WAGNER v. RYDER TRUCK LINES, 70 Or. App. 420 (1984)

689 P.2d 1030

A8107-04426; CA A30017Oregon Court of Appeals.Argued and submitted June 11, 1984
Reversed and remanded October 24, 1984

Appeal from Circuit Court, Multnomah County.

Charles S. Crookham, Judge, Motion to Dismiss.

Robert P. Jones, Judge, heard arguments and ruled from the bench on the Motion to Strike the Fourth Amended Complaint.

John C. Beatty, Jr., Judge, Judgment.

Graham Walker, Portland, argued the cause and submitted the briefs for appellant.

John C. Laing, Jr., Portland, argued the cause for

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respondent. With him on the brief was Day, Prohaska Gregores, P.C., Portland.

Before Richardson, Presiding Judge, and Warden and Newman, Judges.

WARDEN, J.

Reversed and remanded.

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WARDEN, J.

Plaintiff appeals from the trial court’s orders allowing defendant’s motions to dismiss his third and fourth amended complaints and denying him the right to plead further and from the entry of judgment in favor of defendant. We reverse and remand.

Plaintiff brought this action for damages for an alleged breach of an exclusive truck brokerage contract.[1] The trial court dismissed his third and fourth amended complaints

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for failure to state ultimate facts sufficient to constitute a claim. ORCP 21A(8). Plaintiff contends that a prima facie case for breach of contract was alleged in both of the challenged complaints. Defendant counters that, even if a prima facie case were alleged, the dismissals nonetheless were proper because plaintiff in an earlier pleading had alleged a subsequent written agreement which the trial court found superseded any oral agreement and, considering the existence of that contract, plaintiff now cannot maintain a claim based on an alleged oral contract. See Nicholson v. Hardwick, 49 Or. App. 169, 175, 619 P.2d 925 (1980).

Whatever merit there may be to defendant’s theory, we conclude that a motion to dismiss for failure to state a claim was not at that juncture the appropriate way for defendant to challenge plaintiff’s claim. Even though all pleadings are required to be a part of the record on appeal, ORS 19.005(3) and 19.074, a pleading loses its status as such when it is superseded by an amended one. Klemgard et al v. Wade Seed Co., 217 Or. 409, 414, 342 P.2d 757 (1959). Although the superseded pleading subsequently may be introduced into the proceedings as an evidentiary admission of the pleader subject to explanation see Moore v. Drennan, 269 Or. 189, 523 P.2d 1250 (1974), Oregon appellate courts have never suggested that superseded pleadings may be considered for purposes of determining whether a claim has been stated. Cf. Moore v. West Lawn Mem’l Park, 266 Or. 244, 512 P.2d 1344 (1973) (original is not superseded by amended complaint for purposes of showing when action was commenced or whether new cause of action was introduced).

We hold that a superseded complaint may not be read in conjunction with an amended complaint to serve as the foundation for a motion to dismiss for failure to state a claim; in deciding a motion on that basis, the court may look only to the facts alleged in the amended complaint.[2] On reviewing plaintiff’s fourth amended complaint, we conclude that it sufficiently alleges a breach of contract claim. The trial court

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erred in granting defendant’s motion to dismiss the complaint for failure to state a claim.

Reversed and remanded.

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