Full Opinion

No. 1043 October 28, 2026 265 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 FIDELITY NATIONAL TITLE INSURANCE COMPANY, a Florida corporation, Plaintiff-Respondent, v. Martin L. HUDLER, a citizen of the State of Oregon, Defendant-Appellant. Deschutes County Circuit Court 22CV03852; A183379 Alycia M. Herriott, Judge. Argued and submitted August 27, 2025. Blaine Clooten argued the cause for appellant. Also on the briefs was Brownstein Rask LLP. Also on the opening brief was Charles R. Markley. Brian Meenaghan argued the cause for respondent. Also on the brief was Fidelity National Law Group. Before Shorr, Presiding Judge, Powers, Judge, and O’Connor, Judge. SHORR, P. J. Affirmed. 266 Fidelity Natl. Title Ins. Co. v. Hudler SHORR, P. J. This appeal concerns a default judgment that was entered against defendant after he failed to appear follow- ing service by publication. In three assignments of error, defendant challenges the denial of his ORCP 71 B(1) motion to set aside the default judgment. We affirm. “On review of an order denying a motion to set aside a judgment, we set out the undisputed facts in the light most favorable to the moving party.” Union Lumber Co. v. Miller, 360 Or 767, 769, 388 P3d 327 (2017). “However, we accept the trial court’s findings of disputed fact, if there is evidence to support those findings.” Id. We recite the facts in accor- dance with that standard although we do not relay all of the facts in this nonprecedential memorandum opinion. Plaintiff sued defendant for unjust enrichment by filing a complaint in early 2022. In the months that followed, plaintiff attempted to serve defendant through several ave- nues, including by engaging process servers and private investigators to determine defendant’s address. Plaintiff ultimately moved to serve defendant by publication in Deschutes County and that motion was granted. In granting the motion, the trial court also ordered plaintiff to mail cop- ies of the paperwork to all addresses listed for defendant in plaintiff’s declaration that was filed in support of the motion. Defendant did not make an appearance and plaintiff moved for, and was granted, a default judgment. Approximately three months later, defendant moved for the judgment to be set aside. At a hearing on defendant’s motion, defendant testified, among other things, that he was in and out of the hospital for cancer treatment during the time plaintiff was attempting service, and confirmed that he gave a process server an address in New York where he was “staying with a friend of [his].” Defendant also clari- fied that he was only requesting relief under the “excusable neglect” provision of ORCP 71 B: “THE COURT: All right. And then, I want to be clear. You indicated—under ORCP 71, there are a number of avenues for the Court to grant relief. You’ve indicated * * * Nonprecedential Memo Op: 354 Or App 265 (2026) 267 excusable neglect. Is that * * * the finding that you’re ask- ing the Court to make under ORCP 71B? “[DEFENSE COUNSEL]: Yes, Your Honor, we would request that because of the nature of the illness; that it distracted [defendant]. Again, it didn’t cause any prejudice to [plaintiff]. And we could have accepted service and not had any of this today.” The judge denied defendant’s motion and this appeal followed. We review the trial court’s ultimate decision under ORCP 71 B(1) for abuse of discretion. Johnson v. Sunriver Resort Limited Partnership, 252 Or App 299, 306, 287 P3d 1153 (2012), rev den, 353 Or 280 (2013). However, “whether certain conduct or inaction constitutes excusable neglect is a question of law, and we review the trial court’s answer to that question for legal error.” Id. (internal quotation marks omitted); see also Union Lumber Co., 360 Or at 778 (“Conclusions that a trial court reaches under ORCP 71 B as to whether a moving party’s neglect, inadvertence, surprise, or mistake constitute cognizable grounds for relief, are legal rulings that an appellate court reviews for errors of law.”). ORCP 71 B(1) provides, in relevant part, that “[o] n motion and upon such terms as are just, the court may relieve a party * * * from a judgment for the following rea- sons: (a) mistake, inadvertence, surprise, or excusable neglect[.]” “The focus of the inquiry is whether the totality of the circumstances reflects that the party seeking relief from judgment has taken reasonable steps to protect its inter- ests.” Wetzel v. Sandlow, 318 Or App 608, 616, 509 P3d 182 (2022) (internal quotation marks omitted). We turn to plaintiff’s arguments on appeal. In his second assignment of error, plaintiff argues that the trial court erred in dismissing his motion as untimely. We assume without deciding that plaintiff’s motion was timely because, as we explain, the trial court did not err in also rejecting plaintiff’s arguments on the merits. In his first assignment of error, defendant appears to argue that the trial court erred in some manner because 268 Fidelity Natl. Title Ins. Co. v. Hudler defendant was never properly served under ORCP 7 D.1 Plaintiff asserts that that issue was not raised below and is unpreserved. In its written ruling below, the trial court denied defendant’s motion to set aside the judgment under ORCP 71 B(1)(a) as untimely, but also gave its reasons for why it would reject defendant’s arguments on the merits for defendant’s claimed excusable neglect in not answering the complaint. The court did not rule on a motion brought under ORCP 7 D because defendant did not file such a motion. The court’s ruling makes sense considering that the court explicitly asked defense counsel at a hearing on the motion if excusable neglect under ORCP 71 B(1)(a) was the basis for defendant’s motion, and counsel responded, “Yes.” However, even assuming that defendant’s written memorandum in support of the ORCP 71 (B)(1)(a) motion to set aside preserved the arguments he makes now, we still affirm. Defendant was served by publication after it appeared that personal service was not possible under the circumstances. Those circumstances included, among other things, “[a]n extensive SSN trace,” driver’s license records, and Deschutes County Tax Assessor records all establishing that defendant resided in Sunriver; defendant confirming his Sunriver address to a process server; and defendant tell- ing a process server that he was both aware of the docu- ments to be served and would accept service at an address in New York despite not residing there. Having reviewed the record and defendant’s argument, we reject any conten- tion that the trial court erred in not voiding the judgment because of improper service of the complaint. In defendant’s third assignment of error, he argues that the trial court erred by determining that he failed to establish “excusable neglect.” Defendant contends that plaintiff’s failure to personally serve him combined with his evidence that he was hospitalized for cancer treatment, under the totality of the circumstances, amounted to excus- able neglect. 1 We note that defendant fails to properly assign error to any trial court ruling in his first assignment of error. Instead, in that assignment, defendant argues that “[Plaintiff’s] Service by Publication Was Deficient” without referring to a trial court ruling. See ORAP 5.45(3) (stating that assignments of error must be to the trial court’s ruling that is being challenged). Nonprecedential Memo Op: 354 Or App 265 (2026) 269 In making its “excusable neglect” determination, the trial court found that defendant had actual knowledge of plaintiff’s lawsuit against him, that defendant provided a process server with an address at which he did not live, and that defendant did not inform the process server that he would accept service through his attorney: “Here, Plaintiff[ ] ha[s] provided evidence that Defendant had actual knowledge that a process server was attempt- ing service on him. Defendant acknowledged as much in his testimony at the motion hearing. However, contrary to the information inferred from Defendant’s Declaration, Defendant did not immediately notify his counsel or direct the process server to forward the documents to an attor- ney. Rather, Defendant provided an address to the process server. The address was to a residence that Defendant did not live at. The occupants of that residence had no knowledge of Defendant. At that point, Defendant made no additional effort to accommodate service through counsel or ascer- tain the nature of the documents being served. Considering these circumstances in conjunction with the other efforts by Plaintiff[ ], the totality of the circumstances does not sup- port a finding of excusable neglect. Therefore, even if the motion was timely made, the motion is denied on the merits.” Those factual findings are supported by evidence in the record and are thus binding on us on appeal. On this record with two starkly different versions of the events surround- ing plaintiff’s effectuation of service and defendant’s knowl- edge of the complaint, the trial court was not required to believe—and, in fact, did not credit—defendant’s alternative narrative in which he denied any knowledge of the filing of the complaint and the attempts to serve him until after the default judgment was entered. Under those circumstances, the trial court could conclude that defendant did not take sufficiently “reasonable initial steps to ensure that an appro- priate response would be filed to a complaint.” See Johnson, 252 Or App at 306 (“Generally speaking, neglect that leads to a default will be deemed ‘excusable’ when a defendant, or a person acting on the defendant’s behalf, took reasonable initial steps to ensure that an appropriate response would be filed to a complaint, even though the process later broke down.”); Saldivar v. Roberts, 240 Or App 371, 377, 246 P3d 91 (2011) (“[S]imply choosing to ignore a matter—even in the 270 Fidelity Natl. Title Ins. Co. v. Hudler face of difficult circumstances—does not qualify as a rea- sonable explanation so as to give rise to excusable neglect.”). The trial court thus did not err. Affirmed.