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Guerin v. Beamer9/29/1999
Argued and submitted January 26, 1999.
*Kistler, J., vice Warren, P.J., retired.
Reversed and remanded.
Plaintiffs filed a notice of dismissal on the day that argument was set on defendant's motion for summary judgment. The trial court granted defendant's summary judgment motion, ruled that plaintiffs' notice of dismissal was moot, and entered judgment for defendant. We reverse and remand.
Plaintiffs sued defendant for medical malpractice. On September 29, 1997, defendant filed a motion for summary judgment. The motion was supported by defendant's affidavit stating that he had exercised reasonable care. Plaintiffs did not respond to defendant's motion within the 20-day period provided by ORCP 47 C, nor did they seek to respond later by asking the court to enlarge the time for filing a response. The trial court set argument on defendant's summary judgment motion for December 8, 1997.
On December 8, 1997, plaintiffs filed a notice of dismissal pursuant to ORCP 54 A(1). Defendant objected that plaintiffs' notice of dismissal came too late, while plaintiffs responded that they had an absolute right to dismiss their action as long as no counterclaim had been filed and they filed their notice at least five days before trial. After considering the parties' arguments, the trial court granted defendant's summary judgment motion and concluded that in light of its ruling plaintiffs' notice of dismissal was moot.
On appeal, plaintiffs do not argue that the trial court's resolution of the merits of defendant's summary judgment motion was erroneous. Rather, they argue that the trial court should not have reached the merits of defendant's motion because they had a right to dismiss their action under ORCP 54 A(1). In determining whether plaintiffs had a right to dismiss their action while defendant's summary judgment motion was pending, we start with the texts of ORCP 47 and ORCP 54 A(1). See State v. Arnold, 320 Or 111, 119, 879 P2d 1272 (1994) (applying rules for interpreting statutes to the rules of civil procedure).
ORCP 47 provides that once a motion for summary judgment has been filed and the opponent has had an opportunity to respond, " he judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." ORCP 47 C. Viewed in isolation, ORCP 47 C directed the trial court to enter judgment in defendant's favor if, as plaintiffs do not dispute, defendant's unopposed summary judgment motion demonstrated that defendant was entitled to judgment.
ORCP 54 A(1) points in a different direction. It provides: "Subject to the provisions of Rule 32 D and of any statute of this state, an action may be dismissed by the plaintiff without order of court y filing a notice of dismissal with the court and serving such notice on the defendant not less than five days prior to the day of trial if no counterclaim has been pleaded * * *." If a plaintiff's notice complies with those conditions, ORCP 54 A(1) directs the trial court to enter a judgment of dismissal, ordinarily without prejudice. Viewed in isolation, that rule directed the trial court to dismiss plaintiffs' action without prejudice once it received their notice of dismissal.
Textually, there are at least two possible ways to resolve the tension between the two rules. On the one hand, ORCP 54 A(1) provides that a party's right to file a notice of dismissal is " ubject to the provisions of Rule 32 D and of any statute of this state." ORCP 54 A does not make a party's right
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