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Maxwell v. Stebbins3/13/2002
Submitted on record and briefs February 1, 2002.
Reversed and remanded.
Plaintiff appeals a judgment dismissing his claims with prejudice and awarding defendants prevailing parties fees, contending that the judgment should have dismissed the claims without prejudice and that the court should not have awarded prevailing party fees. We conclude that the trial court erred in failing to dismiss the claims without prejudice and do not reach the other assignment of error.
The relevant facts are not in dispute. On March 15, 1999, plaintiff filed a complaint for fraud against defendants, two attorneys who represented a third party in a successful action against plaintiff for breach of contract and wrongful use of civil proceedings. On April 14, 1999, defendants filed motions under ORCP 21 to strike and to make more definite and certain. The trial court granted the motions and gave plaintiff leave to replead. On June 23, 1999, plaintiff filed an amended complaint, which, on July 6, 1999, prompted a second round of ORCP 21 motions, this time to strike and to dismiss for failure to state a claim. The matter was scheduled for a hearing on July 30, 1999.
On July 29, 1999, plaintiff filed a notice of voluntary dismissal without prejudice, pursuant to ORCP 54 A 1. The July 30 hearing went forward as scheduled, and, on August 3, 1999, the court issued a letter opinion granting several of defendants' motions. The court then entered judgment dismissing plaintiff's claims with prejudice under ORCP 21 and awarded a prevailing party fee of $250 to one defendant under ORS 20.190(2) and an enhanced prevailing party fee to the other defendant under ORS 20.190(3).
On appeal, plaintiff contends that, having given notice of voluntary dismissal without prejudice, he was entitled to obtain precisely that. In addition, he contends that the trial court erred in awarding prevailing party fees to defendants.
We begin with the first contention, because it is dispositive. Plaintiff argues that, once he filed his notice under ORCP 54 A(1), the trial court had an obligation to enter a judgment of dismissal without prejudice. Defendants argue that ORCP 54 A(1) provides that dismissal must be without prejudice unless "any statute of this state" provides otherwise. According to defendants, in this case, the trial court had authority under either ORCP 17 or ORCP 21 to enter judgment of dismissal with prejudice.
ORCP 54 A(1) 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 (a) by 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, or (b) by filing a stipulation of dismissal signed by all adverse parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action against the same parties on or including the same claim unless the court directs that the dismissal shall be without prejudice. Upon notice of dismissal or stipulation under this subsection, the court shall enter a judgment of dismissal."
Thus, if a plaintiff files a notice of voluntary dismissal, and had not previously obtained a dismissal of the same claim, "the court shall enter a judgment of dismissal" without prejudice, unless ORCP 32 D--which applies to class actions--or some statute provides oth
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