Braich v. Smith, 332 Or App 338 (2024).

“[T]he basis for dismissal, as stated in the judgment, was not a lack of capacity; rather . . . the complaint was dismissed because the trust was not represented by counsel, as required by ORS 9.320. ”

Plaintiff, a business trust represented by a trustee, sought specific performance for the sale of a mine. The trial court dismissed under ORS 9.320, which holds that a business trust must file pleadings signed by an attorney. The Plaintiff retained counsel and drafted a settlement agreement that required the Plaintiff to dismiss the action. Its counsel withdrew. No amended petition was filed. Defendant moved to dismiss. Plaintiff failed to argue the merits, and requested a continuance through its trustee. The trial court dismissed with prejudice pursuant to the agreement and Plaintiff’s lack of an attorney. Plaintiff assigns error to both grounds. It asserts that the suit was dismissed due to “lack of capacity,” and that the effect of the parties’ settlement agreement was a factual matter. The Court of Appeals found that the claim was dismissed due to the lack of a statutorily-required attorney, not a lack of capacity. It found that Plaintiff failed to preserve its second claim. The Court affirmed the dismissal.