Moore v. Ball, Janik & Novack

RICHARDSON, C. J.,

dissenting.

I disagree with the majority’s understanding of what the issue in this case is, and I am therefore also unable to agree with its disposition.

This action is subsequent to and separate from the earlier action in which plaintiffs complaint was dismissed through the unusual procedure that the majority describes. If an appeal had been taken from the dismissal of the first action, the correct analysis might well have been the same or akin to the reasoning that the majority follows here, i.e., the dismissal did not comply with the requirements of ORCP 54 or any other applicable authority and was therefore erroneous.

However, this is not an appeal from the dismissal of the first action; it is an appeal from the summary judgment in the second. Correspondingly, the issue is not whether the first dismissal was erroneous, but whether the time for filing the second action was extended under ORS 12.220. We held in Te-Ta-Ma Truth Foundation v. Vaughan, 114 Or App 448, 452, 835 P2d 938 (1992), that a dismissal for want of prosecution or for “analogous” deficiencies does not trigger the extension of the limitation period for which ORS 12.220 provides.

I agree with the majority that, in order to determine whether the ORS 12.220- extension applies to the second action, it is essential to characterize the basis for the dismissal of the first and, specifically, to determine whether the first action was dismissed for failure to prosecute. However, that is not what the majority in fact does. Rather than simply characterizing the basis for the dismissal of the first action, it decides this case on the ground that, if the earlier case was dismissed for a failure to prosecute, the dismissal did not comply with the governing requirements of ORCP 54. In other words, the majority’s disposition of the Statute of Limitations issue in the present case turns solely on whether the dismissal of the first case was erroneous. That is not the proper inquiry. The question is whether the dismissal of the first case was for a failure to prosecute or something analogous, not whether the dismissal on that ground was right or wrong. The majority’s reasoning seems to assume that the dismissal of the first action was for a want of prosecution, but that that fact is rendered nugatory by procedural errors in the way that disposition was reached. However, errors in one action that were not asserted in it or in any appeal from it, can provide no basis for relief in a subsequent action. The presumption is that the first proceeding was free of any errors that were not raised within it, and the presumption is not disputable. The majority’s decisional approach is to entertain and uphold a collateral challenge.

The remaining question is whether the dismissal of the first action was for a failure to prosecute or something analogous. The answer is that there is simply no other way to characterize it. Plaintiffs allowed their first action to be dismissed; they did not appeal the dismissal; and they should not now be heard to say that their second action was not for a want of prosecution because of errors that could only properly have been raised in an appeal from the first.

I respectfully dissent.

Deits, Edmonds and De Muniz, JJ., join in this dissenting opinion.