2013 Oregon Revised Statutes
Volume : 01 - Courts, Oregon Rules of Civil Procedure
Chapter 034 - Writs
Section 34.740 - Amendment of petition or action against public body when wrong remedy sought; effect of amendment on time limitations; attorney fees.

(1) A circuit court shall allow a person to amend a petition or action in the manner provided by this section if:

(a) The person seeks relief against a public body, as defined in ORS 192.410;

(b) The person incorrectly filed a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment; and

(c) The correct remedy of the person is a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment.

(2) If a petition or action is amended under this section, the petition or action is not subject to dismissal by reason of not having been commenced within the time otherwise allowed by law if the reason that the person filed the wrong petition or action was either:

(a) The person relied on a reasonable interpretation of the law relating to the correct remedy; or

(b) The public body that is the respondent or defendant in the proceeding gave misleading information to the person about the proper remedy, the person relied in good faith on the information provided by the public body and by reason of that reliance the person sought the wrong remedy.

(3) A circuit court shall order a public body, as defined in ORS 192.410, to pay reasonable attorney fees incurred by any person in filing a petition for a writ of review, a petition for a writ of mandamus or an action for declaratory judgment seeking relief from the public body if:

(a) The court determines that the person has filed the wrong petition or action, and the person subsequently amends the pleading in the manner provided by subsection (1) of this section;

(b) The public body that is the respondent or defendant in the proceeding gave information to the person with the intent to mislead the person as to the proper remedy or gave information to the person, with a reckless disregard for the truth or falsity of the information, about the proper remedy; and

(c) The person relied in good faith on the information provided by the public body, and by reason of that reliance the person sought the wrong remedy. [2001 c.561 §2]

Note: 34.740 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 34 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.