PROPOSED REVISIONS TO RULES
OF THE OREGON TAX COURT
As part of its annual rules revision process, the Oregon Tax Court solicited rule revision suggestions internally and from the public through a variety of publications. After careful consideration of those suggestions and in accordance with new legislation that eliminates small claims procedure in the Magistrate Division and authorizes expanded representation in that division, the court proposes the following revisions to the rules of the Oregon Tax Court Regular and Magistrate Divisions. New text is underlined in boldface and [deleted text is italicized within brackets]. Comments regarding these proposed revisions should be in writing, received by October 21, 2005, and sent to Kelly Mason, Law Clerk, 1163 State Street, Salem, Oregon 97301. These rules will become effective January 1, 2006.
RULES OF THE OREGON TAX COURT
APPEALS TO THE REGULAR DIVISION;
D. Correspondence Subsequent to Filing. The tax court clerk shall notify the parties of the filing date and the case number assigned. The case number shall be placed on all subsequent papers filed in the case and on all correspondence concerning it. All subsequent correspondence addressed to the court by any party should indicate that copies have been mailed or delivered to the attorney for the adverse party, or if the party appears in propria persona only, then to the party. Except when correspondence is hand delivered to the court, where possible the same method of mail or delivery used for corresponding with the court should also be used for mailing or delivery to the adverse party or to attorneys for the adverse party. (Footnote omitted.)
G. Use of declaration under penalty of perjury in lieu of affidavit; ''declaration'' defined. A declaration under penalty of perjury may be used in lieu of any affidavit required or allowed by these rules. A declaration under penalty of perjury may be made without notice to adverse parties, must be signed by the declarant and must include the following sentence in prominent letters immediately above the signature of the declarant: ''I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.'' As used in these rules, ''declaration'' means a declaration under penalty of perjury.
A.(1) Appeals from Magistrate Decisions. Generally, service of summons is not required for appeals from Magistrate decisions. Pursuant to ORS 305.560, the court shall serve all defendants by mailing a [certified] copy of the complaint to each defendant. However, where the appealing party is NOT the taxpayer, the appealing party shall serve a summons and a [certified] copy of the complaint upon the taxpayer by [certified] mail. For purposes of these rules, the date of service shall be the date of mailing the [certified] copy of the complaint. In all cases, the defendant shall appear or defend within 30 days of the date of service.
A.(2) Petitions for Determinations of Constitutional Limit on Property Taxes. The use of a summons is not required for petitions to the Regular Division of the Tax Court for determinations under Article XI, section 11(b) or 11(d). See ORS 305.583(2)(a); ORS 305.585(2). In such cases, the date of service for purposes of these rules shall be the date of the court's transmittal letter accompanying the [certified] copy of the petition sent to the government unit. For petitions under ORS 305.589, ''service'' is by publication of notice and the date of service is the tenth day after completion of publication. In all cases, the respondent shall appear or defend within 30 days of the date of service.
C.(2)(a) Direction to Defendant. A direction to the defendant requiring defendant to appear and defend within the time required by [subsection (2)] paragraph (b) of this subsection and a notification to defendant that in case of failure to do so, the plaintiff will apply to the court for the relief demanded in the complaint.
(b) If the summons is served by any manner other than publication, the defendant shall appear and defend within 30 days from the date of service. If the summons is served by publication pursuant to TCR 7 D(5), the defendant shall appear and defend within 30 days from the date stated in the summons. The date so stated in the summons shall be the date of the first publication.
D.(3)(a)(i) Generally. Upon an individual defendant, by personal delivery of a true copy of the summons and the complaint to such defendant or other person authorized by appointment or law to receive service of summons on behalf of such defendant, by substituted service of by office service. Service may also be made upon an individual defendant to whom neither subparagraph [(2)(I) nor (3)(I)] (ii) nor (iii) of this paragraph applies by mailing made in accordance with paragraph (2)(d) of this section provided that the defendant signs a receipt for the certified, registered or express mailing, in which case service shall be complete on the day on which the defendant signs a receipt for the mailing.
D.(5) Court Order for Service by Other Method. On motion upon a showing by affidavit or declaration that service cannot be made by any method otherwise specified in these rules or other rule or statute, the court, at its discretion, may order service by any method or combination of methods which under the circumstances is most reasonably calculated to apprise the defendant of the existence and pendency of the action, including but not limited to: publication of summons; mailing without publication to a specified post office address of the defendant by first class mail and by any of the following: certified or registered mail, return receipt requested, or express mail; or posting at specified locations. If service is ordered by any manner other than publication, the court may order a time for response.
F.(2)(b) Publication. Service by publication shall be proved by an affidavit or declaration in substantially the following form:
|STATE OF OREGON
County of _____________
I, _____________, being first duly sworn, depose and say that I am the ___________________ (here set forth the title or job description of the person making the affidavit), of the ______________, a newspaper of general circulation published at ______________ in the
aforesaid county and state; that I know from my personal knowledge that the ______________, a
printed copy of which is hereto annexed, was published in the entire issue of said newspaper four times in the following issues: (here set forth dates of issues in which the same was published).
Subscribed and sworn to before me this ____ day of ______________, 20___.
NOTARY PUBLIC FOR OREGON
My Commission Expires: _________
|STATE OF OREGON
County of _____________
I,____________, say that I am the (here set forth the title or job description of the person making the declaration), of the ____________, a newspaper of general circulation published at in the aforesaid county and state; that I know from my personal knowledge that the _____________, a printed copy of which is hereto annexed, was published in the entire issue of said newspaper four times in the following issues: (here set forth dates of issues in which the same was published).
I hereby declare that the above statement is true to the best of my knowledge and belief, and the I understand it is made for use as evidence in court and is subject to penalty of perjury.
_____________ day of _______, 20___.
F.(2)(c) Making and Certifying Affidavit or Declaration. The affidavit of service may be made and certified before a notary public, or other official authorized to administer oaths and acting as such by authority of the United States, or any state or territory of the United States, or the District of Columbia, and the official seal, if any, of such person shall be affixed to the affidavit. The signature of such notary or other official, when so attested by the affixing of the official seal, if any, of such person, shall be prima facie evidence of authority to make and certify such affidavit.
F.(2)(d) Form of Certificate or Affidavit. A certificate, [or] affidavit, or declaration containing proof of service may be made upon the summons or as a separate document attached to the summons.
G. Disregard of Error; Actual Notice. Failure to comply with provisions of this rule relating to the form of summons, issuance of summons, or who may serve summons shall not affect the validity of service of summons or the existence of jurisdiction over the person if the court determines that the defendant received actual notice of the substance and pendency of the action. The court may allow amendment to a summons, or affidavit, declaration or certificate of service of summons. The court shall disregard any error in the content of summons that does not materially prejudice the substantive rights of the party against whom summons was issued. If service is made in any manner complying with subsection D(1) of this section, the court shall also disregard any error in the service of summons that does not violate the due process rights of the party against whom summons was issued.
SERVICE AND FILING OF PLEADINGS
AND OTHER PAPERS
C. Filing; Proof of Service. Except as provided by section D of this rule, all papers required to be served upon a party by section A of this rule shall be filed with the court within a reasonable time after service. Except as otherwise provided in Rules 7 and 8, proof of service of all papers required or permitted to be served may be by written acknowledgment of service, by affidavit or declaration of the person making service, or by certificate of an attorney. Such proof of service may be made upon the papers served or as a separate document attached to the papers. Where service is made by telephonic facsimile communication device, proof of service shall be made by affidavit or declaration of the person making service, or by certificate of an attorney. Attached to such affidavit, declaration or certificate shall be the printed confirmation of receipt of the message generated by the transmitting machine.
F. Service by Telephonic Facsimile Communication Device. Whenever under these rules service is required or permitted to be made upon a party, and that party is represented by an attorney, the service may be made upon the attorney by means of a telephonic facsimile communication device if the attorney maintains such a device at the attorney's office and the device is operating at the time service is made. Service in this manner shall be equivalent to service by mail for purposes of Rule 10 B.
A.(1) In computing any period of time prescribed or allowed by these rules, by order of the court, or by any [application] applicable statute, the date of the act, event, or default from which the designated period or time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, [or] a legal holiday\[,] (including Sunday), or a day or part of a day on which the court is closed for the purpose of filing documents, closed to the extent ordered by the Chief Justice, or closed before the end of normal working hours during which documents may be filed. [in which event] In any of those events, the period runs until the end of the next day [which is not a Saturday or a legal holiday] the court is open.
A.(2) If the period so computed relates to serving a public officer or filing a document at a public office, and if the last day shall be excluded in computing the period of time within which service is to be made or the document is to be filed, in which event the period runs until to close of office hours on the next day the office is open for business.
A.(3) When a party intends to file by mail a document or other thing and the document or other thing is due on a date that all local United States Postal Service facilities unexpectedly are closed in whole or in part, the party filing the brief or other thing shall have until the next day that United States Postal Service facilities are open to file the document or other thing.
A.(4) When the period of time prescribed or allowed (without regard to section B of this rule) is less than seven days, intermediate Saturdays and legal holidays, including Sundays, shall be excluded in the computation.
A.(5) As used in this rule, ''legal holiday'' means legal holiday as defined in ORS 187.010 and ORS 187.020.
SIGNING OF PLEADINGS, MOTIONS
AND OTHER PAPERS; SANCTIONS
A. Signing by Party or Attorney; Certificate. Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record who is an active member of the Oregon State Bar. A party who is not represented by an attorney shall sign the pleading, motion or other paper and state the address and telephone number of the party. Pleadings need not be verified or accompanied by affidavit or declaration.
DEFENSES AND OBJECTIONS; HOW PRESENTED;
BY PLEADING OR MOTION; MOTION FOR
JUDGMENT ON THE PLEADINGS
A. How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third-party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) that there is another action pending between the same parties for the same cause, (4) that plaintiff has not the legal capacity to sue, (5) insufficiency of summons or process or insufficiency of service of summons or process, (6) that the party asserting the claim is not the real party in interest, (7) failure to join a party under Rule 29, (8) failure to state ultimate facts sufficient to constitute a claim, and (9) that the pleading shows that the action has not been commenced within the time limited by statute. A motion to dismiss making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds upon which any of the enumerated defenses are based shall be stated specifically and with particularity in the responsive pleading or motion. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If, on a motion to dismiss asserting defenses (1) through (7), the facts constituting such defenses do not appear on the face of the pleading and matters outside the pleading, including affidavits, declarations and other evidence, are presented to the court, all parties shall be given a reasonable opportunity to present [evidence and] affidavits, declarations and other evidence, and the court may determine the existence or nonexistence of the facts supporting such defense or may defer such determination until further discovery or until trial on the merits. If the court grants a motion to dismiss, the court may enter judgment in favor of the moving party or grant leave to file an amended complaint. If the court grants the motion to dismiss on the basis of defense (3), the court may enter judgment in favor of the moving party, stay the ~proceeding, or defer entry of judgment pursuant to subsection B(3) of Rule 54.
N.(1)(e)(v) Appropriate criteria in [DR 2-106] ORPC 1.5 of the Oregon Code of Professional Responsibility.
A. Purpose. This rule establishes:
A.(1) Procedures for a person to identify and segregate protected personal information and to request the information be kept from inspection by the general public.
A.(2) A process for the court, on granting a request under this rule, to segregate and protect personal information from nonprotected information in the case file.
B. Exclusivity. This rule is not the exclusive means for the court to protect personal information in case files from public inspection.
C. ''Protected Personal Information'' Defined. For purposes of this rule, ''protected personal information'' is information that:
C.(1) Identifies a person beyond that person's name (e.g., Social Security number, maiden name, driver license number, birth date and location) or identifies a person's financial activities (e.g., credit card number, credit report, bank account number or location); and
C.(2) The court is permitted to maintain as confidential and not subject to public inspection.
D. Procedure for party.
D.(1) A person or entity required to file a document in the court that contains protected personal information may submit that information on a separate document together with a motion that describes the information and requests that the tax court keep the separate document segregated from the court file.
D.(2) The moving party shall serve a copy of the motion on all other parties to the proceeding.
D.(3) During the pendency of the motion, the separate document will not be available for public inspection.
E. Court Response. If the court grants the motion, the court will issue an order to that effect and segregate the separate document from the court file unless a question arises about the court's legal authority to keep the specific information from public inspection. The motion and order will remain in the court file. Any request for public inspection of a separate document must be made in writing, filed with the court, and served on all other parties to the proceeding.
F. Time Limits, Court Authority to Refuse Request Based on Resources. This rule sets no time limit for the court to segregate information from existing court records when requested under this rule. The court has a reasonable time given its ordinary workload and resources available. Notwithstanding other parts of this rule, the court is not required to segregate information from existing court records based on a request under this rule if the workload created would adversely affect the resources available for the court to perform its ordinary duties.
FAILURE TO MAKE DISCOVERY; SANCTIONS
A.(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 39 or 40, or if a corporation or other entity fails to make a designation under Rule 39 C(6) or Rule 40 A, or if a party in response to a request for inspection submitted under Rule 43 fails to permit inspection as requested, the discovering party may move for an order compelling discovery in accordance with the request. Any motion made under this subsection shall set out at the beginning of the motion the items that the moving party seeks to discover. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
A. For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move, with or without supporting affidavits or declarations, for a summary judgment in that party's favor upon all or any part thereof.
B. For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move, with or without supporting affidavits or declarations, for a summary judgment in that party's favor as to all or any part thereof.
C. Motion and Proceedings Thereon. The motion and all supporting documents shall be served and filed at least 60 days before the date set for trial. The adverse party shall have 20 days in which to serve and file opposing affidavits or declarations and supporting documents. The moving party shall have ten (10) days to reply. The court shall have discretion to modify these stated times. The court shall enter judgment for the moving party if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. The adverse party has the burden of producing evidence on any issue raised in the motions as to which the adverse party would have the burden of persuasion at trial. The adverse party may satisfy the burden of producing evidence with an affidavit or declaration under section E of this rule.
D. Form of Affidavits and Declarations; Defense Required. Except as provided by section E of this rule, supporting and opposing affidavits or declarations shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant or declarant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit or declaration shall be attached thereto or served therewith. The court may permit affidavits or declarations to be supplemented or opposed by depositions or further affidavits or declarations. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of that party's pleading, but the adverse party's response, by affidavits or declarations or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue as to any material fact for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.
E. Affidavit or Declaration of Attorney When Expert Opinion Required. Motions under this rule are not designed to be used as discovery devices to obtain the names of potential expert witnesses or to obtain their facts or opinions. If a party, in opposing a motion for summary judgment, is required to provide the opinion of an expert to establish a genuine issue of material fact, an affidavit or declaration of the party's attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact, will be deemed sufficient to controvert the allegations of the moving party and an adequate basis for the court to deny the motion. The affidavit or declaration shall be made in good faith based on admissible facts or opinions obtained from a qualified expert who has actually been retained by the attorney who is available and willing to testify and who has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.
F. When Affidavits or Declarations Are Unavailable. Should it appear from the affidavits or declarations of a party opposing the motion that such party cannot, for reasons stated, present by affidavit or declaration facts essential to justify the opposition of that party, the court may refuse the application for judgment, or may order a continuance to permit affidavits or declarations to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.
G. Affidavits or Declarations Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits or Declarations presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits or Declarations caused the other party to incur, including reasonable attorney fees, and any offending party or attorney may be subject to sanctions for contempt.
CASE MANAGEMENT CONFERENCE;
SETTING AND POSTPONEMENT OF CASE
A. Case Management Conference. A case management conference shall be held in every case at issue. Conferences may be held by telephone or in chambers as the court directs. The purposes of the conference shall be as follows:
1. To consider the status of the pleadings and discovery and to set a date for completion of discovery.
2. To consider the areas of agreement or disagreement with a view to narrowing the issues and avoiding unnecessary proof.
3. To consider the number of witnesses and exhibits anticipated, the location of the trial and other related matters.
4. To agree upon and set the trial date and, in property tax cases, to set the date for exchange of appraisals.
5. To consider any other matters appropriate in the circumstances of the case.
6. In cases involving principal or secondary industrial property or centrally assessed property, both sides should be prepared to discuss the reporting requirements of ORS 311.814 and to discuss participation by or notification of affected government entities.
DISMISSAL OF ACTIONS; COMPROMISE
B.(1) Failure to Comply With Rule or Order. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for a judgment of dismissal of an action or of any claim against such defendant, or the court may, on its own motion, dismiss the case.
B.(3) Dismissal for Want of Prosecution; Notice. At the direction of the judge, the clerk of the court shall mail notice to the attorneys of record, or, if a party does not have an attorney of record, the copy shall be mailed to the party in each pending case in which no action has been taken for six months immediately prior to the mailing of such notice, that a judgment of dismissal will be entered in each such case by the court for want of prosecution, unless on or before a specified date, application, either oral or written, is made to the court and good cause shown why it should be continued as a pending case. If such application is not made or good cause shown, the court shall enter a judgment of dismissal in each such case. Nothing contained in this subsection shall prevent the dismissal by the court at any time, for want of prosecution of any action upon motion of any party thereto.
[E. Compromise; Effect of Acceptance or Rejection. The party against whom a claim is asserted may, at any time up to 10 days prior to trial, serve upon the party asserting the claim an offer to allow judgment to be given against the party making the offer for the sum, or the property, or to the effect therein specified. If the party asserting the claim accepts the offer, the party asserting the claim or such party's attorney shall endorse such acceptance thereon, and file the same with the clerk before trial, and within three days from the time it was served upon such party asserting the claim; and thereupon judgment shall be given accordingly, as a stipulated judgment. Unless agreed upon otherwise by the parties, costs, disbursements, and attorney fees shall be entered in addition as part of such judgment as provided in TCR 68. If the offer is not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence at the trial; and if the party asserting the claim fails to obtain a more favorable judgment, the party asserting the claim shall not recover costs, disbursements, and attorney fees incurred after the date of the offer, but the party against whom the claim was asserted shall recover of the party asserting the claim costs and disbursements from the time of the service of the offer.]
EXHIBITS; VIEW OF PROPERTY
B. Exchange of Exhibits. To avoid confusion and delay, each party shall provide opposing parties with copies of all documents that will be offered as evidence in support of that party's case in chief. ''Documents'' includes all writings, photographs, maps, and other similar materials. If the document is a book, journal, or other published material commonly available, only that portion particularly relevant need be exchanged. Computer produced documents shall be accompanied by a written explanation of the printout formatting, disclosing underlying assumptions. In valuation cases, ''documents'' includes appraisal reports, field notes, work papers, and all other documents relied upon by the appraiser, whether or not such documents are [to be] introduced into evidence.
(a) Bulky or voluminous materials such as extensive catalogues, libraries or files shall be made available for inspection and selective copying;
(b) Exhibits prepared for illustrative purposes do not need to be exchanged if the information contained therein has been provided to the opposing parties in other documents; and
(c) Documents, other than those used or relied upon by an appraiser, submitted as rebuttal evidence do not need to be exchanged.
(2) Time of Exchange. In valuation cases, documents used or relied upon by the appraiser shall be provided to the other parties not later than the date set by the court (usually 30 days before trial). All other documents, including documents to be used or relied upon by an appraiser in a party's rebuttal case, shall be provided to the other parties not less than [five] seven business days prior to trial.
CONDUCT AND ETHICS;
DECORUM IN PROCEEDINGS
A. Attorney as Witness. If an attorney offers herself or himself as a witness and testifies on behalf of her or his client, except as to formal matters, such attorney shall leave the trial of the cause to other counsel unless an exception is permitted by [the Code of Professional Responsibility, Canon 5] ORPC 3.7.
ALLOWANCE AND [TAXATION]
AWARD OF ATTORNEY FEES AND COSTS
C. Award of and Entry of Judgment for Attorney Fees and Costs and Disbursements.
C.(1) Application of This Section to Award of Attorney Fees. If a party believes that it is entitled to an award of attorney fees, it may plead that right, but is not required to do so unless a statute requires pleading of the claim. [This section governs the pleading, proof, and award of attorney fees in all cases, regardless of the source of the right to recovery of such fees, except where:
C.(1)(a) ORS 305.490 provides the substantive right to such items; or
C.(1)(b) Such items are claimed as damages arising prior to the action; or
C.(1)(c) Such items are granted by order, rather than entered as part of a judgment.
C.(2) Necessity of Alleging Right to Attorney Fees.
C.(2)(a) Alleging Right to Attorney Fees. A party seeking attorney fees shall allege the facts, statute, or rule which provides a basis for the award of such fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover such fees accrues. No attorney fees shall be awarded unless a right to recover such fee is alleged as provided in this subsection.
C.(2)(b) If a party does not file a pleading and seeks judgment or dismissal by motion, a right to attorney fees shall be alleged in such motion, in similar form to the allegations required in a pleading.
C.(2)(c) A party shall not be required to allege a right to a specific amount of attorney fees. An allegation that a party is entitled to ''reasonable attorney fees'' is sufficient.
C.(2)(d) Any allegation of a right to attorney fees in a pleading or motion shall be deemed denied and no responsive pleading shall be necessary. The opposing party may make a motion to strike the allegation or to make the allegation more definite and certain. Any objections to the form or specificity of allegation of the facts, statute, or rule which provides a basis for the award of fees shall be waived if not alleged prior to trial or hearing.
C.(3) Proof. The items of attorney fees and costs and disbursements shall be submitted in the manner provided by subsection (4) of this section, without proof being offered during the trial.]
C.(2) Procedure for Seeking Attorney Fees or Costs and Disbursements. The procedure for [seeking] obtaining an award of attorney fees or costs and disbursements shall be as follows:
C.(2)(a) Filing and Serving Statement of Attorney Fees and Costs and Disbursements. A party seeking to obtain an award of attorney fees or costs and disbursements shall, not later than 14 days after entry of judgment pursuant to TCR 67:
C.(2)(a)(i) File with the court a signed and detailed statement of the amount of attorney fees or costs and disbursements, together with proof of service, if any, in accordance with TCR 9 C. The detailed statement shall show the amounts claimed in separate categories for attorney fees, accountant fees, witness fees, travel and other expense. The time and services provided by each attorney, accountant and expert witness shall be shown separately for (1) administrative proceedings, (2) preparing for trial and (3) participating in trial; and
C.(2)(a)(ii) Serve, in accordance with TCR 9 B, a copy of the statement on all parties who are not in default for failure to appear.
C.(2)(b) Objections. A party may object to a statement seeking attorney fees or costs and disbursements or any part thereof by written objections to the statement. The objections shall be served within 14 days after service on the objecting party of a copy of the statement. The objections shall be specific and may be founded in law or in fact and shall be deemed controverted without further pleading. Statements and objections may be amended in accordance with TCR 23.
C.(2)(c) Hearing on Objections.
C.(2)(c)(i) If objections are filed in accordance with paragraph C(4)(b) of this rule, the court, without a jury, shall hear and determine all issues of law and fact raised by the statement of attorney fees or costs and disbursements and by the objections. The parties shall be given a reasonable opportunity to present [evidence and] affidavits, declarations and other evidence relevant to any factual issue, including any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements.
C.(2)(c)(ii) The court shall deny or award in whole or in part the amounts sought as attorney fees or costs and disbursements.
C.(2)(d) No Timely Objections. If objections are not timely filed the court may award attorney fees or costs and disbursements sought in the statement.
C.(2)(e) Findings and Conclusions. On the request of a party, the court shall make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees. A party shall make a request pursuant to this paragraph by including a request for findings and conclusions in the title of the statement of attorney fees or costs and disbursements or objections filed pursuant to paragraph (a) or (b) of this subsection. In the absence of a request under this paragraph, the court may make either general or special findings of fact and may state its conclusions of law regarding attorney fees.
C.(3) Judgment Concerning Attorney Fees or Costs and Disbursements.
C.(3)(a) As Part of Judgment. When all issues regarding attorney fees or costs and disbursements have been determined before a judgment pursuant to TCR 67 is entered, the court shall include any award or denial of attorney fees or costs and disbursements in that judgment.
C.(3)(b) By Supplemental Judgment; Notice. When any issue regarding attorney fees or costs and disbursements has not been determined before a judgment pursuant to TCR 67 is entered, any award or denial of attorney fees or costs and disbursements shall be made by a separate supplemental judgment. The supplemental judgment shall be filed and entered and notice shall be given to the parties in the same manner as provided in TCR 70 B(1).
C.(4) Avoidance of Multiple Collection of Attorney Fees and Costs and Disbursements.
C.(4)(a) Separate Judgments for Separate Claims. Where separate final judgments are granted in one action for separate claims, pursuant to TCR 67 B, the court shall take such steps as necessary to avoid the multiple taxation of the same attorney fees and costs and disbursements in more than one such judgment.
C.(4)(b) Separate Judgments for the Same Claim. When there are separate judgments entered for one claim (where separate actions are brought for the same claim against several parties who might have been joined as parties in the same action, or where pursuant to TCR 67 B separate final judgments are entered against several parties for the same claim), attorney fees and costs and disbursements may be entered [in] as to each such judgment in a supplemental judgment as provided in this rule, but satisfaction of one such judgment shall bar recovery of attorney fees or costs and disbursements included in all other judgments.
DEFAULT ORDERS AND JUDGMENTS
A. Entry of Default. When a party against whom a judgment for affirmative relief is sought has been served with summons pursuant to Rule 7 or is otherwise subject to the jurisdiction of the court and has failed to plead or otherwise defend as provided in these rules, the party seeking affirmative relief may apply for an order of default. If the party against whom an order of default is sought has filed an appearance in the action, or has provided written notice of intent to file an appearance to the party seeking an order of default, then the party against whom an order of default is sought shall be served with written notice of the application for an order of default at least ten (10) days, unless shortened by the court, prior to entry of the order of default. These facts, along with the fact that the party against whom the order of default is sought has failed to plead or otherwise defend as provided in these rules, shall be made to appear by affidavit, declaration or otherwise, and upon such a showing, the court shall enter the order of default.
B.(1)(d) The party seeking judgment submits an affidavit or declaration of the amount due;
B.(1)(e) An affidavit or declaration pursuant to subsection B(3) of this rule has been submitted; and
B.(2) All Other Cases. In all other cases, the party seeking a judgment by default shall apply to the court therefor, but no judgment by default shall be entered against a minor or an incapacitated person as defined by ORS 125.005 unless the minor or incapacitated person has a general guardian or is represented in the action by another representative as provided in Rule 27. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearing, or make an order of reference as it deems necessary and proper. The court may determine the truth of any matter upon affidavits or declarations.
B.(3) Amount of Judgment. The judgment entered shall be for the amount due as shown by the affidavit or declaration, and may include costs and disbursements and attorney fees entered pursuant to Rule 68.
B.(4) Nonmilitary Affidavit or Declaration Required. No judgment by default shall be entered until the filing of an affidavit or declaration on behalf of the plaintiff, showing that affiant or declarant reasonably believes that the defendant is not a person in military service as defined in Article 1 of the ''Soldiers' and Sailors' Civil Relief Act of 1940,'' as amended, except upon order of the court in accordance with that Act.
1. This rule is new in its entirety. The standard boldface, underlined text format used to illustrate added text has been changed to underlined text only in order to reflect the portions of the rule that will appear in boldface text in the final version.
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