Wimber v. Timpe

16 Citing cases

  1. Dep't of Human Servs. v. M. M. R. (In re A. R. L. U.)

    296 Or. App. 48 (Or. Ct. App. 2019)   Cited 3 times
    Holding that the juvenile court lacked inherent authority to set aside a judgment, where a parent alleged that the Department of Human Services had given false testimony in court and otherwise engaged in intrinsic fraud, as that is not a basis for set aside under ORCP 71 C

    Rather, a court has the inherent authority to set aside a judgment for extrinsic fraud only. Wimber v. Timpe , 109 Or. App. 139, 146, 818 P.2d 954 (1991) ;see Johnson v. Johnson , 302 Or. 382, 394, 730 P.2d 1221 (1986). "Extrinsic fraud consists of acts not involved in the fact finder’s consideration of the merits of the case."

  2. A. B. A. v. Wood

    326 Or. App. 25 (Or. Ct. App. 2023)   Cited 1 times

    However, that authority is limited to extraordinary circumstances such as extrinsic fraud, duress, breach of fiduciary duty or gross inequity."). The distinction between intrinsic and extrinsic fraud—and the reason for that distinction—is well described in Wimber v. Timpe , 109 Or App 139, 146, 818 P.2d 954 (1991) : "Relief will be granted on the basis of extrinsic fraud under ORCP 71 C but will be denied if the fraud is intrinsic.

  3. Heritage Props. v. Wells Fargo Bank

    318 Or. App. 470 (Or. Ct. App. 2022)   Cited 2 times
    Explaining that, prior to a legislative amendment to ORCP 71 B(c) that took effect in 2012, "nearly 100 years of Oregon case law made clear that relief from a judgment or order could only be granted for extrinsic fraud and not for intrinsic fraud"

    When that opportunity is not used, the litigant is denied relief because of a policy that there must be finality in litigation." Wimber v. Timpe , 109 Or. App. 139, 146, 818 P.2d 954 (1991). Extrinsic fraud, however, is collateral or unrelated to the factfinder's consideration of the merits, and "the unsuccessful party has been prevented by the fraud from fully trying the case."

  4. MBNA America Bank, N. A. v. Garcia

    227 Or. App. 202 (Or. Ct. App. 2009)   Cited 5 times

    Patrick v. State of Oregon, 178 Or App 97, 103, 36 P3d 976 (2001) (quoting Condliff v. Priest, 82 Or App 115, 118, 727 P2d 175 (1986)). A court may grant relief under ORCP 71 C based on extrinsic fraud, but will deny it if the fraud is intrinsic. Wimber v. Timpe, 109 Or App 139, 146, 818 P2d 954 (1991). Extrinsic fraud consists of acts not involved in the factfinder's consideration of the merits of the case; it provides a basis for relief from a judgment because it prevents the unsuccessful party from fully trying the case.

  5. J. B. D. v. Plan Loving

    218 Or. App. 75 (Or. Ct. App. 2008)   Cited 4 times

    " Former ORS 109.380 (1957), repealed by Or Laws 1959, ch 609, § 5. Thus, the legislature eliminated wording that would expressly have allowed plaintiff to bring this action and replaced it with wording that does not. And finally, we have held that ORS 109.381 "does not provide a `different procedure' than the rules [of civil procedure] for objecting to a decree of adoption." Wimber v. Timpe, 109 Or App 139, 144, 818 P2d 954 (1991) (quoting ORCP 1 A). We therefore turn to plaintiff's argument under ORCP 71 B(1)(a), quoted above, 218 Or App at 79 n 2.

  6. Bartholomew v. Pearce

    886 P.2d 1060 (Or. Ct. App. 1994)   Cited 1 times

    Although the parties do not raise the issue, we must first consider whether the trial court had jurisdiction in this declaratory judgment action. Wimber v. Timpe, 109 Or. App. 139, 142 n 1, 818 P.2d 954 (1991). The Oregon Administrative Procedures Act (APA) provides for judicial review of the validity of administrative rules, ORS 183.400, and that remedy is available to individuals in the custody of the Department of Corrections, ORS 183.315(5).

  7. Sherwood v. Finch

    No. CV-00-349-HU (D. Or. Dec. 20, 2000)   Cited 2 times

    Thus, under O.R.S. 12.010, these claims do not come within the provisions of O.R.S. Chapter 12 and the tolling provisions of O.R.S. 12.160 do not apply to them. See Wimber v. Timpe, 109 Or. App. 139, 144, 818 P.2d 954, 957 (1991) ("By its express terms, ORS 12.160 applies only to actions mentioned in ORS 12.010 to ORS 12.050 and ORS 12.070 to ORS 12.250. An action to set aside a decree of adoption under ORS 109.381 is not mentioned in those statutes.

  8. M. A. v. Mouktabis

    336 Or. App. 332 (Or. Ct. App. 2024)

    ORCP 71 B(1)(e) "codifies the common law remedy of audita querela[,] which was a "writ brought by a judgment defendant to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which could not have been taken advantage of otherwise." Wimber v. Timpe, 109 Or.App. 139, 145, 818 P.2d 954 (1991) (internal quotation marks omitted); see also Dept. of Human Resources v. Shinall, 148 Or.App. 560, 565-66, 941 P.2d 616 (1997) (the "no longer equitable" provision in ORCP 71 B(1)(e) codifies the common law rule "that a judgment with prospective operation may be subject to change based upon changed conditions" (internal quotation marks omitted)). We have treated ORCP 71 B(1)(e) as being limited to "what was available under the writ of audita querela."

  9. Angelica R. v. Popko

    509 P.3d 392 (Ariz. Ct. App. 2022)   Cited 4 times
    Allowing father to bring fraud on the court claim more than 6 months after judgment

    See In re C.L.S. , 252 P.3d 556, 561 (Colo. App. 2011) (vacating termination and adoption judgment based on fraud on the court and voidness grounds despite untimeliness of motion under procedural rule); Jones v. Weller , 47 Ill.App.3d 492, 5 Ill.Dec. 760, 362 N.E.2d 73, 76–77 (1977) (recognizing that a judgment procured by "perjurious" misrepresentation to the court is subject to collateral attack); In re Paternity of Tompkins , 518 N.E.2d 500, 507 (Ind. App. 1988) (recognizing that paternity judgment may be set aside for fraud on the court at any time); Matter of Adoption of M.M.B. , 376 N.W.2d 900, 902 (Iowa 1985) (stating that rules prohibited untimely motion to vacate termination but for allegations of "fraud in the execution"); Doe v. Smith , 200 So. 3d 1028, 1035 ¶ 24 (Miss. 2016) (setting aside an adoption for fraud on the court); Wimber v. Timpe , 109 Or.App. 139, 818 P.2d 954, 958 & n.7 (1991) (recognizing court's inherent authority to set aside adoption for fraud on the court); McGee v. Gonyo , 201 Vt. 216, 140 A.3d 162, 167 ¶ 19 (2016) (vacating voluntary acknowledgment of parentage issued years before current litigation on the ground of fraud on the court). ¶20 Angelica presents Minnesota as an example of a state that strictly applies its time limits for motions to set aside in juvenile matters, citing In re Welfare of Child. of S.C. , 656 N.W.2d 580 (Minn. App. 2003).

  10. Kerridge v. Jester

    316 Or. App. 599 (Or. Ct. App. 2021)   Cited 4 times
    Doing same when reviewing the denial of a motion to set aside a judgment

    Under the common law rule, a person subject to a judgment could "obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which could not have been taken advantage of otherwise." Wimber v. Timpe , 109 Or. App. 139, 145, 818 P.2d 954 (1991). It is unclear what, if any, circumstances might exist where we would conclude that a trial court did not abuse its discretion in denying a ORCP 71 B(1)(e) motion if the trial court had concluded that the moving party had asserted a cognizable ground for relief by demonstrating that the prospective application of the judgment is no longer equitable.