Village at Main Street Phase II, LLC II v. Dept. of Rev. , 360 Or. 738 ( 2016 )

738 December 30, 2016 No. 81
IN THE SUPREME COURT OF THE
STATE OF OREGON
VILLAGE AT MAIN STREET PHASE II, LLC,
Plaintiff-Respondent,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant-Appellant,
and
CLACKAMAS COUNTY ASSESSOR,
Intervenor-Appellant.
(TC 5054; SC S063163 (Control))
VILLAGE AT MAIN STREET PHASE III, LLC,
Plaintiff-Respondent,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant-Appellant,
and
CLACKAMAS COUNTY ASSESSOR,
Intervenor-Appellant.
(TC 5055; SC S063164)
VILLAGE RESIDENTIAL, LLC,
Plaintiff-Respondent,
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant-Appellant,
and
CLACKAMAS COUNTY ASSESSOR,
Intervenor-Appellant.
(TC 5056; SC S063165)
VILLAGE RESIDENTIAL, LLC,
Plaintiff-Respondent,
Cite as 360 Or 738 (2016) 739
v.
DEPARTMENT OF REVENUE,
State of Oregon,
Defendant-Appellant,
and
CLACKAMAS COUNTY ASSESSOR,
Intervenor-Appellant.
(TC 5057; SC S063174)
En Banc
On appeal from Oregon Tax Court.*
Henry C. Breithaupt, Judge.
Argued and submitted May 10, 2016.
Jona J. Maukonen, Assistant Attorney General, Salem,
argued the cause and filed the briefs for appellant
Department of Revenue. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
Solicitor General.
Kathleen J. Rastetter, Assistant County Counsel, Oregon
City, argued the cause and filed the briefs for appellant
Clackamas County Assessor. Also on the briefs was Stephen
L. Madkour, Clackamas County Counsel.
Donald H. Grim, Greene & Markley, PC, Portland,
argued the cause and filed the brief for respondents. Also on
the brief was Ridgway K. Foley, Jr.
NAKAMOTO, J.
The order of the Tax Court in Village at Main Street Phase
II, LLC II v. Dept. of Rev., 22 Or. Tax 52 (2015), is vacated. The
general judgment of the Tax Court dismissing the cases is
reversed. The cases are remanded to the Tax Court to enter
the assessor’s amended answers and for further proceedings.
______________
*  22 Or. Tax 52 (2015).
740 Village at Main Street Phase II, LLC II v. Dept. of Rev.
Case Summary: Taxpayers filed four property tax appeals challenging the
real market value of the improvements to their property. When the assessor
sought to add counterclaims under ORS 305.287 addressing the real market value
of the associated land, the Tax Court concluded that the statute did not apply. On
appeal, the Oregon Supreme Court disagreed, explaining that application of ORS
305.287 to these cases was permissible. The Supreme Court reversed the Tax
Court’s judgments and remanded for further proceedings. Immediately after, tax-
payers filed a notice of voluntary dismissal under Tax Court Rule 54 A(1). Over
the assessor’s objections, the Tax Court entered the notice and a judgment dis-
missing these appeals. Defendants sought relief from the judgment, arguing that
the Supreme Court’s remand required the Tax Court to allow the counterclaims
before considering taxpayers’ notice of dismissal or, in the alternative, that the
assessor’s original answers contained counterclaims barring the dismissal. The
Tax Court denied defendants’ requests for relief. Held: A trial court’s discretion to
determine how to accomplish the directed outcome on remand is constrained by
the scope of remand in a particular case. When an appellate court remands, it is
implicit that the trial court will carry out both express and implied directions in
the appellate decision. The Supreme Court’s earlier decision contained an implied
direction to the Tax Court to enter the amended answers, and it should have done
that before turning to taxpayers’ subsequently filed notices of dismissal.
The order of the Tax Court is vacated. The general judgment of the Tax Court
dismissing the cases is reversed. The cases are remanded to the Tax Court to
enter the assessor’s amended answers and for further proceedings.
Cite as 360 Or 738 (2016) 741
NAKAMOTO, J.
These four consolidated property tax appeals return
following remand to the Oregon Tax Court in Village at Main
Street Phase II v. Dept. of Rev., 356 Or 164, 339 P3d 428
(2014) (Village I). In Village I, this court addressed whether
the Tax Court had erred by denying defendant-intervenor
Clackamas County Assessor’s (assessor) motion for leave to
file amended answers on the ground that the answers con-
tained impermissible counterclaims challenging the value
of taxpayers’ land. This court determined that the assessor
should have been allowed to challenge the land valuations,
and it reversed and remanded the cases to the Tax Court. Id.
at 166, 185. Before the assessor filed amended answers, tax-
payers served notices of voluntary dismissal of their cases
pursuant to Tax Court Rule (TCR) 54 A(1).1 The Tax Court
then entered a judgment of dismissal, over the assessor’s
objection. The court denied the subsequent motions for relief
from the judgment by defendant Department of Revenue
(department) and the assessor.
Under TCR 54 A(1), a plaintiff may, without order of
the court or consent of the other party, dismiss its appeal “if
no counterclaim has been pleaded.” The Tax Court concluded
that Village I did not prohibit dismissal of the cases under
TCR 54 A(1), because neither the assessor nor the depart-
ment had filed counterclaims with the Tax Court. Village
at Main Street Phase II, LLC II v. Dept. of Rev., 22 Or. Tax 52,
60-62, 2015 WL 1810580 (2015) (Village II). On appeal, we
address whether, as defendants argue, the Tax Court erred
by giving effect to taxpayers’ notices of voluntary dismissal
rather than to the decision in Village I concerning the asses-
sor’s counterclaims pending in the motions for leave to file
amended answers. As explained below, we conclude that the
Tax Court erred in dismissing the appeals given the deci-
sion and remand in Village I. Accordingly, we vacate the Tax
Court’s order denying defendants relief from the judgment,
reverse the general judgment of dismissal, and remand for
further proceedings.
1
All references to the Tax Court Rules, the Oregon Rules of Civil Procedure,
and the Uniform Trial Court Rules are to the versions in effect in 2015.
742 Village at Main Street Phase II, LLC II v. Dept. of Rev.
I. BACKGROUND
To provide context for the discussion of these
appeals, we first briefly review the property tax appeals
process before the Tax Court before laying out the facts
relevant to these appeals. Finally, we summarize the Tax
Court’s most recent ruling in these cases.2
A.  Property Tax Appeals Before the Tax Court
Under Oregon law, a taxpayer may challenge the
assessor’s valuation of its property by filing an appeal before
the local board of property tax appeals (BOPTA). ORS
309.100(1). If either party is unhappy with the outcome
of the BOPTA proceedings, an appeal is permitted to the
Magistrate Division of the Tax Court. ORS 305.275; ORS
309.110(7). Within 60 days after the entry of a magistrate’s
written decision, either party may file an appeal with the
Regular Division. ORS 305.501(5)(a).
Although characterized as an “appeal,” the review
by the Regular Division is de novo, with proceedings there
conducted as “original” and “independent.” ORS 305.425(1);
see also Reed v. Dept. of Rev., 310 Or 260, 265, 798 P2d 235
(1990) (stating that the court must “consider all properly
admitted evidence and reach its own independent conclu-
sions”). Unlike the Magistrate Division, the Regular Division
is a court of record and follows formal rules of evidence. ORS
305.405(1); TCR Preface. The Regular Division has the pow-
ers and, generally speaking, follows the procedures of a cir-
cuit court. ORS 305.405(2) - (3); ORS 305.425(3).
The Tax Court Rules guide litigants before the
Regular Division. Although the Oregon Rules of Civil
Procedure (ORCP) do not apply to Tax Court proceedings,
many of the TCRs mirror their ORCP counterparts. See
ORS 305.425(3) (“hearings and proceedings” in the Regular
Division “shall be in accordance with the rules of practice and
procedure promulgated by the court, which shall conform,
2
Although we refer to the last appeal as Village I, the parties were before
this court two other times in these cases. See Clackamas Cty Assessor v. Village
at Main St. Phase II, 349 Or 330, 245 P3d 81 (2010) (determining additional
value added to rolls was undervaluation, not omitted property); Clackamas Cty.
Assessor v. Village at Main Street, 352 Or 144, 282 P3d 814 (2012) (attorney fees).
Cite as 360 Or 738 (2016) 743
as far as practical to the rules of equity practice and proce-
dure in this state”); see also TCR Preface (so stating).
B.  Factual and Procedural History
The relevant facts are primarily procedural and
are undisputed. Taxpayers are three limited liability
companies—Village at Main Street Phase II, LLC, Village
at Main Street Phase III, LLC, and Village Residential,
LLC—that own real property located in Clackamas
County. By filing appeals with BOPTA, taxpayers chal-
lenged the real market value of only the improvements
on their real property, not the land, for tax years 2006-07
through 2008-09.
After BOPTA affirmed the values of the improve-
ments set by the assessor, taxpayers appealed first to the
Magistrate Division and then to the Regular Division, where
their appeals were consolidated. In the Regular Division, the
department responded by filing answers, and, after success-
fully moving to intervene in all four cases, the assessor also
filed answers. The department denied the allegations form-
ing taxpayers’ claims and asked the Tax Court to uphold the
assessments. However, in three of the four answers filed by
the assessor, the prayer for relief contained a request for an
increase in the values of the improvements over those deter-
mined by BOPTA or by the magistrate.
Intending to seek a determination of the values of
the related land components, which the assessor also believed
were undervalued, the assessor sought a preliminary rul-
ing from the Tax Court as to whether a then-newly enacted
statute, ORS 305.287, would permit amended answers put-
ting the land values at issue in the taxpayers’ appeals.3 In
part, ORS 305.287 provides that, when one party appeals
“the real market value of one or more components of a prop-
erty tax account,” then “any other party to the appeal may
seek a determination” of “the real market value of any or
all of the other components of the [tax] account.” Taxpayers
responded with their own motion for a preliminary ruling
on whether ORS 305.287 applied.
3
All references to ORS 305.287 are to the 2011 version in effect when the
parties sought a preliminary ruling before the Tax Court.
744 Village at Main Street Phase II, LLC II v. Dept. of Rev.
The Tax Court obliged and addressed the issue. It
concluded that ORS 305.287 applied only to appeals to the
Magistrate Division and, therefore, that defendants could
not use that statute to place the land values at issue for the
first time before the Regular Division.
Nevertheless, within a few weeks, the assessor
filed a motion for leave to amend its original answers, with
appended proposed amended answers, and again asserted
that ORS 305.287 applied to taxpayers’ appeals. Those pro-
posed answers contained counterclaims requesting deter-
minations of the real market value of the entire property
tax accounts, including the land components. The Tax
Court denied the assessor’s motion for leave to file amended
answers and entered limited judgments stating that ORS
305.287 did not apply to the proceedings.
Defendants appealed the Tax Court’s limited judg-
ments, and this court reversed. The only issue before this
court was “whether the Tax Court correctly concluded that
ORS 305.287 does not apply to appeals to the Regular
Division of the Tax Court.” Village I, 356 Or at 166. We dis-
agreed with the Tax Court, concluding that ORS 305.287
applies to appeals to the Regular Division and, more specif-
ically, to these cases. Id. at 185. We stated the following in
the final paragraphs of Village I:
“[W]e conclude that ORS 305.287 applies to appeals filed
after that statute’s effective date. Because we have already
determined that ORS 305.287 applies to appeals to the
Regular Division, and because taxpayers appealed to the
Regular Division after that statute became effective, ORS
305.287 applies to these appeals. The Tax Court erred in
concluding otherwise.
“The limited judgments of the Tax Court are reversed,
and the cases are remanded to the Tax Court for further
proceedings.”
Id. at 185. Thus, this court reversed the Tax Court’s denial
of the assessor’s motion for leave to amend its answers on
the only basis that the Tax Court had for its denial.
On the same day that this court issued its opinion in
Village I, and in anticipation of the remand permitting the
Cite as 360 Or 738 (2016) 745
assessor to pursue its counterclaims concerning the value
of the land components, taxpayers filed in the Tax Court’s
Regular Division a notice of voluntary dismissal of their
property tax appeals pursuant to TCR 54 A(1). Although the
assessor opposed the notice by filing an objection, once the
appellate judgment in Village I was issued, the Tax Court
entered a general judgment dismissing taxpayers’ consoli-
dated appeals.
Defendants promptly moved for relief from the gen-
eral judgment, arguing that, at the time taxpayers had filed
their notices of voluntary dismissal, counterclaims existed
that would bar dismissal of the cases in their entirety.
Defendants justified the requested relief with two separate
theories: First, the assessor’s original answers, which did
not contain anything labeled a counterclaim, did in fact
contain counterclaims. In the alternative, the assessor’s
motion for leave to file amended answers, coupled with this
court’s decision and remand in Village I, produced, in effect,
“pleaded” counterclaims.
The Tax Court denied defendants’ motions for relief
from the judgment by order in Village II. The Tax Court
addressed both of defendants’ theories that counterclaims
barred dismissal of the tax appeals. But because we resolve
the appeal based only on defendants’ argument that Village I
required the Tax Court to give effect to the counterclaims
within the amended answers that the assessor had sought
leave to file, we describe the Tax Court’s ruling addressing
that argument in detail.4
The Tax Court first acknowledged that relief
requested through ORS 305.287 “can be thought of as a
4
One reason that the Tax Court rejected defendants’ first argument—
concerning the assessor’s original answers—was the court’s conclusion that
defendants could and should have challenged the magistrate’s decision concern-
ing the values of the improvements by filing their own complaints in the Regular
Division in accordance with ORS 305.501(5)(a) (a party may appeal a magis-
trate’s decision “by filing a complaint in the regular division of the tax court
within 60 days after the date of entry of the written decision”). Village II, 22
Or. Tax at 57. Because our decision rests on other grounds and we vacate the Tax
Court’s order in Village II, we need not and do not accept defendants’ invitation
to address the Tax Court’s interpretation of that statute as set out in that order.
If the matter of ORS 305.501(5)(a) should arise on remand, the parties will have
an opportunity to litigate that issue fully.
746 Village at Main Street Phase II, LLC II v. Dept. of Rev.
counterclaim.” Village II, 22 Or. Tax at 60. In addition, the
court agreed that, if correctly and timely pleaded, a coun-
terclaim under that statute would “most probably” bar a dis-
missal under TCR 54 A(1). Id.
The Tax Court then reviewed TCR 23 and TCR 15
concerning amended pleadings. Village II, 22 Or. Tax at 60-61.
Under TCR 23, a party in the assessor’s position must first
seek and then receive leave to file an amended answer. See
TCR 23 A (“a party may amend the pleading only by leave of
court or by written consent of the adverse party, and leave
shall be freely given when justice so requires”); see also TCR
23 D(2)(a) (“whenever a motion for leave to amend a plead-
ing is submitted to the court, it must include, as an attached
exhibit to the affidavit, the entire text of the proposed
amended pleading”). After obtaining leave, the party then
must actually file the amended pleading. See TCR 23 D(1)
(a pleading is amended “by filing a new pleading”). That
ordinarily must be accomplished within 10 days after an
order granting leave. See TCR 15 B(2) (“If the court grants
a motion and an amended pleading is allowed or required,
such pleading shall be filed within 10 days after service of
the order, unless the order otherwise directs.”).
Based on that review, the Tax Court concluded that
a plaintiff’s notice of dismissal under TCR 54 A(1) is barred
if, and only if, a defendant has actually filed an amended
answer containing counterclaims. Village II, 22 Or. Tax at
60-62. And because the assessor had not actually filed
amended answers, the court ruled that no “pleaded” coun-
terclaims precluded taxpayers from serving effective notices
of dismissal under TCR 54 A(1). Id. To conclude otherwise,
the court reasoned, “would effectively render the provisions
of TCR 15 B(2) meaningless.” Id.
The Tax Court also considered this court’s decision
in Village I, but the court concluded that it “did not purport
to address, much less override or set aside, the rules of [the
Tax Court] as to procedure on motions for leave to amend.”
Id. The Tax Court therefore concluded that it had no choice
but to dismiss the cases under settled law. Id. at 61-62 (citing
Maxwell v. Stebbins (A108022), 180 Or App 48, 42 P3d 336
(2002), and Sohn v. Thi, 262 Or App 313, 325 P3d 57 (2014)).
Cite as 360 Or 738 (2016) 747
Defendants now appeal the order denying them relief from
the judgment and the general judgment of dismissal.
II. ANALYSIS
On appeal, the issue is whether, in light of this
court’s decision in Village I, filed amended answers con-
taining counterclaims were required to abrogate taxpayers’
right to dismiss their property tax appeals under TCR 54
A(1). We review the Tax Court’s dismissal of the appeals for
legal error. See ORS 305.445 (Supreme Court will review for
“errors or questions of law or lack of substantial evidence in
the record”); Hewlett-Packard Co. v. Benton County Assessor,
357 Or 598, 609, 356 P3d 70 (2015) (stating that the inter-
pretation of relevant statutes and rules is a legal issue).
Many of the Tax Court rules are modeled on por-
tions of the Oregon Rules of Civil Procedure (ORCP), and,
to “the extent that the wording of a TCR is the same as that
of an ORCP, cases interpreting the ORCP may be looked to
as authority for interpreting the TCR.” TCR Preface. The
rule at issue here, TCR 54 A(1), is identical in all relevant
respects to ORCP 54 A(1):
“Subject to the provisions of TCR 32 D and of any stat-
ute of this state, a plaintiff may dismiss an action in its
entirety or as to one or more defendants without order of
court: (a) by filing a notice of dismissal with the court and
serving such notice on all other parties not in default not
less than five days prior to the day of trial if no counter-
claim has been pleaded * * *. * * * Upon notice of dismissal
* * *, a party shall submit a form of judgment and the court
shall enter a judgment of dismissal.”
TCR 54 A(1) (emphasis added).5
In construing the emphasized phrase in TCR 54
A(1), taxpayers and the Tax Court understand the term
5
ORCP 54 A(1) provides:
“Subject to the provisions of Rule 32 D and of any statute of this state, a
plaintiff may dismiss an action in its entirety or as to one or more defendants
without order of court: (a) by filing a notice of dismissal with the court and
serving such notice on all other parties not in default not less than five days
prior to the day of trial if no counterclaim has been pleaded * * *. * * * Upon
notice of dismissal * * *, a party shall submit a form of judgment and the court
shall enter a judgment of dismissal.”
748 Village at Main Street Phase II, LLC II v. Dept. of Rev.
“pleaded” to require the filing and service of an amended
answer before the counterclaim in that answer may be
deemed “pleaded.” It is undisputed that the assessor had not
actually filed amended answers containing counterclaims
when this court issued its decision in Village I and when
taxpayers served their notices of dismissal under TCR 54
A(1). Instead, as noted above, the assessor had only sought
leave of the Tax Court to file amended answers and attached
the proposed amended answers to its motions for leave to
file them. TCR 23 D(2)(a).6 Defendants, on the other hand,
argue that the Tax Court’s dismissal was inconsistent with
this court’s decision in Village I and that the Tax Court was
obliged by the reversal and remand in Village I to allow the
assessor’s pending counterclaims to prevent dismissal. We
conclude that the Tax Court should have given effect to our
decision in Village I.
When an appellate court directs action on remand,
the tribunal typically may determine how to accomplish the
directed outcome if it does so within the boundaries set by
the remand. See Gearhart v. PUC, 356 Or 216, 234-36, 356
P3d 216 (2014) (discussing the effect and scope of a general
remand to an agency). That flexibility is constrained not
only by the express order of the appellate court’s remand,
but also by its implied directive when considered in the con-
text of the court’s entire opinion. See State v. Bowen, 352 Or
109, 115, 282 P3d 807 (2012) (acknowledging ambiguity in
express remand, but concluding that “[w]hen the relevant
parts of the opinion are considered in their entirety * * *
[the] court’s intention in ordering remand * * * is clear”);
Ross v. Robinson, 174 Or 25, 42, 45-46, 147 P2d 204 (1944)
(explaining that the court’s prior decision, which sustained
a demurrer to the complaint and remanded for further pro-
ceedings not inconsistent with the decision, implied that
the complaint had substance and that the trial court had
authority to permit an amended complaint); see also Sprague
v. Ticonic Bank, 307 U.S. 161, 169, 59 S. Ct. 777, 83 L. Ed. 1184
6
Although TCR 23 is substantially the same as ORCP 23, defendants cor-
rectly note that the Tax Court requirement to submit the proposed amended
pleading with a motion for leave to amend is not present in ORCP 23. See TCR
23 D(2). However, UTCR 5.070, which applies to proceedings in Oregon circuit
courts, similarly obligates litigants to attach the entire text of the proposed
amended pleading to a motion for leave to amend. See UTCR 5.070.
Cite as 360 Or 738 (2016) 749
(1939) (examining whether outcome was impliedly addressed
by appellate court’s decision and subsequent remand). The
scope of remand is established by the appellate court’s opin-
ion in a particular case. See Bowen, 352 Or at 115-16 (exam-
ining the court’s intention in ordering remand).
Although the Tax Court correctly observed that
Village I made no statement about TCR 54 A(1) or the appli-
cation of procedural rules on remand—which were not issues
on appeal—the Tax Court’s dismissal of the cases failed to
implement this court’s decision in Village I. In Village I, this
court reversed the Tax Court’s limited judgments denying
the assessor leave to file amended answers and counter-
claims. 356 Or at 173, 185. The court also remanded to the
Tax Court for “further proceedings.” Id. at 185. That general
remand included an implied directive to enter the assessor’s
amended answers, because the court’s opinion reversed the
Tax Court’s only basis for denying entry of the amended
answers. In fact, the Tax Court noted in its order that,
but for taxpayers’ subsequent notice of dismissal, it would
have allowed the amended answers upon return receipt of
jurisdiction. Village II, 22 Or. Tax at 61. Thus, we hold that
our remand required the Tax Court to allow the pending
amended answers to be entered before turning to taxpayers’
subsequently filed notices of dismissal.
The case law concerning any application of TCR
54 A(1) is sparse, and no prior Oregon case addresses how
that rule or ORCP 54 A(1) operates when, after this court
reverses the denial of a party’s motion for leave to amend
its pleading to include a counterclaim and remands the
case, the other party seeks to avoid the effect of the appeal
and remand by preemptively filing a notice of voluntary
dismissal. However, we note that a plaintiff’s right to vol-
untarily dismiss an action is subject to judicially created
limitations. See Garrison v. Cook, 280 Or 205, 570 P2d 646
(1977).
In Garrison, the plaintiff, to avoid litigating the
issue of attorney fees, sought to terminate his action after
he had lost a summary judgment motion. 280 Or at 208,
211. He filed a motion as provided in former ORS 18.230 (a
predecessor to ORCP 54 A(1)), which allowed such a motion
750 Village at Main Street Phase II, LLC II v. Dept. of Rev.
“not less than five days prior to the day of trial if no coun-
terclaim has been pleaded.” This court held that, in those
circumstances, the plaintiff could not avail himself of a
judgment of nonsuit as “a matter of right” as provided in the
statute. 280 Or at 211. The court reasoned that to conclude
otherwise would allow the plaintiff to “avoid the effect of
an adverse summary judgment.” Id. Similarly, our holding
in these cases prevents taxpayers from litigating through a
decision on appeal whether defendants were entitled to file
counterclaims putting the land values at issue in the cases,
and then avoiding that decision by claiming that the very
counterclaims at issue on appeal had not yet been pleaded.
In sum, applying principles concerning the effect
and scope of remands, we conclude that the Tax Court was
obliged to give effect to this court’s decision in Village I that
the assessor had a statutory right to pursue the counter-
claims alleged in its proposed amended answers—which the
Tax Court had prevented the assessor from filing through
its rulings that were the subject of Village I—upon remand
of the cases to the Tax Court for further proceedings.7
Simply put, when this court has remanded to a lower court
to apply our decision, it is implicit in that remand that the
court, upon regaining jurisdiction over the case, will carry
out both express and implied directions. Accordingly, we
reverse and remand to the Tax Court to permit the filing of
the assessor’s amended answers.
The order of the Tax Court in Village at Main
Street Phase II, LLC II v. Dept. of Rev., 22 Or. Tax 52 (2015), is
vacated. The general judgment of the Tax Court dismissing
the cases is reversed. The cases are remanded to the Tax
Court to enter the assessor’s amended answers and for fur-
ther proceedings.
7
Thus, our decision does not affect established case law concerning motions
pending before a trial court, when no remand is at issue. For example, the Court
of Appeals has determined that a plaintiff may file a notice of voluntary dismissal
even in the face of a pending motion for summary judgment. See, e.g., Ramirez
v. Northwest Renal Clinic, 262 Or App 317, 321, 324 P3d 581 (2014) (a pending
motion or anticipated order for summary judgment will not prevent a notice of
voluntary dismissal); see also Sohn v. Thi, 262 Or App 313, 315, 325 P3d 57 (2014)
(stating the same). Nothing in this decision changes that case law.