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Ramirex v. Lembcke11/26/2003
Argued and submitted September 16, 2003.
Vacated and remanded.
Plaintiff brought this action against defendant Lembcke for personal injuries that she suffered in a motor vehicle accident. The trial court entered a judgment of dismissal on the ground that plaintiff's claim was barred by the applicable statute of limitations. ORCP 21 A(9). Plaintiff appeals, asserting that her claim was not time-barred because the statute of limitations was tolled when, after the accident, defendant left Oregon to reside in Washington. See ORS 12.150. Defendant's counsel responds that the trial court correctly dismissed plaintiff's claims for two reasons: (1) the court lacked personal jurisdiction over defendant because he died before the action was commenced; and (2) plaintiff's claim is time-barred because the tolling statute is inapplicable to the present circumstances, and plaintiff did not join the personal representative of defendant's estate as a party before the expiration of the statute of limitations. We conclude that the court lacked personal jurisdiction over defendant. Therefore, as explained below, we vacate and remand for further proceedings.
On June 29, 2001, plaintiff filed this action against defendant. The complaint alleged that, on November 19, 1999, defendant negligently collided with the vehicle in which plaintiff was a passenger, causing her personal injuries. The complaint contained no allegations concerning the status of defendant, whether deceased or alive, nor did it name a representative party on his behalf.
On April 25, 2002, defendant's counsel filed a motion to dismiss the complaint. Counsel asserted that defendant had died before the action was commenced and, therefore, the court lacked personal jurisdiction over him. As a separate ground for dismissal, counsel asserted that the statute of limitations had expired before plaintiff properly served defendant or his personal representative with summons and complaint.
The parties filed affidavits supporting and opposing defendant's motions, stating the following facts: At the accident scene, defendant provided plaintiff with a Washington residence address and said that he intended to return to Washington two weeks later. On September 23, 2001, plaintiff attempted to serve defendant with summons and complaint at the Washington address. Defendant's wife informed plaintiff's process server that defendant had died on September 27, 2000. Plaintiff took no further steps to prosecute the action before December 13, 2001, when the trial court entered a judgment dismissing the action against defendant for want of prosecution. On December 17, 2001, plaintiff filed, and the court granted, a motion to set aside that judgment and it allowed plaintiff additional time to arrange for the appointment of a personal representative for defendant's estate. A personal representative eventually was appointed, and, on March 19, 2002, plaintiff served him with summons and a copy of the original complaint that named Lembcke, not the personal representative, as defendant.
In response to defendant's motion to dismiss, plaintiff argued that the statute of limitations was tolled under ORS 12.150 from the time of defendant's departure from Oregon until his death. According to plaintiff, the period within which she could commence the action therefore was extended to August 17, 2002. From that conclusion, she reasoned that time remained for the amendment of her complaint to substitute the personal representative as defendant, thereby curing any jurisdictional defect. In her response to the motion to dismiss, plaintiff sought leave to file and serve a supplemental complaint on defendant's personal representative.
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