 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Guess v. Lee3/16/2005
his section, the action is subject to arbitration under ORS 36.405(1)(b), and the position of the party is not improved after judgment on the trial de novo, the party shall not be entitled to an award of attorney fees or costs and disbursements and shall be taxed the costs and disbursements incurred by the other parties after the filing of the decision and award of the arbitrator."
(Emphasis added.) The function of a "notwithstanding" clause is to operate as an exception to that which follows. Severy v. Board of Parole, 318 Or 172, 178, 864 P2d 368 (1993). The inclusion of such a clause in subsection (4) indicates that the legislature intended to except the procedures stated therein from the requirements of the Oregon Rules of Civil Procedure. On the other hand, the omission of such a clause from subsection (2) indicates that the legislature did not intend to except the procedures therein from the requirements of the Oregon Rules of Civil Procedure. See PGE, 317 Or at 611 (use of a term in one provision and not in another provision of the same statute indicates a purposeful omission). Thus, we conclude that, contrary to plaintiff's interpretation, the Oregon Rules of Civil Procedure apply to the appeal procedures in ORS 36.425(2), even though they do not apply to the attorney fee procedures in ORS 36.425(4).
We next consider whether ORCP 10 C, in particular, applies to ORS 36.425(2)(a). As discussed, plaintiff asserts that ORCP 10 C does not apply because paragraph (2)(a) addresses the filing, not service, of arbitration awards. We disagree. Paragraph (2)(a) refers to "the filing of a decision and award with the clerk of the court under subsection (1) of this section." ORS 36.425(1) provides, in part:
"At the conclusion of arbitration under ORS 36.400 to 36.425 of a civil action, the arbitrator shall file the decision and award with the clerk of the court that referred the action to arbitration, together with proof of service of a copy of the decision and award upon each party."
(Emphasis added.)
By its terms, subsection (1) requires that the filing of an arbitrator's decision and award be accompanied by proof of service of the decision and award on each party. Thus, to trigger the 20-day appeal period prescribed in paragraph (2)(a), the filing of a decision and award with the clerk of the court "under subsection (1) of this section" must be accompanied by proof of service of the arbitrator's decision and award. Accordingly, we conclude that, under the circumstances of this case, paragraph (2)(a) requires a party to file a written notice of appeal and request for trial de novo within 20 days "after the service of a notice or other paper upon such party."
It follows that where, as here, the arbitrator filed the decision and award and, on the same day, served the decision and award on the parties by mail, ORCP 10 C applies, and "3 days shall be added to the prescribed period." Defendant filed her notice of appeal and request for trial de novo 21 days after the arbitrator filed his decision and award, together with proof that he served the decision and award on the parties by mail. Therefore defendant timely filed her notice of appeal and request for trial de novo, and the trial court did not err in denying plaintiff's motion for entry of judgment on the arbitrator's award.
Affirmed.
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.
|
|