Belinskey v. Clooten

This case requires us to construe ORS 12.220, commonly referred to as a "saving statute," which provides that, if an action is first filed within the statute of limitations and then "involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action," a new action may be filed within 180 days "after the judgment dismissing the original action is entered in the register of the court," notwithstanding that the statute of limitations has run during the interim. Here, the trial court dismissed plaintiffs personal injury action as a sanction because plaintiff failed to attend an appointment with an independent medical examiner. The dismissal was involuntary, without prejudice, and it did not address the merits of the personal injury claim. That dismissal was "entered in the register" of the circuit court. Plaintiff appealed. We affirmed, Belinskey v. Clooten, 214 Or App 172, 164 P3d 1163 (2007), and the Supreme Court denied review, 344 Or 194 (2008). The Supreme Court then sent the appellate judgment back to the trial court, where it was also "entered in the register" pursuant to ORS 19.450(3). Within 180 days after the appellate judgment from the Supreme Court was "entered in the register" of the circuit court, but long after 180 days had elapsed since the original trial court judgment of dismissal had been entered in the circuit court register, plaintiff refiled her claim. By that time, of course, the statute of limitations had run, and defendant moved for summary judgment on that ground. The trial court granted defendants motion, rejecting plaintiffs argument that, because she refiled within 180 days of the entry of the appellate judgment, her action was "saved" by ORS 12.220. This appeal ensued. The question presented is what "the judgment dismissing the original action" means in ORS 12.220(2). Defendant contends that, as the trial court ruled, the term refers to the first judgment--the trial courts original judgment dismissing the action before appeal. Plaintiff contends that the term also includes the judgment entered in the trial court register after the appellate mandate issues. We agree with defendant and therefore affirm.