C. O. Homes, LLC v. Cleveland

Under ORCP 21 G(2) “A defense that * * * the action has not been commenced within the time limited by statute, is waived if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof.”

Former tenant appealed a limited judgement. Tenant assigned error the trial court dismissal of their counterclaim, tenant argues that the landlord waived their statute of limitation defense by not raising it in response to their counterclaim. The landlord argued that they did not waive the defense because they raised a statute of limitation defense under ORCP 21 (B). Under ORCP 21 G(2) “A defense that * * * the action has not been commenced within the time limited by statute, is waived if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof.” The Court reasoned that the text of ORCP 21 (G) does not suggest that a party may make a ORCP 21 (B) motion to preserve a statute of limitation defense under ORCP 21(G). Additionally, the Court reasoned that allowing a defense after the pleading is finished ignores the plain language of ORCP 21 (A). Reversed and remanded.