dissenting.
This case should not be dismissed, but should be reversed and remanded for further proceedings. Therefore, I dissent.
The majority orders the complaint to be dismissed, because plaintiff sought “[n]o relief that could have been directed at defendant,” 115 Or App at 4, and “there was no other defendant in the case whose presence might make a meaningful judicial remedy possible.” 115 Or App at 4. Even if those defects were raised in the trial court, they were resolved against defendant and, before defendant answered, the court entered a summary judgment for plaintiff. Plaintiff has never been given an opportunity to amend his complaint to cure the defects on which this court bases its dismissal.
We have criticized trial judges for dismissing complaints without affording an opportunity to replead. For example, in Dean v. Guard Publishing Co., 73 Or App 656, 699 P2d 1158 (1985), atrial court granted a motion to dismiss without leave to replead, because the complaint lacked several elements of the plaintiffs claim. We agreed that the complaint was properly dismissed but held that the plaintiff had a right to replead to state a claim:
“The court was correct, therefore, in granting the motion to dismiss. However a judge should seldom dismiss a complaint with prejudice on a defendant’s first pleading motion. To do so here was an abuse of discretion.” Dean v. Guard Publishing Co., supra, 73 Or App at 660. (Emphasis in original.)
The criticism applies here doubly, because the majority opinion is the first notice plaintiff has received that his complaint is defective.
In some cases, the court has dismissed a declaratory judgment complaint without leave to amend, because under no conceivable set of facts could the plaintiff plead ajusticiable controversy. For example, in Brooks v. Dierker, 275 Or 619, 625, 552 P2d 533 (1976), the court held that a declaratory judgment proceeding was inappropriate, because the underlying dispute could be examined exclusively through a writ of review. In Gortmaker v. Seaton, 252 Or 440, 450 P2d *8547 (1969), the court dismissed a district attorney’s declaratory proceeding that sought a construction of criminal statutes, because the defendant agreed completely with the plaintiff and any declaration would have been an impermissible advisory opinion. See also Brown v. Oregon State Bar, 293 Or 446, 451, 648 P2d 1289 (1982), where a declaratory proceeding concerning attorney disciplinary rules was dismissed because “[a] circuit court opinion would be advisory only.”
However, we have remanded cases for further proceedings if the addition of different parties or new fact allegations could render the dispute justiciable. In Eddy v. Eddy, 95 Or App 733, 770 P2d 969 (1989), the trial court declared that a will, deed and trust were invalid. The plaintiff failed to name as defendants all of the beneficiaries of the trust. We held that the failure to name necessary parties prevented entry of a binding declaratory judgment, ORS 28.110,1 but we remanded for dismissal unless the necessary parties were joined:
“Therefore, we hold that, because plaintiff failed to name necessary parties to the declaratory judgment action under ORS 28.110, the trial court could not enter a binding judgment, and we reverse and remand for dismissal, unless the remaining beneficiaries of the trust are joined within a time to be set by the trial court.” 95 Or App at 736.
In Wright v. Hazen Investments, Inc., 293 Or 259, 648 P2d 360 (1982), the court concluded that a controversy over a restaurant venture was not justiciable, because a corporate entity, H & W, was not joined. The court ordered this disposition: “We therefore reverse and remand to the trial court for dismissal unless H & W be joined within a time to be set by the court.” 293 Or at 266..
*9In Warren v. City of Canby, 56 Or App 230, 641 P2d 615 (1982), a municipal judge brought a declaratory proceeding challenging the constitutionality of the statute under which he had been removed from office. He failed to serve his complaint on the Attorney General, in violation of ORS 28.110, an error that we raised on appeal. We vacated the judgment and remanded the case to allow service on the Attorney .General:
‘ ‘ [W]e hold, however, that service on the Attorney General in an action seeking a declaration that a statute is unconstitutional is a condition precedent to the trial court’s proceeding to final disposition of the case. * * *
“Accordingly, we vacate the orders and remand each case to the respective circuit court with instructions to abate the proceedings until such time as the Attorney General is served with a copy of the summons and complaint in each action.” 56 Or App at 234.
ORS 28.110 obligates plaintiff to name Josephine County in this proceeding, because he challenges the validity of the county’s charter amendment. He failed to do that. That error requires a remand, not a dismissal. Warren v. City of Canby, supra.
I agree that the complaint does not presently state a justiciable controversy with defendant, who is sued in his capacity as chief petitioner for the initiative. However, considering the state of the pleadings, dismissal is not appropriate. It is at least conceivable that plaintiff could plead a justiciable controversy with defendant or others. For example, plaintiff might plead that defendant is a taxpayer in Josephine County, has made a demand on plaintiff or other persons or entities that they enforce the charter amendment and has threatened or taken some legal action that makes the controversy justiciable.2 I could not purport to state a complete list of allegations that might describe a justiciable controversy.3 The majority’s sua sponte decision to order the *10complaint dismissed without leave to amend deprives plaintiff of a fair opportunity to amend his complaint to plead a justiciable controversy.4
Finally, the majority’s suggestion that plaintiffs complaint is deficient because it requests no relief ‘ ‘that could have been directed at defendant,” 115 Or App at 4, is contrary to ORS 28.010, which provides, in part:
“Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could he claimed.” (Emphasis supplied.)
A declaratory judgment complaint need not seek relief directed at the defendant, such as an injunction or a money judgment. It is sufficient to request a declaration of law that will terminate a controversy or remove an uncertainty. ORS 28.050.5 Plaintiff should be afforded the opportunity on remand to plead the existence of a controversy with defendant or others that can be resolved by a declaration regarding the validity of the charter amendment.
I dissent.
ORS 28.110 provides:
“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made aparty, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.”
We cannot tell from the record whether the trial court determined that defendant’s third party action against Josephine County and its commissioners established a jurisdictional controversy between plaintiff and defendant. Plaintiff should be allowed to develop that issue in his pleadings, if he chooses.
Any amended complaint would be entitled to a liberal construction, and the court would have power to render a declaratory ruling even if the complaint *10described a justiciable controversy “by implication rather than by express averment * * Hupp v. Schumacher, 29 Or App 9, 13, 562 P2d 217 (1977).
The majority states:
“ [T]here is no reason why this action over which the trial court lacks jurisdiction should be on its docket while plaintiff attempts to find an appropriate way to present that question and to bring his action within the court’s jurisdiction.” 115 Or App at 6.
The cases I cite demonstrate that we have uniformly remanded, not dismissed, declaratory judgment proceedings to allow the plaintiff to cure jurisdictional defects, if possible, through the addition of different defendants. The burden on the court from permitting plaintiff a brief reasonable opportunity to replead his claim to make, in the majority’s words, “the substantive issues judicially cognizable,” 115 Or App at 6, is outweighed by the burden the majority now thrusts on plaintiff to file a new lawsuit. That defeats the policy encouraging litigants to resolve their disputes, if possible, in one proceeding, in order to avoid multiplying litigation needlessly. See Whitaker v. Bank of Newport, 313 Or 450, 836 P2d 695 (1992).
ORS 28.050 provides:
“The enumeration in ORS 28.010 to 28.040 does not limit or restrict the exercise of the general powers conferred in ORS 28.010, in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.”