Stull v. Hoke
| Decision Date | 23 June 1995 |
| Parties | Barry Joe STULL, Appellant, v. Mary M. HOKE, Nancy C. Antal and Brownstein, Rask, Sweeney, Grim Kerr & Desylvia, Respondents. 9405-03716; CA A86270. Court of Appeals of Oregon, In Banc |
| Court | Oregon Court of Appeals |
Barry Joe Stull filed the brief pro se.
Mark W. Potter, Edward S. McGlone III and Wallace & Klor, P.C., Portland, filed the brief for respondent Mary M. Hoke.
Donald W. McEwen, Janice N. Turner and McEwen, Gisvold, Rankin, Carter & Streinz, Portland, filed the brief for respondents Nancy C. Antal and Brownstein, Rask, Sweeney, Grim, Kerr & DeSylvia.
Plaintiff appeals from the ORCP 21 dismissal of his claims for intentional and reckless infliction of emotional distress, fraud, conversion and assumpsit against defendants. We affirm.
In April and May 1994, plaintiff was incarcerated in the Oregon Department of Corrections Columbia River Correctional Institution. He tendered the complaint in this case to the prison librarian on April 11, 1994, together with an "Affidavit of Poverty" and a request for deferral of filing fees. He requested that the librarian mail the papers to the Multnomah County Court Administrator for filing. Although the court administrator received the papers on April 13, the complaint was not filed until after the court granted the fee deferral request on May 31, 1994. Thereafter, a process server purported to serve defendants with summonses and copies of the complaint.
After the complaint was filed, and service was purportedly obtained, defendants moved to dismiss the action on alternative grounds. Defendants Antal and Brownstein et al (Brownstein) moved to dismiss plaintiff's complaint pursuant to ORCP 21 A(5), on the ground that they had not been properly served with process. Alternatively, they moved to dismiss on the ground that plaintiff's claims were not commenced within the applicable statute of limitations. ORCP 21 A(9). Defendant Hoke also filed multiple motions to dismiss, including a motion to dismiss on the ground that plaintiff's action had not been commenced within the applicable statute of limitations and a motion to make specified claims more definite and certain. ORCP 21 D.
The trial court granted all motions except Hoke's motion to dismiss plaintiff's first claim for relief on the ground that it did not state ultimate facts sufficient to allege a claim. ORCP 21A(8). It reasoned that Antal and Brownstein had not been properly served and did not reach their motion seeking dismissal based on the applicable statute of limitations. As to defendant Hoke, the trial court granted her motion to dismiss on the basis that the claims against her had not been commenced within the time period permitted by the applicable statutes of limitations. It then granted leave for plaintiff to replead his "complaint" within 15 days and ordered that unless repled, the complaint would be dismissed in its entirety. When no amended complaint was filed within the time allotted, judgment for defendants was entered accordingly.
The complaint on which the trial court based its ruling regarding Hoke's motion alleges conduct on the part of defendants in connection with an underlying forcible entry and detainer action in which plaintiff was the defendant and defendant Hoke was the plaintiff. Hoke was represented by defendants Antal and Brownstein (Antal's law firm at the time) in those proceedings. The first count of the complaint alleges a claim against Hoke based on an alleged debt owed by Hoke to plaintiff. It does not involve Antal and Brownstein. The second, third and fourth counts allege claims of infliction of emotional distress and fraud against all defendants. The final count alleges a claim of conversion only against Hoke.
Plaintiff appeals and makes numerous assignments of error. However, we need not reach plaintiff's assignments of error concerning the dismissal of the complaint against Antal and Brownstein on the ground of improper service because even if the trial court erred concerning those rulings, all of plaintiff's claims were filed untimely. See Allen v. The Heil Company, 285 Or. 109, 122, 589 P.2d 1120 (1979) ().
Plaintiff's complaint was filed on May 31, 1994, and all of his claims are untimely because they were brought after the applicable statutes of limitation expired. Plaintiff's first claim is based on an alleged indebtedness and states that on or about May 5, 1987, Hoke "became indebted" to plaintiff. That claim is governed by ORS 12.080 which imposes a six-year statute of limitations. The remainder of the claims, according to plaintiff's complaint, are...
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Williams v. Jett
...Court. See Stull v. Hoke, 326 Or. 72, 948 P.2d 722 (1997) (affirming in part and reversing in part our opinion in Stull v. Hoke, 141 Or.App. 150, 917 P.2d 69 (1996), and remanding to this court for further proceedings). Our prior opinion, and the Supreme Court's opinion, did not address the......
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Stull v. Hoke
...the action was not commenced until May 31, 1994, the date on which the administrator stamped the complaint "filed." Stull v. Hoke, 141 Or.App. 150, 917 P.2d 69 (1996). We affirm in part and reverse in part the decision of the Court of ORS 12.020 governs the commencement of actions for purpo......
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Stull v. Hoke
...on May 31, 1994, and, thus, that all claims in the complaint were time barred under ORS 12.080 and ORS 12.110(1). Stull v. Hoke, 141 Or.App. 150, 917 P.2d 69 (1996). The Supreme Court affirmed in part and reversed in part, holding that the action had been commenced on April 13, 1994, and th......
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Stull v. Hoke
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