FILED: April 8, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

CHARLES BARRY MCILVAIN, JR.,

Appellant,

v.

PARKER FURNITURE, INC., and
BRADLEY CHRIS PARKER,

Respondent.

(C950949CV; CA A98148)

Appeal from Circuit Court, Washington County.

Gregory E. Milnes, Judge.

On appellant's Motion for Waiver or Deferral of Transcript Expenses filed October 29, 1997, and Reply to Motion for Waiver or Deferral of Transcript Expenses filed December 2, 1997. On respondent's Memorandum in Opposition to Motion for Waiver or Deferral of Transcript Expenses filed November 10, 1997.

Dean Heiling and Heiling, Dodge & Associates for motion.

Miles Sweeney, Paul G. Dodds and Brownstein, Rask, Arenz, Sweeney, Kerr & Grim, LLP., contra.

Before Landau, Presiding Judge, Deits, Chief Judge, and Armstrong, Judge.

LANDAU, P. J.

Motion to waive or defer transcript expenses denied.

LANDAU, P. J.

Plaintiff moves for waiver or deferral of transcript expenses under ORS 21.605(3)(a). That statute requires an initial waiver or deferral of other fees and court costs as a prerequisite to the waiver or deferral of transcript preparation expenses. Because plaintiff did not obtain any other waiver or deferral, we deny the motion.

Plaintiff appeals a judgment reducing the amount of his jury award based on a finding of comparative fault for injuries sustained in an auto collision. Upon filing his notice of appeal, plaintiff paid the filing fee required by ORS 21.010. Plaintiff now moves for waiver or deferral of transcript expenses under ORS 21.605(3), based upon an affidavit of indigence. Defendant objects, arguing that the transcript expenses cannot be waived or deferred unless the court first waives or defers the filing fee.

ORS 21.605(1)(a) provides:

"[T]he Chief Judge of the Court of Appeals * * * may waive in whole or in part, defer in whole or in part, or both, all fees and court costs payable by a party to a particular civil action or proceeding in the court * * * upon application by the party, if the * * * judge finds that the party is then unable to pay all or any part of the fees and costs."

ORS 21.605(3)(a) provides:

"If fees and court costs payable by a party to a civil action or proceeding have been waived or deferred under subsection (1) of this section, * * * the Chief Judge in an appeal to the Court of Appeals * * * may order that the expense of preparing the record and transcript on appeal be waived in whole or in part, deferred in whole or in part, or both."(1)

(Emphasis supplied.)

The text of ORS 21.605(3) is unambiguous. It requires the waiver or deferral of other fees and costs as a prerequisite for the waiver or deferral of transcript expenses. In this case, the only such fee or cost in this court has been the appellate filing fee. ORS 21.010. Plaintiff paid that fee without any deferral or waiver. Therefore, the prerequisite for this court's power to waive or defer the transcript expense has not been met, and the motion must be denied.

Motion to waive or defer transcript expenses denied.


1. Strictly speaking, the statutes speak to the authority of the Chief Judge to waive or defer fees. In this case, the Chief Judge, a member of this panel, has chosen to decide this matter by means of a published decision of a three-judge panel.

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