Gist v. Zoan Mgmt., Inc.
Gist v. Zoan Mgmt., Inc.
Opinion of the Court
*894**731This case requires us to determine whether the Court of Appeals correctly dismissed plaintiff's appeal of a judgment dismissing his complaint with prejudice on the grounds that the appeal was barred by this court's decision in Steenson v. Robinson ,
Plaintiff worked as a driver for defendant Driver Resources, LLC. The other two defendants are related companies. In November 2013, plaintiff filed a class-action complaint against defendants, on behalf of himself and other similarly situated drivers. At issue was defendants' compliance with Oregon's wage and hour laws, as set out in ORS chapters 652 and 653. In January 2014, defendants filed a petition to compel arbitration, on the basis of an agreement that plaintiff had signed with one defendant. Plaintiff responded to the petition by arguing that the agreement was unconscionable, and therefore that arbitration should not be compelled. The trial court granted defendants' petition, requiring plaintiff to proceed to arbitration.
Plaintiff made several attempts to obtain appellate review of the trial court's order compelling arbitration. First, plaintiff filed an interlocutory appeal, arguing that the order compelling arbitration was appealable under ORS 19.205(2), which allows interlocutory appeals of court orders affecting substantial rights. The Court of Appeals dismissed that appeal on the grounds that the order compelling arbitration was not appealable. Second, in December 2014, plaintiff asked the trial court to amend its order compelling arbitration to state that the order presented "a controlling question of law as to which there is substantial ground for difference of opinion" for the purposes of ORS 19.225, a statute that gives the Court of Appeals discretion to hear interlocutory appeals in cases involving class actions in which **732the trial court makes such a finding. The trial court denied that motion. Finally, in March 2015, plaintiff moved to dismiss all of his claims with prejudice. Plaintiff explained to the court that the order compelling arbitration effectively precluded any recovery by plaintiff, because plaintiff was unemployed and could not afford to pay the arbitrators, and that the purpose of the dismissal was to allow plaintiff to appeal the judgment and obtain review of the order compelling arbitration. Plaintiff's counsel stated, "If we do not convince the Court of Appeals or if we get AWOP'd and nobody wants to hear it or write an opinion on it, then the case is over, my client loses, it's done." The trial court, without expressing a view on plaintiff's factual contentions, granted the motion to dismiss and entered a general judgment of dismissal with prejudice, one that made clear that the dismissal was at plaintiff's request.
Plaintiff filed an appeal from that judgment in the Court of Appeals. Defendants moved to dismiss the appeal on two grounds. First, defendants argued that this court's decision in Steenson prevented appeal of a voluntary dismissal. Second, defendants argued that plaintiff's attempt to appeal an order granting a motion to compel arbitration is barred by ORS 36.730, which governs certain appeals in cases involving arbitration. They contended that that statute creates an exception to ORS 19.205(1), which generally permits appeal of a general judgment.
The Appellate Commissioner rejected defendants' second argument, determining that ORS 19.205(1), in combination with ORS 19.245, provided a statutory basis allowing plaintiff to appeal the general judgment of dismissal.
As they did before the Court of Appeals, defendants argue that two separate legal rules bar plaintiff's appeal in this case. First, defendants argue that this court's decision in Steenson prevents plaintiff from appealing. Steenson announced a common law rule "that a party may not appeal from a judgment which he voluntarily requested."
We first turn to Steenson , which was the basis for the Appellate Commissioner's order dismissing plaintiff's appeal. As to Steenson , plaintiff's arguments are twofold. Plaintiff first argues that revisions to Oregon's statutes concerning judgments and appealability, most notably in Oregon Laws 2003, chapter 576, section 85, have displaced the common-law rule announced in Steenson . Presently, as noted, ORS 19.205(1) provides that "[u]nless otherwise provided by law, a limited judgment, general judgment or supplemental judgment * * * may be appealed as provided in this chapter." In addition, ORS 19.245(1) entitles "any party to a judgment" (emphasis added) to take an appeal. Plaintiff **734argues that by enacting those explicit and comprehensive statutes permitting any party to a judgment to appeal that judgment, the legislature abrogated the Steenson rule.
The flaw in plaintiff's argument is that there is no material difference between the text of the statutes that plaintiff relies upon and the text of the equivalent statutes when Steenson was decided. Former 19.020 (1963), the analogous provision to ORS 19.245, stated that "[a]ny party to a judgment or decree, other than a judgment or decree given by confession or for want of an answer, may appeal therefrom." And former ORS 19.010(1) (1963), the predecessor of ORS 19.205(1), provided that "[a] judgment or decree may be reviewed on appeal as prescribed in this chapter." Thus, although there are modest differences between former ORS 19.010(1) (1963) and current ORS 19.205(1), none appear to have been intended to displace the Steenson rule. In fact, the most significant change cuts in the other direction. ORS 19.205(1), unlike former ORS 19.010(1) (1963), begins with the caveat "[u]nless otherwise provided by law." Since common-law rules, like that announced in Steenson , form part of the law, that addition indicates that the enactment of ORS 19.205 did not, and was not intended to, abrogate Steenson . Neither party has presented any legislative history-nor has our own review disclosed any-that suggests otherwise. As a result, we conclude that the rule set out in Steenson remains good law.
*896Plaintiff's second argument is that, even if Steenson does apply generally, it has an exception that is applicable to this case. In Steenson , this court suggested that the rule against appeal of a voluntary nonsuit might not apply "[i]f the plaintiff takes a nonsuit because of a ruling which precludes recovery ." Steenson ,
To determine the scope of the exception, we first examine Steenson itself and then review our later cases that followed it and applied its rule. The plaintiff in Steenson was an automobile passenger who suffered injuries in a collision. He brought an action against both the driver of the car in which he was riding, Robinson, and the driver of the other car, Prindel. Both defendants raised defenses against the plaintiff's claims. The plaintiff demurred to both defenses, but the trial court ruled against him. At the close of the plaintiff's case, the trial court granted Robinson's motion for an involuntary nonsuit on the ground that the plaintiff had failed to prove the elements of the claim against him. Steenson ,
Both Robinson and Prindel moved to the dismiss the appeals against them. This court allowed the appeal of the judgment pertaining to Robinson to go forward.
The rule announced in Steenson was designed to address a particular abuse of the legal system.
**736Former ORS 18.250 (1963).
The practice that the Steenson court sought to prevent can be summarized as follows: A plaintiff who had obtained an unfavorable ruling on a preliminary issue could move for a nonsuit and appeal the resulting judgment, obtaining review of the ruling. Should the plaintiff win the appeal, her action would be revived with the preliminary issue *897resolved in her favor. Should the plaintiff lose the appeal, however, she could simply refile her action. Steenson ,
This court has consistently interpreted Steenson in light of that purpose. In Farris v. U. S. Fidelity & Guaranty ,
**737This court noted that "[i]n the present case the plaintiffs had no other alternative but to have the court enter some kind of order ending the lawsuit and appealing from that order."
In Taylor v. Baker ,
Rather than speculate about whether the plaintiffs had correctly judged the possibility of recovery on the second claim, this court focused its analysis on the fact that plaintiffs had given up the second claim. The court noted that, because the plaintiffs' two claims arose from the same incident, any attempt to refile the voluntarily dismissed claim would be barred by res judicata .
This court last considered the application of Steenson in Sheets v. Knight ,
Having examined our cases, we turn to the task of clarifying the exception to the Steenson rule. That exception was initially articulated, very briefly and in a hypothetical statement, as one that would apply "[i]f the plaintiff takes **739a nonsuit because of a ruling which precludes recovery." Steenson ,
Applying that rule to these facts is straightforward. This case involves a dismissal with prejudice of all of plaintiff's claims. Plaintiff cannot refile those claims after this appeal. To the contrary, having voluntarily foregone the possibility of recovery through arbitration, plaintiff's action is at an end if he does not prevail on appeal. He is in a similar position to the plaintiffs in Taylor , who were willing to **740accept nonsuit of another, related, claim in order to obtain an appeal. In this case, had plaintiff not dismissed his claims with prejudice, he could have pursued them in arbitration. Plaintiff gave that up. Plaintiff's acceptance of that cost-his "willingness to forego litigation," Taylor ,
We turn to defendants' second argument, that ORS 36.730 creates an exception to the general rule of ORS 19.205(1) that a party can appeal a general judgment and prohibits plaintiff from pursuing his appeal. ORS 36.730(1) allows the interlocutory appeal of orders "denying a petition to compel arbitration" or "granting a petition to stay arbitration." But ORS 36.730(1) contains no provision permitting an interlocutory appeal of an order granting a petition to compel arbitration. Defendants argue that because of that omission, plaintiff's appeal must be dismissed. We disagree. As we have discussed above, this case does not involve an interlocutory appeal. Instead, the trial court entered a judgment dismissing plaintiff's action with prejudice and plaintiff appealed that judgment. This appeal is therefore from a general judgment and is statutorily authorized by ORS 19.205(1) and ORS 19.245(1). Nothing in ORS 36.730(1) prevents plaintiff from appealing the final, general judgment in his case.
We allowed review to consider only whether plaintiff's appeal was correctly dismissed, and we have concluded that it was not. The learned Appellate Commissioner pointed out in his order, however, that certain of defendants' arguments may more appropriately be directed to what issues the Court of Appeals may properly review on appeal rather than the appealability of the judgment. Those arguments, as well as the merits of plaintiff's assignments of error, are **741properly considered in the first instance by the Court of Appeals.
The order of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
Under ORAP 7.55, as authorized by ORS 2.570(6), the Appellate Commissioner for the Court of Appeals has authority to "rule on motions and issue orders in procedural matters in the Court of Appeals." ORS 2.570(6).
Former ORS 18.230 (1963) provided that:
"A judgment of nonsuit may be given against the plaintiff:
"(1) On motion of the plaintiff, at any time before the issues have been joined and the trial of the facts has commenced, unless a counterclaim has been pleaded as a defense; but if the issues have been joined and the trial of the facts has commenced the allowance of the motion shall be subject to the discretion of the court."
Former ORS 18.250 (1963) stated: "When a judgment of nonsuit is given, the action is dismissed; but such judgment shall not have the effect to bar another action for the same cause."
Nor was that a mere possibility-as noted, in Steenson itself the plaintiff had filed a new action against Prindel while the appeal of his voluntarily non-suited claim against Prindel was pending. Steenson ,
In fact, the plaintiff acknowledged that his recovery was not precluded. Memorandum of Appellant/Petitioner on Review in Response to Supreme Court's Questions of January 31, 1989 at 6-7, Sheets ,
At the time, the relevant statutes used different terminology, and slightly different procedures, for actions at law and suits in equity:
"Except in instances of dismissal for lack of prosecution, there is no statutory authorization for judgments or orders of dismissal in law actions. The statutory scheme in Deady's Code and at present indicates that in equity the correct terminology is 'dismissal' and in law the correct terminology is 'nonsuit,' voluntary and involuntary."
Farris ,
Reference
- Full Case Name
- Jeff GIST, Individually and on Behalf of all Similarly Situated, on Review v. ZOAN MANAGEMENT, INC. Senvoy, LLC and Driver Resources, LLC, a Domestic Limited Liability Company, on Review.
- Cited By
- 2 cases
- Status
- Published