Lamka v. KeyBank

281 P.3d 639, 250 Or. App. 486, 2012 WL 2335918, 2012 Ore. App. LEXIS 774
CourtCourt of Appeals of Oregon
DecidedJune 20, 2012
Docket091216815; A145829
StatusPublished
Cited by6 cases

This text of 281 P.3d 639 (Lamka v. KeyBank) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lamka v. KeyBank, 281 P.3d 639, 250 Or. App. 486, 2012 WL 2335918, 2012 Ore. App. LEXIS 774 (Or. Ct. App. 2012).

Opinion

WOLLHEIM, J.

Plaintiff purchased a boat and trailer from Bridge City Watersports in a transaction financed by KeyBank. Later, Bridge City Watersports sold the same boat and trailer to a third party in a transaction that was also financed by KeyBank. Plaintiff filed a claim against Bridge City Watersports and KeyBank for negligence. Defendant KeyBank1 filed an ORCP 21 A(8) motion to dismiss, which the trial court granted. Plaintiff then filed an amended complaint, and defendant filed an answer and affirmative defense. However, the trial court concluded that plaintiff lacked authority to file that amended complaint, and the trial court entered a judgment dismissing the claim against KeyBank. Because we conclude that the trial court erred in dismissing plaintiffs amended complaint against KeyBank and in entering judgment for KeyBank, we reverse and remand.

In reviewing the trial court’s order granting KeyBank’s motion to dismiss, we accept all well-pleaded allegations from the complaint as true and give plaintiff the benefit of all favorable inferences that may be drawn from the allegations. Scovill v. City of Astoria, 324 Or 159, 164, 921 P2d 1312 (1996).

In November 2006, plaintiff bought a new boat and trailer from Bridge City Watersports. The purchase price of the boat and trailer was approximately $90,000. To finance the purchase, plaintiff obtained a consumer installment loan from KeyBank. The boat and trailer were registered in plaintiffs name; plaintiff held title and KeyBank maintained a security interest. Plaintiff stored the boat and trailer at Bridge City Watersports, and plaintiff made all monthly payments in a timely fashion.

In November 2007, Bridge City Watersports sold plaintiffs boat and trailer to a third party named Messmer, and KeyBank financed Messmer’s purchase of plaintiffs boat and trailer. At the time of the sale and financing of plaintiffs boat and trailer to Messmer, KeyBank and Bridge City [489]*489Watersports were both aware that plaintiff owned the boat and trailer. At the time of the 2007 sale, plaintiff did not know that his boat and trailer had been sold to Messmer or that KeyBank had financed the purchase. Later, plaintiff discovered his boat and trailer had been sold without his permission.

In December 2009, plaintiff filed a complaint against KeyBank, Bridge City Watersports, and a Bridge City Watersports employee, claiming negligence. Plaintiff alleged that, as a result of KeyBank financing Messmer’s purchase, plaintiff had been denied the use and enjoyment of his boat and trailer. Plaintiff also alleged that, as a result of the sale and financing of the boat and trailer, “[t]he value of the boat has markedly deteriorated, and is now estimated to be $60,000.”2 Plaintiff further alleged that, “[a]s a result of the conduct of KeyBank, Bridge City Watersports, and [its employee], plaintiff has suffered damages in an amount to be determined at trial but believed to exceed $140,000, as follows: value of boat and trailer, $100,000; loss of profits from the use of the boat $40,000.” Plaintiff also filed a claim for relief against Bridge City Watersports and the employee for conversion.

KeyBank filed a motion to dismiss under ORCP 21 A(8), arguing that the complaint failed to state facts sufficient to constitute a claim because plaintiffs claim was barred by the economic loss doctrine and that plaintiffs damages were caused by the intervening criminal conduct of Bridge City Watersports, and not KeyBank’s negligence.

On March 29, 2010, the trial court granted KeyBank’s motion to dismiss.3 The court ruled, “Plaintiffs losses do not arise from any injury to person or property and are therefore economic losses within the meaning of the economic loss doctrine. Nor is there any special relationship between KeyBank and plaintiff that might avoid the application of the doctrine.” The court also stated, “Defendant KeyBank also claims that the intervening criminal acts of the [490]*490other defendants insulate it from liability to the plaintiff. That contention is supported by the decision in Buchler [v. Oregon Corrections Div., 316 Or 499, 853 P2d 798] (1993).” The court’s order does not specify whether the motion to dismiss was granted with or without prejudice.

On April 9, plaintiff filed and served a first amended complaint, claiming that KeyBank breached its duty of good faith and fair dealing; plaintiff also alleged claims against Bridge City Watersports and its employee for negligence and conversion.4 On April 21, KeyBank filed an “Answer and First Affirmative Defenses to Plaintiffs First Amended Complaint.” That answer was the first responsive pleading that KeyBank filed. KeyBank’s answer alleged that “KeyBank objects to the Complaint on the grounds that on or about March 29, 2010, the court ordered the case against KeyBank dismissed, without leave to amend. Thus, KeyBank denies the allegations in the Complaint in their entirety.” Plaintiff objected to KeyBank’s request to enter judgment of dismissal.

In an “Order Allowing Entry of Judgment,” the court stated:

“The right to replead under ORCP 21 A is contingent. In this case it was neither sought by the plaintiff nor granted by the court. There being no authority for the filing of an amended complaint, neither it nor the answer filed in response to it are sufficient to avoid the entry of a judgment in favor of defendant KeyBank.”

On May 17, the court entered a judgment of dismissal and money award, dismissing plaintiffs claims against KeyBank. Later, the court entered a corrected limited judgment of dismissal and money award.

Plaintiff asserts that the trial court erred in entering judgment for KeyBank, because plaintiff could amend the complaint once as a matter of right under ORCP 23 A before KeyBank filed a responsive pleading. KeyBank relies on ORCP 21 A to argue that the trial court did not err in entering judgment because the court had not granted leave for plaintiff to file an amended complaint. For the reasons that [491]*491follow, we agree with plaintiff that the trial court erred in entering a judgment dismissing the complaint.

We review a trial court’s ruling on a motion to dismiss under ORCP 21 A for errors of law. Yanney v. Koehler, 147 Or App 269, 272, 935 P2d 1235, rev den, 325 Or 368 (1997). Under ORCP 23 A, a party may amend a pleading once as a matter of right before a responsive pleading is served. Quillen v. Rosehurg Forest Products, Inc., 159 Or App 6, 10, 976 P2d 91 (1999).5 Here, plaintiff amended his complaint once before KeyBank served a responsive pleading. It would appear that, under the plain language of ORCP 23 A, plaintiff had a right to file an amended complaint as a matter of law.

KeyBank contends, however, that, once the court grants a motion to dismiss, ORCP 21A provides the exclusive procedure for filing an amended complaint. ORCP 21 A provides, in part, “If the 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.” See also ORCP 25 A.6 Accordingly, KeyBank argues that plaintiff was required to seek permission from the court to file an amended complaint and, because plaintiff failed to do so, the trial court did [492]*492not err in entering judgment in favor of KeyBank.

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Cite This Page — Counsel Stack

Bluebook (online)
281 P.3d 639, 250 Or. App. 486, 2012 WL 2335918, 2012 Ore. App. LEXIS 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamka-v-keybank-orctapp-2012.