Yasana v. Kaczor (In re Yasana)

1

325 Or.App. 247

In the matter of the Estate of Leonila Madrigal Yasana, Deceased.

Edward T. YASANA, Devisee-Appellant, v. Carmen E. KACZOR, Devisee-Respondent, And Richard D. YASANA and Linda G. Ernst, Devisees.

No. A177571

Court of Appeals of Oregon

April 12, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted February 13, 2023

Klamath County Circuit Court 17 PB0 34 2 6; A177571 Dan Bunch, Judge.

George W. Kelly argued the cause and fled the briefs for appellant.

Nathan J. Ratliff argued the cause for respondent. Also on the brief was Parks & Ratliff, P.C.

Before Ortega, Presiding Judge, and Powers, Judge, and Hellman Judge.

ORTEGA, P. J.

In this probate case, appellant Edward Yasana- one of four siblings who are devisees under a will-seeks reversal of the trial court's decision denying his ORCP 71 C motion to set aside an amended stipulated judgment concerning distribution of property under the will. He filed the motion a year after entry of the original judgment and asserts that the trial court abused its discretion in denying it. He argues that he was not served notice of the settlement or stipulated judgment and therefore could not have filed his motion earlier than he did. Because appellant did not present evidence to contradict the evidence that suggested that the delay was not reasonable, we conclude that the trial court did not abuse its discretion in denying the motion and affirm the judgment.

"We review a court's decision whether to set aside a judgment under ORCP 71 C for abuse of discretion." Wetzel v Sandlow, 318 Or.App. 608, 615, 509 P.3d 182 (2022). "A trial court abuses its discretion when its decision is not within the range of legally permissible choices." MBNA America Bank v. Garcia, 227 Or.App. 202, 207 205 P.3d 53 (2009). Based on those standards, we recount the main background facts, which are undisputed unless noted otherwise.

Respondent Carmen Kaczor, another devisee under the will, originally filed suit to contest the will and ultimately reached a settlement with another devisee, Richard Yasana (Richard),^[1] who was also co-personal representative of the estate. Appellant was not physically present during settlement negotiations but was in phone communication with Richard for some portion of those negotiations. A stipulated judgment reflecting the settlement reached during the negotiations was entered three months after the settlement.

Twelve months after entry of the stipulated judgment, appellant filed his motion to set aside the stipulated judgment, as later amended to correct a clerical error. In his motion, he argued that he "was not included" in the original settlement negotiations and did not receive notice of the original judgment or amended judgment. The trial court denied appellant's motion after a hearing held several months later, finding in an opinion letter that the original judgment "was in accord with [the settlement] agreement" and, as appellant did not contest, had been amended simply to correct "clerical errors unrelated to the settlement." The court explained that it was not inclined to entertain any of appellant's arguments "some [two] years after the settlement agreement and approximately 20 months after entry of the original stipulated judgment."^[2]

Assigning error to that decision, appellant argues that the judgment should have been set aside under ...