Caldeen Constr., LLC v. Kemp

Decision Date08 February 2012
Docket Number090645745,A143946.
Citation273 P.3d 174,248 Or.App. 82
PartiesCALDEEN CONSTRUCTION, LLC; Callie D. Calhoun; and Jon C. Calhoun, Plaintiffs–Appellants, v. M. Mark KEMP; and M. Mark Kemp, P.C., Defendants–Respondents.
CourtOregon Court of Appeals

248 Or.App. 82
273 P.3d 174

CALDEEN CONSTRUCTION, LLC; Callie D. Calhoun; and Jon C. Calhoun, Plaintiffs–Appellants,
v.
M. Mark KEMP; and M. Mark Kemp, P.C., Defendants–Respondents.

090645745

A143946.

Court of Appeals of Oregon.

Argued and Submitted May 18, 2011.Decided Feb. 8, 2012.


[273 P.3d 175]

Marianne Dugan, Eugene, argued the cause and filed the briefs for appellants.

Bruno J. Jagelski, Ontario, argued the cause for respondents. With him on the brief was Yturri Rose LLP.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

DUNCAN, J.

[248 Or.App. 84] Plaintiffs filed a complaint against defendant,1 alleging legal malpractice. Pursuant to ORCP 21 A(8), defendant moved to dismiss the complaint for failure to state a claim. The trial court granted the motion and denied plaintiffs' request for leave to file an amended complaint. Plaintiffs appeal, asserting that the trial court abused its discretion by denying them leave to file an amended complaint. We agree and, therefore, reverse and remand.

We begin with the relevant facts, which are few and undisputed. Plaintiffs hired defendant to represent them in a contract dispute. Defendant litigated the contract dispute, ultimately trying the case to a jury. Plaintiffs prevailed, but not to the extent that they believed that they should have.

Thereafter, plaintiffs filed the complaint in this case, alleging that defendant had been negligent in his representation of them. Specifically, the complaint alleged that defendant had been negligent by, inter alia, failing to assert certain causes of action, failing to introduce certain evidence at trial, and failing to object to the introduction of other evidence at trial. The complaint also alleged that, but for defendant's negligent failures, plaintiffs would have recovered $221,800 more in damages than they did.

In response, defendant filed a motion asking the court either to dismiss the complaint for failure to state a claim or, alternatively, to strike particular allegations or make those allegations more definite and certain. See ORCP 21 A(8), D, E. In support of the motion, defendant argued that, because plaintiffs had alleged legal malpractice, plaintiffs needed to plead the “case within a case.” That is, plaintiffs needed to allege facts to establish (1) that they had additional valid claims in the underlying contract dispute, and (2) that defendant's negligence prevented them from fully recovering on those claims. See, e.g., Harding v. Bell, 265 Or. 202, 205, 508 P.2d 216 (1973) (the plaintiff in a legal malpractice action must prove that, but for the defendant's negligence, the outcome in the underlying case would have been [248 Or.App. 85] different); see also Watson v. Meltzer, 247 Or.App. 558, 566, 270 P.3d 289 (2011) (“[T]he general requirement that a plaintiff [in a legal malpractice case] demonstrate that he or she would have obtained a more favorable

[273 P.3d 176]

result but for the negligence of the defendant has been referred to as a requirement of proving a ‘case within a case.’ ”). It was not sufficient, defendant argued, for plaintiffs to allege only that defendant should have brought particular causes of action, they also had to allege facts from which a reasonable trier of fact could conclude that they would have prevailed on those causes of action.

In a written response to defendant's motion, plaintiffs conceded that they needed to plead the “case within a case” and requested leave to file an amended complaint. At the hearing on defendant's motion, defendant argued, for the first time, that plaintiffs should not be allowed to file an amended complaint. According to defendant, allowing plaintiffs to file an amended complaint would “simply put[ ] off the inevitable in this case, which is the next round of motions and summary judgment,” because, in defendant's view, plaintiffs' legal malpractice claim was “very untenable.” Plaintiffs replied that they were willing to amend the petition to allege facts to establish their claims relating to the underlying contract dispute, but that defendant was improperly seeking more than that:

“It does appear that, unlike most other cases, we have to plead the case within the case. There's this additional pleading element. And we're certainly willing to do that. But the levels of pleading that the defendant is seeking are pretty extraordinary.”

The trial court granted defendant's motion to dismiss and denied plaintiffs' request for leave to amend the complaint.

On appeal, plaintiffs assert that the trial court abused its discretion when it denied their request for leave to amend the complaint. We begin our discussion with the relevant rules. ORCP 21 A provides that, when a trial court grants a motion to dismiss, “the court may enter judgment in favor of the moving party or grant leave to file an amended complaint.” ORCP 25 A further provides that,

[248 Or.App. 86] “[w]hen a motion to dismiss or a motion to strike an entire pleading or a motion for a judgment on the pleadings under Rule 21 is allowed, the court may, upon such terms as may be proper, allow the party to amend the pleading.

(Emphasis added.)

Although a trial court is not required to grant a motion to amend under ORCP 25 A, such motions should be “liberally granted if amendment would preclude the entry of * * * a judgment.” Smith v. Washington County, 180 Or.App. 505, 524 n. 13, 43 P.3d 1171, rev. den., 334 Or. 491, 52 P.3d 1056 (2002) (citing Slogowski v. Lyness, 324 Or. 436, 439, 927 P.2d 587 (1996)) (emphasis omitted). “[A] judge should seldom dismiss a complaint with prejudice on a defendant's first pleading motion.” Dean v. Guard Publishing Co., 73 Or.App. 656, 660, 699 P.2d 1158 (1985) (emphasis in original). Indeed, when a defendant's first responsive pleading is a successful ORCP 21 motion, “the plaintiff, typically, is permitted to replead.” Ramsey v. Thompson, 162 Or.App. 139, 147, 986 P.2d 54 (1999), rev. den., 329 Or. 589, 994 P.2d 130 (2000).

We...

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7 cases
  • O'Neil v. Martin
    • United States
    • Court of Appeals of Oregon
    • October 9, 2013
    ...A, the plaintiff must file a motion for leave to file an amended complaint.”Id. at 492, 281 P.3d 639 (citing Caldeen Construction v. Kemp, 248 Or.App. 82, 90, 273 P.3d 174 (2012)). Here, plaintiff had never filed an amended complaint before the trial court granted both motions to dismiss, a......
  • Herinckx v. Sanelle
    • United States
    • Court of Appeals of Oregon
    • October 26, 2016
    ...dismissing an amended complaint with prejudice without giving the plaintiffs an opportunity to replead); Caldeen Construction v. Kemp , 248 Or.App. 82, 90, 273 P.3d 174 (2012) (concluding that the court abused its discretion by entering judgment for defendant without granting plaintiffs an ......
  • Day v. Day, A161842
    • United States
    • Court of Appeals of Oregon
    • September 18, 2019
    ...four Ramsey factors either support the proposed amendment 299 Or.App. 478 or are neutral.11 And, citing Caldeen Const., LLC v. Kemp , 248 Or. App. 82, 89, 273 P.3d 174 (2012), plaintiff contends that "[w]hen at least three of the Ramsey considerations favor allowing a party to amend, it is ......
  • Jensen v. Duboff
    • United States
    • Court of Appeals of Oregon
    • November 15, 2012
    ...Therefore, we reversed and remanded for entry of a judgment awarding attorney fees to the defendant. Id. In Caldeen Construction v. Kemp, 248 Or.App. 82, 84, 273 P.3d 174 (2012), a case that is factually similar to the present one, the plaintiffs filed a complaint alleging that the [253 Or.......
  • Request a trial to view additional results

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