Lamka v. KeyBank
250 Or. App. 486
Or. Ct. App.2012Background
- Plaintiff bought a boat and trailer from Bridge City Watersports in November 2006, financed by KeyBank, with title in plaintiff's name and KeyBank holding the security interest.
- Bridge City Watersports sold the same boat and trailer to Messmer in November 2007, with KeyBank financing Messmer's purchase; both KeyBank and Bridge City knew plaintiff owned the boat at that time.
- Plaintiff was unaware of the 2007 sale and later discovered it; in December 2009 plaintiff filed negligence and conversion claims against KeyBank, Bridge City Watersports, and an employee of Bridge City.
- KeyBank moved to dismiss under ORCP 21 A(8); the trial court granted dismissal, stating the losses were economic under the economic loss doctrine and there was no special relationship.
- Plaintiff amended the complaint in April 2010; KeyBank answered; the court issued an order indicating no authority to amend and then entered a judgment dismissing KeyBank, later corrected.
- The appellate court held the trial court erred by dismissing the amended complaint as a matter of right and erred in applying the economic loss doctrine and the intervening criminal acts defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff could amend as a matter of right before a responsive pleading | Plaintiff amended before KeyBank served a responsive pleading, entitled to amend as of right. | Once ORCP 21 A dismissal occurred, amendments required leave of court; right to amend not applicable post-dismissal. | Amendment as of right existed; court erred in denying amendment. |
| Whether ORCP 21 A governs amendment after dismissal and requires leave | ORCP 21 A allows leave or amendment if justified; plaintiff should not be barred. | After dismissal, amendment requires leave under ORCP 21 A; no leave was sought/granted. | ORCP 21 A does not bar amendments; plaintiff could amend as a matter of right before responsive pleading; error to dismiss. |
| Whether the 10-day requirement of ORCP 15 B(2) applied to amended pleading after dismissal | Amended pleading timely filed under ORCP 15 B(2) after service of dismissal order with tolling by notice and mail. | Amendment not timely filed; dismissal order silent on timing; Rule required timely filing. | Amendment timely filed; dismissal relying on untimely amendment was error. |
| Whether the economic loss doctrine bars plaintiff's negligence claim | Plaintiff's injuries extend beyond purely economic loss; claims arise from loss of use and diminished value of property. | Economic loss doctrine bars such claims absent injury to person or property. | Not barred; pleadings show injury to property beyond pure economic loss. |
| Whether intervening criminal acts sever KeyBank's causal liability | KeyBank knowingly financed a sale that harmed plaintiff, facilitating the injury. | Intervening criminal acts could sever liability. | Insufficient to sever causation; KeyBank's conduct could foresee harm; not the type of intervening act that breaks the chain. |
Key Cases Cited
- Scovill v. City of Astoria, 324 Or 159 (1996) (standard for reviewing ORCP 21 A motions; accept allegations true)
- Patterson v. Wasner, 128 Or App 254 (1994) (timing for amended pleadings after dismissal order; 10-day rule)
- Quillen v. Roseburg Forest Products, Inc., 159 Or App 6 (1999) (once-right amendment before responsive pleading)
- Caldeen Construction v. Kemp, 248 Or App 82 (2012) (abuse of discretion denying amendment under ORCP 21 A)
- Yanney v. Koehler, 147 Or App 269 (1997) (standard of review for ORCP 21 A dismissal rulings)
- Harris v. Suniga, 344 Or 301 (2008) (economic loss doctrine; distinction between economic loss and property/person injury)
- Onita Pacific Corp. v. Trustees of Bronson, 315 Or 149 (1992) (definition of economic losses)
- Buchler v. Oregon Corrections Div., 316 Or 499 (1993) (intervening criminal acts and liability context)