Krause v. Andersen

Court of Appeals of Oregon

Krause v. Andersen

814 P.2d 178, 108 Or. App. 211, 1991 Ore. App. LEXIS 1163

CourtCourt of Appeals of Oregon

DecidedJuly 24, 1991

DocketA8904-02051; CA A65234

StatusPublished

Cited by3 cases

This text of 814 P.2d 178 (Krause v. Andersen) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Krause v. Andersen, 814 P.2d 178, 108 Or. App. 211, 1991 Ore. App. LEXIS 1163 (Or. Ct. App. 1991).

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Opinion

*213 RICHARDSON, P. J.

Plaintiff appeals from a judgment for defendant in this legal malpractice action. After some of plaintiffs claims had been decided against her on seriatim motions, the remaining claim was subject to mandatory arbitration under ORS 36.405. That claim was submitted to arbitration, defendant moved for summary judgment in the arbitration and the arbitrator granted the motion. Plaintiff then filed a notice and request for a de novo trial in the circuit court pursuant to ORS 36.425. See also UTCR 13.250. The court denied the request and entered judgment for defendant on all claims.

Plaintiff first assigns error to the denial of her request for a trial de novo. The apparent basis for the denial was what the parties describe as a policy or rule of the Multnomah County presiding judge that precludes trials de novo of decisions by arbitrators allowing motions for summary judgment. 1 The rationale for that policy, at least according to defendant, is that there can be no question of fact to be tried de novo after summary judgment has been granted.

Although there is facial logic to that proposition, it is contrary to ORS 36.425(2)(a), which provides, in material part, that a party in the position of plaintiff may request a

“trial de novo of the action in the court on all issues of law and fact. After the filing of the written notice a trial de novo of the action shall be held.” (Emphasis supplied.)

See Main Street Asset Corp. v. Cunningham, 98 Or App 346, 778 P2d 1003 (1989).

Although the phrase “de novo” sometimes connotes the scope of factual review, it has a different meaning in ORS 36.425(2)(a), which expressly refers to questions of law as well as of fact. As used in that statute, the phrase contemplates an independent decision by a different decisionmaker, rather than referring simply to factual review. Whether the arbitrator was correct in allowing the summary judgment motion is a question of law, and plaintiff is entitled to the *214 court’s decision on that question and on any others that may then have to be decided.

The remaining assignments are either resolved by what we have said or require no discussion.

Reversed and remanded with instructions to conduct a trial de novo; otherwise affirmed.

1

The policy has since been rescinded. After plaintiff filed her notice of appeal in this court, the circuit court purported to reinstate the request for a de novo trial. The court, of course, had no authority to do that after we obtained jurisdiction. ORS 19.033.

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*213 RICHARDSON, P. J.

Plaintiff appeals from a judgment for defendant in this legal malpractice action. After some of plaintiffs claims had been decided against her on seriatim motions, the remaining claim was subject to mandatory arbitration under ORS 36.405. That claim was submitted to arbitration, defendant moved for summary judgment in the arbitration and the arbitrator granted the motion. Plaintiff then filed a notice and request for a de novo trial in the circuit court pursuant to ORS 36.425. See also UTCR 13.250. The court denied the request and entered judgment for defendant on all claims.

Plaintiff first assigns error to the denial of her request for a trial de novo. The apparent basis for the denial was what the parties describe as a policy or rule of the Multnomah County presiding judge that precludes trials de novo of decisions by arbitrators allowing motions for summary judgment. 1 The rationale for that policy, at least according to defendant, is that there can be no question of fact to be tried de novo after summary judgment has been granted.

Although there is facial logic to that proposition, it is contrary to ORS 36.425(2)(a), which provides, in material part, that a party in the position of plaintiff may request a

“trial de novo of the action in the court on all issues of law and fact. After the filing of the written notice a trial de novo of the action shall be held.” (Emphasis supplied.)

See Main Street Asset Corp. v. Cunningham, 98 Or App 346, 778 P2d 1003 (1989).

Although the phrase “de novo” sometimes connotes the scope of factual review, it has a different meaning in ORS 36.425(2)(a), which expressly refers to questions of law as well as of fact. As used in that statute, the phrase contemplates an independent decision by a different decisionmaker, rather than referring simply to factual review. Whether the arbitrator was correct in allowing the summary judgment motion is a question of law, and plaintiff is entitled to the *214 court’s decision on that question and on any others that may then have to be decided.

The remaining assignments are either resolved by what we have said or require no discussion.

Reversed and remanded with instructions to conduct a trial de novo; otherwise affirmed.

1

The policy has since been rescinded. After plaintiff filed her notice of appeal in this court, the circuit court purported to reinstate the request for a de novo trial. The court, of course, had no authority to do that after we obtained jurisdiction. ORS 19.033.

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814 P.2d 178, 108 Or. App. 211, 1991 Ore. App. LEXIS 1163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krause-v-andersen-orctapp-1991.

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