FILED: January 6, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

JAMES RICHARDS and JUSTINE
RICHARDS,

Appellants,

v.

CAROL NOEL and FLOYD NOEL,

Respondents.

(16-97-06078; CA A99768)

Appeal from Circuit Court, Lane County.

Maurice Merten, Judge.

Argued and submitted November 25, 1998.

Jan Perkins argued the cause and filed the brief for appellants.

No appearance by respondents.

Before Warren, Presiding Judge, and Edmonds and Armstrong, Judges.

PER CURIAM

Reversed and remanded for further proceedings.

PER CURIAM

Plaintiffs appeal a judgment, assigning error to the trial court's entry of judgment for defendants and granting defendants' motion for judgment on the pleadings. We reverse.

This is an action for damages. Defendants' answer included affirmative defenses and Rule 21 motions. Plaintiffs did not file a reply to defendants' answer. Because plaintiffs did not file a timely reply, the trial court dismissed the matter.

The issue here is comparable to that in Soldo v. Follis, 83 Or App 470, 732 P2d 72 (1987), where we reversed the trial court's dismissal of the case. In Soldo, the plaintiff failed to file a reply to the affirmative defense of contributory negligence. ORCP 13 B provides that, "[t]here shall be a reply to a counterclaim denominated as such and a reply to assert any affirmative allegations in avoidance of any defenses asserted in an answer." ORCP 19 C provides that, "[a]llegations in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided." A reply to an affirmative defense is required only when the plaintiff wishes to assert any affirmative matter to avoid the affirmative defenses. The Council on Court Procedures, Staff Comment to ORCP 13, explains:

"The description of pleadings in section 13B. changes the existing Oregon practice by eliminating the routine reply containing only denials of affirmative matter in the answer. No reply is required to deny affirmative matter in the answer."

We have reviewed the affirmative defenses and hold that they required no replies. Thus, when plaintiffs failed to file a response to defendants' answer, the affirmative allegations were deemed denied.

Reversed and remanded for further proceedings.


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