Alfieri v. Solomon ( 2015 )

No. 53 December 10, 2015 383
IN THE SUPREME COURT OF THE
STATE OF OREGON
Phillip ALFIERI,
Petitioner on Review,
v.
Glenn SOLOMON,
Respondent on Review.
(CC 1203-02980; CA A152391; SC S062520)
En Banc
On review from the Court of Appeals.*
Argued and submitted on May 12, 2015.
Mark McCulloch, Farleigh Wada Witt, Portland, argued
the cause and filed the brief for the petitioner.
Thomas W. Brown, Cosgrave Vergeer Kester, Portland,
argued the cause and filed the brief for the respondent.
Rankin Johnson, IV, Law Office of Rankin Johnson IV,
LLC, Portland, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
BALMER, C. J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.
______________
* Appeal from Multnomah County Circuit Court, Jerry B. Hodson, Judge.
263 Or App 492, 329 P3d 26 (2014).
384 Alfieri v. Solomon
Case Summary: Defendant moved to strike certain allegations from plain-
tiff’s complaint for attorney malpractice pursuant to the confidentiality provi-
sions in Oregon’s mediation statute, ORS 36.100 to 36.238, and to dismiss the
complaint for failure to state ultimate facts sufficient to state a claim for relief.
The trial court granted both motions and dismissed the complaint with prejudice,
and the Court of Appeals affirmed in part and reversed in part. Held: (1) the
confidentiality provisions in Oregon’s mediation statute, ORS 36.100 to 36.238,
apply only to communications between those persons listed in ORS 36.110(7), and
therefore not to private attorney-client communications that occurred outside of
mediation proceedings; (2) those provisions do apply to, and therefore prohibit
the disclosure of confidential settlement terms and certain other communications
that occur in the course of or in connection with mediation; and (3) plaintiffs are
not entitled to amend their complaint once as a matter of course after certain
motions, including a motion to dismiss the complaint in its entirety, have been
granted.
The decision of the Court of Appeals is affirmed in part and reversed in part.
The judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.
Cite as 358 Or 383 (2015) 385
BALMER, C. J.
The issue presented in this case is one of first
impression: to what extent do the confidentiality provisions
of Oregon’s mediation statutes, ORS 36.100 to 36.238, pre-
vent a client from offering evidence of communications made
by his attorney and others in a subsequent malpractice
action against that attorney? The trial court granted defen-
dant’s ORCP 21 E motion to strike certain allegations in
plaintiff’s complaint and then dismissed the complaint with
prejudice under ORCP 21 A(8) for failure to state a claim.
The Court of Appeals affirmed in part and reversed in part,
holding that ORS 36.220 and 36.222 barred some, but not
all, of plaintiff’s allegations, and that the trial court erred in
dismissing the complaint with prejudice before a responsive
pleading had been filed. Alfieri v. Solomon, 263 Or App 492,
329 P3d 26 (2014). We agree that ORS 36.220 and 36.222
limit the subsequent disclosure of mediation settlement
terms and certain communications that occur in the course
of or in connection with mediation. We disagree, however, as
to the scope of communications that are confidential under
those statutes. We also disagree with the Court of Appeals
as to whether the trial court erred in dismissing plaintiff’s
complaint with prejudice because no responsive pleading
had been filed. For the reasons set out below, we affirm in
part and reverse in part the decision of the Court of Appeals
and remand to the circuit court for further proceedings.
I. BACKGROUND
We state the facts, accepting as true all well-
pleaded allegations in the complaint and drawing all rea-
sonable inferences in plaintiff’s favor. Bailey v. Lewis Farm,
Inc., 343 Or 276, 278, 171 P3d 336, 337 (2007). Plaintiff
retained defendant, an attorney specializing in employment
law, to pursue discrimination and retaliation claims against
plaintiff’s former employer. In the course of that represen-
tation, defendant filed administrative complaints with the
Oregon Bureau of Labor and Industries and thereafter a
civil action against the former employer for damages on
plaintiff’s behalf. After limited discovery, plaintiff, repre-
sented by defendant, and plaintiff’s former employer entered
into mediation under the terms and conditions set forth in
386 Alfieri v. Solomon
ORS 36.185 to 36.210. Before meeting with the mediator
and plaintiff’s former employer, defendant advised plaintiff
about the potential value of his claims and the amount for
which he might settle the lawsuit. Plaintiff and his former
employer, along with their respective lawyers and the medi-
ator, attended a joint mediation session and attempted to
resolve the dispute. However, no resolution was reached.
After the session ended, the mediator proposed a settlement
package to the parties. In the weeks that followed, defen-
dant provided advice to plaintiff about the proposed settle-
ment. At defendant’s urging, plaintiff accepted the proposed
terms and signed a settlement agreement with his former
employer. One of the terms to which plaintiff agreed was
that the settlement agreement would be confidential. After
the parties signed the agreement, defendant continued to
counsel plaintiff and provide legal advice regarding the
settlement.
Some months after the mediation ended, plaintiff
concluded that defendant’s legal representation had been
deficient and negatively affected the outcome of his case.
Plaintiff sued defendant for legal malpractice, alleging that
defendant had been negligent and had breached his fidu-
ciary duty to plaintiff through his work both on the under-
lying civil action and the mediation. Plaintiff asserted that
had defendant properly and completely pleaded his claims
and reasonably prepared for trial he would have received a
favorable jury verdict and been awarded substantially more
monetary relief than he obtained by settlement. To assert
those claims, plaintiff pleaded facts that disclosed certain
terms of the confidential settlement agreement and that per-
tained to communications made by various persons involved
in the mediation process.
Specifically, plaintiff’s allegations disclosed facts
about the mediator’s settlement proposal to the parties,
defendant’s conduct during the mediation, and private
attorney-client discussions between plaintiff and defen-
dant regarding the mediation. Those private attorney-client
discussions—which occurred outside the mediation session
and without the involvement of either the mediator or plain-
tiff’s former employer—concerned the valuation and strength
of plaintiff’s claims, whether plaintiff was obligated to accept
Cite as 358 Or 383 (2015) 387
the mediator’s proposal and sign the settlement agreement,
and whether the agreement was enforceable. Although some
of those discussions took place before or while the mediation
was still in progress, others occurred when plaintiff signed
the settlement agreement or thereafter.
Defendant responded by moving to strike many of
the allegations in plaintiff’s complaint, arguing that they
contained material that was confidential and inadmissible
under two provisions of Oregon’s mediation statute, ORS
36.220 and ORS 36.222. ORS 36.220 provides in part:
“Mediation communications are confidential and may not
be disclosed to any other person” and “parties to a media-
tion may agree that all or part of the terms of a mediation
agreement are confidential.” ORS 36.220(1)(a), (2)(b).1 To
the extent that a mediation agreement or communication is
confidential under ORS 36.220, it is “not admissible as evi-
dence in any subsequent adjudicatory proceeding, and may
not be disclosed by the parties or the mediator in any subse-
quent adjudicatory proceeding.” ORS 36.222(1).
The mediation statute contains definitional pro-
visions that describe the scope of what falls within those
confidentiality and admissibility restrictions. “Mediation” is
defined as:
“[A] process in which a mediator assists and facilitates
two or more parties to a controversy in reaching a mutu-
ally acceptable resolution of the controversy and includes
all contacts between a mediator and any party or agent of
a party, until such time as a resolution is agreed to by the
parties or the mediation process is terminated.”
ORS 36.110(5). A “ ‘Mediation agreement’ means an agree-
ment arising out of a mediation, including any term or
condition of the agreement.” ORS 36.110(6). “ ‘Mediation
communications’ means: (a) All communications that are
made, in the course of or in connection with a mediation,
to a mediator, a mediation program or a party to, or any
1
Unlike mediation communications, which are confidential under the stat-
ute, the terms of a mediation agreement are not confidential unless the parties
expressly agree to make them so. See ORS 36.220(2)(a) (terms of mediation
agreements not confidential); ORS 36.220(2)(b) (parties may agree to make all or
part of mediation agreement confidential).
388 Alfieri v. Solomon
other person present at, the mediation proceedings.” ORS
36.110(7)(a).2
The trial court granted defendant’s motion to strike,
in part, and struck substantial portions of plaintiff’s com-
plaint. In addition to striking allegations that disclosed the
settlement amount and other confidential settlement terms,
the trial court struck several allegations because they dis-
closed confidential mediation communications. Those alle-
gations included that:
• The mediation was “largely unsuccessful because
defendant substantially lowered his recommenda-
tion for settlement from amounts he told plaintiff
before the mediation the lawsuit would likely settle
for.”
• Following the mediation session, the mediator sug-
gested a particular settlement amount to the par-
ties, and that “[o]ver the course of the next several
days, plaintiff made several attempts to reject the
proposed offer but defendant pressured plaintiff
into eventually agreeing to the mediator’s proposal.”
• Defendant failed “to reasonably advocate for plain-
tiff in the mediation of the lawsuit” with plaintiff’s
former employer.
• Defendant recommended that plaintiff settle for the
mediator’s proposed amount.
• Defendant failed to advise plaintiff that the media-
tor’s proposal “was not enforceable” because plain-
tiff’s former employer “had not accepted it on time.”
• Defendant had advised plaintiff “that he was bound
to the terms of the Agreement even though [plain-
tiff’s former employer] failed to pay within the time
required by the terms of the Agreement.”
Defendant also filed a motion to dismiss plaintiff’s
complaint under ORCP 21 A(8) for failure to state ultimate
2
The second paragraph of the statute, ORS 36.110(7)(b) adds to the defini-
tion of “mediation communications” certain written materials, including “memo-
randa, work products, documents and other materials” created in the course of or
in connection with mediation. That paragraph is not at issue in this case.
Cite as 358 Or 383 (2015) 389
facts sufficient to state a claim for relief, on the basis that, in
the absence of the allegations that defendant argued should
be stricken, plaintiff had not alleged facts sufficient to estab-
lish his damages or that defendant caused those damages.
After granting defendant’s motion to strike, the trial court
also granted the motion to dismiss and dismissed the com-
plaint with prejudice.
Plaintiff appealed, and the Court of Appeals, as
noted, affirmed in part and reversed in part. The Court of
Appeals concluded that the trial court did not err in striking
those allegations that disclosed the terms of the settlement
agreement and the allegation that described the mediator’s
settlement proposal to the parties. With respect to the other
allegations that referred to mediation-related communica-
tions, the Court of Appeals distinguished between those
communications that took place while the mediation process
was still underway and those that occurred after the settle-
ment agreement was signed.
Looking to the text of the mediation statute and
interpreting the definitional terms in ORS 36.110, the court
agreed that discussions between plaintiff and defendant
that occurred in preparation for, during, and after the medi-
ation conference—but before the signing of the settlement
agreement—were “mediation communications” made “in
the course of or in connection with” the mediation “process.”
The court concluded that this was true even for attorney-
client communications exchanged privately outside of medi-
ation proceedings and without the participation of either the
mediator or plaintiff’s former employer. The court concluded
that communications that occurred post-signing, however,
were not “mediation communications” because the media-
tion had already ended and that the trial court had erred in
striking the allegations referring to those.
Finally, the Court of Appeals concluded that it was
error for the trial court to dismiss the complaint with prej-
udice because, under ORCP 23 A, a plaintiff is entitled to
amend a complaint once as a matter of right before a respon-
sive pleading is filed and it was conceivable that plaintiff
could still allege and prove his claims. We granted plain-
tiff’s petition for review.
390 Alfieri v. Solomon
On review, plaintiff argues that the Court of Appeals
erred in its reading of ORS 36.220 and 36.222. Plaintiff
acknowledges that he agreed with his former employer to
make the settlement agreement confidential. Instead, plain-
tiff focuses on the applicability of those statutory provisions
to subsequent attorney malpractice actions and to private
attorney-client discussions that occur outside of mediation
proceedings. Plaintiff argues that the allegations struck
from his complaint did not contain “mediation communica-
tions” within the meaning of ORS 36.110(7)(a) because the
communications described were not part of the “mediation,”
in that they did not involve assistance or facilitation by a
mediator. Plaintiff further argues that mediation confiden-
tiality is a privilege that belongs to the mediating parties
and that the legislature did not intend for attorneys who
represent mediating parties to invoke the benefit of that pro-
tection. Finally, plaintiff argues that allowing attorneys to
use mediation confidentiality as a shield against malprac-
tice claims is inconsistent with the express purpose of medi-
ation confidentiality and contrary to public policy. Allowing
such a rule, plaintiff contends, would lead to the unreason-
able result of protecting lawyers who engage in unethical—
and even criminal—conduct in the course of mediation from
investigation and prosecution.
Defendant responds that, properly construed, “medi-
ation communications” include all communications that are
made to a party or its agent that support, aid, or facilitate
the resolution of a dispute with the aid of a mediator until
that effort finally and definitively ends. Defendant asserts
that this includes all communications between a mediating
party and that party’s attorney in the mediation. Defendant
further asserts that, as a lawyer representing a party to a
mediation, he qualified as “any other person present at, the
mediation proceedings,” so that statements that plaintiff
made to him concerning the mediation fall within the plain
and ordinary meaning of ORS 36.110(7)(a). In addition,
defendant notes that the legislature considered and provided
for several exceptions to mediation confidentiality, but that
none relate to a subsequent action by a party against that
party’s own lawyer for alleged malpractice in connection
with the mediation. Defendant argues that the legislature’s
Cite as 358 Or 383 (2015) 391
failure to include such an exception in the mediation statute
evinces a deliberate policy choice. Finally, defendant asks
this court to reverse the Court of Appeals decision holding
that the trial court erred in dismissing plaintiff’s complaint
with prejudice.
II. ANALYSIS
A.  Defendant’s Motion to Strike
The parties do not dispute the legal standards that
apply to the trial court’s disposition of plaintiff’s motion to
strike. A court may strike “any insufficient defense or any
sham, frivolous, irrelevant, or redundant matter inserted
in a pleading.” ORCP 21 E(2). We generally review orders
to strike for abuse of discretion. See, e.g., Lane County
Escrow v. Smith, Coe, 277 Or 273, 286, 560 P2d 608 (1977);
Cutsforth v. Kinzua Corp., 267 Or 423, 428, 517 P2d 640
(1973).3 However, where a court’s exercise of discretion
turns on a legal question, such as the meaning of a statute,
we review that determination as a matter of law. See, e.g.,
State v. Sarich, 352 Or 601, 615, 291 P3d 647, 655 (2012)
(when reviewing order of trial court for abuse of discretion,
reviewing court must first determine whether, as a matter
of law, trial court applied correct legal standard). Because
the trial court’s ruling on defendant’s motion to strike, and
its subsequent dismissal of the complaint, both turn on the
interpretation of Oregon’s mediation statute, ORS 36.100 to
36.238, we review those actions for legal error to determine
whether the court applied the law correctly. See, e.g., Pereira
v. Thompson, 230 Or App 640, 659, 217 P3d 236 (2009)
(applying legal error standard to review of motion to strike
where trial court’s grant of motion turned on predicate legal
question of whether allegations were actionable under claim
for legal malpractice).
3
Although the Oregon Rules of Civil Procedure were first promulgated in
1978, the grounds for a motion to strike under ORCP 21 E were taken from the
prior statutory scheme. See Council on Court Procedures, Rule 21 (comment), in
Legislative History Relating to Promulgation of Oregon Rules of Civil Procedure,
Vol. 5, 48, 51-52 (1979) (describing history of rule). See also former ORS 16.100
(1977), repealed by Or Laws 1979, ch 284, § 199 (setting out rule for when sham,
frivolous, irrelevant or redundant material may be struck from pleadings). As
such, our cases prior to 1978 on the standard of review for the grant of a motion
to strike remain pertinent.
392 Alfieri v. Solomon
The parties do not dispute that unless an exception
to the statutory prohibition on disclosure applies, mediation
communications that are confidential under ORS 36.220
and inadmissible under ORS 36.222 cannot form the basis
of a legal claim and thus may be struck from a complaint
pursuant to ORCP 21 E. Whether the trial court erred in
ruling on the motion to strike, therefore, turns on whether
the court correctly interpreted the term “mediation com-
munications” as it applies in ORS 36.220 and ORS 36.222.
We approach that question with the goal of determining the
legislature’s intent. State v. Gaines, 346 Or 160, 171, 206
P3d 1042 (2009). We look primarily to the statute’s text,
context, and legislative history, although we may look also
to general rules of statutory construction as helpful. Id. at
171-72.
Because “there is no more persuasive evidence of the
intent of the legislature than the words by which the legis-
lature undertook to give expression to its wishes,” we begin
with the text of the statute. Id. at 171 (citations and internal
quotation marks omitted). ORS 36.220 provides that
“[m]ediation communications are confidential and may
not be disclosed to any other person.” ORS 36.220(1)(a).
If a communication is confidential under ORS 36.220, it
is inadmissible in “any subsequent adjudicatory proceed-
ing.” ORS 36.222(1). To determine whether the allegations
that were struck from plaintiff’s complaint fall within
those provisions, we look to the definitions of the operative
terms “mediation” and “mediation communications.” Each
is statutorily defined in ORS 36.110, and we examine each
in turn below.
1.  The Definition of “Mediation”
As previously noted, the term “mediation” refers to
a particular scope of activity as defined by the mediation
statute, which provides:
“ ‘Mediation’ means a process in which a mediator assists
and facilitates two or more parties to a controversy in reach-
ing a mutually acceptable resolution of the controversy and
includes all contacts between a mediator and any party or
agent of a party, until such time as the resolution is agreed
to by the parties or the mediation process is terminated.”
Cite as 358 Or 383 (2015) 393
ORS 36.110(5). The parties do not dispute that plaintiff and
his former employer were engaged in “mediation” within the
meaning of the statute, and that the settlement agreement
that they signed resulted from that process. Plaintiff and
defendant differ, however, in their view of what activity is
properly considered part of that mediation. Plaintiff argues
that “mediation” encompasses only the activity that occurs
in the presence of the mediator. Defendant focuses on the
statutory reference to a “process” and argues that “medi-
ation” includes all activity that facilitates the resolution of
the dispute, until the point at which a settlement agreement
is signed or the mediation process is otherwise definitively
ended. As discussed below, the text supports a narrower
interpretation of “mediation” and, in turn, “mediation com-
munications,” than defendant’s contention that all commu-
nications that are related to the “mediation process” are
confidential, regardless of when and where they occur.
Looking to the text and context of ORS 36.110(5),
we conclude that plaintiff has the better argument. It is
a familiar rule that in construing statutes we should not
simply consult dictionaries and interpret words in a vac-
uum. State v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011).
“Dictionaries, after all, do not tell us what words mean, only
what words can mean, depending on their context and the
particular manner in which they are used.” Id. (emphasis in
original). The term “process” is broad in connotation, indi-
cating “the action of passing through continuing develop-
ment from a beginning to a contemplated end” or “a partic-
ular method or system of doing something.” Webster’s Third
New Int’l Dictionary 1808 (unabridged ed 2002). However,
ORS 36.110(5) narrows that term by describing more specif-
ically that “ ‘[m]ediation’ means a process in which a medi-
ator assists and facilitates” the resolution of the parties’
dispute. (Emphasis added.) The words “in which a media-
tor assists and facilitates” follow the noun “process” with-
out being set off by commas. Those words therefore operate
as a restrictive clause, limiting the frame of reference and
therefore the meaning of the preceding noun. See Bryan
Garner, Garner’s Dictionary of Legal Usage 888-89 (3rd ed
2011) (describing rule on use of commas to indicate restric-
tive versus nonrestrictive clauses); cf. Blacknall v. Board
394 Alfieri v. Solomon
of Parole, 348 Or 131, 140, 229 P3d 595 (2010) (reiterating
and applying grammatical principle that a phrase set off by
commas functions as parenthetical). Thus, in context, the
meaning of “process” here appears more limited and refers
only to those aspects of the mediation in which the mediator
is directly involved.
That understanding of the text is supported by
the subsequent clause in the same sentence that mediation
“includes all contacts between a mediator and any party or
agent of a party.” ORS 36.110(5). Exemplars of that kind
are not necessarily exclusive. See State v. Kurtz, 350 Or 65,
74-75, 249 P3d 1271 (2011) (concluding that use of term
such as ‘includes’ or ‘including’ typically signals that leg-
islature did not intend list of particulars that follows to be
exhaustive). Nonetheless, “[w]hen, as here, the legislature
uses a general term in a statute and also provides specific
examples, those specific examples provide useful context for
interpreting the general term.” Schmidt v. Mt. Angel Abbey,
347 Or 389, 403-04, 223 P3d 399 (2009) (applying principle
to criminal statute).
Here, the legislature’s decision to specify that “medi-
ation” includes all contacts between the mediator and the
parties (or their agents) is particularly instructive. First, it
implies that other types of interactions not mentioned, such
as private conversations between a party and his or her
attorney, may not necessarily be part of the mediation itself.
Second, it confirms that the legislature understood “medi-
ation” to refer, at its most essential level, to the assistance
and facilitation that the mediator provides. The legislature’s
inclusion of that exemplar thus lends further support to the
conclusion that the meaning of the term “mediation,” as
statutorily defined, refers to the part of the mediation pro-
cess in which the mediator is directly involved.
That understanding of the definition of “mediation”
is consistent with the wide range of mediation types that the
statute covers. See ORS 36.155 to 36.175 (community-based
mediation programs in individual counties), ORS 36.179
(program for mediations in which public bodies are parties),
ORS 36.185 to ORS 36.200 (mediation of civil disputes in
collaboration with circuit courts). Parties sometimes meet
Cite as 358 Or 383 (2015) 395
with a mediator at a specified time and location to resolve
their dispute according to a well-defined framework, but
not always. See Office of the State Court Administrator,
Appropriate Dispute Resolution Deskbook §§ 2 to 5 (2nd
rev 1997) (describing Oregon mediation programs existing
at that time by county and type, complete with applicable
rules and sample forms); 1 Arbitration and Mediation
§§ 15.17-24 (Oregon CLE 1996 & Supp 2008) (describing
how mediation works and various styles used in Oregon).
Mediation can take place in person or by phone, and in some
cases, the mediator acts as an intermediary, communicat-
ing with each party separately rather than meeting with
all participants at once. See Exhibit G, Senate Committee
on Business, Law and Government, SB 160, Feb 27, 1997
(accompanying statement of DeEtte Wald Beghtol, mediator
and participant in workgroup that drafted SB 160, describ-
ing modes of mediation frequently used by programs to be
covered by the law). Some mediations involve only a media-
tor and two parties that have a dispute, while others have
a variety of participants. Community-based mediations in
particular may include a range of interested persons or enti-
ties. See id. (describing broad participation in many com-
munity mediations). Ensuring flexibility to accommodate a
wide range of mediation types was one of the legislature’s
stated goals. See ORS 36.105 (“The Legislative Assembly
declares that it is the purpose of ORS 36.100 to 36.238 to:
* * * (2) Allow flexible and diverse programs to be developed
in this state, to meet specific needs in local areas and to
benefit this state as a whole through experiments using a
variety of models of peaceful dispute resolution.”). The more
narrow definition of “mediation” set out in ORS 36.110(5)
serves that goal while accommodating the many types of
mediation that the legislature understood and expected to
occur pursuant to Oregon’s mediation statute.
Considering the text of ORS 36.110(5), in context,
we conclude that “mediation” includes only that part of the
“process” in which a mediator is a participant. Separate
interactions between parties and their counsel that occur
outside of the mediator’s presence and without the media-
tor’s direct involvement are not part of the mediation, even
if they are related to it.
396 Alfieri v. Solomon
2.  Definition of “Mediation Communications”
We turn next to the meaning of the term “mediation
communications.” ORS 36.110(7) states in part: “ ‘Mediation
communications’ means: (a) All communications that are
made, in the course of or in connection with a mediation, to
a mediator, a mediation program or a party to, or any other
person present at, the mediation proceedings.” On the face
of the statute, then, whether something is a “mediation com-
munication,” depends on three elements: (1) whether it is a
“communication,” (2) its connection to a “mediation,” and
(3) the identity of the recipient.
First, to come within that definition, a statement
must be a “communication.” Because the statute does not
define that term, we look to its plain meaning and ordi-
nary use. State v. Dickerson, 356 Or 822, 829, 345 P3d
447 (2015). Looking to the dictionary definition of that
term, a “communication” may be either “facts or informa-
tion communicated,” or “the act or action of imparting or
transmitting”—in other words, the process by which infor-
mation is exchanged. Webster’s at 460. In this case, the
parties do not dispute that conversations and disclosures
between an attorney and client may be considered “commu-
nications.” The same is true for statements made by a medi-
ator to disputing parties or other statements made in the
course of mediation proceedings.
Second, the communication must be made “in the
course of or in connection with a mediation.” An activity
occurs “in the course of” something else when it occurs as
part of a specified process or during a specified period or
activity. Oxford Dictionary of English 400 (3rd ed 2010).
Likewise, the phrase “in connection with” is typically
understood to mean a “relationship or association.” Portland
Distributing v. Dept. of Rev., 307 Or 94, 99, 763 P2d 1189
(1988). See also Webster’s at 480-81 (word “connection” refers
to state of being “connected”—“joined or linked together” or
having “parts or elements logically related”). It follows then,
that a communication is “in the course of” a mediation when
it occurs as part of an actual mediation proceeding, and “in
connection with” a mediation when it is made outside of such
Cite as 358 Or 383 (2015) 397
proceedings but relates to the substance of the dispute and
its resolution process.
The question remains, however, whether the media-
tion must be ongoing or whether a communication can be “in
connection with” a mediation once the dispute has settled.
The definition of “mediation,” discussed above, suggests that
the mediation must be ongoing for a communication to be “in
connection with” it, because the legislature expressly lim-
ited the temporal scope of “mediation” to activity occurring
before “a resolution is agreed to by the parties or the media-
tion process is terminated.” ORS 36.110(5). For that reason,
we conclude that communications can only be “in connection
with” a mediation for purposes of the statute if the media-
tion has not yet ended. As such, communications that occur
after a settlement agreement is signed are not “mediation
communications” within the meaning of ORS 36.110(7)(a)
and are neither prohibited from disclosure under ORS
36.220 nor inadmissible under 36.222.4 A communication is
thus “in the course of or in connection with” a mediation
only if it is made during and at a mediation proceeding or
occurs outside of a proceeding but relates to the substance of
the dispute being mediated and is made before a resolution
is reached or the process is otherwise terminated.
Third, to be confidential, the communication must
be made to one of the recipients specified in ORS 36.110(7)(a):
“a mediator, a mediation program or a party to, or any other
person present at, the mediation proceedings.” Interpreting
those terms is relatively straightforward. The first three
categories are defined in the statute. “ ‘Mediator’ means a
third party who performs mediation,” including that per-
son’s agents and employees. ORS 36.110(9). “ ‘Mediation pro-
gram’ means a program through which mediation is made
available and includes the director, agents and employees of
the program.” ORS 36.110(8). A “party” is a person, agency
or body who “participates in a mediation and has a direct
4
It is unclear on the face of plaintiff’s complaint when some of the communi-
cations in question occurred. The complaint, for example, refers to certain com-
munications that took place on the day the settlement agreement was signed
without stating whether they preceded or followed the actual signing. The timing
of those communications, as well as whether they occurred at a mediation pro-
ceeding, are questions of fact for the trial court.
398 Alfieri v. Solomon
interest in the controversy that is the subject of the media-
tion.” ORS 36.234.5
Because the fourth category of recipients—“other
person[s] present at, the mediation proceedings”—is not
defined, we look to the plain and ordinary meaning of the
words that form that category. In that context, the term
“proceedings” can mean “a particular way of doing or accom-
plishing something,” “a particular action or course of action”
or “a particular thing done.” Webster’s at 1807. Given that
“mediation” is the part of the conflict resolution process in
which a mediator directly participates, it follows that “medi-
ation proceedings” are the actual mediator-facilitated dis-
cussions through which mediation occurs, whether they take
place at a formal meeting of the parties with the mediator, or
at individual sessions with the mediator. As the statute con-
templates, third parties may be present at, and participate
in those discussions. See ORS 36.195(2) (stating that in civil
mediations conducted under the provisions of ORS 36.185 to
36.210, “[a]ttorneys and other persons who are not parties
to a mediation may be included in mediation discussions at
the mediator’s discretion, with the consent of the parties”).
To fall within the category of an “other person present at,
the mediation proceedings” then, a person must be a direct
observer or participant in the mediator-facilitated discus-
sion in which the communication was made.6
The legislative history confirms that interpreta-
tion. See Exhibit E, Senate Business, Law and Government
Committee, SB 160, Feb 27, 1997 (accompanying statement
5
For purposes of applying the mediation statute, the term “party” here
can also include other persons, such as attorneys or others who are agents of
mediating parties, who speak on behalf of mediating parties. See ORS 36.110(5)
(“ ‘Mediation’ * * * includes all contacts between a mediator and any party or agent
of a party * * *.” (Emphasis added.)). See, e.g., Bidwell and Bidwell, 173 Or App
288, 294, 21 P3d 161 (2001) (holding that written settlement communications
between attorneys on behalf of two mediating parties were confidential “media-
tion communications” under ORS 36.220).
6
Defendant argues that his private attorney-client discussions with plaintiff
are confidential “mediation communications” because defendant was a “person
present at, the mediation proceedings” under ORS 36.110(7)(a). That argument
is unavailing because, as discussed, that provision applies only to the extent
that the communications were made “in the course of” mediation proceedings.
Plaintiff has not argued, and nothing in the record suggests, that the mediator
participated in any of those discussions.
Cite as 358 Or 383 (2015) 399
of Donna Silverberg, Acting Director of Oregon Dispute
Resolution Commission,7 and official representative of work-
group that drafted SB 160, describing that mediation stat-
ute seeks to provide assurance to parties by rendering all
mediation communications confidential as a general rule,
whether the communications are made to “a mediator, a
mediation program or other party or person present at the
mediation session” (emphasis added)).
Identifying the basic elements of “mediation com-
munications” as set out in the text of ORS 36.110(7)(a) does
not end our inquiry, however. To discern whether the kinds
of communications at issue in this case fall within the scope
of that provision, we must answer a more fundamental ques-
tion: to whose communications does the definition set out in
ORS 36.110(7)(a) apply? Because ORS 36.110(7)(a) is written
in the passive voice—“ ‘Mediation communications’ means
all communications that are made…”—the legislature did
not explicitly state whose speech it is directed at. See State
v. Klein, 352 Or 302, 309, 283 P3d 350 (2012) (noting that
because legislature wrote statutory definition of “aggrieved
person” in the passive voice—“a person against whom the
interception was directed”—who or what does the “direct-
ing” is not explicitly stated). Defendant argues that the leg-
islature’s use of passive voice in ORS 36.110(7)(a) means
that provision was intended to apply to any communication
by any person. However, whether that is correct is less clear
than the words of the statute, in isolation, might suggest.
The legislature often uses the passive voice in draft-
ing statutes, but its significance for statutory interpretation
varies. In some circumstances, we have concluded that the
legislature’s use of the passive voice conveys its intent that a
statute apply more broadly. See, e.g., Powerex Corp. v. Dept.
of Rev., 357 Or 40, 46-47, 346 P3d 476 (2015) (use of pas-
sive voice in ORS 314.665(2)(a) indicates that application of
statute does not depend on identity of actor). At other times,
7
The Oregon Dispute Resolution Commission (ODRC) was the entity
charged with providing services in support of the legislative mandates set forth
in Oregon’s mediation statute. Established by the Oregon legislature in 1989 and
funded through 2003, the ODRC’s membership included private individuals who
worked in the field of alternative dispute resolution, judges, and elected officials.
An ORDC workgroup was responsible for drafting the text of the legislation that
created the confidentiality provisions in Oregon’s current mediation statute.
400 Alfieri v. Solomon
however, the legislature’s use of the passive voice adds noth-
ing to the meaning of a provision and instead generates
ambiguity as to how the law should be applied. See, e.g.,
State v. Serrano, 346 Or 311, 322, 210 P3d 892 (2009) (use of
passive voice in OEC 505(1)(a) not reflective of how marital
communications privilege intended to operate); Brentmar v.
Jackson County, 321 Or 481, 487, 900 P2d 1030 (1995) (use
of passive voice in land use statute created ambiguity as to
who was authorized to act). For the reasons discussed below,
we conclude that the legislature did not intend its use of the
passive voice in ORS 36.110(7)(a) to bring the statements
of all possible speakers within the definition of “mediation
communications,” but that the legislature intended the stat-
ute to apply more narrowly.
Although the legislature did not specify the speak-
ers to whom ORS 36.110(7)(a) applies, as described above, it
did specify the persons to whom the communication must be
made for it to be a “mediation communication.”8 That defini-
tion applies only to the extent that a communication is made
“in the course of or in connection with a mediation to a medi-
ator, mediation program, party to or any other person pres-
ent at, a mediation proceeding.” (Emphasis added.) When
a communication is made “in the course of” a mediation,
both sides of the communication will ordinarily consist of
individuals identified in ORS 36.110(7)(a), because they will
be present at the mediation proceedings, physically or by
telephone. But when a communication takes place outside of
mediation proceedings and is thus only “in connection with”
a mediation, it may involve one of the persons identified in
the statute and another person not among those listed.
8
In contrast, although California’s statute providing for the confidentiality
of mediation communications is also stated in the passive voice, the confidential-
ity of a communication is not limited according to the identity of the recipient. See
Cal Evid Code § 1119(a) (“No evidence of anything said or any admission made
for the purpose of, in the course of, or pursuant to, a mediation or a mediation
consultation is admissible or subject to discovery * * *.”). The Supreme Court of
California has concluded that the scope of confidentiality pursuant to California
Evidence Code Section 1119 extends to attorney-client communications, even out-
side the mediation itself. See Cassel v. Superior Court, 51 Cal 4th 113, 128, 244
P3d 1080, 1090-91 (Cal 2011) (interpreting rule and holding that communica-
tions between a disputant and his or her own counsel are confidential mediation
communications, notwithstanding that they occur without either the mediator or
other disputants present).
Cite as 358 Or 383 (2015) 401
As a result, if ORS 36.110(7)(a) were interpreted
to apply to communications made by any person, situations
could occur where only half of the conversation is confiden-
tial. For example, under that interpretation, in an exchange
outside of mediation proceedings between plaintiff (here a
mediating party) and defendant (plaintiff’s attorney and
therefore neither a party, a mediator or mediation program
representative, or, in this scenario, a person present at medi-
ation proceedings), every statement pertaining to the medi-
ation made by defendant to plaintiff would be confidential,
but, because of the limitation on the receiving parties in the
statute, plaintiff’s response would not.9
That outcome—the protection of a third party’s
statements but not those of the mediating party—is funda-
mentally at odds with the legislature’s central goal of pro-
tecting the ability of mediating parties to speak openly with-
out fear that their words might be used against them later.
See Tape Recording, Senate Business, Law and Government
Committee, SB 160, Feb 27, 1997, Tape 75, Side A (state-
ment of Representative Bryan Johnston, SB 160 sponsor,
that fundamental goal of legislation is to protect parties’
ability to speak openly in private mediation sessions);
Tape Recording, Senate Business, Law and Government
Committee, SB 160, Feb 27, 1997, Tape 75, Side A (testimony
of Silverberg, describing definition of “mediation communi-
cations” as protecting the confidentiality of what parties say
in mediation). Thus, because interpreting ORS 36.110(7)(a)
to apply to all speakers would lead to results that are con-
trary to the legislature’s fundamental objective of ensuring
confidentiality in the first place, we cannot conclude that
the legislature intended its use of the passive voice in ORS
36.110(7)(a) to mean that communications made by any per-
son may be mediation communications.
If the legislature did not intend ORS 36.110(7)(a) to
apply to communications made by any person whatsoever,
9
As previously noted, communications made outside of mediation proceed-
ings by an attorney representing a mediating party could be “mediation com-
munications” if made on that party’s behalf. See note 5 (discussing application
of statutes to persons acting as an agent for a mediating party). However, an
attorney does not speak on behalf of a client where, as here, he or she commu-
nicates with that client privately for the purpose of facilitating the rendition of
professional legal services to that client.
402 Alfieri v. Solomon
to whose communications did the legislature intend it to
apply? To answer that question, we return to the text, plac-
ing it against its proper contextual background.
As discussed, “mediation” is a conflict resolution
“process” whereby parties attempt to arrive at a mutually
acceptable resolution of their dispute. See ORS 36.110(5).
Within that process, every communication assumes a
response. Thus, while the statute’s drafters were concerned
first and foremost with protecting mediating parties’ ability
to speak freely, they referred not only to “communications”
but also to “mediation discussions” and “conversations.” See
ORS 36.195(2) (“Attorneys and other persons who are not
parties to a mediation may be included in mediation dis-
cussions.”); Tape Recording, Senate Business, Law and
Government Committee, SB 160, Feb 27, 1997, Tape 75,
Side A (statement of Silverberg, describing how mediation
confidentiality is meant to protect the confidentiality of “con-
versations” that parties have in mediation sessions). Most
often, it is the persons indentified in ORS 36.110(7)(a) who
make up both sides of those exchanges.
Considering the statutory text in light of that con-
text, the legislature’s decision to define “mediation com-
munications” as “[a]ll communications that are made * * *
to a mediator, a mediation program or a party to, or any
other person present at, the mediation proceedings,” ORS
36.110(7)(a) (emphasis added), suggests that the legislature
intended that provision to apply only to discussions between
those persons identified in the statute. In other words, to
be a confidential mediation communication, a communica-
tion must be both made to one of the persons listed in ORS
36.110(7)(a) and made by one of those same persons.
The statutory provisions for waiver of mediation
confidentiality confirm that understanding. In the absence
of an applicable exception under ORS 36.220, mediation
communications may only be disclosed in a subsequent
legal action if certain specified persons agree. Except for
the catchall category of third parties who make or receive
mediation communications while present at mediation pro-
ceedings, those persons who may waive confidentiality are
the same ones enumerated in ORS 36.110(7)(a). See ORS
Cite as 358 Or 383 (2015) 403
36.222(2) (“A party may disclose confidential mediation com-
munications or agreements in any subsequent adjudicative
proceeding if all parties to the mediation agree in writing to
the disclosure.”); ORS 36.222(3) (“A mediator may disclose
confidential mediation communications or confidential medi-
ation agreements in a subsequent adjudicatory proceeding if
all parties to the mediation, the mediator, and the mediation
program, if any, agree in writing to the disclosure.”). The
facts that the statute allows for confidentiality to be waived,
and that the consent of only those persons is required, signal
that the speakers to whom the definition of “mediation com-
munications” is meant to apply is similarly limited.
Aside from looking to the text and context of a
statute, we may also consider its legislative history to see
whether it confirms our understanding of what the legisla-
ture intended. Comcast Corp. v. Dept. of Rev., 356 Or 282,
301-05, 337 P3d 768 (2014). Although the legislature did
not engage in extensive debate on the issue, the proponents
of the legislation did discuss the meaning of “mediation
communications” and how the confidentiality rules set out
in ORS 36.220 and 36.222 would apply. As already noted,
the legislature expected and intended that communications
that disputing parties make in the course of mediation—
and those that mediators make in response—would be cov-
ered. See, e.g., Tape Recording, Senate Business, Law and
Government Committee, SB 160, Feb 27, 1997, Tape 75, Side
A (statement of Silverberg that goal of law is to “guarantee
consumers of mediation services that the conversations and
communications they have in a mediation session are confi-
dential” and that mediation should provide “a confidential
setting” for disputants to “air their differences.”). Likewise,
the legislative history indicates that the legislature under-
stood the scope of confidentiality to extend to communica-
tions made by other participants in mediation proceedings.
See Tape Recording, Senate Business, Law and Government
Committee, SB 160, Feb 27, 1997, Tape 74, Side B (testi-
mony of Beghtol noting that other persons, such as friends
and family, who participate in mediation sessions will be
“included under the confidentiality umbrella”). Nothing in
the legislative history, however, suggests that the legisla-
ture intended ORS 36.110(7)(a) to apply to statements made
404 Alfieri v. Solomon
by other persons not identified in the statute, such as an
attorney giving private advice to his or her client outside of
any mediation proceeding.
In sum, considering the text of ORS 36.110(7)(a) in
light of its context and history, we conclude that the term
“mediation communications” includes only communications
exchanged between parties, mediators, representatives of
a mediation program, and other persons while present at
mediation proceedings, that occur during the time that the
mediation is underway and relate to the substance of the
dispute being mediated. Private communications between
a mediating party and his or her attorney outside of medi-
ation proceedings, however, are not “mediation communica-
tions” as defined in the statute, even if integrally related to
a mediation.
3.  Application of the Confidentiality Provisions of the
Mediation Statute
We now return to the question of whether the trial
court erred in granting defendant’s motion to strike. As
already discussed, the trial court struck several categories
of allegations from plaintiff’s complaint. First, the trial court
struck an allegation that disclosed a communication from
the mediator to the parties: that after the failed mediation
conference, the mediator suggested a particular settlement
amount. Second, the trial court struck an allegation that
pertained to communications apparently made by defendant
during the formal mediation session: that defendant had
failed “to reasonably advocate for plaintiff.” Third, the trial
court struck allegations that described private attorney-
client discussions that occurred between plaintiff and defen-
dant before and after the mediation proceedings, including
that defendant “pressured plaintiff into eventually agreeing
to the mediator’s proposal” and that defendant gave certain
advice to plaintiff regarding the effectiveness and enforce-
ability of the settlement agreement.
We have concluded that statements that mediators
make to parties regarding their dispute are “mediation com-
munications” within the meaning of ORS 36.110(7)(a) and
ORS 36.220, and thus inadmissible under ORS 36.222. The
trial court therefore was correct in striking the allegation
Cite as 358 Or 383 (2015) 405
in plaintiff’s complaint that disclosed the mediator’s sugges-
tion to the parties of settlement terms.
Likewise, statements that an attorney makes in the
course of participating in mediation proceedings are also
“mediation communications.” Such statements are made
by “a person present at, the mediation proceedings,” in the
course of mediation, to persons listed in ORS 36.110(7)(a)—
the mediator, parties to the mediation, or persons present at
the “mediation proceedings.” See also ORS 36.195(2) (pro-
viding that attorneys may participate in civil mediation
proceedings). The allegation that defendant failed “to rea-
sonably advocate for plaintiff in the mediation” appears to
refer to defendant’s conduct in the formal mediation session
between plaintiff and his former employer. To the extent
that is true, the trial court was correct in striking it.10 If
that allegation refers instead to communications made out-
side of a mediation proceeding, the trial court was still cor-
rect if defendant was speaking on plaintiff’s behalf in con-
nection with the mediation to qualifying recipients. See ORS
36.110(5) (“ ‘Mediation’ * * * includes all contacts between a
mediator and any party or agent of a party * * *.” (Emphasis
added.)). See, e.g., Bidwell and Bidwell, 173 Or App 288, 294,
21 P3d 161 (2001) (holding that written settlement commu-
nications between attorneys on behalf of two mediating par-
ties were confidential “mediation communications” under
ORS 36.220). On remand, the trial court may resolve any
factual dispute as to the nature of that allegation.
The trial court erred, however, in striking the third
category of allegations from plaintiff’s complaint, pertain-
ing to private attorney-client discussions between plaintiff
10
We recognize that our interpretation of the relevant Oregon statutes may
make it difficult, in some circumstances, for clients to pursue legal malpractice
claims against their attorneys for work in connection with mediations. After
Oregon’s mediation statute was enacted, that issue was considered by the draft-
ers of the Uniform Mediation Act. The Uniform Act provides that mediation com-
munications that would otherwise be confidential may be disclosed for purposes
of litigating a subsequent attorney malpractice action. See Uniform Mediation
Act § 6(a)(6) (2001) (providing exception to mediation privilege where mediation
communications are “sought or offered to prove or disprove a claim or complaint
of professional misconduct or malpractice filed against a mediation party, non-
party participant, or representative of a party based on conduct occurring during
a mediation”). The legislature may wish to consider statutory changes based on
the Uniform Mediation Act.
406 Alfieri v. Solomon
and defendant. Private discussions between a mediating
party and his or her attorney that occur outside mediation
proceedings, whether before or after those proceedings, are
not “mediation communications” within the meaning of ORS
36.110(7)(a), even if they do relate to what transpires in the
mediation. Therefore, because those allegations are neither
confidential under ORS 36.220 nor inadmissible under ORS
36.222, the trial court erred in striking them from plain-
tiff’s complaint.11
B.  Dismissal of Plaintiff’s Complaint
We turn to the trial court’s order dismissing plain-
tiff’s complaint with prejudice. When this case was before
the trial court, plaintiff neither filed, nor sought leave to
file, an amended complaint at any point, before or after the
final order of judgment dismissing the complaint with prej-
udice was entered. However, plaintiff argued in the Court
of Appeals that the trial court erred in dismissing the com-
plaint with prejudice because ORCP 23 A allows a plaintiff
to amend its complaint once as a matter of right, before a
responsive pleading has been served and a motion to dis-
miss is not a responsive pleading. See Balboa Apartments
v. Patrick, 351 Or 205, 212, 263 P3d 1011 (2011) (so stat-
ing). The Court of Appeals agreed. Citing recent decisions
of that court interpreting ORCP 23 A, the Court of Appeals
held that the trial court erred because “plaintiff had to be
allowed an opportunity to amend [the] complaint once, as a
matter of right, before the trial court dismissed [the] com-
plaint with prejudice.” Alfieri, 263 Or App at 504 (citing
O’Neil v. Martin, 258 Or App 819, 838, 312 P3d 538 (2013),
rev den 355 Or 381 (2014)).12
11
While private attorney-client discussions that occur outside of mediation
proceedings are not confidential “mediation communications,” they may be priv-
ileged under OEC Rule 503. See OEC 503(1)-(3) (describing scope of privilege).
The attorney-client privilege, however, may not be claimed by an attorney when
the client seeks disclosure. See OEC 503(3) (privilege may only be claimed by the
client or some other person on the client’s behalf). Further, there is no privilege,
“[a]s to a communication relevant to an issue of breach of duty by the lawyer to
the client or by the client to the lawyer.” OEC 503(4)(c).
12
The Court of Appeals relied primarily on two cases: Lamka v. KeyBank,
250 Or App 486, 281 P3d 639 (2012), and O’Neil v. Martin, 258 Or App 819, 822,
312 P3d 538 (2013), rev den, 355 Or 381 (2014). For the reasons discussed in this
opinion, those cases were wrongly decided.
Cite as 358 Or 383 (2015) 407
As we explain below, we reverse: A party is not enti-
tled to amend its complaint once the court has allowed a
motion to dismiss the complaint in its entirety under ORCP
21. Rather, once such a motion has been granted, the right
to amend as a matter of course is extinguished and a plain-
tiff must seek leave to amend, which the trial court may
grant in its discretion.
We begin with the text of the applicable rules of
civil procedure. In this case, two provisions are especially
relevant. ORCP 23 A establishes the general rule for when
a party is entitled to amend a pleading. It provides in part:
“A pleading may be amended by a party once as a matter of
course at any time before a responsive pleading is served
* * *.” As noted, that provision is understood to confer on
parties an absolute right to amend within the timeframe
prescribed. Because a motion to dismiss is not a responsive
pleading, see ORCP 13 B (listing types of pleadings allowed
in action), that rule seems to apply. See also ORCP 21 A
(“Every defense, in law or fact, to a claim for relief in any
pleading * * * shall be asserted in the responsive pleading
thereto, except that the following defenses may at the option
of the pleader be made by motion to dismiss * * *.”). However,
when a motion to dismiss has been granted, ORCP 25 A is
triggered. It provides in part: “When a motion to dismiss or
a motion to strike an entire pleading or a motion for a judg-
ment on the pleadings under Rule 21 is allowed, the court
may, upon such terms as may be proper, allow the party to
amend the pleading.”
In this case, those two rules—ORCP 23 A and
ORCP 25 A—appear to conflict. ORCP 23 A gives parties an
unqualified right to amend once as a matter of course, which
continues until a responsive pleading has been served.
ORCP 25 A, however, provides that once a motion to dismiss
a complaint in its entirety has been allowed, the court may
“allow” an amendment. The word “allow” in this context is
a legal term of art, meaning “to give consent to,” “approve,”
or “to grant permission.” Black’s Law Dictionary 92 (10th ed
2014). If “the court may, upon such terms as may be proper,
allow the party to amend,” one can infer that the court
may also disallow an amendment. See Friends of Columbia
Gorge v. Columbia River (S055915), 346 Or 415, 426-27, 212
408 Alfieri v. Solomon
P3d 1243 (2009) (stating rule that unless context is ambig-
uous, we interpret the word “may” according to its ordinary
usage, as conveying discretionary authority). Thus, although
the text does not say so expressly, ORCP 25 A suggests—
contrary to the rule in ORCP 23 A—that a plaintiff may no
longer amend as a matter of right once a court has granted
a motion to dismiss its entire complaint.
As a basic rule of statutory construction, we con-
strue statutes to give effect, if possible, to all their provi-
sions. Crystal Communications, Inc. v. Dept. of Rev., 353
Or 300, 311, 297 P3d 1256 (2013). See also ORS 174.010
(“[W]here there are several provisions or particulars such
construction is, if possible, to be adopted as will give effect
to all.”). Given the apparent inconsistency between ORCP
23 A and ORCP 25 A, we must determine whether they can
be harmonized.
Analyzing the text, in context, we conclude that
ORCP 23 A and ORCP 25 A were intended to operate as
independent, alternative provisions. Although both rules
relate to the same subject—the procedure by which par-
ties may amend their pleadings—they apply in different
circumstances. ORCP 23 A applies to the period between
when a pleading—whether a complaint or answer—is
served until a responsive pleading is served, or if none is
permitted, 20 days has elapsed. See ORCP 23 A (describing
timeframe when a party may amend its pleading “once as a
matter of course”). In contrast, ORCP 25 A is triggered only
when certain motions under ORCP 21 have been filed and
granted. See ORCP 25 A (stating that rule applies “when a
motion to dismiss or a motion to strike an entire pleading or
a motion for a judgment on the pleadings under ORCP 21 is
allowed”). Under those circumstances, a responsive plead-
ing from the moving party is no longer required because
the court has determined that all of the claims fail as a
matter of law. As a result, the rule set out in ORCP 23 A
that a party may amend once as a matter of course before
a responsive pleading is served is inapplicable. We there-
fore conclude that ORCP 25 A, providing that a court “may”
allow a party to amend when certain motions, including a
motion to dismiss, are granted, operates as an exception
to the more general rule in ORCP 23 A that a party may
Cite as 358 Or 383 (2015) 409
amend as a matter of course before a responsive pleading
has been served.
That conclusion is supported by the text of ORCP
25 B, a related provision that sets out the rules for when a
party that amends after a motion waives certain defenses or
objections. ORCP 25 B specifically describes the avenues by
which a party may amend its complaint:
“If a pleading is amended, whether pursuant to sections
A or B of Rule 23 or section A of this rule or pursuant to other
rule or statute, a party who has filed and received a court’s
ruling on any motion directed to the preceding pleading
does not waive any defenses or objections asserted in such
motion by failing to reassert them against the amended
pleading.”
(Emphasis added.) As the text of ORCP 25 B illustrates, a
party can amend its pleadings in a variety of ways, including:
as a matter of course before a responsive pleading is served;
with leave of the court after a responsive pleading has been
served; by express or implied consent when additional issues
are raised; and with leave of the court after certain motions
under ORCP 21 have been granted. Although more than one
avenue to amendment might occur over the life of a case,
each operates independently of the others when it is invoked
by a party seeking to amend.
That ORCP 23 A and ORCP 25 A were not intended
to apply simultaneously, but to operate as alternative rules
for the amendment of pleadings under different circum-
stances, is also supported by the text of ORCP 21 A, which
governs how motions may be made and the court’s authority
to respond. It provides in part: “If a court grants a motion
to dismiss, the court may enter judgment in favor of the
moving party or grant leave to file an amended complaint.”
(Emphasis added.) With the inclusion of those words, the
drafters sought to make clear the court’s discretionary
power to determine whether, after granting a motion to dis-
miss, to allow the plaintiff to replead, or whether to instead
enter a judgment.13 See Council on Court Procedures, (1982
13
Initially, the wording of that provision differed slightly. See ORCP 21 A
(1982) (“When a motion to dismiss has been granted, judgment shall be entered
in favor of the moving party unless the court has given leave to file an amended
410 Alfieri v. Solomon
promulgation), Rule 21, comment (“To cure any ambigu-
ity in the ability of the court to allow leave to amend after
a motion to dismiss has been granted, Rule 21 A will be
amended to specifically refer to leave to amend under ORCP
25. The amendment would also make it clear that judgment
may be entered if leave to amend is not granted.”).14
The history of ORCP 25 A confirms that it was
intended to act as an exception to the general rule under
ORCP 23 A that a party may amend as a matter of course
before a responsive pleading is served. Although the first
part of ORCP 23 A was taken almost verbatim from the text
of FRCP 15(a) as it existed when the Oregon Rules of Civil
Procedure were first promulgated,15 see Council on Court
Procedures, Proposed Rules of Civil Procedure, Rule 23
(comment), in Legislative History Relating to Promulgation
of Oregon Rules of Civil Procedure, Vol. 6, 64 (1979) (discuss-
ing history of rule), the words in ORCP 25 A were drawn
from an existing Oregon statute for which no analogous fed-
eral rule existed. See id. (describing statutory source of that
part of rule).16 The provision from which ORCP 25 A was
drawn, former ORS 16.380, provided that if a demurrer17
pleading under Rule 25.”). When the Council on Court Procedures changed ORCP
21 A to its present form, it intended to clarify, not modify, the options available to
the court upon the grant of a motion to dismiss. See Council on Court Procedures,
(2000 promulgation), Rule 21, comment (describing effect of changes), available
at http://counciloncourtprocedures.org/Content/Legislative_History_of_Rules/
ORCP_21_promulgations_all_years.pdf (accessed Dec 2, 2015).
14
Available at http://counciloncourtprocedures.org/Content/Legislative_
History_of_Rules/ORCP_21_promulgations_all_years.pdf (accessed Dec 2, 2015).
15
In 1978, FRCP 15(a) read as follows: “A party may amend his pleading
once as a matter of course at any time before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is permitted and the action
has not been placed upon the trial calendar, he may so amend at any time within
20 days after it is served.” FRCP 15(a) (1977). FRCP 15(a) has since been amended
and that language altered.
16
Originally, the text of ORCP Rule 25 A was set out in ORCP 23 D. Fredric
Merrill, Oregon Rules of Civil Procedure: 1984 Handbook 55 (1984). In both its
original form as ORCP 23 D and as it exists today in ORCP 25 A, the relevant
text (the first sentence of the rule) remains the same. Compare Council on Court
Procedures, Proposed Rules of Civil Procedure, Rule 23, in Legislative History
Relating to Promulgation of Oregon Rules of Civil Procedure, Vol. 6, 63 (1979)
(original text of ORCP 23 D) with ORCP 25 A.
17
  Before the promulgation of the Oregon Rules of Civil Procedure, parties
would file a “demurrer” rather than a motion to dismiss for failure to state a
claim. See Council on Court Procedures, Commentary to Oregon Rules of Civil
Cite as 358 Or 383 (2015) 411
was sustained, “the court may in its discretion allow the
party to amend the pleading demurred to, upon such terms
as may be proper.” Former ORS 16.380 (1977), repealed by
Or Laws 1979, ch 284, § 199.18 Accordingly, once the court
had determined that a complaint failed to state a claim for
relief, it had discretion as to whether to allow the plaintiff
to amend. See Speciale v. Tektronix, 38 Or App 441, 445,
590 P2d 734 (1979) (noting that under former ORS 16.380,
once demurrer had been granted, “an application for leave
to plead over [was] addressed to the discretion of the trial
court”). Thus, while federal courts had interpreted FRCP
15(a) as granting plaintiffs an unqualified right to amend as
a matter of course before a responsive pleading was served,
even if a motion to dismiss had been granted, see Wright
and Miller, Federal Practice and Procedure Vol. 6 § 1483
(1971) (describing majority rule), the drafters of the Oregon
Rules of Civil Procedure declined to adopt such a rule in
Oregon. Rather, by adopting the one set out in ORCP 25 A,
they chose to preserve the court’s discretion to allow, or dis-
allow, the amendment of a dismissed pleading. That intent
is reflected in the original commentary to that rule, which
states: “If a motion to strike an entire pleading or to dis-
miss is allowed, the court retains discretion to allow or not
allow an amended pleading.” Council on Court Procedures,
Commentary to Oregon Rules of Civil Procedure Pleading,
14-15, in Legislative History Relating to Promulgation of
Oregon Rules of Civil Procedure, Vol. 3 (1979) (emphasis
added).19
Procedure Pleading, 9-10, in Legislative History Relating to Promulgation of the
Oregon Rules of Civil Procedure, Vol. 3 (1979) (describing change in terminology).
As a practical matter, a demurrer is equivalent to a motion to dismiss today.
See Black’s Law Dictionary at 526 (describing demurrer as “a pleading stating
that although the facts alleged in a complaint may be true, they are insufficient
for the plaintiff to state a claim for relief and for the defendant to frame an
answer”).
18
Former ORS 16.380 provides in full: “After a decision upon a demurrer, if it
is overruled, and it appears that the demurrer was interposed in good faith, the
court may in its discretion allow the party to plead over upon such terms as may
be proper. If the demurrer is sustained, the court may in its discretion allow the
party to amend the pleading demurred to, upon such terms as may be proper.”
19
Before the Oregon Rules of Civil Procedure were finalized, they were orga-
nized according to a lettered scheme. Originally, the rule set out today in ORCP
25 A was draft Rule L(4). The relevant portion of that rule remained the same in
all subsequent drafts of the rule.
412 Alfieri v. Solomon
We conclude, therefore, that ORCP 25 A was intended
to operate as an exception to the general rule in ORCP 23
A that a party may amend once as a matter of right before
a responsive pleading has been served. Even after a motion
under ORCP 21 is filed, a plaintiff remains free to amend its
complaint once as a matter of right. However, once the court
has granted a motion to dismiss or strike an entire plead-
ing, or a motion for judgment on the pleadings under Rule 21
is otherwise allowed, a plaintiff may no longer amend as a
matter of course, but must seek leave of the court to do so. If
leave is sought, the court, applying the same principles that
guide the amendment of pleadings after a responsive plead-
ing has been served, may decide whether to allow it. In such
a case, “leave shall be freely given when justice so requires.”
ORCP 23 A. See, e.g., Family Bank of Commerce v. Nelson,
72 Or App 739, 746, 697 P2d 216 (1985), rev den, 299 Or 443
(1985) (reversing as abuse of discretion trial court denial of
leave to amend complaint where defendant failed to demon-
strate prejudice). However, when ORCP 25 A is triggered,
for example, by the grant of a motion to dismiss, and the
plaintiff does not seek leave to amend, the court may, in its
discretion, order the complaint dismissed with prejudice.
We reverse the Court of Appeals’ determination
that the trial court erred in dismissing plaintiff’s complaint
with prejudice. The case must be remanded, however, given
our conclusion that the trial court applied an incorrect
legal standard in ruling on defendant’s motion to strike. On
remand, the trial court will have the opportunity to apply
the legal standards set out in this opinion to the motion to
strike and then consider whether defendant’s motion to dis-
miss is well taken. If the trial court again dismisses the
complaint in its entirety, plaintiff may seek leave to amend.
If the plaintiff does so, the trial court may then decide, in its
discretion, whether to allow the amendment.
For the reasons discussed above, the decision of the
Court of Appeals is affirmed in part and reversed in part.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.