ORCP 54

 

NOTES OF DECISIONS

 

      In nonjury case, motion by defendant for involuntary dismissal is essential to preserve for review issue of sufficiency of plaintiff’s evidence. Baldwin v. Miller, 44 Or App 371, 606 P2d 629 (1980), Sup Ct review denied

 

LAW REVIEW CITATIONS: 27 WLR 549 (1991)

 

ORCP 54A

 

      See also annotations under ORS 18.210 and 18.230 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 18.230)

 

      When court passes upon motion for involuntary nonsuit made before presentation of evidence at trial, plaintiff is entitled to every reasonable conjecture as to what evidence might show as long as it is not inconsistent with evidence described in opening statement. Bailey v. Mead, 260 Or 410, 492 P2d 798 (1971)

 

      Motion for directed verdict or for nonsuit must specify grounds therefor and unless it does the motion should not be considered on appeal. Sellers v. Looper, 264 Or 13, 503 P2d 692 (1972)

 

      On motion for involuntary nonsuit, testimony must be considered in light most favorable to plaintiff. Stocking v. Sunset Square, Inc., 264 Or 151, 504 P2d 100 (1972)

 

      Defendant in nonjury trial may move for and obtain judgment of nonsuit to test sufficiency of plaintiff’s proof when plaintiffs have rested. Adamson v. West Valley Assn., 274 Or 11, 544 P2d 578 (1976)

 

In general

 

      Where contractual provision for award of attorney fees was pleaded by plaintiff and defendant made it known that attorney fees would be sought, fact that responsive pleading had not been filed would not prevent defendant from recovering attorney fees. Wacker Siltronic Corp. v. Pakos, 58 Or App 40, 646 P2d 1366 (1982), Sup Ct review denied

 

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

 

      Plaintiff filing notice under this section is entitled to dismissal without prejudice notwithstanding defendant’s pending motion under ORCP 21 to dismiss with prejudice. Maxwell v. Stebbins, 180 Or App 48, 42 P3d 336 (2002)

 

      Voluntary dismissal 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

 

      Voluntary dismissal without prejudice does not bind parties with regard to any issue or matter in case. State of Oregon v. CigTec Tobacco, LLC, 200 Or App 501, 115 P3d 978 (2005)

 

ORCP 54B

 

      See also annotations under ORS 18.210, 18.230 and 18.260 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 18.230)

 

      When court passes upon motion for involuntary nonsuit made before presentation of evidence at trial, plaintiff is entitled to every reasonable conjecture as to what evidence might show as long as it is not inconsistent with evidence described in opening statement. Bailey v. Mead, 260 Or 410, 492 P2d 798 (1971)

 

      Motion for directed verdict or for nonsuit must specify grounds therefor and unless it does motion should not be considered on appeal. Sellers v. Looper, 264 Or 13, 503 P2d 692 (1972)

 

      On motion for involuntary nonsuit, testimony must be considered in light most favorable to plaintiff. Stocking v. Sunset Square, Inc., 264 Or 151, 504 P2d 100 (1972)

 

      Dismissal is improper if there is any substantial, competent evidence to support verdict for plaintiff. Cummins v. City of West Linn, 21 Or App 643, 536 P2d 455 (1975)

      Defendant in nonjury trial may move for and obtain judgment of nonsuit to test sufficiency of plaintiff’s proof when plaintiffs have rested. Adamson v. West Valley Assn., 274 Or 11, 544 P2d 578 (1976)

 

Under former similar statute (ORS 18.260)

 

      Court may dismiss case when plaintiff fails to prosecute case by arbitrarily refusing to go to trial. Lee v. Brown, 264 Or 341, 505 P2d 924 (1973), cert. denied, 414 US 830

 

In general

 

      In ruling on motion for dismissal under this section, it was error for trial judge to apply prima facie test employed in ruling on motions for directed verdicts. Castro and Castro., 51 Or App 707, 626 P2d 950 (1981)

 

      In action tried by court without jury, party may not assert for insufficiency of evidence unless motion to dismiss on that basis was made at trial. Falk v. Amsberry, 290 Or 839, 626 P2d 362 (1981)

 

      Authority to involuntarily dismiss action for insufficiency of evidence does not permit trial court sua sponte to dismiss action without prejudice after both sides have presented their case. Mason v. Wegscheider, 66 Or App 506, 674 P2d 84 (1984)

 

      Where plaintiff demanded arbitration, although after defendants had filed motion to dismiss, it was error to dismiss plaintiff’s action. Meissner v. Diller, 69 Or App 518, 686 P2d 1061 (1984), Sup Ct review denied

 

      Written findings are necessary when dispositive ruling is made on motion to dismiss for insufficiency of evidence. Greenwood Forest Products, Inc. v. Sapp, 84 Or App 120, 733 P2d 110 (1987), Sup Ct review denied; Elliott v. Tektronix, Inc., 102 Or App 388, 796 P2d 361 (1990), Sup Ct review denied

 

      When judgment of dismissal without prejudice is entered, scope of review is limited to whether plaintiff has established prima facie case. Gearhart v. Employment Div., 99 Or App 601, 783 P2d 536 (1989), Sup Ct review denied

 

      Where judgment was entered after grant of defendant’s motion to dismiss and did not recite that it was with prejudice, judgment is adjudication without prejudice and is final and appealable judgment but leaves plaintiff free to allege same cause of action in new proceeding. Gearhart v. Employment Div., 99 Or App 601, 783 P2d 536 (1989), Sup Ct review denied

 

      When defendant appeals denial of motion to dismiss or motion for directed verdict, court considers whole record, including evidence introduced by defendant to determine whether plaintiff presented prima facie case. Scholes v. Sipco Services & Marine, Inc., 103 Or App 503, 798 P2d 694 (1990)

 

      Where plaintiff establishes prima facie case, it is improper to dismiss action at close of case in chief based on evidence of affirmative defense. Clark and Clark, 171 Or App 205, 14 P3d 667 (2000)

 

      Motion for judgment of dismissal may not be used to challenge sufficiency of evidence after court has ruled on merits. Mount Hood Community College v. Federal Insurance Co., 199 Or App 146, 111 P3d 752 (2005)

 

      Trial court may grant motion to dismiss if plaintiff fails to present prima facie case or, even if plaintiff presents prima facie case, court is not persuaded by plaintiff’s evidence. Venture Properties, Inc. v. Parker, 223 Or App 321, 195 P3d 470 (2008)

 

ORCP 54C

 

      See also annotations under ORS 18.210 and 18.230 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 18.230)

 

      When court passes upon motion for involuntary nonsuit made before presentation of evidence at trial, plaintiff is entitled to every reasonable conjecture as to what evidence might show as long as it is not inconsistent with evidence described in opening statement. Bailey v. Mead, 260 Or 410, 492 P2d 798 (1971)

 

      Motion for directed verdict or for nonsuit must specify grounds therefor and unless it does motion should not be considered on appeal. Sellers v. Looper, 264 Or 13, 503 P2d 692 (1972)

 

      On motion for involuntary nonsuit, testimony must be considered in light most favorable to plaintiff. Stocking v. Sunset Square, Inc., 264 Or 151, 504 P2d 100 (1972)

 

      Defendant in nonjury trial may move for and obtain judgment of nonsuit to test sufficiency of plaintiff’s proof when plaintiffs have rested. Adamson v. West Valley Assn., 274 Or 11, 544 P2d 578 (1976)

 

ORCP 54D

 

NOTES OF DECISIONS

 

      This section does not preclude award of costs and attorney fees to party voluntarily dismissed by plaintiff. Precision Roof Trusses, Inc. v. Devitt, 59 Or App 4, 650 P2d 152 (1982)

 

      Requirement that court dismiss subsequent action where same claim was previously dismissed with prejudice does not prevent court from reinstating subsequent action under ORCP 71B where dismissal of first claim is reversed. Palmquist v. Flir Systems, Inc., 207 Or App 365, 142 P3d 94 (2006)

 

ORCP 54E

 

      See also annotations under ORS 17.055 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 17.055)

 

      Entry of judgment based upon acceptance of offer to compromise is, in effect, entry of consent decree, and only judgment that can properly be entered is one in accordance with terms of offer as accepted. State ex rel Scholarship Comm. v. Magar, 288 Or 635, 607 P2d 167 (1980)

 

      Costs and recoverable attorney fees incurred up to time of making of offer should be considered in deciding whether plaintiff obtained “a more favorable judgment.” Carlson v. Blumenstein, 293 Or 494, 651 P2d 710 (1982)

 

In general

 

      When rejected offer of settlement was silent as to costs and judgment eventually awarded same amount as offer, plaintiff failed to obtain “more favorable judgment” and defendant was entitled to costs incurred after offer was made. Adler Leather Sportswear v. Roberts, 67 Or App 188, 677 P2d 757 (1984)

 

      Where defendant settled with coplaintiff after plaintiff had rejected offer of compromise, offset of coplaintiff settlement amount against judgment awarded plaintiff was not to be considered in determining whether plaintiff received more favorable judgment. Quality Contractors, Inc. v. Jacobsen, 154 Or App 343, 963 P2d 30 (1998)

 

      Offer of judgment that includes costs and attorney fees in offered amount is permissible. For Counsel, Inc. v. Northwest Web Co., 154 Or App 492, 962 P2d 707 (1998), aff’d 329 Or 246, 985 P2d 1277 (1999)

 

      Dissolution action is not subject to requirement that party improve position relative to proposed stipulated judgment in order to receive attorney fees. Saunders and Saunders, 158 Or App 601, 975 P2d 927 (1999)

 

      Whether plaintiff achieves more favorable judgment is determined based on comparison of total dollar amounts of offer and judgment, not comparison of actual benefits plaintiff would retain under offer or judgment. Delcastillo v. Norris, 197 Or App 134, 104 P3d 1158 (2005), Sup Ct review denied

 

      Where plaintiff fails to recover amount exceeding offer of settlement, offer cuts off recovery under ORS 20.080 of attorney fees incurred after offer. Bell v. Morales, 207 Or App 326, 142 P3d 76 (2006), Sup Ct review denied

 

      In comparing amount of judgment with amount of pretrial offer, judgment amount includes prevailing party fee but does not include attorney fees awarded plaintiff under ORCP 46C. Elliott v. Progressive Halcyon Insurance Co., 222 Or App 586, 194 P3d 828 (2008), Sup Ct review denied

 

      Unaccepted offer of judgment is not valid offer for purpose of terminating subsequent attorney fees unless filed as provided in ORCP 9C. Wilmoth v. Ann Sacks Tile and Stone, Inc., 224 Or App 315, 197 P3d 567 (2008), Sup Ct review denied

 

      Where action is for less than amount specified in ORS 20.080, post-filing offer of judgment by defendant does not curtail plaintiff entitlement to attorney fees. Powers v. Quigley, 345 Or 432, 198 P3d 919 (2008)