Garrison v. Cook
Decision Date | 25 October 1977 |
Citation | 280 Or. 205,570 P.2d 646 |
Parties | Thomas GARRISON, Appellant, v. Dorothy D. COOK, Respondent. |
Court | Oregon Supreme Court |
Norman K. Winslow, of Winslow & Kaffun, Salem, argued the cause and filed a brief for appellant.
Stuart M. Brown, of Young, Horn, Cass & Scott, Eugene, argued the cause and filed a brief for respondent.
Before DENECKE, C. J., HOWELL and LENT, JJ., and GILLETTE, J. pro tem.
This is an action by the plaintiff to recover on a promissory note executed by his former wife, defendant Dorothy Cook, prior to their marriage. The defendant's motion for a summary judgment on the issue of liability was granted, and defendant was awarded $2,000 in a subsequent hearing for attorney fees pursuant to a clause in the note and ORS 20.096. Plaintiff appeals.
This case has a rather complicated history. The defendant executed a promissory note for $1,914.79 to the plaintiff in June, 1972. One hundred dollars was paid on the note prior to the parties' marriage in July, 1973, and nothing was paid on it thereafter. The marriage of the parties was dissolved by the Douglas County Circuit Court in June, 1975, and while there was no specific mention of the note in the dissolution decree, it purported to dispose of all of the rights of the parties in their property.
The plaintiff then brought this action in Marion County to recover on the note. Shortly after the action was filed, the defendant successfully petitioned the circuit court in Douglas County to reopen the dissolution suit and to expressly dispose of the rights of the parties in the promissory note. The Douglas County court amended its decree and awarded the note to the defendant. 1
Relying on the Douglas County court decision, the defendant moved for a summary judgment in the Marion County action. The motion was granted on the issue of liability on the promissory note but not on the issue of attorney fees. At the subsequent hearing on the issue of attorney fees, the court found for the defendant and fixed reasonable fees at $2,000.
The plaintiff has numerous assignments of error, the first of which is that the Marion County Circuit Court erred in granting a summary judgment on the issue of liability on the note, while reserving the issue of plaintiff's liability for attorney fees under the clause in the note. Oregon's summary judgment statute, ORS 18.105, provides, in relevant part:
The statute is closely patterned after Federal Rules of Civil Procedure 56, and we will give federal cases interpreting that rule considerable weight, Hoy v. Jackson, 26 Or.App. 895, 897, 554 P.2d 561 (1976), especially since the Oregon statute has been only recently enacted.
Plaintiff's theory is that ORS 18.105 allows the court to issue a summary judgment only for an entire cause of action with certain limited exceptions, none of which apply to attorney fees, and thus summary judgment here was inappropriate. 2 Plaintiff attacks the trial court's treatment of attorney fees as damages under subsection (3) and insists that such treatment was not intended by the statute.
There is little authority to answer whether or not granting a summary judgment on liability while reserving the issue of attorney fees is an appropriate use of a summary judgment. The parties cite only one case, Fancher v. Clark, D. C., 127 F.Supp. 452 (1954), which deals with this issue, and plaintiff correctly distinguishes that case on the grounds that, there, the issue of liability for attorney fees was decided on summary judgment and only the amount was in question at the later hearing, while, here, both the liability for attorney fees and the amount were reserved for the later hearing. We must agree with the plaintiff that attorney fees recovered under a contractual provision are not, strictly speaking, damages, but neither are they an element of liability under ORS 18.105(3), and therefore we must be guided by the policies that underlie Oregon's new summary judgment statute.
ORS 18.105 and Fed.R.Civ.P. 56 ( ) were enacted to facilitate effective use of the court system by allowing for a quick, early and inexpensive method of determining whether the pleadings present a triable issue of fact. As one commentator has noted:
McDonald, Summary Judgments, 30 Tex.L.Rev. 285 (1952). (Footnote omitted.)
See also Yankwich, Summary Judgment Under Federal Practice, 40 Calif.L.Rev. 204 (1952); Note, Summary Judgment Procedure in Oregon: The Impact of Oregon's Adoption of Federal Rule 56, 13 Will. L.J. 73 (1976). The trial court's holding in the present case facilitates the resolution of litigation at the earliest possible time when no genuine issue of fact exists, thus promoting the statutory policy found in ORS 18.105. This is precisely the situation created by subsection (3) of ORS 18.105 when it allows summary judgment on the issue of liability only. That provision in subsection (3) is, in effect, a statement by the legislature that the benefit gained from partial summary judgment on liability only is desirable.
We believe that attorney fees are sufficiently analogous to damages in the context of the policies surrounding the Oregon summary judgment statute that a summary judgment on the issue of liability on the note while reserving the question of liability for and amount of attorney fees is a proper use of the procedure.
Plaintiff argues that his motion for a voluntary nonsuit should have been granted. In essence, the plaintiff contends that he has the right by statute to terminate his own lawsuit with the ability to refile despite the fact that he has already lost on the merits. ORS 18.230 provides that:
Given the policies that underlie the new summary judgment statute, it is difficult to believe that the legislature intended to allow for voluntary nonsuits after an adverse summary judgment. Any other conclusion would mean that a plaintiff could, through the...
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...ORS 18.105 (1975) (enacted in Or.Laws 1975, ch. 106, § 1) (now ORCP 47), was closely patterned after FRCP 56, see Garrison v. Cook, 280 Or. 205, 209, 570 P.2d 646 (1977) (so stating), the 1986 decisions of the United States Supreme Court construing FRCP 56 are context for the 1995 amendment......
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Fraker v. Benton County Sheriff's Office
...essentially identical to FRCP 15(b) and FRCP 56, respectively, and we therefore look to federal cases for guidance. Garrison v. Cook, 280 Or. 205, 209, 570 P.2d 646 (1977); Hoy v. Jackson, 26 Or. App. 895, 897, 554 P.2d 561, rev. den., 276 Or. 735 "The general federal rule is that `if facts......
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...for a quick, early and inexpensive method of determining whether the pleadings present a triable issue of fact.' Garrison v. Cook, 280 Or 205, 209, 570 P2d 646 (1977). The party moving for summary judgment must establish that (1) there is no issue as to any material fact; and (2) he is enti......
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