Background
Helen Grace Banks died, allegedly from injuries sustained in falls at Cedar Village Memory Care Community. David Carlson, as personal representative of Banks’s estate, filed a wrongful death action against Cedar Village Assisted Living, LLC, and related defendants under ORS 30.020. Carlson’s original complaint was filed in August 2019 and amended in August 2021, alleging negligence and seeking $3,095,000 in damages, including $2,000,000 in noneconomic damages. Cedar Village denied the negligence allegations and asserted an affirmative defense capping noneconomic damages at $500,000 under ORS 31.710.
Two and a half weeks before trial, Carlson moved for leave to file a second amended complaint to add a survival negligence action as an alternative claim under ORS 30.075 and ORCP 23 A. Carlson argued the amendment would not fundamentally alter the complaint and would align with Cedar Village’s own defense theory that the falls had not caused Banks’s death. Cedar Village objected, contending that Carlson failed to comply with UTCR 5.010 by not conferring with counsel before filing the motion. Carlson’s counsel acknowledged the failure to confer but argued the shortness of time and defendant’s objection rendered it immaterial. The trial court denied the motion, and the case proceeded to trial on the wrongful death action alone. The jury found Cedar Village negligent but determined its negligence was not a cause of the decedent’s death.
The Court’s Holding
The Oregon Court of Appeals affirmed the trial court’s denial of the motion to amend, holding that UTCR 5.010 imposes a mandatory conferral requirement that the trial court has no discretion to waive. UTCR 5.010(1) requires that, before filing a motion under ORCP 21 or 23 (with limited exceptions), the moving party must make a good faith effort to confer with opposing counsel regarding the issues in dispute. UTCR 5.010(4) further requires the moving party to file a certificate of compliance at the time the motion is filed, stating either that the parties conferred or containing facts showing good cause for not conferring.
The court emphasized that the rule’s language—”The court will deny any motion”—is not discretionary but mandatory. The court rejected Carlson’s arguments that the failure to confer was harmless because Cedar Village objected to the amendment anyway, or that futility excuses noncompliance. Applying precedent from Anderson v. State Farm Mutual Auto Insurance Co., the court held that a trial court must deny a motion for amendment if the moving party failed to confer and file a valid certificate of compliance, regardless of whether the moving party could articulate a reason compliance was unnecessary. Although the trial court did not explicitly rule on the UTCR 5.010 violation, the court affirmed on the correct legal basis: the mandatory requirement to deny the motion due to procedural noncompliance.
Key Takeaways
- Oregon trial courts must deny motions to amend complaints under ORCP 23 A if the moving party fails to confer with opposing counsel as required by UTCR 5.010, regardless of the motion’s merits.
- The conferral requirement is mandatory and not subject to exceptions based on futility, proximity to trial, or anticipated objections by opposing counsel.
- Failure to file a certificate of compliance—or filing one without facts showing good cause for not conferring—is grounds for mandatory denial.
- Trial courts lack discretion to allow amendments when procedural requirements for conferral are not satisfied, even if the substantive amendment appears reasonable.
Why It Matters
This decision reinforces the strict procedural requirements governing motion practice in Oregon state courts. For litigants and counsel, it clarifies that compliance with UTCR 5.010’s conferral mandate is non-negotiable and that last-minute discovery of alternative claims or theories does not excuse the failure to meet this requirement. The decision signals that trial courts will be reversed on appeal if they grant motions without proper conferral, and conversely, that denials based on procedural noncompliance will be upheld even if the proposed amendment might have been meritorious.
The opinion also has practical implications for scheduling and motion practice: counsel must budget time to confer with opposing counsel before filing motions under ORCP 21 and 23, and cannot rely on arguments that conferral was impractical or unnecessary given the circumstances. The court’s application of the “right for the wrong reason” doctrine—affirming the trial court on the correct legal ground even though the trial court did not explicitly address the UTCR 5.010 issue—underscores Oregon appellate courts’ commitment to enforcing procedural requirements at the trial court level.