Waddill v. Anchor Hocking, Inc.

• Decision Date: 21 July 2000
• Citation: 8 P.3d 200,330 Or. 376
• Parties: Arleen E. WADDILL, Petitioner on Review, v. ANCHOR HOCKING, INC., a Delaware corporation, Respondent on Review.
• Court: Oregon Supreme Court

8 P.3d 200

330 Or. 376

Arleen E. WADDILL, Petitioner on Review, v. ANCHOR HOCKING, INC., a Delaware corporation, Respondent on Review.

(CC 9405-03390; CA A91012; SC S44770).

Supreme Court of Oregon, En Banc.

Argued and Submitted October 12, 1999.

Decided July 21, 2000.

Kathryn H. Clarke, Portland, argued the cause for petitioner on review. With her on the briefs were Maureen Leonard and D. Lawrence Wobbrock, Portland.

Robert H. Riley, of Schiff Hardin & Waite, Chicago, argued the cause for respondent. With him on the briefs were Catherine M. Masters and Neil Lloyd, Chicago, and Stephen S. Walters, of Stoel Rives, LLP, Portland.

John Paul Graff, of Graff & O'Neil, Portland, filed the briefs on behalf of amicus curiae Oregon Trial Lawyers Association.

William Gaylord, of Gaylord & Eyerman, P.C., Portland, filed a brief on behalf of amici curiae William A. Gaylord, Linda K. Eyerman, Gaylord and Eyerman, P.C.; Arthur Johnson, Johnson, Clifton, Larson & Corson, P.C.; Mark Bocci, Pippin & Bocci; Jeffrey P. Foote; Jeffrey B. Wihtol; Larry N. Sokol, Larry N. Sokol & Associates; Ray Thomas, Swanson, Thomas & Coon; Lawrence Baron; Elden Rosenthal, Rosenthal & Greene, P.C.; Bernard Jolles, Jolles, Bernstein & Garone; Michael Williams, Williams & Troutwine, P.C.; Peter Preston, Robert Udziela, Robert Neuberger, Pozzi Wilson Atchison, LLP; Charles Paulson and Jan Baisch, Paulson and Baisch Trial Lawyers, P.C.; and Charles Tauman.

VAN HOOMISSEN, J.

Plaintiff Arleen Waddill brought this action alleging strict liability and negligence claims for personal injury. She challenges a Court of Appeals decision reversing a circuit court judgment in her favor and remanding for a new trial. Waddill v. Anchor Hocking, Inc., 149 Or.App. 464, 944 P.2d 957 (1997). For the reasons that follow, we reverse the decision of the Court of Appeals.

We take the following facts from the Court of Appeals' opinion and the record:

"Plaintiff purchased a two-gallon glass fishbowl manufactured by defendant. There is no evidence that the product was defective when manufactured. Because of normal use after purchase, the fishbowl developed a small crack that could not be seen easily. After use for several months, plaintiff cleaned the fishbowl, filled it with water and carried it, cradled in both hands, to place it on a table. As she lowered the fishbowl, it shattered before it came into contact with the table. The broken glass injured plaintiff's hands and wrists.

"As a result of her injuries, plaintiff filed this action. Over defendant's pretrial motion in limine to exclude evidence, the trial court admitted evidence about three previous complaints that had been filed against defendant involving shattered fishbowls and personal injuries to hands and wrists. At the conclusion of the trial, plaintiff moved to amend her complaint to conform to the evidence that defendant had been negligent in the manner in which it maintained records of the three prior complaints. The trial court allowed the motion over defendant's objection, and the following specification of negligence was added to the complaint: `[D]efendant was negligent * * * [i]n failing to keep records of prior lawsuits for personal injury due to breakage of the fishbowl.' The jury returned a general verdict finding defendant liable for plaintiff's injuries."

Id. at 466, 944 P.2d 957.

After the trial court entered judgment, defendant moved to dismiss plaintiff's original failure-to-warn claims and her newly added "negligent record-keeping" claim. Relying on ORCP 21 A(8),¹ defendant argued that plaintiff had failed in each instance to state ultimate facts sufficient to constitute a claim. The trial court denied the motion to dismiss, and defendant appealed.

The Court of Appeals concluded that plaintiff had stated failure-to-warn claims under both negligence and strict liability. Id. at 474, 476, 944 P.2d 957. However, the court also concluded that plaintiff had failed to state a claim for negligent record-keeping. Id. at 478, 944 P.2d 957. Because the court could not tell from the jury's general verdict whether the jury found defendant liable based on the negligent record-keeping claim or based on one or more of plaintiff's other claims, the court applied the "we can't tell" rule of Whinston v. Kaiser Foundation Hospital, 309 Or. 350, 357, 788 P.2d 428 (1990), and reversed and remanded for a new trial. Waddill, 149 Or.App. at 478-79, 944 P.2d 957. We allowed plaintiff's petition for review.

Plaintiff argues on review that the Court of Appeals should not have reached the merits of defendant's motion to dismiss for failure to state a claim because that motion was not timely. In the alternative, plaintiff argues that the court erred in concluding that her negligent record-keeping allegations failed to state a claim. Finally, plaintiff argues that, in any event, the court erred in applying Whinston.

We begin with plaintiff's first argument. Plaintiff argues that defendant waived its right to attack the legal sufficiency of her claims when defendant allowed the case to proceed to judgment without raising the sufficiency issue to the trial court. Defendant responds that it raised the issue of the legal sufficiency of the negligent record-keeping claim when it objected to plaintiff's motion to amend the complaint. At trial, defense counsel objected to the addition of the negligent record-keeping wording to the complaint on the ground that "it's evidence of the record issue, but that's not a specification of negligence." The context of defendant's argument to the trial court does not persuade us that defendant put squarely before that court the issue whether plaintiff had stated a legally cognizable claim.

ORCP 21 A requires parties to state the grounds on which a defense of failure to state a claim is based "specifically and with particularity." Defendant, however, neither referred to ORCP 21 A(8) nor worded its objection to resemble the wording contained in that rule: "failure to state ultimate facts sufficient to constitute a claim * * *." Although defendant could have elaborated on what it had said in a manner that properly would have raised an ORCP 21 question, examination of the colloquy between the court and counsel shows that defendant was arguing something quite different. The trial judge apparently understood defendant to have argued that, because the evidence of negligent record-keeping had been objected to in limine, plaintiff's complaint should not have been amended to conform to that evidence. During that colloquy, defendant did not clarify its position.

Because we conclude that defendant's objection did not raise the issue of failure to state ultimate facts sufficient to constitute a claim, we must consider whether, as plaintiff claims, defendant's failure to raise that issue before the trial court entered judgment precludes defendant from attacking on appeal the sufficiency of plaintiff's claims. Resolution of that issue requires us to determine when, if ever, a party forfeits the right to challenge the legal sufficiency of an opponent's allegations. At the trial court level, ORCP 21 governs that type of challenge.

ORCP 21 G(3) provides:

"A defense of failure to state ultimate facts constituting a claim * * * may be made in any pleading permitted or ordered under Rule 13 B or by motion for judgment on the pleadings, or at the trial on the merits."

(Emphasis added.) We interpret Oregon's Rules of Civil Procedure in the same manner in which we interpret Oregon's statutes. State v. Arnold, 320 Or. 111, 119, 879 P.2d 1272 (1994). Adhering to the methodology set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993), we first look to the text and context of the rule.

The text of the rule identifies three times at which a party may assert the defense: (1) in any pleading permitted or ordered under Rule 13 B; (2) by motion for judgment on the pleadings; and (3) at the trial on the merits. Applying the maxim of inclusio unius est exclusio alterius ("the inclusion of one is the exclusion of the other," see Fisher Broadcasting, Inc. v. Dept. of Rev., 321 Or. 341, 353, 898 P.2d 1333 (1995)

(applying maxim to text of statute at first level of interpretive analysis)), we conclude that the specification of those three times indicates an intent on the part of the Council on Court Procedures to limit the times at which a party may raise that defense to those three and to make the defense otherwise unavailable.² As a practical matter, therefore, a party may not raise an ORCP 21 A(8) defense after the last of those three times, i.e., the trial on the merits, has passed. In this case, then, we must determine whether the trial on the merits had concluded when defendant made its motion.

Here, both parties refer to defendant's motion to dismiss as a "post-trial" motion and, without deciding precisely when a trial on the merits ends, we assume, as do the parties by their terminology, that the trial on the merits has ended at least by the time when judgment is entered. As noted, the motion here followed entry of judgment. The motion, therefore, was untimely under ORCP 21 G(3).

Defendant argues that, before ORCP 21 became effective on January 1, 1980, Oregon court decisions had allowed a party to raise the defense of failure to state a claim for the first time on appeal. See, e.g., Fulton Ins. v. White Motor Corp., 261 Or. 206, 210, 493 P.2d 138 (1972)

(so allowing). Defendant reasons that, if the defense of failure to state a claim can be raised for the first time on appeal, surely it can be raised for the first time while the case is pending in the trial court, albeit after...