 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Maxwell v. Stebbins3/13/2002
1). Like ORCP 17, it contains no mandatory phrasing requiring the court to enter judgment, except where the court determines that it lacks jurisdiction over the subject matter. ORCP 21 G(4). Like ORCP 17, ORCP 21 merely provides a possible basis for dismissal had plaintiff not filed a notice of dismissal under ORCP 54 A(1). That is not sufficient to avoid the obligation to enter a judgment of dismissal without prejudice. Guerin, 163 Or App at 177.
In short, ORCP 54 A(1) provides that the court shall enter judgment of dismissal without prejudice upon the filing of proper notice, unless some other statute provides otherwise. In this case, plaintiff filed proper notice, defendants have failed to identify any statute that provides otherwise, and we are aware of none.
Plaintiff also challenges the trial court's award of prevailing party fees. Defendants reply that ORCP 54 A(3) expressly provides for an award of such fees as costs and disbursements in a case dismissed under ORCP 54 A(1).
ORCP 54 A(3) provides:
"When an action is dismissed under this section, the judgment may include any costs and disbursements, including attorney fees, provided by rule or statute. Unless the circumstances indicate otherwise, the dismissed party shall be considered the prevailing party."
The rule applies only when an action "is dismissed under this section" and authorizes an award of costs and disbursements to the dismissed party " nless the circumstances indicate otherwise." ORCP 54 A(3). In this case, the trial court expressly did not dismiss the action under ORCP 54 A. Moreover, the court did not have the opportunity to determine whether "circumstances indicate otherwise" than an award of costs and disbursements to defendants. Such matters will need to be addressed on remand.
Reversed and remanded.
Page 1 2 3 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|