§ 28.4 Determination of Issues

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 28.4 DETERMINATION OF ISSUES

§ 28.4-1 Introduction

The court may not resolve issues of fact on summary judgment, but instead determines whether genuine issues of material fact are present. If disputed issues exist as to any material fact, the dispute must be resolved by the fact-finder and summary judgment must be denied. See, e.g., McPhail v. Milwaukie Lumber Co., 165 Or App 596, 607-08, 999 P2d 1144 (2000) ("The court's role on summary judgment is not to decide whether its credulity has been strained but to determine whether there is a genuine issue of material fact."). If no factual issues exist, the court may resolve the legal issues and render summary judgment.

A court will look beyond a party's characterization of a fact as undisputed to ascertain if that is truly the case. See, e.g., Harris v. Volz, 106 Or App 188, 191, 806 P2d 691, rev den, 311 Or 432 (1991) ("Parties to a lawsuit may not place it in a posture for summary judgment by characterizing the facts as being undisputed. Rather, the moving party must show. . . that there is no controverted material factual question.") (emphasis in original)). The parties may stipulate to a trial on the record as it exists at the time of summary judgment if factual disputes preclude disposing of the case under ORCP 47. Hanneman v. Jones, 45 Or App 1005, 1009, 609 P2d 912 (1980) (noting that "the parties were entitled to stipulate that a case could be tried without further amplification of the record" when issues of material fact precluded summary judgment).

§ 28.4-2 Genuine Issues of Material Fact

ORCP 47 C contains a well-defined summary-judgment standard, stating:

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.

A material fact under this standard is "one that, under applicable law, might affect the outcome of a case." Zygar v. Johnson, 169 Or App 638, 646, 10 P3d 326 (2000), rev den, 331 Or 584 (2001). The court reviews the evidence offered by both the moving party and the nonmoving party. See Metro. Prop. & Cas. v. Harper, 168 Or App 358, 363, 7 P3d 541 (2000). The standard for granting summary judgment can be thought of as proceeding in two steps: "whether a genuine issue of material fact exists, and, if not, whether the moving party [is] entitled to judgment as...