Michael v. Pugel
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564 March 23, 2022 No. 203 IN THE COURT OF APPEALS OF THE STATE OF OREGON Deanna MICHAEL, Plaintiff-Appellant, v. Rochelle PUGEL, Defendant, and Michael KURZ and Kurz Construction, LLC, an Oregon domestic limited liability company, Defendants-Respondents. Yamhill County Circuit Court 19CV09140; A173482 Ladd J. Wiles, Judge. On respondent Michael Kurz’s petition for reconsideration filed January 19, 2022, and appellant’s response filed February 2, 2022. Opinion filed January 5, 2022. 316 Or App 786, ___ P3d ___ (2021). Thomas M. Christ and Sussman Shank LLP for petition. Kevin T. Lafky, Amanda L. Reilly, and Lafky & Lafky for response. Before Tookey, Presiding Judge, and Aoyagi, Judge, and Armstrong, Senior Judge. PER CURIAM Reconsideration allowed; opinion modified and adhered to as modified. Cite as 318 Or App 564 (2022) 565 PER CURIAM We allow defendant Michael Kurz’s petition for reconsideration in Michael v. Pugel, 316 Or App 786, ___ P3d ___ (2021), to modify a footnote at 316 Or App at 794 n 8. There we stated: “Defendants contend, alternatively, that any error by the trial court in denying the motion is harmless because plaintiff has not established that she can state new claims against defendants that remedy the defects in the original dismissed pleading. Defendants will have an opportunity to make that argument to the trial court on remand.” We recognize that those sentences are a source of confusion for Kurz. We clarify that, contrary to Kurz’s argument in his petition for reconsideration, we did not intend to direct the trial court on remand to consider whether its error was harmless. To avoid that implication, we revise the final paragraph of the footnote to read: Defendants contend, alternatively, that any error by the trial court in denying the motion is harmless because plaintiff has not established that she can state new claims against defendants that remedy the defects in the original dismissed pleading. Given the posture of this appeal— which turned on whether the mistake by plaintiff’s counsel in stipulating to the entry of the general judgment could provide a cognizable basis for relief under ORCP 71—plaintiff was not required to establish on appeal that she could state a claim against defendants. Hence, we reject defendant Kurz’s harmless-error argument, because it seeks a ruling on an issue that the trial court did not consider and that is not properly before us. Whether plaintiff can state a claim against defendants is a question that the trial court can address on remand in ruling on plaintiff’s ORCP 71 motion. Reconsideration allowed; opinion modified and adhered to as modified.
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