23
Submitted September 24, 2019, reversed and remanded with instructions to
dismiss with prejudice May 6, 2020
Richard Larry LACEY,
Plaintiff-Respondent,
v.
David K. SAUNDERS,
Defendant-Appellant.
Josephine County Circuit Court
16CV21287; A167902
466 P3d 1063
Before decedent passed away, plaintiff brought this action against him,
asserting breach of contract and other claims related to the sale of real property. After decedent’s death, appellant, the personal representative of his estate,
moved to dismiss the action with prejudice because plaintiff had failed to comply with the requirement of ORCP 34 B of substituting the personal representative as the party within 30 days of notice of death. The trial court granted that
motion, but it did so without prejudice. Appellant challenges that decision, arguing that dismissal with prejudice was required. Held: ORCP 34 B is effectively
a statute of limitations, operating as the sole procedural means through which
a claimant may continue an action that commenced before a defendant’s death.
Because plaintiff failed to comply with the rule’s time requirements, dismissal
with prejudice was the only option, and the trial court therefore erred.
Reversed and remanded with instructions to dismiss with prejudice.
William A. Marshall, Judge.
Frank C. Rote, III, filed the brief for appellant.
No appearance for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
Powers, Judge.
DeVORE, J.
Reversed and remanded with instructions to dismiss
with prejudice.
24 Lacey v. Saunders
DeVORE, J.
Before decedent passed away, plaintiff brought this
action against him, asserting breach of contract and other
claims related to the sale of real property.1 After decedent’s
death, appellant, the personal representative of his estate,
moved to dismiss the action with prejudice because plaintiff
had failed to comply with the requirement of ORCP 34 B
of substituting the personal representative as the party
within 30 days of notice of death. The trial court granted
that motion, but it did so without prejudice. Appellant challenges that decision, arguing that dismissal with prejudice was required. We agree that ORCP 34 B is effectively
a statute of limitations, operating as the sole procedural
means through which a claimant may continue an action
that commenced before a defendant’s death. Accordingly,
we reverse.
The relevant facts are procedural and undisputed.
Plaintiff initiated this action against decedent in 2016. In
August 2017, decedent passed away, and, that month, his
attorney filed in this action a notice of death and served the
notice on plaintiff. Appellant, as the estate’s personal representative, instituted probate proceedings. On January 8,
2018, appellant served on plaintiff a notice to claimants
and creditors, pursuant to ORS 115.003. On February 9,
appellant moved to dismiss the action with prejudice
because plaintiff had failed to substitute her as the named
party within 30 days of receiving the notice as ORCP 34 B
requires. On February 14, plaintiff moved to join decedent’s
estate as a party to the proceeding. The trial court determined that plaintiff had shown no good cause for delay and
that plaintiff’s motion was untimely. The court denied the
motion and dismissed the action, but without prejudice.
On appeal, appellant assigns error to the trial
court’s decision to dismiss without—rather than with—
prejudice. Ordinarily, “[t]he decision to dismiss a case with or
without prejudice is within the discretion of the trial judge,
and we review only for manifest abuse of that discretion.”
1
The complaint asserted breach of contract, temporary restraining order
and preliminary injunction, declaratory judgment, specific performance, and
interference with economic relations.
Cite as 304 Or App 23 (2020) 25
Bernard v. Gary J. Lekas, P.C.,
124 Or App 416, 418,
862
P2d 564 (1993). In this case, however, appellant argues that
the decision was not discretionary. Rather, she contends, it
was dictated as a matter of law by ORCP 34 B(2), which only
allows an action to continue if the claimant moves to substitute the personal representative or successors in interest as
a party within 30 days of receiving notice. That is, appellant
contends that ORCP 34 B serves as a statute of limitations
that requires dismissal with prejudice.
Whether dismissal with prejudice is required under
ORCP 34 B(2) is a question of legislative intent. “In construing the rules of civil procedure, we apply ordinary principles of statutory construction.” Paschall v. Crisp, 138 Or
App 618, 623,
910 P2d 407, rev den,
324 Or 176 (1996) (citing Weaver and Weaver,
119 Or App 478, 482,
851 P2d 629
(1993)). Accordingly, to understand its meaning, we examine
the text and context of the rule, looking, as necessary, to any
pertinent legislative history. See State v. Gaines,
346 Or 160,
171-73,
206 P3d 1042 (2009) (outlining the methodology).
Under ORCP 34,
“In case of the death of a party, the court shall, on motion,
allow the action to be continued:
“…
“B(2) Against such party’s personal representative or
successors in interest unless the personal representative or
successors in interest mail or deliver notice including the
information required by ORS 115.003 (3) to the claimant
or to the claimant’s attorney if the claimant is known to be
represented, and the claimant or his attorney fails to move
the court to substitute the personal representative or successors in interest within 30 days of mailing or delivery.”
Although the text of ORCP 34 is silent as to whether dismissal with prejudice is required, its context provides some
indication.
That context is the rule’s statutory history and its
underlying case law. See Chase and Chase, 354 Or 776, 782-83,
323 P3d 266 (2014) (“[T]he statutory history of [a law] and
the case law underlying its evolution provide a clearer contextual picture.”). Relevant here is former ORS 13.080,
26 Lacey v. Saunders
repealed by Oregon Laws 1979, chapter 284, section 199, the
precursor to ORCP 34. That law provided:
“Nonabatement of action or suit by death, disability or
transfer; continuing proceeding. (1) No action or suit shall
abate by the death or disability of a party, or by the transfer of any interest therein.
“(2) In case of the death of a party, the court shall, on
motion, allow the action or suit to be continued:
“…
“(b) Against his personal representative or successors
in interest at any time within four months after the date of
the first publication of notice to interested persons, but not
more than one year after his death.”
Former ORS 13.080. Former ORS 13.080 operated as “the
equivalent of a statute of limitations,” and it provided the sole
procedural means for continuing a previously commenced
action that survives a party’s death. Bell v. Tri-Met, 353 Or
535, 544,
301 P3d 901 (2013) (quoting Mendez v. Walker,
272
Or 602, 604-05,
538 P2d 939 (1975)). When a plaintiff failed
to substitute a personal representative within the limitations period of former ORS 13.080, that plaintiff was barred
from maintaining a future action. Mendez,
272 Or at 604-07.
Former ORS 13.080 was “the statutory predecessor
to ORCP 34.” Bell, 353 Or at 544. In 1978, when ORCP 34
replaced former ORS 13.080, the drafters intended it to “generally preserv[e] the existing rules” of the statute. Council
on Court Procedures, Oregon Rules of Civil Procedure,
Dec 2, 1978, 97, http://counciloncourtprocedures.org/Content/
Promulgations/1978_original_ORCP_promulgation.pdf
(CCP). Those “existing rules” encompassed what was effectively a statute of limitations, and they provided the only
avenue for maintaining an action that began before, and
then survived, a party’s death.
As the Oregon Supreme Court acknowledged,
ORCP 34, like former ORS 13.080, “provide[s] the sole procedural means for continuing a previously commenced action
that survives an injured claimant’s death.” Bell, 353 Or at
544 (discussing survival actions). Consequently, ORCP 34 B
provides the only avenue for maintaining an existing action
Cite as
304 Or App 23 (2020) 27
beyond a defendant’s death and functions as a time bar. See
Mendez,
272 Or at 606 (actions “filed prior to the death of a
defendant were intended to be continued in accordance with
the provisions of [former] ORS 13.080(2)(b),” including the
limitations period). As was true under former ORS 13.080,
a claimant who fails to substitute a personal representative
within ORCP 34 B’s timeframe is precluded from future
action.2
In light of that context, we conclude that ORCP 34 B
acts as a time limitation, providing the exclusive procedural means through which a claimant may continue an
action that began before the defendant’s death. As a result,
the trial court must grant a motion to dismiss with prejudice based on a claimant’s failure to adhere to the rule’s
time limitation. The current action commenced before decedent’s death and could only continue as ORCP 34 provides.
Plaintiff failed to comply with the rule’s time requirements.
Dismissal with prejudice was therefore the only option, and
the trial court erred by dismissing without prejudice.
Reversed and remanded with instructions to dismiss with prejudice.
2
In this case, we are not called upon to address the relationship of ORCP 15 D
to ORCP 34.
