County Circuit Court 12CV1144 Pat Wolke, Judge.
respondentâs petition for reconsideration filed March 14,
2017. Opinion filed March 1, 2017. 284 Or.App. 98');">284 Or.App. 98, 392 P.3d
L. Buchal and Murphy & Buchal LLP, for petition.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
petitions for reconsideration of the decision in Robinson
v. DeFazio, 284 Or.App. 98');">284 Or.App. 98, 392 P.3d 781 (2017).
Plaintiff seeks correction of the Court of Appeals'
construction of the phrase "trial of an issue of law or
fact" in ORS 20.190(2). He contends that that phrase
cannot include, as the Court of Appeals concluded, the trial
court's grant of defendant's anti-SLAPP motion nor
can it be reconciled with the Supreme Court's
construction of "trial" in Assoc. Unit Owners of
Timbercrest Condo. v. Warren, 352 Or. 583, 594-96, 288 P.3d
text and context of ORS 20.190(2) show that a "trial of
an issue of law" can include the trial court's grant
of defendant's anti-SLAPP motions. Additionally, the
Supreme Court did not create a controlling definition of
"trial" in Timber crest but only construed the
meaning of "new trial" in the context of ORCP 64 A,
which provides that "a new trial is a re-examination of
an issue of fact." ORS 20.190(2), however, refers to
"trial of an issue of law or fact."
Or.App. 710] On reconsideration, therefore, the Court of
Appeals limited its statement in the former opinion that the
trial court did not err in applying ORS 20.190(2)(a)(B)
because "the trial court examined issues of law and fact
to grant defendant's anti-SLAPP motion," Robinson,
284 Or.App. at 110, and, instead, concluded that ORS
20.190(2)(a)(B) applied because the trial court's ruling
on the issues raised by defendant's anti-SLAPP motion
involved the "trial" of an "issue of law"
within the meaning of ORS 20.190(2).
allowed; former opinion modified and adhered to as modified.
Or.App. 711] EGAN, J.
has petitioned for reconsideration of our decision in
Robinson v. DeFazio. 284 Or.App. 98');">284 Or.App. 98, 392 P.3d 781
(2017), contending that our construction of the phrase
"trial of an issue of law or fact" in ORS
20.190(2) is incorrect. We allow plaintiff's
petition and, on reconsideration, adhere to our decision as
modified by this opinion.
original opinion, we concluded that, in the context of ORS
20.190(2), "trial of an issue of law or fact"
"refers to the judicial determination of law or fact in
an adversarial proceeding, which can include preliminary
proceedings short of a final trial on the merits of an entire
claim." Robinson, 284 Or.App. at 110.
Furthermore, we concluded that the trial court's grant of
defendant's anti-SLAPP motions, which dismissed without
prejudice plaintiff's claims against defendant, is just
such a preliminary proceeding. In his petition for
reconsideration, plaintiff contends that our construction of
the phrase "trial of an issue of law or fact" in
ORS 20.190(2) cannot include anti-SLAPP motions or be
reconciled with the Supreme Court's analysis of the term
"trial" in Assoc. Unit Owners of Timbercrest
Condo v. Warren. 352 Or. 583, 594-96, 288 P.3d 859
(2012), because anti-SLAPP motions are, like summary judgment
rulings, designed to resolve matters without trial.
Timbercrest, the Supreme Court held that a motion
for reconsideration of a summary judgment ruling is not a
"motion for a new trial" within the meaning of ORS
19.255(2), which cross-referenced ORCP 64. That rule states
that a new trial "is a re-examination of an issue of
fact in the same court after judgment." ORCP 64 A. Thus,
the issue in Timbercrest was whether, as a matter of
the text, context, and history of ORCP 64 A, its drafters
would have understood the summary judgment process [286
Or.App. 712] to involve the "'examination' of an
issue of fact such as to constitute a 'trial' within
the meaning of the rule," so that
"re-examination" of the ruling would constitute a
new trial. 352 Or. at 594. After discussing that text,
context, and legislative history-including other Oregon Rules
of Civil Procedure that suggest that "trial" means
something distinct from summary judgment-the court concluded
that "a summary ...