery by September but failed to include medical reports from his treating physicians. After multiple requests for the medical reports, Ellingsen filed a motion to compel and to depose Stronach's wife. The trial court granted this motion. Stronach subsequently filed a motion to disqualify the judge, which was denied. By February 27, 1990, Ellingsen had not received the requested medical reports, prompting her to seek sanctions, including dismissal of Stronach's complaint under ORCP 46 B(2)(c) for failure to comply with discovery requests. The trial court granted the motion for sanctions, dismissed the case with prejudice, and ordered Stronach and his attorney to pay costs and attorney fees. Stronach's first three arguments claimed the trial court erred in dismissing the case and denying the motion to limit his wife's deposition, asserting that dismissal was based on her deposition issues. However, the court clarified that the dismissal was solely due to Stronach's failure to produce medical records. Stronach contended he had provided all records in his possession and was not responsible for those held by his doctor, but he did not contest the scope of the order compelling production. The court found that the lengthy duration of the request for production, along with Stronach's noncompliance, justified the trial court's decision to impose the dismissal sanction. Thus, the appellate court upheld the lower court's ruling, affirming the dismissal and the award of attorney fees. Plaintiff's fourth assignment of error claims the trial court wrongly refused to disqualify itself from ruling on the motion for sanctions, but the motion to disqualify was deemed untimely under ORS 14.260(3) since it was filed after the judge's ruling on the defendant's motion to compel. Additionally, plaintiff argues the court improperly awarded attorney fees against his attorney, who was not a party to the case. However, ORCP 46 B(3) permits the court to impose reasonable expenses, including attorney fees, on an attorney advising a party who fails to comply with a discovery order. The trial court's actions were deemed appropriate. Defendant seeks sanctions under ORS 19.160 for the plaintiff's appeal lacking probable cause. Even when the underlying judgment only involves costs and attorney fees, damages can still be awarded under ORS 19.160. Probable cause for an appeal requires that the grounds for appeal are debatable or open to reasonable discussion, which plaintiff's claims fail to demonstrate. Consequently, the defendant is entitled to an additional judgment of 10% of the original amount and attorney fees on appeal under ORS 19.220. The court affirmed the judgments and awarded the defendant $192.83 for damages and attorney fees pursuant to the relevant statutes.