dissenting.
I would hold that an ORCP 21A(9) motion to dismiss tests each claim in a complaint separately. Therefore, I respectfully dissent.
The rules of civil procedure allow plaintiffs to join claims against a number of parties and to assert alternative and even inconsistent claims. ORCP 24A; ORCP 16C. The majority holds that the trial court could look to plaintiffs claim against her former attorney to ascertain the facts in considering a motion to dismiss her claim against the other party. The majority’s holding penalizes plaintiff for joining claims that are not strictly factually inconsistent, but which require allegations of facts in one claim that are not required to plead the other claim. 1
*406ORCP 21A permits certain defenses to be made by motion to dismiss. It begins by prescribing how a pleader is to assert a “defense, in law or fact, to a claim for relief. ” (Emphasis supplied.) That wording suggests that each “claim for relief’ must be considered to be separate for the purpose of analysis under the rule. Further, the court may consider facts that “do not appear on the face of the pleading and matters outside the pleading” only on motions asserting defenses (1) through (7). Here, the motion asserts defense (9). Read as a whole, ORCP 21A means that each “claim for relief’ is, in effect, a separate “pleading” when considering a motion under ORCP 21A(9).
The majority cites no authority for its holding. It attempts to distinguish the result in Dryden v. SAIF, 88 Or App 542, 746 P2d 240 (1987), by narrowing the application of its present holding to claims that are not factually inconsistent. However, in Dryden, the fact which we refused to pull from the allegations in the first claim to defeat the second claim was not inconsistent with plaintiffs second claim. The fact that the individual defendant in Dryden was employed by SAIF did not contradict any fact alleged in the second claim. The inconsistencies in both cases are in the legal theories, not in the facts.
In Dryden, the plaintiffs first claim alleged a negligent act performed by an employe of SAIF, for which SAIF could be legally liable. The second claim asserted that the individual defendant had acted intentionally, did not mention that SAIF was his employer and asked for punitive damages. The trial court granted the defendant’s motion to strike the claim for punitive damages on the basis that punitive damages are unavailable under the Oregon Tort Claims Act (OTCA). We held that to be error, because the second claim did not make any allegation concerning SAIF, the only defendant protected by OTCA.2
*407Similarly, in this case, plaintiff has alleged in her first claim the date of the accident which is the subject of her action and the date when her first action against Krough was filed. The second claim does not mention those dates. In both Dryden and this case, we are asked to look to the first claim for facts additional to, not facts inconsistent with, those in the second claim. In each case there exists legal inconsistency between the two claims asserted. In Dryden, we held that a fact alleged in the first claim could not defeat the legal theory of the second. That holding is equally applicable here.3
The majority also relies on Lawver v. Lawvor, 86 Or App 721, 724, 740 P2d 1220 (1987), for the proposition that a fact not “expressly” alleged in one claim could be inferred from the “pleading as a whole.” Lawver is distinguishable, however. First, it is not clear why the fact in question was inferred; the opinion did not discuss the present issue. Second, the fact inferred was subject to judicial notice, an independent source of the same information, and the judicial notice had not been assignéd as error. 86 Or App at 725. Morever, Lawver is inconsistent with the more recent decision in Dryden v. SAIF, supra.
We should not rush to allow the complaint to be defeated by scanning one separate claim to pass on the sufficiency of the other. The “just, speedy and inexpensive determination” of this action could be as well served by the assertion of the time bar in an affirmative defense. ORCP IB; ORCP 21A.41 would reverse and remand.
Richardson, Warden and Graber, JJ., join in this dissent.ORCP 16C and ORCP 24A allow the pleading of alternative and inconsistent claims. It is inappropriate to create a disincentive to joinder of claims that may be factually consistent.
Dryden analyzed the two claims separately, and the majority’s argument that they were treated separately because of inconsistent facts is unsupported in the Dryden opinion. Moreover, there is no principled basis under ORCP 21A(9) to distinguish between claims that are factually inconsistent and claims that are legally, but not factually, inconsistent. The majority states that the two claims here are “interdependent,” but the claim under consideration does not, and need not, ineoiporate the other by reference.
Wagner v. Ryder Truck Lines, 70 Or App 420, 423, 689 P2d 1030 (1984), also supports this dissent by analogy. We held 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 * * Wagner suggests that it is not proper to use a fact alleged in one pleading as a conclusive judicial admission against another pleading. Accord O’Gara v. Kaufman, 81 Or App 499, 503 n 3, 726 P2d 403 (1986).
In essence, what the trial court did is to convert a motion under ORCP 21A(9) into a summary judgment motion, by considering facts other than those stated in the claim at issue. That route is tempting, because it appears that summary judgment is inevitable. However, the majority incorrectly interprets ORCP 21A(9); a trial court may not grant summary judgment sua sponte. Industrial Underwriters v. JKS, Inc., 90 Or App 189, 190, 750 P2d 1216 (1988).