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Appeals - Can I have a Stipulated Civil No Contact Agreement set aside

Discussion in 'Civil Court, Procedure & Litigation' started by desertized, Mar 6, 2014.

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  1. desertized

    desertized Law Topic Starter New Member

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    This is a long, long story, so let me cut to the end and why I think I might be able to have the agreement set aside.

    I live in California but had moved to Bend, OR to be with my girlfriend and help her transition to living on her own after separating from her husband. Keep in mind I am paying rent and bills both here in Cali and in Oregon and half supporting my girlfriend. Months pass - big fight - I go back to cali - she goes to goes to court and lies and gets a restraining order and a civil staking case is opened. I come back to Bend. I get a lawyer, go back to Cali. She manages to get a criminal case of stalking against me. Months more go by as negotiations of a settlement are off and on. Her attorney was working for free and that eventually kept us from trial. Eventually, I had to come to Bend and have my attorney withdraw from the case and went Pro Se because I couldn't afford him. I had to attend a hearing in chambers the next day with her attorney. She runs over me in chambers and then files two motions. The judge by this time has the criminal and civil cases tracking. I'm sitting in a motel in Bend on the internet trying to figure out how to respond to her motions and do it correctly. It was overwhelming. I had almost no money left at this point. I'm also severely ADHD and researching law stuff is near impossible for me. My stress was peaking. I was even suicidal and had been for a while. That night I call a friend and say if I offer them this can I borrow the money from you. He agreed. I made the offer that night.

    The next day I am in a laundrymat doing laundry and an email comes to my phone saying they will agree to my offer but I have to sign it before 3:30 that day or it was dead forever. That was three hours away. Her attorney already had a notary there and they were ready. So I finished my laundry and drove to her office. In the conference room she brought out an agreement and it included all of the further concessions I made so we could settle but none of the things that I wanted in exchange for those were included. So I said I can't sign in. Then we went back and forth over what i wanted. She drafted five or six versions over the next 45 minutes inching her way to what I was asking for until they finally arrived there. I wanted to go to starbucks and go over it more carefully since we had a full hour before the deadline. Her attorney said the notary was already here and we needed to execute this. So I did.

    As soon as I left and started looking closer at the agreement, i saw several new things. I hadn't paid the money yet so I told her we needed to amend the agreement or i wasn't going t pay. I was told both parties signed and I couldn't do that. I would get in trouble if I didn't pay. Part of this agreement included a civil compromise to dismiss the criminal charges by the way. So here it is a month and half later and I feel better, I am about to sell my business and do something different with my life. I will have enough money to easily be able to challenge this agreement and here are the grounds I feel I have....

    - I was under duress. Extreme stress and duress and I didn't have a clue what I was doing only a few days into Pro Se status and with no money.
    - I am extremely ADHD. It's a disability and a condition under stress that is completely ill suited for the task that was before me.
    - There are things in the agreement that some don't think are allowed under the law, or that are not enforceable. Two of my friends say that this passage..."9. This Order also prohibits any person or entity from aiding, abetting or otherwise assisting Respondent in any way to violate or attempt to violate any provision of this Order in any respect, and may be held in contempt of court for violating this Order. Respondent shall notify all such persons or entities in writing of the provisions and requirements of this Order."

    They see that as a free speech issue. You see, I can't talk about her at all. But if my friends run into one of her friends and something is said about me, my friends believe they have the right to defend me and say whatever they damn well please and that they can't be bound by this agreement. It doesn't matter that the Petitioner and I signed it, we don't have a right to bind them and their free speech rights.

    There is more, but I have said enough. I want to know if I can appeal this and have it set aside. I want to go to trial. I can afford it now. I signed an agreement that was totally once sided and there were things added that i was unaware of and most of all,. I was in a state of duress and stress and her attorney took advantage of that with the 3:30 deadline that same day. I was Pro Se by necessity only and I have a learning disability that makes it particularly hard for me to focus and especially when under stress. I'm fairly intelligent and cover it pretty well in daily life but it causes me great problems behind the scenes. I lose my keys and wallet all the time, i can't finish projects, i could go on and on.

    Can I get this set aside? I know it will cost me. That's fine. THis is about principle now. I don't even want the money back from the settlement. I just want it vacated or set aside.

    Thanks for any help you can give me.
     
  2. Proserpina

    Proserpina Moderator

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    Generally Oregon allows only 20 days to appeal, but before we go further we need to see if there are instructions on your paperwork (there will usually be information regarding appeals).
     
  3. desertized

    desertized Law Topic Starter New Member

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    So you need to see the Stipulated No Contact Agreement itself? That's what I have. I received nothing else on the civil settlement. I am happy to provide it but I don't see an option for uploading documents. This stuff is so confusing to me.

    I thought I read that there were three or four different reasons you could appeal such an agreement, one of them being duress. Must it be both within 20 days and qualify? I was required to return to California after it was all done and I had to have my father put money in my account just to make it back. There is no way I could have mustered up an appeal within 20 days. Also, what if an agreement includes non-enforceable provisions? What if an agreement attempts to bind third parties when they don't have the right to do so? Do people lose their rights after 20 days based on agreements they were not involved with?

    I had to plead out the criminal to misdemeanor stalking and one year probation because I could not afford to be in Bend a day longer. The Petitioner signed a civil compromise, but it was going to be two weeks before the judge would rule on that because the DA was planning on objecting to the compromise. My public defender said I had a 50/50 chance the judge would accept the compromise, but it didn't matter. I couldn't afford to wait in Bend for two more weeks. I had no choice but to plead. So I want my day in court and wish to have this agreement set aside. It's a matter of principle for me. I am still sick that I had to plead on something I didn't do. She ultimately signed the civil compromise and received zero dollars from me because she knew it would go badly for her in court. But I had no choice. Soon I will have plenty of funds to pursue this, i just hope it is not too late.
     
  4. Proserpina

    Proserpina Moderator

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    I'm going to ask you to clarify something for me if you don't mind.

    You were facing serious charges, but basically "settled" on a misd. plea, a stipulated NCO and agreed to a financial "penalty" of sorts. Is this correct?

    (It is a little disjointed and I want some clarification before we can see if there's an exception to the normal rules)
     
  5. desertized

    desertized Law Topic Starter New Member

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    Correct. I think.

    I had civil and criminal cases tracking. We reached a settlement agreement on the civil case (the Stipulated No Contact Agreement) which included the Petitioner signing a civil compromise dismissing the criminal charges pending the judges approval. The settlement payed her attorney five thousand and the Petitioner received no compensation. Normally a judge would accept the compromise but in cases where the DA objects it's about a 50/50 shot. If I had the money I would never have accepted the plea and waited for the judges ruling - and if necessary fought it at trial. But you can't squeeze blood from a rock and I couldn't afford to stay in Bend any longer much less wait 6-8 weeks for the trial.

    Now, you might be wondering why I would want to set aside the Agreement and put myself in jeopardy in a Civil trial, right?

    It's a matter or principle for me. I also firmly believe I will win and a civil trial allows for much more discovery and depositions. It's close to a slam dunk. She asked for damages months after filing the civil case and that means I am entitled to a jury trial. That also favors me, according to my old attorney.

    I HAD to accept the plea offer. Because of that, I want my day in court. Her lawyer took advantage of me, lied to me, and was deceptive in drafting the final agreement. When I signed I hadn't paid the money yet, and I thought if I didn't pay the agreement would be voided. That was my leverage I thought. I was mistaken. One of the many mistakes I made because I had no business representing myself, though I had no choice at that point.

    I'm not making up my ADHD condition either. I was super stressed and had no time to review what I signed and was panicking about a lot of things. Within an hour of signing I started emailing her attorney with problems I found and stating I wanted to amend the agreement or I would simply not pay and we would be back to where we were. From my emails it's crystal clear I had no idea what I was signing. Having been in judges chambers the day before was such an intimidating and helpless feeling. I was overwhelmed.
     
    Last edited: Mar 6, 2014
  6. army judge

    army judge Super Moderator

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    OP, why would you care what a former ANYTHING said about you?
    Beyond that, what FRIEND of yours would be interacting with hers?
    Be smart, let it go.
    But, if you CAN'T, don't waste your time asking about it here.
    That's why you're spending all of that money to retain counsel to represent your interests.
    Discuss this with your lawyer, ONLY.
    There are more than 8,000,000,000 people on this planet.
    You'll never have to see or interact with HER again.
    When you push a point, people push back.
    As far as any disorders go, that won't matter.
    You weren't held prisoner with a gun to head and ordered to sign.
    Whatever was wrong, you did choose to sign.
    Finally, money has little to do with appeals.
    If you failed to protect the record, your appeal will fail, too.
    Appeals are harder than original trials.
    Heck, you even negotiated wording during what you're calling duress.
    I'm not involved in this case, but if I were, your arguments would crumple like a marshmallow over a flame.
    Good luck.
     
    Last edited: Mar 6, 2014
  7. desertized

    desertized Law Topic Starter New Member

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    We went to college together and dated in college. We share many of the same friends.

    That's why I want my day in court. My reputation means something to me.

    I'm here to find out if it's even possible to begin the process of looking for another attorney. If I can't challenge the agreement I have no reason to look for a lawyer.
     
  8. army judge

    army judge Super Moderator

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    Take the agreement (and other documentation) to a couple lawyers in Oregon.
    Discuss it with them.
    They'll give you the appropriate guidance upon which you can make a decision.
     
  9. desertized

    desertized Law Topic Starter New Member

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    I'm about 3-4 weeks away from being in a position to do that. The sale of my business won't be financially settled till that point. In the meantime I am in this forum trying to see if someone knows if I have that option. I thought forums like this existed for these situations - getting clarification and answers to help you make decisions. You could tell everyone that posts here to go see a lawyer, right?
     
  10. army judge

    army judge Super Moderator

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    We don't discuss case specifics. We don't give legal advice, those of us that are licensed attorneys. We don't encourage, and we do not form attorney-client relationships. That's why we don't establish such relationships, and that means your information isn't protected by attorney-client privilege.

    Does WebMD diagnose your physical symptoms and send a prescription to your pharmacy?
    No, and that's the way reputable legal sites operate.

    Again, I wish you financial success, health, and happiness.
     
    Last edited: Mar 6, 2014
  11. Proserpina

    Proserpina Moderator

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    If you appeal the appellate court is only going to look at the original motion/order. They cannot change anything just because one of you has changed your mind about a stipulated agreement; they can only act if there is in fact an error of law.

    There's no such error here.

    See:

    You don't have (a) and (b) is not applicable.

    There's more here: http://www.oregonlaws.org/ors/19.245 (scroll down a bit)


    And this:
    (from http://www.publications.ojd.state.or.us/docs/S44257.htm)

    The main issue you're having is the fact that you did sign the stipulated agreement. It creates a "no appeal" situation and the OR courts have been clear time and time again that the court considers such an agreement as voluntary on both sides.
     
    Last edited: Mar 7, 2014
  12. desertized

    desertized Law Topic Starter New Member

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    So via our stipulated agreement, we have the power to bind third parties to restrict their actions/speech without their consent? Isn't that an issue or error of law? I think they make a very good point and I agree with them. Who are we to tell them what they can't say, and further subject them to contempt of court actions without their consent?
     
  13. desertized

    desertized Law Topic Starter New Member

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    Also, I can appeal the motion being denied I think. I heard that anyway.
     
  14. Proserpina

    Proserpina Moderator

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    Let me try again.

    No, that's not what it means. That would be like saying "Well, they got my DOB wrong - that's an error of law, right?"

    Obviously not.
     
  15. Proserpina

    Proserpina Moderator

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    You're not reading. :cool:

    You cannot appeal this matter UNLESS the agreement specifically gives you the right to appeal. It doesn't, does it? No. So, end of the train tracks I'm afraid.
     
  16. desertized

    desertized Law Topic Starter New Member

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    So what this means is if a friend were to "violate" the agreement, the Petitioner would have to initiate proceedings to recover damages per the agreement, and the court would have the option to simply deny enforcing that part of the agreement, as opposed to setting the agreement aside due to some flawed conditions/language.
     
  17. Proserpina

    Proserpina Moderator

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    More or less. Your friends, her friends, are not bound by the court order (I said that earlier, didn't I?). What the order is getting at though, is that you cannot use a third party to act as intermediary.

    Once again:

    You cannot appeal.
     
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  18. desertized

    desertized Law Topic Starter New Member

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    Thanks so much for your help. I do appreciate that you did research on this on my behalf. My ability to find the right sources for information isn't very good. As you can see I did not make a good attorney for myself :)
     
  19. desertized

    desertized Law Topic Starter New Member

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    Because we share so many mutual friends, I worry about this provision. However, it would have to be proved that I was the one directing any comment or potential "violation" of the order, correct? If they act on their free will alone and not on my behalf, I can't be held liable. The burden of proof is on the Petitioner in the event of a third party violation, is that probably correct?
     
  20. Proserpina

    Proserpina Moderator

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    Generally yes, it'd be up to the petitioner. What I will say though is that if you have any doubt about where their loyalties lie, you need to stop being around them (at least for the short term).
     

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