Gearhart v. Employment Division

BUTTLER, J.,

dissenting.

It might be that there is no good answer to this confusing situation. As the majority recognizes, ORCP 54B(2), together with ORCP 60, eliminated the motion for nonsuit. See Castro and Castro, 51 Or App 707, 626 P2d 950 (1981). Yet the majority has revived it in all of its glory. It holds that a *606judgment of dismissal without prejudice is reviewable to determine whether the plaintiffs evidence made out a prima facie case, which was the function of the former motion for involuntary nonsuit.

However, it is clear that a motion to dismiss under ORCP 54B(2) does more than test whether plaintiff has made a prima facie case, viewing the evidence in the light most favorable to the plaintiff. Rather, it directs the trial court “as the trier of the facts [to] determine them and render judgment of dismissal against the plaintiff’ or deny the motion and hear all the evidence. The trial court may disbelieve some of the plaintiffs evidence and, as a result, render judgment of dismissal. To say, as the majority does, that the plaintiff may appeal that judgment, even though the dismissal is without prejudice and the plaintiff may re-file, and that this court reviews the evidence in the light most favorable to the plaintiff to determine whether a prima facie case has been made is contrary to the intent of ORCP 54B(2) and may undo completely what the trial court has done as the trier of the facts. Without trial court findings under ORCP 62, we are shooting in the dark.

If, on appeal, we conclude that the plaintiff has established a prima facie case and reverse and remand, presumably the trial court on remand could make findings under ORCP 62 that would support dismissal and enter a new judgment of dismissal with prejudice from which the plaintiff could appeal again. If, on the other hand, we conclude that plaintiff has not established a prima facie case, the plaintiff may re-file and try the case again. Neither of those results makes sense in terms of judicial economy; neither is it necessary to suffer those results.

In order to effectuate the purpose and intent of ORCP 54B(2), I would hold that a judgment entered under that rule dismissing the case without prejudice is not to be *607treated as final2 any more than a judgment that fails to comply with ORCP 67B is treated as final. If the plaintiff decides that he cannot make a better evidentiary showing and that there is no point in re-filing the case, he must move the court to enter a judgment of dismissal with pejudice; if he does so, the trial court must grant the motion and make findings, as required by the rule. That judgment, backed by findings, may then be reviewed on appeal in a meaningful way, as anticipated by ORCP 54B(2).

Accordingly, I would dismiss this appeal. Therefore, I dissent.

Warren, J., joins in this dissent.

The majority states that a judgment of dismissal without prejudice is a final judgment that is appealable under ORS 19.010. 99 Or App at 603.1 am not so sure, given the court’s statement in Dent v. Dolan et ux, 220 Or 313, 349 P2d 500 (1960):

“Of course, the appeal would not be properly before us unless the decree is final in its nature. As a general rule, the face of a decree is the test of its finality. Eena Co. v. Zosel, 164 Or 99, 101, 95 P2d 428, 99 P2d 1022 [1940],
“Under the principle last stated, since the decree in the instant suit states that plaintiff failed to produce evidence to establish the allegations in his complaint and since the decree was not given without prejudice to another suit by the plaintiff for the same cause (see ORS 18.220), the decree appears on its face to be final.” 220 Or at 317.

It would seem to follow that, if the judgment had dismissed the action without prejudice, it would not have been appealable. Neither Steenson v. Robinson, 236 Or 414, 385 P2d 738, 389 P2d 27 (1964), nor La Vigne v. Portland Traction Co., 170 P2d 709 (1946), on which the majority relies, clearly supports its position.