272
Submitted November 5, 2021, affirmed January 26, 2022
Karin SIX,
Personal Representative of the Estate of
Shirley A. Moore-Carsten, Deceased,
Plaintiff-Appellant,
v.
Theresa BILYEU,
Dan Bilyeu, Russell Raines,
Jason Carsten, Justin Carsten,
Kristen Larson, all individuals,
Defendants-Respondents,
and
DOES 1-25,
Defendants.
Deschutes County Circuit Court
19CV01783; A174347
505 P3d 1071
Raymond D. Crutchley, Judge.
Karin Six filed the brief for appellant pro se.
Nathan G. Steele filed the brief for respondent, Kristen
Larson. Also on the brief was The Steele Law Firm, P.C.
No appearance for respondents, Theresa Bilyeu, Dan
Bilyeu, Russell Raines, Jason Carsten, and Justin Carsten.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
PER CURIAM
Affirmed.
Cite as
317 Or App 272 (2022) 273
PER CURIAM
Plaintiff appeals a general judgment dismissing
her amended complaint with prejudice; the trial court denied
her motion for leave to file a second amended complaint.
Plaintiff alleged claims for elder abuse, as well as tort
claims. On appeal, plaintiff challenges the dismissal of her
elder abuse claims and also the denial of leave to amend. We
affirm for the reasons that follow.
A detailed recitation of the facts would not benefit the bench, bar, or public. In short, plaintiff’s mother,
Shirley, passed away in 2017 and was predeceased by her
husband, Howard. Howard’s estate went through probate
with his daughter—Shirley’s stepdaughter and plaintiff’s
stepsister—as his personal representative. Plaintiff is the
personal representative for Shirley’s estate. After an unsuccessful challenge to the probate proceedings of Howard’s
estate, plaintiff brought this case pro se to reallege improprieties regarding those proceedings and to allege that her
stepsister and several other parties involved in the management and distribution of both estates committed elder abuse
of her mother.
In the course of the proceedings below, plaintiff submitted several versions of her complaint to the trial court
and defendants responded with a variety of motions. Several
trial court orders resulted. Relevant to the matter on appeal,
the first of two orders on all pending motions identified plaintiff’s first amended complaint, as filed in February 2019, as
the operative complaint. In its second order on all pending
motions, issued in February 2020, the court ordered plaintiff to “submit a Motion for Leave to File a Second Amended
Complaint …. The proposed Second Amended Complaint
must be attached to the Motion for Leave[.]” In that order,
the court warned that “[t]o the extent that Plaintiff’s proposed Second Amended Complaint fails to state cognizable claims for relief, the claims not properly stated will be
subject to being dismissed with prejudice.” A minute order,
issued a few days before the February order, documented
that the trial court “went over last amended complaint with
Plaintiff, struck some parts, and noted where claims needed
to be made ‘more definite and certain.’ ” The court advised
274 Six v. Bilyeu
plaintiff that she “must provide copy of motion and proposed
2nd amended complaint to [opposing counsel] …. Once
conferral is done and counsel agree that it complies with
the required ORCPs and UTCRs (or Plaintiff believes that
it does),” plaintiff was advised that she may file the motion.
After exchanging drafts with opposing counsel, but
before they agreed that the documents “complie[d] with the
required ORCPs and UTCRs,” plaintiff filed her motion for
leave with a proposed second amended complaint attached.
Defendants filed timely motions in opposition. The court
subsequently issued an order denying plaintiff’s motion
for leave and dismissing her claims “[p]ursuant to the
February 18, 2020-Order[.]” The court responded to each of
the 10 claims listed in plaintiff’s proposed second amended
complaint, explaining how each claim failed. Ultimately, the
trial court determined that the proposed second amended
complaint did not state any cognizable claim for relief and
consequently denied plaintiff’s motion for leave to file the
amended complaint and dismissed with prejudice the claims
alleged in the first amended complaint in accordance with
its earlier order. Plaintiff appeals.
On appeal, plaintiff asserts a single assignment of
error: “The Trial Court Erred When it Denied Petitioner’s
Claims for Elder Abuse.” Defendants, save one, have not
appeared on appeal. The one defendant who has appeared
asserts that plaintiff has not properly challenged the trial
court’s ruling and, in all events, that the trial court properly
dismissed the complaint.
We understand plaintiff to contend on appeal that the
court erred when it rejected the proposed second amended
complaint and, correspondingly, dismissed the case with
prejudice, as the court had warned it would do in its prior
letter. To the extent plaintiff challenges the trial court’s
handling of her elder abuse claim or claims, we conclude
that the assignment of error is properly presented, contrary
to the appearing defendant’s argument.
Although properly presented, the assignment of
error does not provide grounds for reversal. The proposed
second amended complaint alleged a single claim for elder
abuse, combining within that claim a claim for financial
Cite as 317 Or App 272 (2022) 275
abuse under ORS 124.110, and a separate claim for physical
abuse under ORS 124.105. The trial court found that that
did not constitute a cognizable claim, dismissed the claim
insofar as it was presented in the first amended complaint,
and denied leave to file the proposed second amended complaint on two alternative grounds: failure to comply with
ORCP 16 C and failure to state ultimate facts sufficient to
state a claim, as required under ORCP 21 A(8). We affirm
the dismissal on ORCP 16 C grounds. That rule requires
that a pleading consist of “plain and concise statements in
paragraphs consecutively numbered” and for “[e]ach separate claim … [to] be separately stated.” On appeal, plaintiff
has not meaningfully addressed why the trial court erred
in concluding that her proposed second amended complaint
did not comply with that rule, in view of how the allegations
of financial elder abuse were intermingled with the allegations of physical elder abuse. As a result, her arguments on
appeal supply us with no basis to disturb the trial court’s
ruling that the claim was not pleaded in a way that satisfied
ORCP 16 C.1
To the extent that plaintiff assigns error to the dismissal of her other claims, or to the denial of her motion for
leave to file the second amended complaint, those assignments have not been properly presented in compliance with
the Oregon Rules of Appellate Procedure and have not been
adequately developed for our review. ORAP 5.45 requires
that plaintiff’s briefing “identify precisely the … ruling
that is being challenged,” that it set out plaintiff’s assignments of error under separate numbered headings, and that
it set out the correct standard of review for each assignment
of error. Plaintiff’s brief, as noted, asserts a single assignment of error, challenging the dismissal of the elder abuse
claims; there are no assignments of error challenging the
dismissal of the other claims. That framing of the appeal
means that the trial court’s dismissal of the balance of plaintiff’s claims is not properly before us. See State v. Link, 367
1
A failure to comply with pleading requirements like those in ORCP 16 C
is not a matter of academic formalism in a case like this one; the structure of
plaintiff’s elder abuse claim would make it difficult for the named defendants
to discern precisely how, as individuals, they were alleged to have violated ORS
124.105 and ORS 124.110.
276 Six v. Bilyeu
Or 625, 637-42, 482 P3d 28 (2021) (discussing “bedrock principle of appellate jurisprudence that courts generally should
decide cases as framed by the parties’ properly raised and
preserved arguments”); see also State v. Palmer,
35 Or App
125, 128,
580 P2d 592 (1978) (“A defendant appearing pro se
must inform himself of and comply with court rules as any
other litigant.”).
Affirmed.
