††††† ORCP 23A

 

††††† See also annotations under ORS 16.370, 16.390 and 16.430 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 16.390)

 

††††† Trial court abused its discretion in failing to allow defendants to amend their counterclaim to conform to proof where matter had been completely tried with no discernible prejudice to plaintiff. Engelcke v. Stoehsler, 273 Or 937, 544 P2d 582 (1975)

 

Under former similar statute (ORS 16.430)

 

††††† Where partyís pleadings have been stricken as sanction, party is treated as though in default and is entitled to service of other partyís amended pleadings. Williams and Williams, 47 Or App 1159, 615 P2d 1178 (1980)

 

In general

 

††††† Although party did not raise issue of prejudgment interest until after trial, trial judge could, under this Rule, treat pleadings as amended and did not err in awarding prejudgment interest. Lutz v. Jawad & Haidar Y. Abulhason Co., 88 Or App 69, 744 P2d 279 (1987)

 

††††† Where motion to substitute defendants was filed almost 15 months after action was begun, and at time of accident giving rise to action plaintiff had been told name of correct defendant and plaintiff did not show correct defendant received timely notice, court did not abuse its discretion in denying motion. Jones v. Lachman, 96 Or App 246, 773 P2d 1 (1989), Sup Ct review denied

 

††††† Where motion to file second amended complaint merely restated claims already pleaded, trial court did not abuse its discretion in refusing to allow amendments. Commerce Mortgage Co. v. Industrial Park Co., 101 Or App 345, 790 P2d 16 (1990), as modified by 102 Or App 284, 793 P2d 894 (1990), Sup Ct review denied

 

††††† In determining whether ruling on leave to amend pleading is abuse of discretion, four relevant factors are: 1) proposed amendmentís nature and relationship to existing pleadings; 2) prejudice to opposing party; 3) timing; and 4) colorable merit of proposed amendment. Forsi v. Hildahl, 194 Or App 648, 96 P3d 852 (2004), Sup Ct review denied

 

††††† Requirement in ORS 31.725 that court deny motion to amend pleading to include punitive damages if evidence is insufficient does not affect discretion of court to deny motion on other grounds. Richardson v. Fred Meyer, Inc., 211 Or App 421, 155 P3d 881 (2007)

 

ORCP 23B

 

††††† See also annotations under ORS 16.390 and 16.630 to 16.650 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 16.390)

 

††††† To be material, variance must be proved to have misled adverse party to his prejudice. Alldrin v. Lucas, 260 Or 373, 490 P2d 141 (1971)

 

††††† Trial court abused its discretion in failing to allow defendants to amend their counterclaim to conform to proof where matter had been completely tried with no discernible prejudice to plaintiff. Engelcke v. Stoehsler, 273 Or 937, 544 P2d 582 (1975)

 

In general

 

††††† It was error to deny motion to amend pleadings to expand claim of estoppel by showing additional acts of defendant that plaintiff relied upon. Holmes v. Oregon Assn. of Credit Mgmt., 52 Or App 551, 628 P2d 1264 (1981), Sup Ct review denied

 

††††† Proper considerations in deciding whether party impliedly consented to trying unpleaded issue are whether defendant had fair opportunity to defend and whether defendant could offer evidence if case were retried on different theory. Mund v. English, 69 Or App 289, 684 P2d 1248 (1984)

 

††††† Motion to amend pleadings to conform to evidence is properly denied as untimely when made before any evidence has been taken. Sano v. Bjelland, 103 Or App 246, 796 P2d 1240 (1990)

 

††††† Defendantís repeated objections to issues being tried that were not raised in pleadings is evidence that defendant had not given implied or express consent for court to decide issues not framed by pleadings. Navas v. City of Springfield, 122 Or App 196, 857 P2d 867 (1993)

 

††††† Respondentís assertion of fallback argument in event court rejected initial argument was not conduct impliedly consenting to trial on theory raised in fallback argument but not pleaded by plaintiff. Bidiman v. Gehrts, 133 Or App 145, 890 P2d 436 (1995), Sup Ct review denied

 

††††† Production of evidence at summary judgment hearing in support of new claim based on new legal theory does not require that court allow amendment of pleading to add claim. Finney v. Bransom, 326 Or 472, 953 P2d 377 (1998)

 

ORCP 23C

 

NOTES OF DECISIONS

 

††††† Plaintiff, who before statute of limitations ran, mistakenly filed complaint naming county commissioners as defendants was entitled to have amended complaint naming county as sole defendant relate back to time of original filing. Waybrant v. Clackamas County, 54 Or App 740, 635 P2d 1365 (1981)

 

††††† In action for intentional interference with contract, alleged misrepresentations to one party to contract arose out of same transaction as alleged misrepresentations to other party to the contract and thus related back to original pleading. Welch v. Bancorp Management Advisors, 296 Or 208, 675 P2d 172 (1983), as modified by 296 Or 713, 679 P2d 866 (1984)

 

††††† Mistake as to which of two known potential defendants is liable is not mistake as to who is proper party within meaning of this statute. Bradford v. Dean Distributing Co., 73 Or App 141, 698 P2d 489 (1985)

 

††††† Where defendant successfully asserts that plaintiff is not real party in interest, amendment of complaint is proper to substitute real party in interest as plaintiff and amendment will relate back to filing of original complaint if asserting claims arising out of same conduct, transaction or occurrence of original complaint. Sizemore v. Swift, 79 Or App 352, 719 P2d 500 (1986)

 

††††† New claim cannot relate back to earlier pleading unless there is at least enough nexus between claims for defendant to have been able to have discerned from first claim that existence of second was possibility. Evans v. Salem Hospital, 83 Or App 23, 730 P2d 562 (1986), Sup Ct review denied; Hendgen v. Forest Grove Community Hospital, 109 Or App 177, 818 P2d 966 (1991); Walters v. Hobbs, 176 Or App 194, 30 P3d 1214 (2001), modified 177 Or App 527, 33 P3d 1067 (2001)

 

††††† Party against whom amended claim is brought must have received notice of action within period of limitations, not within period for service of summons. Richlick v. Relco Equipment, Inc., 120 Or App 81, 852 P2d 240 (1993), Sup Ct review denied

 

††††† Where original action stated breach of contract claim based on partial nonperformance, later tort claims arising out of portion of contract that was performed did not relate back. Caplener v. U.S. National Bank, 317 Or 506, 857 P2d 830 (1993)

 

††††† To relate back to original complaint, new allegations must have arisen out of or must have directly involved occurrence originally alleged. Allison v. Kleinman, 126 Or App 298, 868 P2d 764 (1994)

 

††††† Court could not obtain jurisdiction over time-barred writ of review by permitting amendment of complaint for declaratory judgment to include petition and relating petition back to date complaint was filed. Shipp v. Multnomah County, 133 Or App 583, 891 P2d 1345 (1995), Sup Ct review denied

 

††††† Where plaintiff misnames, but serves, correct entity with copy of original complaint within period allowed for service, and entity should reasonably identify self from complaint, amendment correcting misnomer does not bring in new entity and is not change in party. Harmon v. Fred Meyer, 146 Or App 295, 933 P2d 361 (1997); Mitchell v. The Timbers, 163 Or App 312, 987 P2d 1236 (1999)

 

††††† Lack of knowledge regarding defendantís identity is not ďmistakeĒ concerning identity of proper party. Clavette v. Sweeney, 132 F. Supp. 2d 864 (D. Or. 2001)

 

††††† Relation back provision applies only to amendments in same action and does not relate later actions back to earlier actions. Durham v. City of Portland, 181 Or App 409, 45 P3d 998 (2002)

 

††††† Presence of new or additional issues in amended pleading does not prevent pleading of new theories of liability from relating back to original pleading. Griffith v. Blatt, 334 Or 456, 51 P3d 1256 (2002)

 

††††† Where amended complaint does not add additional parties, service of summons and copy of amended complaint within period prescribed by ORS 12.020 is sufficient to relate back to filing date of unserved original complaint. Kowalski v. Hereford LíOasis, 190 Or App 236, 79 P3d 319 (2003), Sup Ct review denied

 

††††† Service of original complaint on proper party is not essential to give party notice of action sufficient to allow amended complaint to relate back. McLain v. Maletis Beverage, 200 Or App 374, 115 P3d 938 (2005)

 

††††† Where plaintiff timely serves amended complaint correcting misnaming of defendant properly identified in original complaint, service of original complaint on defendant is not required in order for amended complaint to relate back. Cantley v. DSMF, Inc., 422 F. Supp. 2d 1214 (D. Or. 2006)

 

††††† When plaintiff files complaint that names deceased person as defendant, and plaintiff later amends complaint to name personal representative of decedentís estate as defendant, that amendment changes party against whom claim is asserted for purposes of section. Worthington v. Estate of Milton E. Davis, 250 Or App 755, 282 P3d 895 (2012), Sup Ct review denied

 

ORCP 23E

 

NOTES OF DECISIONS

 

††††† Complaint naming dead defendant can be validated through supplemental pleadings filed within statutory time limit. Smith v. Wells, 128 Or App 492, 876 P2d 850 (1994)

 

††††† Where supplemental pleading is filed in action subject to UCCJA, whether pleading relates back to initial pleading depends on whether or not new substantive allegations in supplemental pleading could have been included in initial pleading. Stubbs v. Weathersby, 320 Or 620, 892 P2d 991 (1995)