368 P.3d 60
Or. Ct. App.2016Background
- Plaintiff loaned defendant $37,311 during a romantic relationship; defendant executed a promissory note (Oct 31, 2006) with 10% interest and a mortgage securing repayment by Oct 31, 2009.
- Defendant made payments totaling $6,300, last paid Jan 2009; debt remained unpaid when plaintiff sued in Feb 2013 seeking judgment and foreclosure.
- Defendant asserted counterclaims for unjust enrichment and intentional infliction of emotional distress (IIED).
- In her reply to the counterclaims plaintiff alleged a statute-of-limitations defense only as to unjust enrichment; she did not expressly plead a limitations defense to IIED.
- Plaintiff attempted to dismiss the counterclaims as time-barred by motion; after procedural complication and a withdrawn ORCP 21 A motion, plaintiff sought an ORCP 21 C preliminary hearing; the trial court bifurcated and ultimately dismissed both counterclaims as time-barred and entered judgment for plaintiff.
- On appeal the court affirmed as to most issues but reversed the dismissal of the IIED counterclaim, holding plaintiff waived the limitations defense to IIED by not pleading it or moving before pleading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff preserved a statute-of-limitations defense to the IIED counterclaim | Plaintiff treated her reply as raising a "Statute of Limitations" defense generally and argues the heading sufficed to cover both counterclaims | Defendant contends plaintiff waived the limitations defense to IIED by failing to include it in a responsive pleading or in a pre-pleading motion under ORCP 21 | Court held plaintiff waived the limitations defense to IIED because her reply pleaded limitations only as to unjust enrichment; dismissal of IIED as time-barred reversed and remanded |
| Whether ORCP 21 permits dismissal on limitations shown by pleadings after responsive pleading filed | Plaintiff sought ORCP 21 C determination that counterclaims were time-barred on their face | Defendant argued the motion was an impermissible post-pleading ORCP 21 A dismissal and that plaintiff had lost the procedural right by filing a reply | Court noted ORCP 21 procedures and that plaintiff had withdrawn her initial ORCP 21 A motion; disposition turned on waiver, not full ORCP 21 C merits |
| Whether a heading alone in a responsive pleading can preserve a defense | Plaintiff argued a heading labeled "Statute of Limitations" could suffice to plead the defense generally | Defendant argued the substance, not the heading, controls; the allegations under the heading addressed only unjust enrichment | Court held the heading here was insufficient because the allegations under it referred only to unjust enrichment |
| Applicability of pre-Rules common-law exception (limitations apparent on face) | Plaintiff did not press the exception | Defendant did not rely on it on appeal | Court noted the common-law exception exists but declined to decide whether it applies under current ORCP schema and did not apply it here |
Key Cases Cited
- Macnab v. State of Oregon, 253 Or. App. 511, 291 P.3d 758 (Or. Ct. App. 2012) (standard of review for dismissal as time-barred on pleadings)
- Castro v. Ogburn, 140 Or. App. 122, 914 P.2d 1 (Or. Ct. App. 1996) (statute-of-limitations defense must be raised in responsive pleading or pre-pleading motion or is waived)
- Fox v. Collins, 213 Or. App. 451, 162 P.3d 998 (Or. Ct. App. 2007) (explaining requirement to plead limitations defense in answer or move to dismiss)
- Taylor v. Barbecue Time, Inc., 100 Or. App. 497, 786 P.2d 1303 (Or. Ct. App. 1990) (discussing common-law exception when claim is time barred on its face)