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Balboa Apartments v. Patrick

Summarized by: 

Date Filed: 10-06-2011
Case #: S059058
Landau, J. for the Court
Full Text Opinion: http://www.publications.ojd.state.or.us/S059058.pdf

Civil Procedure: Provided that requirements under ORCP 23 A and ORS 105.135 are both met, plaintiff's failure to serve a summons and amended complaint within one day of paying filing fees is not grounds for dismissal.

Balboa Apartments brought suit against tenant Lisa Patrick for rent owed, and for forcible entry and detainer. Immediately after filing, Balboa attempted to serve Patrick with a copy of the complaint and summons, but the residential unit number was erroneously listed. Upon realizing this mistake, Balboa refiled the complaint pursuant to ORCP 23 A and properly served Patrick 12 judicial days before the first appearance date. Patrick filed motion to dismiss the action because of failure to follow ORS 105.135(3)(b), which states that a plaintiff must serve a defendant by the end of the following judicial day after paying the filing fees. The trial court denied the motion and Patrick appealed. On appeal, the Supreme Court held that so long as ORCP 23 A, requiring an amended complaint be filed 20 days after it has been served, and ORS 105.135 are both met, dismissal is not required. Affirmed.