*1 April Argued and submitted March reversed and remanded al, PADDACK et Review, Petitioners on McDONALD, dba Jess E.

McDonald, Jr., Contractor, on

Respondent Review. (TC A24973, 29121) No. CA SC

661 P2d 545 Barnett, Portland, Thomas argued peti- J. the cause for petition tioner on review. With him on the were David S. Pauli, Bailey Pauli and Portland. Harris, Portland, III, Howe, of Howe & J.

William petition response argued the cause and filed on review. respondent Peterson, Campbell, Justice, Lent, Chief

Before Roberts, Jones, Justices. Carson and

JONES, J. opinion.

Peterson, concurring J., filed JONES, J.

Plaintiffs suit brought this examination of payroll defendant’s for recovery any unpaid records and fringe benefit as contributions found due result examination, payroll pursuant to the Labor Management et seq., 141, Act of Relations USC and the § Employee Retirement Security Income Act of 29 USC seq., et as amended. §

Defendant filed a plaintiffs’ motion to dismiss the complaint, pursuant 21,1 for failure to state facts sufficient constitute claim. Defendant contended the complaint did not allegation contain an that at the time the defendant entered into a agreement collective bargaining union, represented with the the union a majority of the employees. defendant’s granted defendant’s motion. Plaintiffs determined were unable to plead their claim favorably more gave and then notice of suit, A.(l).2 to ORCP 54

Rather than entering judgment provided as A.(l), ORCP 54 the court entered an order of dismissal on *3 May 11, May 18, 1982, 1982. On the trial court awarded judgment attorney defendant a for fees and costs. Plaintiffs appealed from the order of dismissal and from judgment the awarding attorney defendant fees and sought costs and

1 provides: ORCP 21 OBJECTIONS;

“DEFENSES AND PRESENTED; HOW MOTION; BY OR PLEADING MOTION FOR JUDGMENT ON THE PLEADINGS presented. Every fact, defense, in “A. How law to a for or claim relief * * * any pleading responsive thereto, pleading in be the shall asserted may except following option pleader that the defenses at the of the be * * * (8) by made motion to dismiss: failure to state ultimate facts * * sufficient to constitute a claim A.(l) provides: ORCP 54 “* * * may by plaintiff action be the of dismissed without order court [A]n (a) by serving filing a notice of dismissal with the court notice and such on the days prior day defendant not less than five to the of trial if no counterclaim * * pleaded Upon stipulation has been *. of or under notice dismissal this subsection, judgment the court enter a of shall dismissal.” com- dismissing plaintiffs’ of trial court’s order review the 21. On the November plaint, granted of defendant’s motion to dismiss the review of the order portion seeking that dismissing complaint and the order of dismissal.3 the ISSUE after question granting

The we is whether consider failure motion dismiss under ORCP for to state to claim, upon plaintiffs’ is trial court’s order of dismissal the A.(l) given appealable under ORCP 54 an order? notice Guaranty, Fidelity cite Plaintiffs Farris U.S. support P2d to their conten- by is instigated plaintiffs the order tion brought an action in appealable. plaintiffs The Farris by a liability policy as insureds issued capacity their expenses to in defend- defendant in order recover incurred trial found brought against them. The court ing action torts, complaint charged plaintiffs with intentional this by policy. it held were not covered the insurance which therefore allowed defendant’s demurrer trial court cause of facts sufficient to constitute failure state On moved for nonsuit. plaintiffs action and a case is important question we the such review said “voluntary” forced or was effect whether the motion was by previous ruling: the trial court’s upon “* * * only appeal judgment can from a Plaintiff court found voluntary nonsuit the trial has plaintiff is complaint a cause of action and does not state any plead favor- opinion he cannot the facts more ably.” Id. 633. at a dismissal request

Plaintiffs contend that their previous ruling grant- trial was necessitated court’s They dismiss under ORCP 21. ing defendant’s way plead further and had no effective could not claim except review terminating seeking the suit requesting the dismissal.

3 Appeals of dismissal states: The Court of letter order * * * respondent’s to dismiss “The of allowed the awarding appeal, except judgment costs as to the later order the above-entitled Groves, App 26, v. See Meadowbrook P2d 842 Or and disbursements. [60 (1982)].” Baker, 142-45, Taylor 279 Or We stated (1977): P2d 884 voluntary ‘judgments first contend that of “Defendants appeal appealable judgments’ and that this are not non-suit Robinson, In Steenson v. 236 Or must be dismissed. 416-17, (1964), acknowledged P2d P2d we [389 27] may general party appeal a that is the rule that not ‘[i]t (Annota- voluntarily requested.’ judgment he from a which omitted.) appeal right is denied to a tions policy voluntary judicial matter of requesting nonsuit as a However, statutory prohibition. because of the fact and not plaintiffs request the final order was entered on necessarily In preclude not review this case. nonsuit does 628, 630-31, Fidelity Guaranty, Farris v. U.S. may P2d 1031 we that an order of nonsuit noted 19.010(2)(a) purposes ‘determine’ a case for of ORS even lawsuit, though plaintiff may appeal refile his and allowed voluntary In from a final order of nonsuit. that case it was request held that a nonsuit which is necessi- by prior precluding recovery ruling tated is not voluntarily requested appeal. in fact and should not bar matter, difficulty policy determining “As a appeal be whether or not should allowed lies separating summary judgment cases where the determines the those plaintiff merely pre- action from those where the seeks interlocutory appellate partial sum- mature review of an mary judgment order. consistently policy allowing have of not

“We followed piecemeal appeals. policy litigants This would be defeated portion permitted appellate review of one were to seek abeyance, holding theories in to be their claim while other appellate ruling. in the an adverse refiled event of summary judgments partial “We believe that entry an order of generally allowed after should be * * * of this case. nonsuit under the circumstances <<* * * * * provides judgment “ORS 18.250 of non- ‘[w]hen dismissed; given, judgment

suit is the action is but such shall have the effect to another action for the same not bar However, provision cause.’ we do not find this to be cases, bar, applicable such as the one at where the only nonsuit is termination a case formal which own admission has fact been determined *5 grant partial summary judgment the trial court’s decision to * * *” (Footnote omitted.) as to one count. The of Appeals recently decided Mead- Groves, App owbrook v. 652 P2d 842 and relied in In dismissing appeal. on that case the instant Meadowbrook, dur- plaintiffs the trial court denied motion damages ing complaint trial to amend the to add certain plaintiff Appeals, and dismiss. The Court of the elected to and reviewing Fidelity Guaranty, supra, Farris v. U.S. Baker, Taylor supra, found this court had differentiated means for voluntary nonsuits taken as a technical between trial court where the case was effec- concluding proceedings voluntary tively rulings decided other and nonsuits appellate taken as a device to review of piecemeal obtain continuing where there remains a triable contro- rulings Meadowbrook, found the versy. Court of trial plaintiffs appeal to involve the latter since the court’s already allegations injury had not affected several ruling complaint. plaintiff appealed in the could have follow- Thus disposition agree issues. We with this ing that court’s all case. holding, apply but it does not in this decision, appeal allow an The Farris which would has been sustained of a nonsuit after demurrer has other alternative” and cannot and where “no favorably, An ORCP 21 plead applicable.4 the facts more is for “failure to state ultimate facts sufficient demurrer filed and equivalent constitute a claim” is the of the ORCP 21 motion granting sustained in Farris. The A.(l), action, is and dismissal order. appealable Appeals. and remanded to the Court of Reversed PETERSON, J., concurring. cases, majority opinion. in the In future such join

I however, the trial court require this court should plaintiffs during argument conceded When asked oral this court counsel position. plead plaintiffs good further. We hold to this that he could not faith unsuccessful, and, go ruling back on Plaintiffs cannot test this ORCP complaint they they original plead in fact had time filed the and that at the They petition represented majority also admit in the of union members. position they plead forth this further. Plaintiffs should have set review cannot However, position plaintiffs legal have taken a their of dismissal. notice by it. are bound notice plaintiffs affirmatively show record ruling prior necessitated was recovery contained theory recovery on the precluding complaint.