dissenting.
Plaintiff filed an amended complaint in which he alleged a claim for breach of contract. In the claim, plaintiff asserts that defendant entered into an oral agreement to deliver $40,000 to an Oregon conservatorship when it was established. He alleges, in part:
“4.
‘ ‘During these conversations [the telephone calls made by defendant to plaintiff], defendant Brennan repeatedly represented to and assured plaintiffs attorney that defendant was aware that the funds belonged to Helen Sutherland and that a conservatorship in Oregon was being established for receipt of the $40,000 held by defendant. Defendant further represented to plaintiffs attorney that he would not release the trust funds to his client, Stephen Morrow, but would instead hold the funds for Helen Sutherland pending establishment of the conservatorship. Defendant stated to attorney Howard that when the conservatorship was established in Oregon, defendant would release the funds to plaintiff for deposit into the Oregon conservatorship account.
“6.
‘ ‘ [D] efendant has failed and refused and continues to fail and refuse to deliver the funds held by him in trust for Helen B. Sutherland to the conservatorship established on her behalf * * (Emphasis supplied.)
Plaintiffs complaint prays for judgment for $40,000.
In response to the claim, defendant moved under ORCP 21A for an order dismissing the complaint with prejudice on the basis that the Oregon court lacked personal jurisdiction over defendant. See ORCP 21A(2). In support of that motion, defendant filed an affidavit that said, in part:
*35“2. I am a resident of Santa Cruz, California, and am licensed to practice law in California. I am not licensed nor have I practiced in Oregon.
“3. I own real property in the State of Oregon.
“4. The subject matter of this lawsuit is in no way whatsoever related to the real property I own in Oregon;
“5. In my capacity as a California attorney, I received funds from a longstanding client to be placed in my trust account. The client in question, Steve Morrow, is a California resident. I received the funds from Mr. Morrow, not Ms. Sutherland, in Santa Cruz, California, and placed them in my Santa Cruz, California, trust account.
“6. I participated in several telephone calls with Mr. Howard of Oregon because Mr. Howard demanded that Mr. Morrow have his attorney contact him. I never told Mr. Howard that I believed the money to be Ms. Sutherland’s. I did tell Mr. Howard that if a court ordered the funds delivered to a Sutherland conservatorship, I would attempt to get my client to comply. I did not say I would hold the funds indefinitely or for Ms. Sutherland.
“6. [sic] I am informed by my client and by plaintiffs attorney, Mr. Howard, that these funds, $40,000, were provided to Mr. Morrow by the California resident, Helen Sutherland.
“7. The funds in question remained in my California trust account until my client, Mr. Morrow, made written demand for their return. I followed the instructions and transferred the funds to Mr. Morrow in Santa Cruz, California.
“8. At the time of the transfer of funds back to Mr. Morrow, I had no knowledge, written or otherwise, of a demand by an Oregon established conservatorship for the funds.”
The trial court granted defendant’s motion, and plaintiff appeals arguing that because the allegations in the complaint must be taken as true, the trial court exceeded its authority-under ORCP 21A(2) when it dismissed the complaint with prejudice.
The majority holds that Oregon does not have personal jurisdiction over defendant pursuant to ORCP 4. In paragraphs 4 and 6, plaintiff has alleged a breach of an oral contract to release funds to a representative of an Oregon *36conservatorship. Those facts, as alleged, vest jurisdiction in the circuit court under ORCP 4L.1 In State ex rel White Lumber v. Sulmonetti, 252 Or 121, 127, 448 P2d 571 (1968), the Supreme Court stated the criteria for applying ORCP 4L, Oregon’s long-arm statute. The facts as afleged in this case, meet those criteria. First, a defendant must cause the important consequences within the State of Oregon. When a promise is made by a resident of another state to an Oregon resident to deliver funds to an Oregon conservatorship, the requisite consequences in Oregon occur. Second, the cause of action must arise from the consequences of the defendant’s activities. In this case, the claim arises from the alleged breach of defendant to perform his promise to deliver money to an Oregon conservatorship. Third, the activity must have a substantial enough connection with Oregon to make the exercise of jurisdiction over the defendant reasonable. That requirement is also met by the facts as alleged.
The majority reaches its result by ignoring the allegations in the complaint and focusing on defendant’s affidavit. For purposes of a motion under ORCP 21A(2), we are required to assume the truth of all of the allegations in the complaint and any facts that might conceivably be adduced as proof of such allegations. See Brennan v. City of Eugene, 285 Or 401, 405, 591 P2d 719 (1979). In substance, defendant’s affidavit avers that, although he participated in telephone calls with plaintiffs attorney, he did not tell plaintiffs attorney that he believed the money to be the property of Helen B. Sutherland. Defendant also denies that he told plaintiffs attorney that, if a court ordered the funds delivered to a conservatorship, he would attempt to get his client to comply. Finally, defendant denies stating that he would hold the funds indefinitely or hold them for Sutherland. These statements conflict with the allegations in the complaint.
ORCP 21A provides, in part:
“If, on a motion to dismiss [for lack of personal jurisdiction or other enumerated grounds], the facts constituting such *37defenses do not appear on the face of the pleading and matters outside the pleading, including affidavits and other evidence, are presented to the court, all parties shall he given a reasonable opportunity to present evidence and affidavits, and the court may determine the existence or nonexistence of the facts supporting such defense or may defer such determination until further discovery or until trial on the merits. ’ ’
The majority is correct that ORCP 21 says that the court may determine the existence of facts that do not appear on the face of the complaint. However, the majority is wrong when it holds that the rule permits the determination of personal jurisdiction by making a finding that an affiant’s information in an affidavit is more credible than the allegations in a plaintiffs complaint. The reference in the rule must refer to situations where the jurisdictional facts are uncontested because the contrary position is inconsistent with the traditional understanding about what issues are resolvable under motions that attack the sufficiency of pleadings. ORCP 21 was promulgated to function as a replacement for a demurrer, a plea in abatement or a motion to quash, as defined by former pleading statutes. Kirkpatrick, Motion Practice and Amendments; ORCP 21 and 23, Oregon Civil Procedure Rules 1980, at 251 (1979).
To make a challenge to a pleadingbased on the lack of jurisdiction before the adoption of ORCP 21, required the moving party to either demur or file a plea in abatement. See Silbaugh v. Guardian B. & L. Ass’n, 164 Or 286, 97 P2d 943, 99 P2d 1017, 101 P2d 240 (1940). A demurrer could be granted only if the jurisdictional defect appeared on the face of the pleading. 164 Or at 300. Here, the purported defect of lack of personal jurisdiction does not appear on the face of plaintiffs complaint, and the complaint is not demurrable on that basis. The object of a plea in abatement was to show to the court some fact that did not appear in the pleadings. Houston v. Briggs, 246 Or 439, 444, 425 P2d 748 (1967). The purpose of a plea in abatement was to delay the right to sue by defeating a particular action. Winters v. Grimes, 124 Or 214, 264 P 359 (1928). If, in fact, the relief that a movant sought was equivalent to a plea in bar (a responsive pleading under ORCP 19), then the trial court was required to overrule the plea in abatement. See De Young v. Robertson, 133 Or 240, 289 P 1051 (1930).
*38Here, the relief that defendant seeks is dismissal of plaintiffs complaint with prejudice. The essence of his position is that because the facts in his affidavit are true, an Oregon court will never have jurisdiction over him regarding this dispute. His motion to dismiss is tantamount to a plea in bar. Thus, under former law, a trial court in this state was not authorized to undertake the kind of factfinding mission that defendant’s attack against plaintiff’s pleading requires because such a challenge did not constitute a plea in abatement or a demurrer.2
Alternatively, under the former law, if a defendant wished to contest personal jurisdiction on the facts before trial, he could move to quash service. That procedure , provided for the consideration of evidence by the court, and the appellate court reviewed for whether there was any evidence to substantiate the court’s ruling in the event that the trial court denied the motion and the movant sought relief by way of mandamus. See State ex rel Ware v. Hieber, 267 Or 124, 515 P2d 721 (1973). Here, no motion tantamount to a motion to quash was filed.3 Defendant’s motion said,
*39“Plaintiff has alleged only that defendant participated in several phone calls with Howard in Oregon. That is an insufficient basis to assert personal jurisdiction over defendant. Defendant participated in these interstate phone calls solely because Mr. Howard insisted upon it.”
Moreover, if the allegations by the parties had been considered as part of a summary judgment record, those circumstances would preclude summary judgment as a matter of law under ORCP 47. It is incongruous to believe that the legislature intended that a litigant could be ousted from court on a credibility issue on the basis of a conflict between a pleading and an affidavit when such relief could not even be afforded under a summary judgment proceeding; a limited evidentiary procedure. However, the majority says:
“Oregon trial courts would he placed in an untenable position if they were required to exercise personal jurisdiction over a defendant whenever there was a fact-based (as distinct from purely legal) dispute over whether sufficient jurisdictional facts exist. If ORCP 21A were interpreted to require that cases proceed in an Oregon court whenever a defendant’s ‘lack of personal jurisdiction’ defense is based on facts that are controverted, plaintiffs would be able to avoid the defense in each case simply by disputing the facts on which the defendant relies. By creating an issue of fact regarding the presence or absence of jurisdictional facts, plaintiffs could ensure that courts would no longer be able to dismiss cases for lack of personal jurisdiction. In addition to limiting ORCP 21A in a manner which the legislature did not, the dissent’s interpretation would create a judicial nightmare.” 131 Or App at 33.
*40“Not to worry!” That’s what pretrial evidentiary hearings or bifurcated trials are for. Although, jurisdiction is a question of law, it could turn on facts that are in dispute. As to those facts, plaintiff has the burden of proof. See Horn and Horn, 97 Or App 177, 180, 775 P2d 338, rev den 308 Or 465 (1989). The majority opinion deprives plaintiff of the opportunity to persuade the trial court that the facts alleged in the complaint are true and to put on evidence to support his allegations. In addition, ORCP 21G(1) specifically contemplates that a trial court can determine personal jurisdiction on basis of a responsive pleading:
“A defense of lack of jurisdiction over the person, ** * * is waived under either of the following circumstances: (a) if the defense is omitted from a motion in the circumstances described in section F of this rule, or (b) if the defense is neither made by motion under this rule nor included in a responsive pleading. * * *”4 (Emphasis supplied.)
The majority also says, “the position now taken by the dissent was expressly rejected by this court in Industrial Leasing Corp. v. Miami Ice Machine Co., [126 Or App 80, 867 P2d 548 (1994)].” 131 Or App at 33. In that case, the plaintiff appealed from a judgment dismissing its complaint under ORCP 21A(2). The issue was whether personal jurisdiction existed because the defendant had accepted benefits under an agreement that said that the parties had agreed that a court of general jurisdiction in Oregon would have jurisdiction in the event of legal action. We reversed, and said:
“Plaintiff acknowledges that ORCP 21A contains language authorizing the court to make findings necessary to determine the existence of personal jurisdiction. Nevertheless, it insists that the rule was not intended to permit the court to exercise that authority when the facts necessary to determine jurisdiction also constitute the facts necessary to determine the merits of the case. In such cases, plaintiff argues, final determination of the facts must await trial, unless defendant can establish that it is entitled to prevail as a matter of law.
*41“We recently rejected a similar argument in Showalter v. Edwards and Associates, Inc., 112 Or App 472, 831 P2d 58, rev den 314 Or 391 (1992). In that case we held that, even when the determination of jurisdiction is dependent on resolution of factual issues going to the merits, the trial court is not required to defer its determination of the jurisdictional facts until trial. To the contrary, we said that, as the rule provides, the trial court may determine the jurisdictional facts at the time of the motion to dismiss. 112 Or App at 475 n 1.
“Plaintiff argues that, regardless of whether the trial court was permitted to weigh the evidence, it erred in concluding that the facts were insufficient to establish personal jurisdiction. On that issue we agree with plaintiff. We review the trial court’s assumed findings for any competent evidence, and the legal conclusions that it drew from those findings as a question of law. * * * Under the circumstances, it is undisputed, at least for the purposes of this motion, that [the] defendant accepted the benefits of the assignment agreement and, therefore, is hound by its terms.” 126 Or App at 84-85. (Citation omitted; emphasis supplied.)
A careful reading of the above language demonstrates that we did not decide whether it was error for the trial court to weigh the evidence. Rather, we held that the facts found by the trial court were sufficient to establish personal jurisdiction. Moreover, we did not decide that issue in Show-alter. There, we affirmed the trial court’s dismissal of the claim for lack of jurisdiction under ORCP 21A(2). The plaintiff' argued that, because the question of jurisdiction was dependant on the resolution of factual issues going to the merits, the jurisdictional determination should await a trial, and the correct standard under ORCP 21 was the standard applicable to a motion for summary judgment. We held that the issue of whether there was an agreement between the plaintiff and the defendant “goes to the merits of plaintiffs claim, but [the] resolution of that issue is not required to determine the jurisdiction inquiry.” 112 Or App at 476. We construed the plaintiffs pleadings and affidavits liberally in support of jurisdiction and concluded that the plaintiff had not met his burden of alleging and proving facts sufficient to establish jurisdiction.
In contrast to those cases, plaintiffs complaint alleges facts on its face that, if true, establish personal jurisdiction over *42defendant. The majority also cites Management Recruiters v. Harold Moore & Assoc., 118 Or App 614, 848 P2d 644, rev den 317 Or 162 (1993). It is correct that that case involved controverting affidavits which raised a credibility issue concerning the affiants, and that we assumed, based on the trial court’s refusal to exercise jurisdiction, that it did not believe one of the affiants. However, we did not discuss whether the trial court was authorized to make a finding of fact under those circumstances. Interestingly, we made reference to St. Paul Fire & Marine Ins. v. Valley Ins., 93 Or App 457, 762 P2d 1048 (1988). In that case, the defendant assigned as error the denial of its motion for summary judgment. The trial court, sitting without a jury, made a general finding in favor of the plaintiff on the merits. We said that because the case was tried on the merits, we would not review the court’s denial of the defendant’s motion for summary judgment and that we assumed that the court found facts consistent with its judgment in the plaintiffs favor. If our holding in Management Recruiters constitutes support for the proposition that, based on an ORCP 21A(2) motion, a trial court can make a credibility finding by comparing the contents of an affidavit with the allegations of a complaint, we should overrule it.
In summary, the majority opinion makes the issue of personal jurisdiction in this case turn on whether plaintiffs complaint or defendant’s affidavit is to be believed. It is inconceivable that that decision should be made on the basis of two pieces of paper, a pleading and an affidavit. Yet, that is the proposition that the opinion stands for. I submit that ORCP 21A does not authorize what the trial court did here. On the factual issue of whether defendant made a promise to deliver $40,000 to an Oregon conservatorship, plaintiff is entitled to an evidentiary hearing.5 The trial court should *43have denied defendant’s motion with leave to raise the defense of lack of personal jurisdiction through a responsive pleading. Then, after a proper hearing, the trial court could make a determination as to whether plaintiff had met his burden of proof regarding the issue.
I dissent. Joined by Richardson, C. J., Deits, and Haselton, JJ.ORCP 4L provides:'
“Notwithstanding a failure to satisfy the requirement of sections B through K of this rule, in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States.”
The Oregon Supreme Court, as well as this court, have held that a cause of action may not be dismissed under ORCP 21 when a factual dispute exists. In Melvin v. Kim’s Restaurant, Inc., 308 Or 177, 182, 776 P2d 1286 (1989), the court held that disputed factual issues under ORCP 21A(8) cannot be decided on a motion to dismiss for failure to state a claim. Likewise, this court in McClaflin v. Wright, 101 Or App 10, 13, 788 P2d 1027 (1990), held that, where the merits of a petition were not before the court on a motion to dismiss for lack of subject matter jurisdiction under ORCP 21A(1), the trial court erred in dismissing on the merits without affording the petitioner the opportunity to present evidence or to otherwise be heard on the claim.
The federal counterpart to ORCP 21A for purposes of establishing personal jurisdiction is Federal Rules of Civil Procedure (FRCP), Rule 12(b)(2). The analysis DataDisc, Inc. v. Systems Tech. Assoc., Inc., 557 F 2d 1280, 1285 (9th Cir 1977), regarding the federal rule is instructive:
“It is clear that the party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. Yet the quantum of proof required to meet that burden may vary, depending upon the nature of the proceeding and the type of evidence which the plaintiff is permitted to present.
“A defendant may move, prior to trial, to dismiss the complaint for lack of personal jurisdiction. Because there is no statutory method for resolving this issue, the mode of its determination is left to the trial court. The limits which the district judge imposes on the pre-trial proceedings will affect the burden which the plaintiff is required to meet.
“If the court determines that it will receive only affidavits or affidavits plus discoveiy materials, these very limitations dictate that a plaintiff must make only a prima facie showing of jurisdictional facts through the submitted materials in order to avoid a defendant’s motion to dismiss. Any greater burden— *39such as proof by a preponderance of the evidence — would permit a defendant to obtain a dismissal simply by controverting the facts established by a plaintiff through his own affidavits and supporting materials. Thus a plaintiff could not meet a burden of proof requiring a preponderance of the evidence without going beyond the written materials. Accordingly, if a plaintiffs proof is limited to written materials, it is necessary only for these materials to demonstrate facts which support a finding of jurisdiction in order to avoid a motion to dismiss.
“If a plaintiff make [sic] such a showing, however, it does not necessarily mean that he may then go to trial on the merits. If the pleadings and other submitted materials raise issues of credibility or disputed questions of fact with regard to jurisdiction, the district court has the discretion to take evidence at a preliminary hearing in order to resolve the contested issues. In this situation, where plaintiff is put to his full proof, plaintiff must establish the jurisdictional facts by a preponderance of the evidence, just as he would have to do at trial.” (Citations omitted; footnotes omitted.)
ORCP 21P requires the consolidation of motions and the failure to consolidate will constitute a waiver of the right to later raise certain motions. It also provides, “[a] party may make one motion to dismiss for lack of jurisdiction over the person * * * without consolidation of defenses required by this section.”
In interpreting FRCP 12(b)(2), and discussing an issue remarkably similar to the issue in this case, the court in Val Leasing, Inc. v. Hutson, 674 F Supp 53, 55 (D Mass 1987), stated:
“The trial judge makes no credibility determination in resolving the jurisdictional issues; he simply scrutinizes the affidavits and other competent evidence to determine whether the plaintiff has made a prima facie demonstration of the existence of the requisite jurisdictional facts. See O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir. 1971).
“It follows, therefore, that the determination by a trial judge that the court has personal jurisdiction over a defendant does not purport to settle any disputed factual issues germane to the underlying substantive claim. What is *43settled is the court’s power to exercise personal jurisdiction over a defendant, nothing more. Were this not the case, a plaintiff would be precluded by a preliminary judicial ruling from litigating disputed facts germane to the underlying substantive claim — surely a grave encroachment on the right to trial by jury guaranteed by the Seventh Amendment. See North American Video Corp. [v. Leon], 480 F.Supp. [213] at 216 [(1979)].”