BALBOA APARTMENTS v. Patrick
263 P.3d 1011
| Or. | 2011Background
- FED action filed May 27, 2008; filing fee paid with complaint.
- Incorrect unit number listed (#20 instead of #28); service attempted at the wrong address.
- Amended complaint filed June 3, 2008 listing correct unit; no new filing fee required.
- Summons and amended complaint served June 4, 2008; defendant answered.
- Defendant moved to dismiss for lack of jurisdiction based on failure to serve within one day of fee payment; trial court denied; CA affirmed.
- Court held amended complaint supersedes original; FED procedure follows ORCP absent statute dictating otherwise; no one-day service requirement applies to amended complaint timing; service occurred well before first appearance date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether one-day service requirement applies after amendment | Patrick relies on ORS 105.135(3) and that amendment nullifies noncompliance. | Patrick failed to serve within one day; that failure deprives jurisdiction. | No; amendment supersedes original; no one-day service deadline applies to amended complaint. |
| Effect of amended complaint on FED jurisdiction | Amendment permitted under ORCP; notice adequate. | Strict adherence to service timing is required; amendment doesn’t fix timing issue. | FED rules apply; amendment preserves jurisdiction if notice and timing before first appearance are adequate. |
| Role of ORCP versus FED statute on amendments | Rules of civil procedure govern amendments absent specific FED provision. | FED statutes dictate jurisdictional timing strictly. | ORCP provisions govern amendments; no FED provision overrides them. |
| Whether failure to serve within one day deprives jurisdiction when amended complaint filed | Timing before first appearance matters; service occurred well in advance. | One-day service is mandatory regardless of amendment. | No jurisdictional defect; service more than seven days before first appearance suffices. |
Key Cases Cited
- Schroeder v. Woody, 166 Or. 93, 109 P.2d 597 (1941) (Or. 1941) (FED action not strictly limited by land-sale doctrine; not dispositive on timing rules)
- South State Inv. Co. v. Brigum, 289 Or. 109, 611 P.2d 305 (1980) (Or. 1980) (strict notice requirements; lack deprived jurisdiction in that context)
- Propp v. Long, 313 Or. 218, 831 P.2d 685 (1992) (Or. 1992) (amended pleading supersedes prior pleading; effects on notice and process)
- Olson v. Chuck, 199 Or. 90, 259 P.2d 128 (1953) (Or. 1953) (principle that amended pleading withdraws original as to party)
- Lexton-Ancira, Inc. v. Kay, 269 Or. 1, 522 P.2d 875 (1974) (Or. 1974) (FED action is a special statutory proceeding; rules apply unless statute provides otherwise)
- State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009) (Or. 2009) (statutory construction guiding analysis of statutes and canons)