
Filed: April 9, 1998
IN THE SUPREME COURT OF THE STATE OF OREGON
SEA-AIR HANDLING SERVICES, INC.





	Plaintiff-Adverse Party,





	v.





PAUL H. REED, by DONALD HARTVIG,



CHAPTER SEVEN BANKRUPTCY 



TRUSTEE,





	Defendant-Relator,





	and





BOB HODSON,





	Defendant.





(CC 9609-06691; SC S44721)
	Original proceeding in mandamus.





	Argued and submitted March 4, 1998.





	Donald A. Greig, of Landerholm, Memovich, Lansverk and

Whitesides, P.S., Vancouver, Washington, argued the cause and

filed the brief for plaintiff-adverse party.





	Christopher W. Angius, of Perkins Coie, Portland, argued the

cause and filed the brief for defendant-relator.





	Before Carson, Chief Justice, and Gillette, Van Hoomissen,

Durham, Kulongoski, and Leeson Justices.*





	LEESON, J.





	Alternative writ of mandamus dismissed.





	*Graber, J., resigned March 31, 1998, and did not

participate in this decision.





		LEESON, J.		



 	This is an original action in mandamus.  ORS 34.120.

Bankruptcy trustee Hartvig (relator) contends that Multnomah

County Circuit Court Judge Marshall Amiton exceeded his authority

under ORCP 71 C in granting plaintiff-adverse party Sea-Air

Handling Services, Inc.'s (Sea-Air) requested relief and that

Judge Amiton misinterpreted the "two-dismissal rule" in ORCP 54

A(1).(1)  Consequently, he asks this court to issue a peremptory

writ of mandamus directing Judge Amiton to reverse his November

13, 1997, order granting Sea-Air's motion for entry of a

supplemental judgment of dismissal "without prejudice."  For the

reasons that follow, we deny relator's petition for a peremptory

writ of mandamus and dismiss the alternative writ of mandamus

issued by this court on December 16, 1997.



		The facts are undisputed.  On March 15, 1996, Sea-Air

filed a complaint in circuit court against Reed, one of its

former vice-presidents, and four others stating claims for

various business torts.  On April 1, 1996, Sea-Air filed a notice

of dismissal pursuant to ORCP 54 A(1), stating that its claims

against three of the parties named in the action, with whom Sea-Air had reached a settlement, were to be dismissed "with

prejudice," and that its claims against the two others, Reed and

Hodson, were to be dismissed "without prejudice."  The judgment

of dismissal was entered in the register on April 3.  The

document to which the judgment stamp was affixed identified which

of the dismissals were "with prejudice" and which were "without

prejudice."



		On September 3, 1996, after settlement negotiations

involving Sea-Air, Reed and Hodson broke down, Sea-Air filed a

second action in circuit court against Reed and Hodson, alleging

all the claims that it had asserted previously.  In November,

before answering Sea-Air's complaint, Reed filed a bankruptcy

petition in the United States Bankruptcy Court for the District

of Oregon.  Because of the automatic stay resulting from Reed's

bankruptcy filing, Sea-Air was unable to pursue its claims

against Reed and, on January 23, 1997, Sea-Air filed a second

notice of dismissal.  That notice, a copy of which was sent to

relator when it was submitted to the court, stated:



 	"Pursuant to ORCP 54 A(1) [Sea-Air] does hereby

give notice of its dismissal of this action.  This

dismissal shall be without prejudice."
As it had done with the first notice of dismissal, the trial

court affixed a "Judgment of Dismissal" stamp to the second

notice of dismissal and directed that the judgment be entered in

the register.  The notice bore the date of January 27, 1997, and

was entered in the register the next day.



		On June 5, 1997, relator, in an effort to augment the

assets of Reed's bankruptcy estate and to assist in the payment

of Reed's creditors, filed an adversary complaint in the

bankruptcy court, alleging claims against Sea-Air in excess of

$250,000.  Sea-Air answered and counterclaimed, alleging in its

counterclaim the same claims that it had asserted against Reed in

the second state court action.  Relator moved for summary

judgment on the counterclaims, arguing that dismissal of the

state court claims against Reed on January 27 constituted a

dismissal "with prejudice," because the state court had not

"directed" that the dismissal be "without prejudice."  According

to relator, under ORCP 54 A(1), the January 27 dismissal acted as

an adjudication on the merits and barred Sea-Air's counterclaims

in relator's action against Sea-Air.  



		The bankruptcy court agreed and entered summary

judgment for relator.  The court explained:



	"I think the second dismissal [against Reed in state

court] was with prejudice, that it was incumbent upon

the moving party to get an express court order

directing otherwise which did not occur in this case. 

* * * [I]f [Sea-Air] can get relief from the state

court, under whatever the appropriate rule is, I may

have to revisit my summary judgment order * * *."
The bankruptcy court lifted the automatic stay so that Sea-Air

could "seek relief [in the state court] under the appropriate

rule."



 	On October 20, 1997, Sea-Air filed a motion in circuit

court requesting entry of a supplemental judgment to reflect that

the January 27 judgment of dismissal in its action against Reed

was "without prejudice."  Sea-Air argued that, if the circuit

court needed to correct the register to reflect that the judgment

of dismissal was "without prejudice," the court had authority to

do so under ORCP 71 A.(2)  Alternatively, Sea-Air argued, if the

bankruptcy court was correct in its belief that the January 27

judgment had been entered "with prejudice," Sea-Air was entitled

to relief under ORCP 71 C.(3)
		On November 13, 1997, over relator's objection, Judge

Amiton granted Sea-Air's motion for entry of a supplemental

judgment of dismissal, explaining:



		"Had [Sea-Air's] second request for dismissal been

presented to this court for a hearing, the court would

have found good cause to grant [Sea-Air] dismissal

without prejudice.  





		"Pursuant to ORCP 71 C, the court has inherent

power to modify a judgment within a reasonable time."  
The next day, relator filed a petition for a writ of mandamus,

seeking to direct Judge Amiton to vacate his November 13 order. 

This court issued an alternative writ of mandamus on December 16,

1997, ORS 34.250(5), and the mandamus proceeding advanced to

briefing and oral argument, ORS 34.250(7); ORAP 11.15(1).



		Before this court, relator contends that, under ORCP 54

A(1), notice of the second dismissal of the same claim against

the same party constitutes an adjudication on the merits, unless

the court "directs" otherwise.  A court can exercise its power

under the rule, relator argues, only if the plaintiff notifies

the court that a prior dismissal exists.  Sea-Air did not notify

the trial court that it previously had dismissed its claims

against Reed. Consequently, relator contends, Sea-Air failed to

comply with the rule's requirements, and Judge Amiton erred in

holding that Sea-Air was entitled to a supplemental judgment of

dismissal against Reed "without prejudice."  



		Sea-Air responds that ORCP 54 A(1) requires only that a

party notify the trial court that it is seeking a dismissal

"without prejudice."  In Sea-Air's view, it did all that was

required of it under ORCP 54 A(1) to obtain a second dismissal

against Reed "without prejudice."  Consequently, it argues, Judge

Amiton did not err in granting Sea-Air's motion for entry of a

supplemental judgment "without prejudice":



"Trial courts are busy enough without having to decide

issues which are not in dispute; only if [an opposing

party] objects to [the] second dismissal without

prejudice should the court be required to weigh the

merits of the request and rule on the objection."
		Whether ORCP 54 A(1) requires a party to notify the

court of a prior notice of dismissal -- so that the court can

"direct" whether the second dismissal is to be with or without

prejudice -- is a matter of statutory construction, calling for

analysis under the template prescribed in PGE v. Bureau of Labor

and Industries, 317 Or 606, 859 P2d 1143 (1993).  However, as

explained below, this case is not before us in a posture that

allows us to resolve the parties' dispute about the proper

interpretation of the "second dismissal" rule under ORCP 54 A(1).



		ORCP 70 B(1) provides that "all judgments * * * shall

be entered in the register by the clerk."  See also ORS 7.020(2)

(the clerk or court administrator shall enter in the register any

"order, judgment, ruling or other direction of the court in or

concerning [any] action, suit or proceeding").  It is uncontested

that the court clerk entered the second judgment of dismissal in

the register and that the document that appears in the register

states that the January 27 dismissal was "without prejudice."  In

the absence of anything to the contrary in the record, a judgment

entered in the register is regarded as stating an "absolute

verity."  Van Natta v. Columbia County, 236 Or 214, 220, 388 P2d

18 (1963).  In this case, nothing in the record suggests that the

court intended anything other than what the document in the

register declares:  The January 27, 1997, dismissal was "without

prejudice." 



		The bankruptcy court's conclusion that the January 27

judgment was entered "with prejudice" is contrary to the

principle that judgments entered in the register are presumed to

be correct.  In asking us to construe the "second dismissal" rule

in ORCP 54 A(1), relator asks us to do the same thing that he

persuaded the bankruptcy court to do:  disregard the register and

its unambiguous declaration that the January 27 notice of

dismissal of Sea-Air's claims against Reed was "without

prejudice."  We decline to do so. 



 	The bankruptcy court's grant of relator's motion for

summary judgment led to a series of unnecessary acts, including

Sea-Air's motion for entry of a supplemental judgment of

dismissal "without prejudice" and Judge Amiton's granting of that

motion.  Even if we were to perpetuate those unnecessary acts by

issuing a peremptory writ of mandamus directing Judge Amiton to

vacate his November 13 order, relator would gain nothing, because

the January 27 judgment of dismissal would remain what it always

has been -- a judgment of dismissal "without prejudice."(4)
		Alternative writ of mandamus dismissed.






1. 	ORCP 54 A(1) provides, in part:





	"Unless otherwise stated in the notice of dismissal or

stipulation, [a] dismissal is without prejudice, except

that a notice of dismissal operates as an adjudication

upon the merits when filed by a plaintiff who has once

dismissed in any court of the United States or of any

state an action against the same parties on or

including the same claim unless the court directs that

the dismissal shall be without prejudice."
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2. 	ORCP 71 A provides, in part:





 	"Clerical mistakes in judgments, orders, or other parts

of the record and errors therein arising from oversight or

omission may be corrected by the court at any time on its

own motion or on the motion of any party and after such

notice to all parties who have appeared, if any, as the

court orders."
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3. 	ORCP 71 C provides, in part:





 	"This rule does not limit the inherent power of a

court to modify a judgment within a reasonable time   

* * *."
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4. 	In the light of this disposition, we need not reach the

question of whether Judge Amiton abused his discretion under ORCP

71 C in granting Sea-Air's motion for entry of a supplemental

judgment of dismissal "without prejudice." 


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