Six v. Bilyeu

317 Or.App. 272

505 P.3d 1071

Karin SIX, Personal Representative of the Estate of Shirley A. Moore-Carsten, deceased, Plaintiff-Appellant,

v. Theresa BILYEU, Dan Bilyeu, Russell Raines, Jason Carsten, Justin Carsten, Kristen Larson, all individuals, Defendants-Respondents,andDoes 1-25, Defendants.

A174347

Court of Appeals of Oregon.

Submitted November 5, 2021.

January 26, 2022

Karin Six filed the brief for appellant pro se.

Nathan G. Steele filed the brief for respondent, Kristen Larson. Also on the brief was The Steele Law Firm, P.C.

No appearance for respondents, Theresa Bilyeu, Dan Bilyeu, Russell Raines, Jason Carsten, and Justin Carsten.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

PER CURIAM

Plaintiff appeals a general judgment dismissing her amended complaint with prejudice; the trial court denied her motion for leave to file a second amended complaint. Plaintiff alleged claims for elder abuse, as well as tort claims. On appeal, plaintiff challenges the dismissal of her elder abuse claims and also the denial of leave to amend. We affirm for the reasons that follow.

A detailed recitation of the facts would not benefit the bench, bar, or public. In short, plaintiff's mother, Shirley, passed away in 2017 and was predeceased by her husband, Howard. Howard's estate went through probate with his daughter—Shirley's stepdaughter and plaintiff's stepsister—as his personal representative. Plaintiff is the personal representative for Shirley's estate. After an unsuccessful challenge to the probate proceedings of Howard's estate, plaintiff brought this case pro se to reallege improprieties regarding those proceedings and to allege that her stepsister and several other parties involved in the management and distribution of both estates committed elder abuse of her mother.

In the course of the proceedings below, plaintiff submitted several versions of her complaint to the trial court and defendants responded with a variety of motions. Several trial court orders resulted. Relevant to the matter on appeal, the first of two orders on all pending motions identified plaintiff's first amended complaint, as filed in February 2019, as the operative complaint. In its second order on all pending motions, issued in February 2020, the court ordered plaintiff to "submit a Motion for Leave to File a Second Amended Complaint * * *. The proposed Second Amended Complaint must be attached to the Motion for Leave[.]" In that order, the court warned that "[t]o the extent that Plaintiff's proposed Second Amended Complaint fails to state cognizable claims for relief, the claims not properly stated will be subject to being dismissed with prejudice." A minute order, issued a few days before the February order, documented that the trial court "went over last amended complaint with Plaintiff, struck some parts, and noted where claims needed to be made ‘more definite and certain.’ " The court advised plaintiff that she "must provide copy of motion and proposed 2nd amended complaint to [opposing counsel] * * *. Once conferral is done and counsel agree that it complies with the required ORCPs and UTCRs (or Plaintiff believes that it does)," plaintiff was advised that she may file the motion.

After exchanging drafts with opposing counsel, but before they agreed that the documents "complie[d] with the required ORCPs and UTCRs," plaintiff filed her motion for leave with a proposed second amended complaint attached. Defendants filed timely motions in opposition. The court subsequently issued an order denying plaintiff's motion for leave and dismissing her claims "[p]ursuant to the February 18, 2020-Order[.]" The court responded to each of the 10 claims listed in plaintiff's proposed second amended complaint, explaining how each claim failed. Ultimately, the trial court determined that the proposed second amended complaint did not state any cognizable claim for relief and consequently denied plaintiff's motion for leave to file the amended complaint and dismissed with prejudice the claims alleged in the first amended complaint in accordance with its earlier order. Plaintiff appeals.

On appeal, plaintiff asserts a single assignment of error: "The Trial Court Erred When it Denied Petitioner's Claims for Elder Abuse." Defendants, save one, have not appeared on appeal. The one defendant who has appeared asserts that plaintiff has not properly challenged the trial court's ruling and, in all events, that the trial court properly dismissed the complaint.

We understand plaintiff to contend on appeal that the court erred when it rejected the proposed second amended complaint and, correspondingly, dismissed the case with prejudice, as the court had warned it would do in its prior letter. To the extent plaintiff challenges the trial court's handling of her elder abuse claim or claims, we conclude that the assignment of error is properly presented,...