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Sternberg v. Lechman-Su

Court of Appeals of Oregon

May 28, 2015

Gayle A. STERNBERG, Plaintiff-Appellant,
v.
Bradley LECHMAN-SU, Defendant-Respondent

Submitted January 2, 2015.

Page 594

[Copyrighted Material Omitted]

Page 595

Multnomah County Circuit Court. 110708916. Christopher J. Marshall, Judge.

Gayle A. Sternberg filed the briefs pro se.

Jonathan M. Radmacher and McEwen Gisvold LLP filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 596

[271 Or.App. 402] HADLOCK, J.

In this action for legal malpractice, the trial court dismissed plaintiff's third amended complaint for failure to state a claim, ORCP 21 A(8), and on the ground that the complaint showed that the action was not commenced within the time limited by statute, ORCP 21 A(9). On appeal, plaintiff challenges those rulings in her first and second assignments of error. We conclude that some of plaintiff's specifications of negligence state a claim and are not barred by the statute of limitations and, accordingly, reverse and remand for further proceedings on those specifications. We reject plaintiff's other assignments of error without discussion.[1]

On review of the grant of a motion to dismiss under ORCP 21 A(8) and (9), we accept as true " factual allegations in the complaint and all reasonable inferences arising from those allegations." Johnson v. Babcock, 206 Or.App. 217, 219, 136 P.3d 77, rev den, 341 Or. 450, 143 P.3d 773 (2006) (discussing ORCP 21 A(8)); see also Guirma v. O'Brien, 259 Or.App. 778, 780, 316 P.3d 318 (2013) (same standard under ORCP 21 A(9)). We state the relevant facts, which are few, in accordance with that standard. Plaintiff's malpractice claim arose from defendant's representation of plaintiff in a dissolution of marriage case. Plaintiff's former husband worked as an accountant for the federal government for 38 years. The dissolution court signed a general judgment on July 17, 2009.

Plaintiff, acting pro se, filed this malpractice action on July 13, 2011, slightly less than two years after the court signed the dissolution judgment. On September 7, 2011, she filed an amended complaint. Defendant moved to dismiss that complaint for failure to adequately plead causation. Alternatively, defendant moved to strike certain matters and [271 Or.App. 403] for an order requiring plaintiff to make more definite and certain the dates on which she learned of the elements of her claim against defendant. Plaintiff did not file a response to defendant's motions, and, after a hearing, the court granted them but gave plaintiff leave to replead.

Within the time allowed by the court, plaintiff filed a second amended complaint, which contained more specifications of negligence and more information about the existing specifications.[2] Defendant moved to dismiss plaintiff's second amended complaint with prejudice pursuant to ORCP 54 B(1), which provides that a defendant may move for a judgment of dismissal " [f]or failure of the plaintiff to * * * comply with ** * any order of the court," and ORCP 21 " because of (1) Plaintiff's failure to comply with this Court's Order on Defendant's first ORCP 21 motions, (2) Plaintiff's [Second] Amended Complaint's failure to state facts sufficient to state a claim for relief, and (3) the fact that Plaintiff's claim is barred by the statute of limitations." Again, plaintiff filed no ...


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