WELLS FARGO BANK, N.A., its successors in interest and/or assigns, Plaintiff-Respondent,
Merri Sue CLARK, as Trustee of the Richard W. Clark and Merri Sue Clark Revocable Living Trust under Trust Agreement dated July 26, 1994; Merri Sue Clark, individually; Richard W. Clark, aka Richard Warren Clark, as Trustee of the Richard W. Clark and Merri Sue Clark Revocable Living Trust under Trust Agreement dated July 26, 1994; and Richard W. Clark, aka Richard Warren Clark, individually, Defendants-Appellants, and SELCO COMMUNITY CREDIT UNION, et al., Defendants.
Submitted February 3, 2017.
County Circuit Court 161420692; Charles D. Carlson, Judge.
Sue Clark and Richard W. Clark filed the briefs for
appellants pro se.
J. Salmon fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Or.App. 198] Case Summary: Defendants appeal a trial court
judgment dismissing this action, because it prevents
defendants from pursuing counterclaims that defendants sought
to bring against plaintiff. Defendants moved to dismiss
plaintiff's complaint, but before the court ruled on that
motion, defendants also fled an answer and counterclaims.
After the court granted defendants' motion to dismiss,
defendants sought to proceed on their counterclaims. The
court instead entered a judgment that dismissed the entire
case, concluding that defendants could not file a motion to
dismiss and a responsive pleading at the same time.
Held: Because the Oregon Rules of Civil Procedure
did not prohibit defendants from fling their answer and
counterclaims before the court ruled on their motion to
dismiss, the trial court erred in dismissing the entire case.
and remanded with respect to defendants' counterclaims;
Or.App. 199] ARMSTRONG, P. J.
appeal a judgment dismissing this action because it prevents
defendants from pursuing counterclaims that they sought to
bring against plaintiff. We conclude that the trial court
erred. Accordingly, we reverse and remand with respect to
defendants' counterclaims but otherwise affirm.
relevant facts in this case are undisputed and primarily
procedural. Plaintiff filed a complaint against defendants,
among others, for judicial foreclosure of real property. In
response, defendants filed a motion to dismiss the complaint
under ORCP 21 A, asserting that plaintiff lacked standing and
was not the real party in interest. On the same morning as
the hearing on defendants' motion to dismiss, two things
happened: Plaintiff filed a notice of voluntary dismissal of
the complaint without prejudice and submitted a general
judgment of dismissal for the court to sign; and defendants
filed a pleading that answered plaintiff's complaint and
asserted counterclaims against plaintiff. At the hearing, the
parties made the court aware of those filings and discussed
them with the court, but the court did not make any rulings
with respect to them. The court granted defendants'
motion to dismiss but did not enter a judgment at that time.
months later, defendants filed a notice of intent to apply
for an order of default against plaintiff on defendants'
counterclaims. Plaintiff replied, denying every allegation of
the counterclaims. Defendants moved to strike plaintiff's
reply as a "sham" that was "false on its
face" because it denied facts previously alleged by
plaintiff in its complaint. In response, plaintiff asserted
that defendants were not permitted under the procedural rules
to file counterclaims while their motion to dismiss was
pending. Because the motion to dismiss had been granted,
plaintiff argued, there was nothing left to litigate.
Plaintiff also submitted a general judgment of dismissal for
the court's signature. Defendants moved to strike
plaintiff's proposed judgment. The day after defendants
filed their motion to strike, the trial court signed a
general judgment of dismissal without ruling on
defendants' pending motions.
Or.App. 200] The court later held a hearing on
defendants' motions, which it denied by written order. In
its order, the court concluded that, because defendants had
chosen to make their initial appearance by filing a motion to
dismiss under ORCP 21 A, they "had no right to submit
further pleadings in the form of an answer and counterclaim
until the motion to dismiss had been ruled upon or
withdrawn." The court further concluded that, as a
result, defendants' answer and counterclaims were "a
legal nullity that should not have been filed, [because]
[p]arties are not allowed to file an appearance by motion
under ORCP 21 and a responsive pleading under ORCP 19 at the
same time." The court reasoned that, because it had
granted defendants' motion to dismiss, the case was
concluded "except for the submission of an appropriate
general judgment." With respect to the submitted
judgment, the court concluded that there was no basis on
which to set it aside. Finally, the court advised defendants
that, if they wished to pursue claims against plaintiff, then
they "will need to file those claims as the plaintiff in
a separate action."
appeal, defendants argue that nothing in the procedural rules
or Oregon case law prohibits a party from filing
counterclaims while a motion to dismiss is pending.
Defendants assert that, to the contrary, the text of those
rules allows such a procedure and nothing about that approach
would prejudice plaintiff. Plaintiff argues that
defendants' reading of the procedural rules ignores the
implicit timing found in ORCP 21 A and ORCP 15, which,
plaintiff asserts, contemplates that a responsive pleading
and counterclaims will be filed only if a motion to dismiss
is denied. As explained below, we agree with defendants that
they were not prohibited from filing counterclaims while
their motion to dismiss was pending, and, therefore, we
reverse and remand the judgment of the court with respect to
the trial court's ruling that defendants'
counterclaims were a "legal nullity" involves a
question of statutory construction, we review it for legal
error. Delcastillo [294 Or.App. 201] v.
Norris,197 Or.App. 134, 140, 104 P.3d 1158, rev
den,338 Or. 488 (2005). In construing the procedural
rules, our task is to discern the intentions of the Council
on Court Procedures in adopting them and, doing that, we use
"the same analytical method that applies to statutory
construction." Rains v. Stayton Builders Mart,
Inc.,258 Or.App. 652, 658, 310 P.3d 1195 (2013);
see also Waddill v. Anchor Hocking, Inc., 330 Or.
376, 382 n 2, 8 P.3d 200 (2000), adh'd to on
recons,331 Or. 595, 18 P.3d 1096 (2001) ("[U]nless
the legislature amended the rule at issue in a particular
case in a manner that affects the issues in that case, the
Council's intent governs the interpretation of the
rule."). In this case, the legislative history of the
relevant rules is not useful to our analysis; thus, we focus
on the text of those rules. See State ...