Submitted: December 6, 2013.
Multnomah County Circuit Court 121012379. Richard Maizels, Judge pro tempore.
Maricela Ramirez filed the briefs Pro se.
Ruth C. Rocker and Janet M. Schroer filed the brief for respondent.
Before Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge.
[262 Or.App. 318] DEVORE, J.
Plaintiff brought this action against defendants Petrillo (physician) and Northwest Renal Clinic (clinic) alleging negligent care and discrimination in a place of public accommodation. Defendants moved for summary judgment, and, at hearing, the trial judge indicated the court would grant the motion. Before an order was filed or entered, plaintiff filed a notice of voluntary dismissal without prejudice pursuant to ORCP 54 A(1). Disregarding the notice, the court entered an order on summary judgment and a judgment dismissing the action with prejudice. Plaintiff appeals pro se. Among other things, she contends the trial court erred " in granting Defendant's Motion for Summary Judgment with prejudice." On this point alone, we reverse and remand.
The procedural facts are not disputed. On October 2, 2012, plaintiff filed a complaint that alleged that in August 2010, the defendant physician conducted an examination, misdiagnosed her condition, provided her inadequate care, covered up her kidney failure, wrote defamatory statements in medical records, and discriminated against her on the basis of race and disability. Defendants contended that plaintiff did not serve them with summons and complaint until December 26, 2012, and that, because service was more than 60 days after plaintiff filed the complaint, the action could not be deemed to be commenced until actual service. ORS 12.020(2). Defendants filed a motion for summary judgment. They offered the physician's declaration that denied negligence, and they argued that the claims had not been filed within the time limited by the applicable statutes. Plaintiff did not file an opposing affidavit or declaration. She filed two ex parte motions to enlarge the time to oppose summary judgment. Both were denied. On April 4, 2013, at a hearing on defendants' motion, the judge pro tem seemed to concur that the claims were time-barred. He also told plaintiff, in the absence of an affidavit from an attorney or expert on her behalf, " I'm going to grant the motion for summary [262 Or.App. 319] judgment." The judge told defense counsel, " Submit the order to my office." As required, defendants first submitted the proposed forms of the order and judgment to plaintiff on April 8. Plaintiff filed a " Notice of Voluntary Dismissal Without Prejudice" on April 15, citing ORCP 54 A(1) and two decisions construing the rule. On that same day, the presiding judge entertained defendants' spoken objection " that plaintiff is trying to get around * * * the general judgment of dismissal with prejudice." The judge responded, " I'm not going to sign a voluntary dismissal when there is a pending order already out there." A week later, the court filed a summary judgment order and judgment of dismissal with prejudice. The documents were entered May 2, 2013.
On appeal, plaintiff asserts that her notice of dismissal entitles her to dismissal without prejudice notwithstanding an order of summary judgment awaiting signature, filing, and entry. The clinic questions whether plaintiff properly assigned error " to the trial court's ruling denying plaintiff's Notice of Voluntary Dismissal Without Prejudice." The clinic urges that, even if it was " technical error" to disregard plaintiff's dismissal notice, the error should be deemed harmless, since any claim to be refiled would surely be barred by statutes of limitation.
We review this application of ORCP 54 A(1) for legal error. See, e.g., Guerin v. Beamer, 163 Or.App. 172, 174, 986 P.2d 1241 (1999). In relevant part, ORCP 54 A(1) provides:
" [A] plaintiff may dismiss an action in its entirety or as to one or more defendants without order of court: (a) by filing a notice of dismissal with the court and serving such notice on all other parties not in default not less than five days prior to the day of trial if no counterclaim has been pleaded[.] Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice[.] Upon notice of dismissal or stipulation under this subsection, a party shall submit a form of
judgment and the court shall enter a judgment of ...