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Maxwell v. Stebbins3/13/2002
erwise.
Illustrating the application of the rule is Guerin v. Beamer, 163 Or App 172, 986 P2d 1241 (1999). In that case, the defendant filed a motion for summary judgment dismissing the plaintiffs' claims for medical malpractice. The day of oral argument on the summary judgment motion, the plaintiffs filed a notice of dismissal pursuant to ORCP 54 A(1). The trial court nevertheless granted the defendant's summary judgment motion and entered judgment for the defendant. On appeal, the plaintiffs argued that they were entitled to dismissal without prejudice under ORCP 54 A(1). The defendant argued that that rule applies only if another statute does not otherwise permit the court to dismiss with prejudice. According to the defendant, ORCP 47--which provides that, once the opponent has had an opportunity to respond to a motion for summary judgment, " he judgment sought shall be rendered forthwith"--is just such a statute.
We reversed. After examining the text of the rule and its history, we concluded that, notwithstanding the language of the summary judgment rule, ORCP 54 A(1) "reflects a considered policy choice to permit a plaintiff to dismiss his or her action even though the defendant's summary judgment motion is pending." Id. at 177.
The question in this case is whether the rule likewise requires the voluntary dismissal of plaintiff's claims without prejudice even though defendants' ORCP 21 motions were pending. As we have noted, defendants argue that voluntary dismissal without prejudice is not required because either of two other statutes provides the court with authority to dismiss with prejudice notwithstanding the notice of dismissal.
The first of the statutes on which defendants rely is ORCP 17. According to defendants, ORCP 17 is brought "into play" in this case because plaintiff's complaint already had been dismissed once and the second attempt to plead a claim was as defective as the first. Thus, they argue, the court had the authority to dismiss the case because of plaintiff's obviously vexatious intentions.
Nothing in the text of ORCP 17 suggests that the court may ignore a notice of dismissal filed under ORCP 54 A(1). In Guerin, we noted that the mandatory phrasing of the summary judgment rule--requiring the court to render judgment after the opponent has responded--at least arguably "trumps" ORCP 54 A(1). Nonetheless, we found the summary judgment rule wanting as a basis for declining to dismiss without prejudice. In this case, ORCP 17 contains not even the mandatory phrasing that gave us brief pause in Guerin. At best, it presents a possible basis on which the court could have dismissed the case had plaintiff not filed a notice of dismissal pursuant to ORCP 54 A(1)
Even at that, assuming that the filing of plaintiff's amended complaint otherwise would subject him to sanctions under ORCP 17, the rule makes clear that the court may impose sanctions "only after notice and an opportunity to be heard" on the issue of whether the imposition of sanctions under that rule is appropriate. ORCP 17 D(1). Moreover, sanctions under that rule are permissible only if the trial court explains the grounds for the imposition of the specific sanction that is ordered. L.S. Henricksen Construction, Inc. v. Shea, 155 Or App 156, 160, 961 P2d 295, rev den 328 Or 40 (1998). In this case, nothing in the record suggests that the trial court satisfied any of the foregoing conditions of imposing sanctions under ORCP 17. That rule, therefore, provides no support for failing to dismiss the complaint under ORCP 54 A(1).
The second of the statutes is ORCP 21. That rule, too, says nothing about ignoring a notice of dismissal filed under ORCP 54 A(
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