DISMISSAL AT TRIAL – EFFECT ON STATUTE OF LIMITATIONS / §35.2
II.
74
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“On trial thereof” includes a trial on a matter of law, including a dismissal for lack of jurisdiction. ORS 12.220; Hatley v. Truck Insurance Exchange, 261 Or 606, 494 P2d 426 (1972).
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The savings clause in ORS 12.220 does not apply to causes of action that were not brought in the original action. McNeely v. Weyerhaeuser Co., 115 Or App 184, 837 P2d 546 (1992).
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The savings clause does not apply to the trial court’s review of an action by a different tribunal when such review “is in the nature of an appeal.” US West Communications, Inc. v. Eachus, 124 Or App 325, 329-330, 862 P2d 102 (1993).
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The savings clause set forth in ORS 12.220 does not apply to a cause of action described in ORS 72.7250 (action for breach of contract for sale). See ORS 72.7250 for the savings clause applicable to actions for breach of a contract for sale.
B.
Dismissal for lack of prosecution does not invoke the one-year extension. ORS 12.220; Fuller v. Safeway Stores, 258 Or 131, 481 P2d 616 (1971); Te-Ta-Ma Truth Foundation v. Vaughan, 114 Or App 448, 835 P2d 938 (1992) (dismissal with prejudice for failure to obtain counsel is analogous to dismissal for lack of prosecution; savings clause does not apply). However, the dismissal of an inactive case pursuant to a removal order will not result in the right to refile under ORS 12.220 if the procedural requirements of ORCP 54 B(3) are not followed. Moore v. Ball, Janik & Novak, 120 Or App 466, 852 P2d 937 (1993).
C.
Even if the trial court does not have personal or subject-matter jurisdiction of the first action brought, the action is deemed “commenced” within the savings clause if brought within one year after dismissal. ORS 12.220; Stevens v. Scanlon, 248 Or 229, 430 P2d 1019 (1967).
D.
ORS 12.220 does not apply to a dismissal after a trial on the merits. Tikka v. Martin, 271 Or 287, 532 P2d 18 (1975).
E.
When the trial court dismisses a case, the time spent on an appeal from that dismissal is not included when calculating the one year within which a party is allowed to commence a new action on the same cause. ORS 12.220; Sanok v. Grimes, 306 Or 259, 760 P2d 228 (1988).
(§35.2)
Reversal and Nonsuit