Chapter 28

NOTES OF DECISIONS

Declaratory judgment proceedings to determine coverage under insurance policies are legal in nature. Hartford v. Aetna/Mt. Hood Radio, 270 Or 226, 527 P2d 406 (1974)

Declaratory judgment proceedings will be treated as either legal or equitable, depending upon the essential nature of the case. Intl. Health and Life Ins. Co. v. Lewis, 271 Or 35, 530 P2d 517 (1975)

Where complaint in declaratory judgment proceeding sufficiently alleged justiciable controversy, it was error to grant motion to dismiss for failure to state claim. Hupp v. Schumacher, 29 Or App 9, 562 P2d 217 (1977); Goose Hollow v. City of Portland, 58 Or App 722, 650 P2d 135 (1982)

Where a case sounds in law, an appellate court is precluded from testing the weight of evidence but rather to see if evidence exists from which the trier of fact could have drawn particular conclusions of fact. Lindsey v. Dairyland Ins. Co., 278 Or 681, 565 P2d 744 (1977)

The insurer was found not obligated to pay a proportionate share of the attorney fees of the insured incurred in the settlement of the personal injury action. Lindsey v. Dairyland Ins. Co., 278 Or 681, 565 P2d 744 (1977)

Where students at college administered by Oregon State Board of Higher Education sought review of course grades through college grievance procedures, judicial review was properly under ORS 183.490 and not declaratory judgment provisions of this chapter. McBeth v. Elliott, 42 Or App 783, 601 P2d 871 (1979)

Declaratory judgment proceeding filed by insured to determine its rights under an insurance policy insuring against loss or damage to property in its custody did not present a justiciable controversy. Mitchell Bros. Truck Lines v. Lexington Ins. Co., 287 Or 217, 598 P2d 294 (1979)

Challenging Board of Parole’s refusal to set release date through declaratory judgment was not proper as special statutory remedy under ORS 144.335 was available. Sterling v. Blalock, 47 Or App 275, 614 P2d 610 (1980)

City council’s removal of plaintiff as city attorney was quasi-judicial proceeding, so proper appeal to circuit court was by way of writ of review and not declaratory judgment. Jordan v. City Council of Lake Oswego, 49 Or App 31, 618 P2d 1298 (1980), Sup Ct review denied

Where appraisal process pursuant to [former] ORS 743.648 had been initiated, declaratory judgment action to construe policy provisions could not be commenced until appraisal was completed. Director v. So. Carolina Ins. Co., 49 Or App 179, 619 P2d 649 (1980), Sup Ct review denied

Circuit court had authority to determine whether Attorney General had statutory duty, but lacked authority to determine whether exercise of duty would violate attorney disciplinary rules. Brown v. Oregon State Bar, 293 Or 446, 648 P2d 1289 (1982)

Action seeking construction of liability policy where there were legitimate questions of coverage or noncoverage arising under policy issued for protection of the insured against claims of third persons sustaining injury or damage presented justiciable controversy appropriate for declaratory judgment. State Farm Fire & Cas. Co. v. Reuter, 294 Or 446, 657 P2d 1231 (1983)

Plaintiff’s challenge to county charter failed to state justiciable claim because plaintiff only named sponsor of initiative as defendant. Hudson v. Feder, 115 Or App 1, 836 P2d 779 (1992), Sup Ct review denied

LAW REVIEW CITATIONS: 10 WLJ 370 (1974); 15 EL 244 (1985)

28.010 to 28.160

LAW REVIEW CITATIONS: 40 WLR 563 (2004)

28.010

NOTES OF DECISIONS

Provision for declaratory and further relief in a single proceeding does not change rule that plaintiff must determine whether remedy is at law or in equity and proceed accordingly. Mayer v. First Nat. Bank, 260 Or 119, 489 P2d 385 (1971)

A declaratory judgment proceeding will be treated either legal or equitable, depending upon its nature. May v. Chicago Ins. Co., 260 Or 285, 490 P2d 150 (1971)

Declaratory judgment proceedings to determine coverage under insurance policies are legal in nature. May v. Chicago Ins. Co., 260 Or 285, 490 P2d 150 (1971)

A proceeding to determine whether individuals are tortiously liable is legal in nature; therefore, the findings of the trial court which are supported by evidence must be accepted as correct on appeal. Grange Ins. Assn. v. Zumwalt, 272 Or 263, 536 P2d 428 (1975)

Declaratory judgment proceedings requesting the construction of contracts are legal in nature, and factual determinations by the trier of fact which are supported by evidence are treated as final on appeal. C & B Livestock, Inc. v. Johns, 273 Or 6, 539 P2d 645 (1975)

Declaratory judgment would not issue with respect to constitutionality of regulations required pursuant to civil commitment statute (ORS 426.220) where Mental Health Division had not yet promulgated such administrative rules. Pyle v. Brooks, 31 Or App 479, 570 P2d 990 (1977)

Action seeking injunction against rule not yet in effect was not action involving enforcement within jurisdiction of circuit court. Alto v. State Fire Marshal, 319 Or 382, 876 P2d 774 (1994)

Declaratory judgment is not available to compel agency to change action taken. Mendieta v. Division of State Lands, 148 Or App 586, 941 P2d 582 (1997)

Determination under ORS 28.080 concerning what coercive relief is necessary to effectuate declaratory judgment is separate from process of analyzing party rights, status or other legal relations in order to issue declaratory judgment. Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or 566, 994 P2d 112 (1999)

28.020

NOTES OF DECISIONS

Citizen had standing, in declaratory judgment proceeding, to sue city to test validity of ordinance authorizing police to detain citizens for up to two hours. Cornelius v. City of Ashland, 12 Or App 181, 506 P2d 182 (1973), Sup Ct review denied

In declaratory judgment proceeding to invalidate contract between hospital district and physician, complaint alleging that plaintiff was “resident and inhabitant” and “taxpayer” residing within boundaries of district was subject to demurrer because it failed to show how plaintiff’s “rights, status or other legal relations” were affected by contract. Gruber v. Lincoln Hospital District, 285 Or 3, 588 P2d 1281 (1979)

Where ordinance required car rental companies to collect and remit tax on motor vehicle rentals, tax was not invalid on ground of improper adoption procedures, improper use of tax funds, or unconstitutional impact on interstate commerce. Budget Rent-A-Car v. Multnomah County, 287 Or 93, 597 P2d 1232 (1979)

Subcontractor who was not directly involved in bidding process had standing, by virtue of its economic interest in protecting its ability to bid as a subcontractor, to bring declaratory judgment action asserting that city offering contract violated [former] ORS 279.017. Morse Bros. Prestress, Inc. v. City of Lake Oswego, 55 Or App 960, 640 P2d 650 (1982)

Economic harm to plaintiff caused by defendant’s substantial advantage gained through absence of workers compensation insurance expense constituted “rights, status or other legal relations” affected by statute and thereby conferred standing to obtain declaratory judgment. Associated Reforestation Contractors v. Workers Comp. Bd., 59 Or App 348, 650 P2d 1068 (1982), Sup Ct review denied

To establish standing, taxpayer must show present or foreseeable financial interest. Chadwick v. Alexander, 310 Or 700, 801 P2d 797 (1991)

Requirement that person bringing action be “affected” by statute prevents representational standing. Oregon Taxpayers United PAC v. Keisling, 143 Or App 537, 924 P2d 853 (1996), Sup Ct review denied

Requirement that complaint state justiciable controversy is jurisdictional. Beck v. City of Portland, 202 Or App 360, 122 P3d 131 (2005)

LAW REVIEW CITATIONS: 2 EL 331 (1972); 40 WLR 563 (2004)

28.030

NOTES OF DECISIONS

Determination under ORS 28.080 concerning what coercive relief is necessary to effectuate declaratory judgment is separate from process of analyzing contractual rights in order to issue declaratory judgment. Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or 566, 994 P2d 112 (1999)

28.040

NOTES OF DECISIONS

Under this section, together with ORS 28.110 and 111.095, person seeking determination of heirship may request declaratory relief in proceeding to which all persons who have or claim any interest must be made parties. Decker v. Wiman, 288 Or 687, 607 P2d 1370 (1980)

28.080

NOTES OF DECISIONS

Legislature did not intend, by its provision in ORS 183.400 (1) that petition to have validity of rule determined may be “filed as provided by ORS chapter 28,” to incorporate provisions for additional relief in this section. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Party is not precluded from seeking supplemental relief by its failure to seek recovery in original declaratory action, nor is judgment granting supplemental relief void even though certain nonsubstantive decisions were made by trial court when jurisdiction was reposed in appellate court. Dry Canyon Farms v. U.S. National Bank of Oregon, 96 Or App 190, 772 P2d 1343 (1989)

Where ORS 182.090 provided for remedy award of attorney fees to successful litigant, and where that statute establishes conditions for its application, it was inappropriate for court to import into this more general section, same or even broader authority to award attorney fees. Samuel v. Frohnmayer, 308 Or 362, 779 P2d 1028 (1989)

Availability of supplementary relief does not preclude seeking other forms of relief. O’Connor v. Zeldin, 134 Or App 444, 895 P2d 809 (1995)

Determination concerning what coercive relief is necessary to effectuate declaratory judgment is separate from process of analyzing party rights, status or other legal relations under ORS 28.010, 28.020 or 28.030 in order to issue declaratory judgment. Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or 566, 994 P2d 112 (1999)

28.090

NOTES OF DECISIONS

Declaratory judgment proceeding may be reviewed either as action at law or as suit in equity, depending upon its nature. Frontier Ins. Agency, Inc. v. Hartford Fire Ins. Co., 262 Or 470, 499 P2d 1302 (1972)

Declaratory judgment proceeding which was in the nature of action on insurance contract was treated as action at law, and appellate court was bound by trial court’s findings if they are supported by any substantial evidence. Frontier Ins. Agency, Inc. v. Hartford Fire Ins. Co., 262 Or 470, 499 P2d 1302 (1972)

Where all claims in which plaintiff prevailed were equitable in nature and historically tried in equity, defendants were not entitled to jury trial. Agnew v. Haskell, 71 Or App 357, 692 P2d 650 (1984)

28.110

NOTES OF DECISIONS

State is not necessarily proper party to every private litigation in which constitutionality of a law is challenged, although state should properly be admitted as amicus curiae. Carden v. Johnson, 282 Or 169, 577 P2d 513 (1978)

Oregon Liquor Control Commission was necessary and indispensable party in suit brought under this section by retail wine sellers against wholesale wine sellers for declaratory judgment that certain dock sales were in violation of Liquor Control Act. Pike v. Allen International Ltd., 287 Or 55, 597 P2d 804 (1979)

Under this section, together with ORS 28.040 and 111.095, person seeking determination of heirship may request declaratory relief in proceeding to which all persons who have or claim any interest must be made parties. Decker v. Wiman, 288 Or 687, 607 P2d 1370 (1980)

Circuit court was without jurisdiction to hear allegations that state statute and municipal charter were unconstitutional where Attorney General had not been served with notice of the proceeding and given opportunity to be heard. Warren v. City of Canby, 56 Or App 230, 641 P2d 615 (1982)

Where plaintiff failed to name all interested parties in a declaratory judgment action about validity of trust, even though cousins’ interests as beneficiaries might remain unaffected by decision that trust invalid, that possibility is not adequate basis for failing to comply with ORS 28.110 and trial court could not enter binding judgment unless remaining beneficiaries of trust are joined within time to be set by trial court. Eddy v. Eddy, 95 Or App 733, 770 P2d 969 (1989), Sup Ct review denied

Party who may have or claim interest in land sale contract is necessary party and failure to join necessary party in declaratory judgment action deprives court of authority to render binding judgment. Futrell v. Wagner, 96 Or App 27, 771 P2d 292 (1989), Sup Ct review denied

Default judgment does not bar third party from litigating issue if party against whom issue was previously decided was not adversely affected by that adjudication. Farmers Ins. Co. v. Stockton, 112 Or App 120, 827 P2d 938 (1992); Austin Mutual Ins. Co. v. McMannamy, 145 Or App 437, 929 P2d 1081 (1996), Sup Ct review denied

Although failure to join necessary parties prevents court from entering final declaratory judgment about subject matter, court may exercise power to join omitted parties rather than dismissing for lack of jurisdiction. Kaiser Foundation Health Plan v. Doe, 138 Or App 428, 908 P2d 850 (1996), Sup Ct review denied

Where necessary parties have not been joined in motion for declaratory judgment, if parties lack identity of interest, motion should be dismissed if parties are not joined after time set by court. Kaiser Foundation Health Plan v. Doe, 138 Or App 428, 908 P2d 850 (1996), Sup Ct review denied

Where necessary parties have not been joined in motion for declaratory judgment, if parties have identity of interest, court should join parties and rule on motion. Kaiser Foundation Health Plan v. Doe, 138 Or App 428, 908 P2d 850 (1996), Sup Ct review denied

All persons whose interests are affected by action must be joined in order to yield jurisdiction to enter declaratory judgment. AFSCME v. Dept. of Administrative Services, 150 Or App 87, 945 P2d 102 (1997)

28.130

LAW REVIEW CITATIONS: 40 WLR 563 (2004)

28.200 to 28.255

NOTES OF DECISIONS

Where Oregon law not Washington Deadman’s Statute governed admissibility of testimony in interpleader action brought by insurance company in district of Oregon, testimony of insured’s widow and insurance agent was admissible to determine beneficiary. Equitable Life Assur. Soc. of the U.S. v. McKay, 861 F2d 221 (9th Cir. 1988)