Spears v. Department of Revenue, Tc 4891 (or.tax 4-20-2010)

AMENDED ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFFS'CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

This matter is before the court on cross-motions for summary judgment regarding a preliminary question as to the appropriate scope of review for the court to apply in an appeal where, as in this case, Defendant Department of Revenue raises a defense that Plaintiffs' case was properly dismissed by the Magistrate Division for failure to prosecute the case.

As a preliminary matter, this court has held that such a defense is properly raised. A party cannot fail to properly…