Plaintiff Arleen Waddill brought this action alleging strict liability and negligence claims for personal injury. She challenges a Court of Appeals decision reversing a circuit court judgment in her favor and remanding for a new trial.
Waddill v. Anchor Hocking, Inc.,
We take the following facts from the Court of Appeals’ opinion and the record:
“Plaintiff purchased a two-gallon glass fishbowl manufactured by defendant. There is no evidence that the product was defective when manufactured. Because of normal use after purchase, the fishbowl developed a small crack that could not be seen easily. After use for several months, plaintiff cleaned the fishbowl, filled it with water and carried it, cradled in both hands, to place it on a table. As she lowered the fishbowl, it shattered before it came into contact with the table. The broken glass injured plaintiffs hands and wrists.
“As a result of her injuries, plaintiff filed this action. Over defendant’s pretrial motion in limine to exclude evidence, the trial court admitted evidence about three previous complaints that had been filed against defendant involving shattered fishbowls and personal injuries to hands and wrists. At the conclusion of the trial, plaintiff moved to amend her complaint to conform to the evidence that defendant had been negligent in the manner in which it maintained records of the three prior complaints. The trial court allowed the motion over defendant’s objection, and the following specification of negligence was added to the complaint: ‘[Defendant was negligent * * * [i]n failing to keep records of prior lawsuits for personal injury due to breakage of the fishbowl.’ The jury returned a general verdict finding defendant liable for plaintiffs injuries.”
Id. at 466.
After the trial court entered judgment, defendant moved to dismiss plaintiffs original failure-to-wam claims and her newly added “negligent record-keeping” claim. Relying on ORCP 21 A(8) 1 defendant argued that plaintiff had *380 failed in each instance to state ultimate facts sufficient to constitute a claim. The trial court denied the motion to dismiss, and defendant appealed.
The Court of Appeals concluded that plaintiff had stated failure-to-warn claims under both negligence and strict liability.
Id.
at 474, 476. However, the court also concluded that plaintiff had failed to state a claim for negligent record-keeping.
Id.
at 478. Because the court could not tell from the jury’s general verdict whether the jury found defendant liable based on the negligent record-keeping claim or based on one or more of plaintiffs other claims, the court applied the
“we
can’t tell” rule of
Whinston v. Kaiser Foundation Hospital,
Plaintiff argues on review that the Court of Appeals should not have reached the merits of defendant’s motion to dismiss for failure to state a claim because that motion was not timely. In the alternative, plaintiff argues that the court erred in concluding that her negligent record-keeping allegations failed to state a claim. Finally, plaintiff argues that, in any event, the court erred in applying Whinston.
We begin with plaintiffs first argument. Plaintiff argues that defendant waived its right to attack the legal sufficiency of her claims when defendant allowed the case to proceed to judgment without raising the sufficiency issue to the trial court. Defendant responds that it raised the issue of the legal sufficiency of the negligent record-keeping claim when it objected to plaintiffs motion to amend the complaint. At trial, defense counsel objected to the addition of the negligent record-keeping wording to the complaint on the ground that “it’s evidence of the record issue, but that’s not a specification of negligence.” The context of defendant’s argument to the trial court does not persuade us that defendant put squarely before that court the issue whether plaintiff had stated a legally cognizable claim.
*381 ORCP 21 A requires parties to state the grounds on which a defense of failure to state a claim is based “specifically and with particularity.” Defendant, however, neither referred to ORCP 21 A(8) nor worded its objection to resemble the wording contained in that rule: “failure to state ultimate facts sufficient to constitute a claim * * Although defendant could have elaborated on what it had said in a manner that properly would have raised an ORCP 21 question, examination of the colloquy between the court and counsel shows that defendant was arguing something quite different. The trial judge apparently understood defendant to have argued that, because the evidence of negligent record-keeping had been objected to in limine, plaintiffs complaint should not have been amended to conform to that evidence. During that colloquy, defendant did not clarify its position.
Because we conclude that defendant’s objection did not raise the issue of failure to state ultimate facts sufficient to constitute a claim, we must consider whether, as plaintiff claims, defendant’s failure to raise that issue before the trial court entered judgment precludes defendant from attacking on appeal the sufficiency of plaintiffs claims. Resolution of that issue requires us to determine when, if ever, a party forfeits the right to challenge the legal sufficiency of an opponent’s allegations. At the trial court level, ORCP 21 governs that type of challenge.
ORCP 21 G(3) provides:
“A defense of failure to state ultimate facts constituting a claim * * * may be made in any pleading permitted or ordered under Rule 13 B or by motion for judgment on the pleadings, or at the trial on the merits.”
(Emphasis added.) We interpret Oregon’s Rules of Civil Procedure in the same manner in which we interpret Oregon’s statutes.
State v. Arnold,
The text of the rule identifies three times at which a party may assert the defense: (1) in any pleading permitted or ordered under Rule 13 B; (2) by motion for judgment on the
*382
pleadings; and (3) at the trial on the merits. Applying the maxim of
inclusio unius est exclusio alterius
(“the inclusion of one is the exclusion of the other,”
see Fisher Broadcasting, Inc. v. Dept. of Rev.,
Here, both parties refer to defendant’s motion to dismiss as a “post-trial” motion and, without deciding precisely when a trial on the merits ends, we assume, as do the parties by their terminology, that the trial on the merits has ended at least by the time when judgment is entered. As noted, the motion here followed entry of judgment. The motion, therefore, was untimely under ORCP 21 G(3).
Defendant argues that, before ORCP 21 became effective on January 1, 1980, Oregon court decisions had allowed a party to raise the defense of failure to state a claim for the first time on appeal.
See, eg., Fulton Ins. v. White Motor Corp.,
Historically, the defenses of lack of subject-matter jurisdiction and failure to state a claim were linked in Oregon law.
See McIntosh Livestock Co. v. Buffington,
“in a case where the court below was without jurisdiction or where it acted upon a pleading which was utterly destitute of legal merit, that is, which entirely failed to state a cause of action or defense, the court was without power to render a judgment that would be of any validity!.]”
The Council on Court Procedures, however, did not treat those two defenses identically in 1978 when it promulgated subsection G of ORCP 21. 3 As discussed, the defense of failure to state a claim was included in ORCP 21 G(3), a category of defenses that a party may raise only in certain circumstances, viz.,
“in any pleading permitted or ordered under Rule 13 B or by motion for judgment on the pleadings, or at the trial on the merits.”
The defense of failure to state a claim was not paired with the defense of lack of subject-matter jurisdiction. That latter *384 defense was set out separately in ORCP 21 G(4), which provides that,
“[i]f it appears by motion of the parties or otherwise that the court lacks jurisdiction over the subject matter, the court shall dismiss the action.”
Subparagraph G(4) does not specify when the defense of lack of subject-matter jurisdiction may be raised. However, this court has determined that a party may raise that defense at any time, including for the first time on appeal.
See, e.g., SAIF v. Shipley,
Our reading of the text of ORCP 21 indicates that the Council on Court Procedures intended the defense of failure to state a claim to be waivable by a party’s failure to assert it in a timely manner, but did not intend the defense of lack of subject-matter jurisdiction to be waivable. We find no contextual provisions that raise any questions with respect to what we perceive to be the clear meaning of ORCP 21 G(3). The adoption of ORCP 21 G(3) has superseded the rule recited in Richards. It follows from the foregoing that defendant’s motion was not timely, and defendant thus waived the defense of failure to state a claim under ORCP 21 A(8).
We hold that ORCP 21 G(3) both specifies and limits the times when the defense of failure to state a claim may be raised. Oregon appellate courts will not consider on appeal the legal sufficiency of a claim unless a defense on that basis was raised to the trial court before or during the trial on the merits in the manner prescribed by ORCP 21 G(3). We further hold that, because defendant here did not timely raise the issue of the legal sufficiency of plaintiffs claims and, therefore, waived that defense, the Court of Appeals erred in addressing the issue. Accordingly, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
Notes
ORCP 21A provides, in part:
*380 ‘TTlhe following defenses may at the option of the pleader be made by motion to dismiss: * * * (8) failure to state ultimate facts sufficient to constitute a claim
The legislature created the Council on Court Procedures in 1977 to promulgate, subject to legislative disapproval or amendment, rules of civil procedure. ORS 1.725 through ORS 1.735. Thus, unless 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.
See Lake Oswego Review, Inc. v. Steinkamp,
On December 2, 1978, the Council promulgated 58 rules (numbered 1 through 64, reserving six rule numbers for expansion). Those rules were submitted to the 1979 Legislature and took effect, as amended, on January 1,1980. Another series of promulgated rules took effect on January 1, 1982, as ORCP 65 through ORCP 85.