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Robinson v. DeFazio

Court of Appeals of Oregon

July 12, 2017

Art ROBINSON, Plaintiff-Respondent Cross-Appellant,
v.
Peter DeFAZIO, Defendant-Appellant Cross-Respondent, and John DOES 1, 2, and 3; and DeFazio for Congress Committee, Defendants.

         Josephine County Circuit Court 12CV1144 Pat Wolke, Judge.

         On respondent’s petition for reconsideration filed March 14, 2017. Opinion filed March 1, 2017. 284 Or.App. 98');">284 Or.App. 98, 392 P.3d 781.

          James L. Buchal and Murphy & Buchal LLP, for petition.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary:

         Plaintiff 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 859 (2012).

         Held:

         The 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."

         [286 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).

         Reconsideration allowed; former opinion modified and adhered to as modified.

         [286 Or.App. 711] EGAN, J.

         Plaintiff 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)[1] is incorrect. We allow plaintiff's petition and, on reconsideration, adhere to our decision as modified by this opinion.

         In our 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.

         In 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 ...


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