concurring in part and dissenting in part.
I agree with the conclusion of the majority that the trial court erred in granting summary judgment as to plaintiffs first cause of action. I, therefore, concur in that respect.
I disagree, however, with the conclusion of the majority that the trial court erred in dismissing plaintiffs second cause of action. Plaintiffs complaint was not amended to include the second cause of action until after the running of the statute limiting the time for bringing an action. Therefore, the second cause of action was barred.
The majority misapplies ORCP 23C. The pertinent part of the rule provides:
“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amended pleading relates back to the date of the original pleading. * * *” (Emphasis added.)
Plaintiffs claim in the second cause of action was first asserted in his fourth amended complaint. It was a claim for intentional interference with a business relationship, as was the claim set out in his original complaint. The claim, however, did not arise out of the conduct, transaction, or occurrence set forth in the original pleading. The original pleading alleged conduct of defendants that consisted of false representations to, and concealment of information from US BanTrust. Plaintiffs second cause of action alleged conduct of defendants directed toward himself only. Although, as the majority points out, in both causes of action plaintiffs claim was for intentional interference with a business relationship, that asserted in the second cause of action did not arise out of the conduct set forth in the original pleading. Therefore, the amendment, the second cause of action, does not relate back to the date of the original pleading.
The majority appears to make much of calling the amendment a new count, rather than a new cause of action, even though the plaintiff himself twice pleaded it as a cause of action and continued to refer to it as a cause of *678action right up until argument in this court. It is of no moment whether the allegations which were first introduced in plaintiffs fourth amended complaint are called a count or a cause of action. They were an amendment of his pleading.
I would affirm the trial court’s dismissal of plaintiffs second cause of action.