Lacey v. Saunders

“Against such party’s personal representative or successors in interest unless the personal representative or successors in interest mail or deliver notice including the information required by ORS 115.003 (3) to the claimant or to the claimant’s attorney if the claimant is known to be represented, and the claimant or his attorney fails to move the court to substitute the personal representative or successors in interest within 30 days of mailing or delivery.” ORCP 34B(2).

Appellant, Saunders, challenged a trial court’s action of dismissing this case without prejudice.   On appeal, Appellant argued that ORCP 34 B acts as a statute of limitation requiring dismissal with prejudice and the trial court lacked discretion regarding whether to dismiss with, or without, prejudice because the issue is dictated as a matter of law by ORCP 34 B.  “B(2) Against such party’s personal representative or successors in interest unless the personal representative or successors in interest mail or deliver notice including the information required by ORS 115.003 (3) to the claimant or to the claimant’s attorney if the claimant is known to be represented, and the claimant or his attorney fails to move the court to substitute the personal representative or successors in interest within 30 days of mailing or delivery.” ORCP 34B(2).  The Court of Appeals agreed that ORCP 34 B functions as a statute of limitations and acts as the only procedural method allowing a claimant to proceed with an action entered into before a defendant’s death.  The Court found that in order to continue an existing action after a defendant’s passing, a claimant must replace the decedent with a personal representative in the time provided by ORCP 34 B.  Thus, the Court held that Lacey failed to act in accordance with ORCP 34 B’s time requirements and dismissal with prejudice was the court’s only option.  Reversed and remanded with instructions to dismiss with prejudice.