dissenting.
I am an appellate judge. I was never a trial judge. When an experienced trial court judge grants a motion for a new trial pursuant to ORCP 64,1 must admit that I tend to review the record very, very carefully to understand why the trial court did so. In my review of the record, I conclude that the trial court granted the motion for a new trial due to several unusual events that, in the totality of the circumstances, convinced the trial court that there was an irregularity in the proceedings of the court that materially affected the substantial rights of plaintiff. ORCP 64 B(l). I would conclude that the trial court did not abuse its discretion in granting plaintiff’s motion for a new trial and affirm. Therefore, I respectfully dissent from the majority’s conclusion that the proceedings below were not irregular.1
The majority opinion accurately summarizes the facts. My review of the record shows that the trial court was very active in this matter. It was on the second day of trial that the trial court met with the attorneys outside the presence of the jury. The trial court announced that, under its interpretation of ORS 90.370(4), defendants would be the prevailing party if they established any damages. It *275was understood that, if defendants established damages, then defendants would be entitled to attorney fees. The court encouraged the parties to settle the case. The jury was excused for the day, and the trial court assisted the parties’ settlement attempt by shuttling between the two rooms where the parties were located. The court stated that it was “confident we can work something out this morning.” Given those circumstances, it was no surprise that the parties settled the case. The parties placed the settlement on the record before the trial court. The court dismissed the jury.2
The next day, the court had second thoughts about its ruling and decided to do further research. Two days after the parties placed the settlement agreement on the record, the court faxed a letter to the parties, informing them that it had made a mistake. The court nonetheless entered a general judgment reflecting the terms of the settlement. Plaintiff then filed a motion for a new trial, which the court granted. Defendants appeal the resulting order arguing that the trial court abused its discretion in ordering a new trial.
Under ORCP 64 B(1), in an action where there has been a trial by jury, a court may set aside a former judgment and grant a new trial where “ [i] rregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion” prevented a party from having a fair trial.3 “We review the grant of a new trial for abuse of discretion. However, to the extent that the grant is based on the interpretation of law, we review for legal error.” State v. Woodman, 195 Or App 385, 387, 97 P3d 1263 (2004), aff'd, 341 Or 105, 138 P3d 1 (2006) (internal citations omitted). “The trial court abuses its discretion if it exercises that *276discretion in a manner that is unjustified by, and clearly against, reason and evidence.” Forsi v. Hildahl, 194 Or App 648, 652, 96 P3d 852 (2004), rev den, 338 Or 124 (2005).
Here, the trial court first mistakenly ruled that attorney fees were authorized under ORS 90.370. Based on that ruling, the court was confident that the parties would settle. The court sent the jury home and helped the parties reach a settlement agreement based on its incorrect interpretation of the statute. The court then put the settlement on the record and dismissed the jury. Within days, the court sua sponte reversed its earlier interpretation of ORS 90.370. The court encouraged the idea of a motion for a new trial under ORCP 64 B and implied that it would grant such a motion. The court entered the judgment and granted plaintiff’s subsequent motion for a new trial. Under the totality of the circumstances, I would conclude that there was an irregularity in the proceedings of the court and, consequently, the trial court did not abuse its discretion in granting plaintiff’s motion for a new trial.
As the majority notes, in McCollum v. Kmart Corporation, 228 Or App 101, 207 P3d 1200 (2009), vac’d on other grounds, 347 Or 707, 709, 226 P3d 703 (2010), we stated that an irregularity under ORCP 64 B(1) requires deviation from an established rule or a usual practice or method. Here, there was an irregularity under the totality of the circumstances in the proceedings of the court that prevented plaintiff from having a fair trial. That is a deviation from the court’s usual method and is a failure to accord with what is usual. Accordingly, my conclusion is not inconsistent with the analysis in McCollum,4
Defendants argue that, despite the irregularity, plaintiff is bound by the stipulated settlement. “A stipulated settlement, agreed to in open court, is a binding contract.” City of Canby v. Rinkes, 136 Or App 602, 609, 902 P2d 605 (1995), rev den, 322 Or 489 (1996). A settlement is not rendered unenforcible by negligent mistakes in the parties’ knowledge and understanding at the time they entered into the settlement. Union Cemetery Assn. of Crawfordsville v. *277Coyer, 214 Or App 24, 30, 162 P3d 1072, rev den, 343 Or 691 (2007). “A settlement agreement will not be enforced, however, if the agreement was based on a mutual mistake that was fundamental to the agreement [.]” Clement v. Mills, 245 Or App 308, 318, 263 P3d 349 (2011). Here, the settlement was based on a mutual mistake that was fundamental to the agreement — the court’s premature and erroneous determination regarding ORS 90.370 and that the court would award defendants attorney fees as the prevailing party. Based on these unique circumstances and the mutual mistake by all concerned, I would conclude that the settlement agreement is not enforceable.
I respectfully dissent.
It may be that “irregular” is not the opposite of “regular.” Neither word is defined in the rule. But what occurred in the proceedings of the court met my definition of irregular and might have met the trial court’s definition of irregular.
Because the jury was dismissed prior to returning a verdict, the trial court’s order granting a new trial does not run afoul of Article VII (Amended), section 3, of the Oregon Constitution (limitation on granting a new trial).
ORCP 64 B(l) provides:
“A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“B(l) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial.”
I disagree with the majority’s characterization of this case as “a litigant’s wait- and-see approach” under McCollum. 256 Or App at 273.