Mitchell v. The Timbers

• Decision Date: 13 October 1999
• Citation: 163 Or. App. 312,987 P.2d 1236
• Parties: Steven N. MITCHELL, Appellant, v. THE TIMBERS, Respondent.
• Court: Oregon Court of Appeals

987 P.2d 1236

163 Or. App. 312

Steven N. MITCHELL, Appellant, v. THE TIMBERS, Respondent.

(97-CV-0169-ST; CA A103184)

Court of Appeals of Oregon.

Argued and Submitted April 9, 1999.

Decided October 13, 1999.

Warren John West, Bend, argued the cause and filed the briefs for appellant.

Robert L. Nash, Bend, argued the cause and filed the brief for respondent.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

De MUNIZ, P.J.

Plaintiff appeals from the trial court's judgment dismissing this personal injury action with prejudice. We reverse.

Plaintiff was injured on November 17, 1995 when he was assaulted by two patrons in The Timbers, a tavern in Bend. On April 2, 1997, plaintiff filed a complaint, seeking damages for negligence, that named "THE TIMBERS" as the only defendant. The Timbers (defendant) is an assumed business name, see ORS 648.005(1), registered to Stanley Sanglier. ¹ The summons, directed to "STANLEY SANGLIER, THE TIMBERS, DEFENDANT[,]" and complaint were served on Sanglier on April 15, 1997. Plaintiff subsequently filed an amended complaint that increased the amount of damages. On May 22, 1998, defendant filed a motion to dismiss for lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of summons or service of summons or process, failure to join a party under ORCP 29 and failure to state ultimate facts sufficient to constitute a claim. See generally ORCP 21 A. The gist of defendant's motion to dismiss was that plaintiff had failed to name as defendant an entity capable of being sued. The parties had corresponded and had begun discovery between the time the complaint was filed and the time defendant's ORCP 21 A motion to dismiss was filed. On June 5, 1998, plaintiff filed a motion for leave to file a second amended complaint that named as defendants: "STANLEY P. SANGLIER: THE TIMBERS: STANLEY P. SANGLIER d.b.a. THE TIMBERS: DOES 1-8." The proposed second amended complaint alleged that at all material times Sanglier "was listed with the Oregon Liquor Control Commission as the issuee of the license in effect for the Defendant the TIMBERS. Defendant SANGLIER held such license as STANLEY P. SANGLIER D.B.A. THE TIMBERS."

The trial court denied plaintiff's motion for leave to file the second amended complaint and granted defendant's motion to dismiss plaintiff's first amended complaint. It reasoned that the action was not commenced against Sanglier within the statute of limitations, ORS 12.020, and that plaintiff's proposed amendment could not relate back to the action to avoid the statute of limitations. See ORCP 23 C. On appeal, plaintiff assigns error to the court's ruling granting defendant's motion to dismiss and the denial of plaintiff's motion to file a second amended complaint.

Plaintiff's principal argument on appeal is that ORCP 23 C allows the filing of an amended complaint after a statute of limitations has run if it relates back to an original filing made before the expiration of the statute of limitations. Plaintiff asserts that Sanglier had notice of the action before the statute of limitations expired. ORCP 23 C provides:

"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, such party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining any defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party brought in by amendment."

See also Welch v. Bancorp Management Advisors, 296 Or. 208, 223, 675 P.2d 172 (1983)

(in applying ORCP 23 C relation back provisions, court notes that "we are admonished to construe the pleadings liberally with a view of substantial justice between the parties").

ORCP 23 C may, in some circumstances, be used either to substitute one defendant for another or to correct the name of a defendant who was named incorrectly in the original complaint. Compare Herman v. Valley Ins. Co., 145 Or.App. 124, 928 P.2d 985 (1996),

rev. den. 325 Or. 438, 939 P.2d 621 (1997) (where plaintiff named and served wrong company with similar name to proper defendant, complaint did not relate back under ORCP 23 C because proper defendant did not receive notice within the statute of limitations) with Johnson v. Manders, 127 Or.App. 147, 872 P.2d 420,

rev. den. 319 Or. 149, 877 P.2d 86 (1994) (where complaint named only the estate of deceased tortfeasor, amended complaint naming personal representative of deceased who was properly served related back to original complaint).

Plaintiff argues that the focus of ORCP 23 C is notice to the defendant of the plaintiff's claim before the expiration of the statute of limitations. He asserts that, because it is undisputed that Sanglier received notice of the claim within the statute of limitations and has not been prejudiced by plaintiff's failure to name him as a defendant, we should reverse the trial court's dismissal of the action and allow the second amended complaint to be filed.

Defendant responds that a complaint against a "fictitious name, a non-entity, which does not name or refer to any individual living person or entity capable of being sued, does not commence an action[,]" citing Robinson v. Scott, 81 Or. 20, 158 P. 268 (1916), as authority. Consequently, defendant argues, there is no action to which an amendment can relate back under ORCP 23 C. Defendant further argues that notice to a defendant of the claim before the expiration of the statute of limitations is insufficient to avoid the statute of limitations when a plaintiff has not filed a claim naming an individual capable of being sued before expiration of the statute of limitations. According to defendant, the cases relied on by plaintiff are distinguishable because they involved complaints naming persons capable of providing a basis for jurisdiction of the court. See, e.g., Mills v. Feiock, 229 Or. 618, 622, 368 P.2d 327 (1962)

(executor filed general appearance that submitted him to jurisdiction of court); Parker v. May, 70 Or.App. 715, 690 P.2d 1125 (1984),

rev. den. 299 Or. 31, 698 P.2d 964 (1985) (trial court did not abuse discretion in allowing amended complaint that changed name of plaintiff from father to son where original complaint notified defendants of claim and they knew about mistaken identity of plaintiff).

In reviewing the granting of a motion to dismiss, we assume the truth of all allegations, as well as any inferences that may be drawn, and view them in the light most favorable to the nonmoving party. Jaqua v. Nike, Inc., 125 Or.App. 294, 296, 865 P.2d 442 (1993). When the motion is granted based on the expiration of the statute of limitations, our review is limited to what appears on the face of the pleading. See id. Regarding the related motion to amend the complaint, we review the trial court's decision for abuse of discretion. Jones v. Lachman, 96 Or.App. 246, 249, 773 P.2d 1, rev. den. 308 Or. 184, 776 P.2d 1291 (1989).

As noted above, defendant's assertion that the proposed second amended complaint does not relate back rests on the proposition that a complaint naming a defendant that is not a living person or a legal entity capable of being sued does not actually commence an action. Robinson, the case on which defendants rely, did indeed stand for that proposition:

"When the complaint was filed it named J.S. Walker as the sole defendant, but he had died several months before the filing of the complaint, and consequently there was in reality no defendant at all. The very existence of a cause of suit implies that there is some competent person to be sued, and for that reason a suit cannot be maintained if a defendant is lacking * * *. There was no existing defendant at the time the complaint was filed, and therefore there was no action to abate or to continue * * *. A judgment against J.S. Walker would have been a nullity * * *, and the complaint upon which judgment was based would be as much of a nullity as the judgment itself. Since there was no action, there was nothing to amend or continue * * *." Robinson, 81 Or. at 29, 158 P. 268 (citations omitted).

However, Robinson was decided well before the modern rule of procedure found in ORCP 23 C. In Smith v. Wells, 128 Or.App. 492, 876 P.2d 850 (1994), we noted as much, concluding that, since Robinson was decided, the courts have followed "a legislatively directed trend away from strict construction of pleadings." Id. at 498, 876 P.2d 850, quoting Adams v. Oregon State Police, 289 Or. 233, 240, 611 P.2d 1153 (1980)

.

Robinson is analytically irreconcilable with case law applying ORCP 23 C to situations where a defendant has been misnamed in a complaint. In Harmon v. Meyer, 146 Or. App. 295, 933 P.2d 361 (1997), we addressed the proper application of ORCP 23 C to situations where a defendant has been misnamed in a complaint. In Harmon, the plaintiff named as a defendant "Interlake, Inc., a Delaware Corporation." At the time the complaint was filed there was no such entity as Interlake, Inc., operating in Oregon. Id. at 297, 933 P.2d 361. The plaintiff properly served his complaint on the entity he intended to sue, but that entity's actual name was "The Interlake Companies, Inc." Id. The trial court ruled that...