ORS 28.080¹

Supplemental relief

Notes of Decisions

Legislature did not intend, by its pro­vi­sion in ORS 183.400 (Judicial determination of validity of rule) (1) that peti­tion to have validity of rule determined may be “filed as provided by ORS chapter 28,” to incorporate pro­vi­sions for addi­tional relief in this sec­tion. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)

Party is not precluded from seeking supple­mental relief by its failure to seek recovery in original declaratory ac­tion, nor is judg­ment granting supple­mental relief void even though certain nonsubstantive decisions were made by trial court when jurisdic­tion was reposed in appellate court. Dry Canyon Farms v. U.S. Na­tional Bank of Oregon, 96 Or App 190, 772 P2d 1343 (1989)

Where ORS 182.090 (State agency to pay attorney fees and expenses when court finds for petitioner and that agency acted unreasonably) provided for remedy award of attorney fees to successful litigant, and where that statute es­tab­lishes condi­tions for its applica­tion, it was inappropriate for court to import into this more general sec­tion, same or even broader authority to award attorney fees. Samuel v. Frohnmayer, 308 Or 362, 779 P2d 1028 (1989)

Availability of supple­mentary relief does not preclude seeking other forms of relief. O’Connor v. Zeldin, 134 Or App 444, 895 P2d 809 (1995)

Determina­tion concerning what coercive relief is necessary to effectuate declaratory judg­ment is separate from process of analyzing party rights, status or other legal rela­tions under ORS 28.010 (Power of courts), 28.020 (Declarations as to writings and laws) or 28.030 (Construction of contract before or after breach) in order to issue declaratory judg­ment. Ken Leahy Construc­tion, Inc. v. Cascade General, Inc., 329 Or 566, 994 P2d 112 (1999)

Law Review Cita­tions

40 WLR 563 (2004)

Notes of Decisions

Declaratory judg­ment pro­ceed­ings to determine coverage under insurance policies are legal in nature. Hartford v. Aetna/Mt. Hood Radio, 270 Or 226, 527 P2d 406 (1974)

Declaratory judg­ment pro­ceed­ings will be treated as either legal or equitable, depending upon the essential nature of the case. Intl. Health and Life Ins. Co. v. Lewis, 271 Or 35, 530 P2d 517 (1975)

Where complaint in declaratory judg­ment pro­ceed­ing sufficiently alleged justiciable controversy, it was error to grant mo­tion to dismiss for failure to state claim. Hupp v. Schumacher, 29 Or App 9, 562 P2d 217 (1977); Goose Hollow v. City of Portland, 58 Or App 722, 650 P2d 135 (1982)

Where a case sounds in law, an appellate court is precluded from testing the weight of evidence but rather to see if evidence exists from which the trier of fact could have drawn particular conclusions of fact. Lindsey v. Dairyland Ins. Co., 278 Or 681, 565 P2d 744 (1977)

The insurer was found not obligated to pay a propor­tionate share of the attorney fees of the insured incurred in the settle­ment of the per­sonal injury ac­tion. Lindsey v. Dairyland Ins. Co., 278 Or 681, 565 P2d 744 (1977)

Where students at college administered by Oregon State Board of Higher Educa­tion sought review of course grades through college grievance pro­ce­dures, judicial review was properly under ORS 183.490 (Agency may be compelled to act) and not declaratory judg­ment pro­vi­sions of this chapter. McBeth v. Elliott, 42 Or App 783, 601 P2d 871 (1979)

Declaratory judg­ment pro­ceed­ing filed by insured to determine its rights under an insurance policy insuring against loss or damage to prop­erty in its custody did not present a justiciable controversy. Mitchell Bros. Truck Lines v. Lexington Ins. Co., 287 Or 217, 598 P2d 294 (1979)

Challenging Board of Parole’s refusal to set release date through declaratory judg­ment was not proper as special statutory remedy under ORS 144.335 (Appeal from order of board to Court of Appeals) was available. Sterling v. Blalock, 47 Or App 275, 614 P2d 610 (1980)

City council’s removal of plaintiff as city attorney was quasi-judicial pro­ceed­ing, so proper ap­peal to circuit court was by way of writ of review and not declaratory judg­ment. Jordan v. City Council of Lake Oswego, 49 Or App 31, 618 P2d 1298 (1980), Sup Ct review denied

Where appraisal process pursuant to [former] ORS 743.648 had been initiated, declaratory judg­ment ac­tion to construe policy pro­vi­sions could not be commenced until appraisal was completed. Director v. So. Carolina Ins. Co., 49 Or App 179, 619 P2d 649 (1980), Sup Ct review denied

Circuit court had authority to determine whether Attorney General had statutory duty, but lacked authority to determine whether exercise of duty would violate attorney disciplinary rules. Brown v. Oregon State Bar, 293 Or 446, 648 P2d 1289 (1982)

Ac­tion seeking construc­tion of liability policy where there were legitimate ques­tions of coverage or noncoverage arising under policy issued for protec­tion of the insured against claims of third per­sons sustaining injury or damage presented justiciable controversy appropriate for declaratory judg­ment. State Farm Fire & Cas. Co. v. Reuter, 294 Or 446, 657 P2d 1231 (1983)

Plaintiff’s challenge to county charter failed to state justiciable claim because plaintiff only named sponsor of initiative as defendant. Hudson v. Feder, 115 Or App 1, 836 P2d 779 (1992), Sup Ct review denied

Law Review Cita­tions

10 WLJ 370 (1974); 15 EL 244 (1985)