ORCP 47

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 18.105)

 

      Order denying a motion for summary judgment is not appealable. Hoy v. Jackson, 26 Or App 895, 554 P2d 561 (1976)

 

      Section is taken directly from Federal Rules of Civil Procedure, and thus federal interpretation of those rules is to be given considerable weight. Hoy v. Jackson, 26 Or App 895, 554 P2d 561 (1976); Garrison v. Cook, 280 Or 205, 570 P2d 646 (1977)

 

      Ruling denying summary judgment does not become appealable upon entry of final order in case. All-States Leasing v. Pacific Empire Land Corp., 31 Or App 733, 571 P2d 192 (1977)

 

      Summary judgment is inappropriate where disputed issue of fact exists as to diligence in discovery of fraud so as to commence limitations period. Forest Grove Brick Works v. Strickland, 277 Or 81, 559 P2d 502 (1977)

 

      Incorrect answers on insurance application were not material as matter of law. Santilli v. State Farm Life Ins. Co., 278 Or 53, 562 P2d 965 (1977)

 

      Section was enacted to facilitate quick, early and inexpensive determination of whether pleadings present triable issue of fact. Garrison v. Cook, 280 Or 205, 570 P2d 646 (1977)

 

      Summary judgment on issue of liability on note, with issue of attorney fees reserved for later hearing, was proper. Garrison v. Cook, 280 Or 205, 570 P2d 646 (1977)

 

      Provision of this section, allowing summary judgment on issue of liability only, is legislative statement that partial summary judgment on liability only is desirable. Garrison v. Cook, 280 Or 205, 570 P2d 646 (1977)

 

      Where defendant responded to plaintiff’s motion for summary judgment by also moving for summary judgment, no genuine issue as to any material fact existed which would bar trial court from rendering summary judgment. Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977)

 

      Where trial court issued order awarding partial summary judgment in favor of plaintiff on issue of liability and denying defendant’s demurrer but no judgment was entered after order, order lacked interlocutory character assigned partial summary judgment by this section, and court had discretion to vacate it. Journeymen, Inc. v. Judson, 45 Or App 249, 608 P2d 563 (1980), Sup Ct review denied

 

In general

 

      Modification of support obligation under dissolution decree may be sought using summary judgment procedure. Annala and Annala, 47 Or App 423, 614 P2d 618 (1980)

 

      Where plaintiff, a prisoner, was prevented by Oregon State Penitentiary from obtaining medical opinion needed for affidavit opposing motion for summary judgment, denial of continuance to obtain medical opinion and acceptance of summary judgment motion was abuse of discretion. Harris v. Erickson, 48 Or App 655, 617 P2d 685 (1980)

 

      Court of Appeals has power on de novo review to order summary judgment for appellant where cross-motions have been filed. Cochran v. Connell, 53 Or App 933, 632 P2d 1385 (1981), Sup Ct review denied

 

      This rule sets out procedure leading up to consideration of motion for summary judgment and there is no statutory basis requiring in-court testimony of witnesses in such proceeding. Meyer v. Caldwell, 296 Or 100, 672 P2d 342 (1983)

 

      Where there is evidence in summary judgment record that would justify amending complaint, appellate court will treat complaint as though amended. Federal Savings and Loan Ins. Corp. v. Johnson, 97 Or App 250, 776 P2d 24 (1989); Mittleman Properties v. Bank of California, 131 Or App 666, 886 P2d 1061 (1994)

 

      Court may not rule that document is inadmissible in summary judgment proceeding merely because document is inconsistent with prior statement by same party. Stoeger v. Burlington Northern Railroad Co., 323 Or 569, 919 P2d 39 (1996)

 

      Denial of motion for summary judgment may be reviewed under cross-assignment of error when lack of trial prevents party from making motion for directed verdict on same grounds. St. Paul Fire and Marine Insurance Co. v. Speerstra, 63 Or App 533, 666 P2d 255 (1983); Stilwell v. Seibel, 169 Or App 613, 10 P3d 319 (2000)

 

      Where motion for summary judgment requires reference to predicate fact, lack of dispute regarding fact does not make denied motion reviewable as purely legal contention. Freeman v. Stuart, 203 Or App 191, 125 P3d 786 (2005)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 18.105)

 

      13 WLJ 73 (1976)

 

In general

 

      20 WLR 223 (1984)

 

ORCP 47B

 

NOTES OF DECISIONS

 

      Trial court did not err in granting defendants’ motion for summary judgment despite defendants’ failure to support their motion with affidavits or other evidence, where defendants relied on affidavits and depositions submitted by plaintiffs in support of plaintiffs’ motion for summary judgment and where plaintiffs’ evidence showed no genuine issue of material fact. Harris v. Nordquist, 96 Or App 19, 771 P2d 637 (1989)

 

ORCP 47C

 

NOTES OF DECISIONS

 

      Party may not create genuine issue of fact through affidavit containing unexplained contradiction of earlier assertion. Henderson-Rubio v. May Dept. Stores, 53 Or App 575, 632 P2d 1289 (1981); Clapp v. Oregonian Publishing Company, 83 Or App 575, 732 P2d 928 (1987); Gibson v. Pacific Summa Capital, Inc., 163 Or App 321, 987 P2d 1240 (1999), Sup Ct review denied

 

      Interlocutory partial summary judgment is not final appealable judgment under ORS 19.205. Raykovich v. Wilkinson, 59 Or App 560, 651 P2d 747 (1982)

 

      Where affidavit opposing motion for summary judgment was mailed to moving party’s attorney prior to day of hearing on motion, this rule is satisfied and court must consider affidavit in ruling on motion. Bowers Mechanical Inc. v. Kent Associates, 63 Or App 414, 664 P2d 436 (1983)

 

      Where plaintiff did not respond to defendant’s motion for summary judgment and supporting affidavit, only inquiry to determine appropriateness of summary judgment was whether defendant’s affidavit was sufficient to show no genuine issue of material fact and that moving party is entitled to judgment as matter of law. Sheppard v. Weekly, 72 Or App 86, 695 P2d 53 (1985)

 

      Tax court erred in denying motion for summary judgment under ORCP 47C without first conducting hearing, as required by own rule. Realty Group v. Dept. of Rev., 299 Or 377, 702 P2d 1075 (1985)

 

      As general rule, construction of contract is question of law; however, if court determines contract between parties is ambiguous, intention of parties becomes question of fact and if there is genuine issue of material fact summary judgment is not proper. Malot v. Hadley, 86 Or App 687, 740 P2d 804 (1987), Sup Ct review denied

 

      When party, in support of motion for summary judgment, relies on requests for admission, whether attorney who received requests actually represented other party may be question of fact precluding summary judgment. Loudermilk v. Hart, 92 Or App 293, 758 P2d 397 (1988)

 

      Where there are issues of fact as to requirements of nonconformity and substantial impairment of value which plaintiff must prove to prevail in rescission claim, trial court erred in granting plaintiff’s summary judgment motion. Claxton v. Boothe, 101 Or App 416, 790 P2d 1201 (1990), Sup Ct review denied

 

      Where explanation is offered for inconsistent statements, court may not evaluate credibility of explanation in determining whether genuine issue of material fact exists. Taal v. Union Pacific Railroad Co., 106 Or App 488, 809 P2d 104 (1991); Edwards v. Saleen-Degrange, 161 Or App 156, 984 P2d 854 (1999), modified162 Or App 671, 986 P2d 667 (1999)

 

      Moving party does not have burden of showing lack of genuine issue of material fact as to issues that nonmoving party would be required to prove if case were tried. Mitchem v. Rice, 143 Or App 546, 923 P2d 1347 (1996), Sup Ct review denied

 

      Use of phrase “record before the court” in 1995 amendment does not expand or contract scope of record to be considered on summary judgment, shift burden of proof or otherwise alter court’s decision-making standards. Jones v. General Motors Corp., 325 Or 404, 939 P2d 608 (1997)

 

      Voluntary dismissal under ORCP 54A is available notwithstanding that adverse summary judgment hearing is pending. Guerin v. Beamer, 163 Or App 172, 986 P2d 1241 (1999)

 

      Amendments by 1999 legislation affecting burden of proof apply only to actions pending with trial courts on or after effective date of amendments (October 23, 1999). Robinson v. Lamb’s Wilsonville Thriftway, 332 Or 453, 31 P3d 421 (2001)

 

      Voluntary dismissal under ORCP 54A remains available during period after court order granting summary judgment is filed and before order is entered into court register. Palmquist v. FLIR Systems, Inc., 189 Or App 552, 77 P3d 637 (2003), Sup Ct review denied

 

      Where defendants in negligence action were entitled to summary judgment under higher standard of care, issue of fact regarding appropriate standard of care did not preclude summary judgment. Glorioso v. Ness, 191 Or App 637, 83 P3d 914 (2004), Sup Ct review denied

 

      Where parties simultaneously file motions for summary judgment, record for each motion includes supporting or contravening affidavits filed for both motions. Citibank South Dakota v. Santoro, 210 Or App 344, 150 P3d 429 (2006), Sup Ct review denied

 

ORCP 47D

 

NOTES OF DECISIONS

 

      Where plaintiff did not respond to defendant’s motion for summary judgment and supporting affidavit, only inquiry to determine appropriateness of summary judgment was whether defendant’s affidavit was sufficient to show no genuine issue of material fact and that moving party is entitled to judgment as matter of law. Sheppard v. Weekly, 72 Or App 86, 695 P2d 53 (1985)

 

      Affidavits supporting motion for summary judgment that merely deny allegations in complaint do not establish that there is no genuine issue of material fact. Beachcraft Marine Corp. v. Koster, 116 Or App 133, 840 P2d 1336 (1992)

 

      Where defendant attacks sufficiency of complaint and plaintiff offers evidence in response that would justify amended complaint, complaint is deemed amended for purposes of summary judgment motion. Minisce v. Thompson, 149 Or App 746, 945 P2d 582 (1997)

 

      Where affidavit sought to set forth facts by incorporating portions of another document but did not identify specific document statements being incorporated or excluded, affidavit was inadequate to demonstrate compliance with requirements of personal knowledge, admissible facts and competency to testify. Jeffries v. Mills, 165 Or App 103, 995 P2d 1180 (2000)

 

ORCP 47E

 

NOTES OF DECISIONS

 

      This rule does not require that attorney’s affidavit recite that expert rendered opinion; it requires that affidavit be based on opinion or facts provided by expert. Moore v. Kaiser Permanente, 91 Or App 262, 754 P2d 615 (1988), Sup Ct review denied

 

      Attorney’s affidavit need not recite on what issues expert will testify, however, when party chooses to enumerate issues on which expert will testify, that enumeration must give notice of all potential issues on which expert may testify. Moore v. Kaiser Permanente, 91 Or App 262, 754 P2d 615 (1988), Sup Ct review denied

 

      Affidavit need say only that retained expert is willing to testify to admissible facts or opinions that would create question of fact and need not further specify that expert is “qualified.” Starr v. Wasner, 93 Or App 48, 760 P2d 900 (1988), Sup Ct review denied

 

      Attorney must enumerate issues to be included in expert opinion only if attorney does not have good faith belief that expert opinion will include all issues raised in motion for summary judgment. Stotler v. MTD Products, Inc., 149 Or App 405, 943 P2d 220 (1997)

 

      Where affidavit in opposition to motion states that it is reciting part of testimony expected from expert witness, moving party and court may not conclude that expert testimony will address only recited matters. Brownstein, Rask, Arenz, Sweeney, Kerr and Grim v. Pearson, 166 Or App 120, 997 P2d 300 (2000)

 

      For purposes of affidavit stating that unnamed qualified expert has been retained who will create genuine issue of material fact, “party’s attorney” does not include nonattorney party appearing on own behalf. Due-Donohue v. Beal, 191 Or App 98, 80 P3d 529 (2003)

 

      Claim preclusion does not apply where party asserting second claim lacked actual or constructive knowledge of second claim availability at time first claim was asserted. Hodges v. Blazer Homes, Inc., 204 Or App 86, 129 P3d 196 (2006)

 

      Affidavit or declaration does not need to contain actual opinion of expert or specific facts on which expert will rely in giving testimony. Whalen v. American Medical Response Northwest, 256 Or App 278, 300 P3d 247 (2013)

 

LAW REVIEW CITATIONS: 27 WLR 1 (1991)