Perkins v. Conradi

• Decision Date: 17 December 1997
• Citation: 151 Or.App. 585,950 P.2d 380
• Parties: Patrick S. PERKINS, Appellant, v. Clifford CONRADI and Patricia A. Conradi, fka Patricia A. Mill, husband and wife, Respondents. 95CV0538; CA A94839.
• Court: Oregon Court of Appeals

Page 380

950 P.2d 380

151 Or.App. 585

Patrick S. PERKINS, Appellant, v. Clifford CONRADI and Patricia A. Conradi, fka Patricia A.

Mill, husband and wife, Respondents.

95CV0538; CA A94839.

Court of Appeals of Oregon.

Argued and Submitted Oct. 17, 1997.

Decided Dec. 17, 1997.

Keith Rodman, Eugene, argued the cause and filed the briefs for appellant.

Clayton C. Patrick, Salem, argued the cause and filed the brief for respondents.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

Plaintiff brought this action seeking a declaration that defendants hold certain real property and proceeds from the sale of timber in constructive trust for his benefit. ORS chapter 28. He alleges that he is the owner of the 40-acre property and that defendants should be required to deed the land and remit the timber proceeds to him. Defendants moved for summary judgment, ORCP 47 C, arguing that the doctrine of claim preclusion bars plaintiff's claim. The trial court granted defendants' motion, and we affirm.

On review of summary judgment, we review the facts in the light most favorable to the nonmoving party to determine if the movant is entitled to judgment as a matter of law. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). In 1995, defendants brought a forcible entry and detainer action (FED) against plaintiff for possession of the same real property. Defendants originally brought their action in district court. See ORS 46.060(1)(e) (district courts have exclusive jurisdiction to hear FED actions). Plaintiff defended against the FED by arguing that he owned five acres of the 40-acre parcel, and he moved to transfer the action from district court to circuit court. See ORS 46.084(1) and ORS 46.064(1). ¹ The district court granted the motion, and the action was tried in circuit court. The circuit court ruled that defendants had failed to prove their FED claim and that plaintiff was the owner of the five-acre parcel. The subsequent judgment dismissed defendants' FED action and declared plaintiff "the owner of and entitled to the immediate possession of" the five-acre parcel. Defendants appealed, and we affirmed. See Conradi v. Perkins, 149 Or.App. 149, 941 P.2d 1083 (1997).

Before the FED action went to trial, plaintiff filed the present action in circuit court. After plaintiff prevailed in the FED action, defendants moved for summary judgment in this case. In a memorandum opposing summary judgment, plaintiff argued that ORCP 24 A provides for permissive joinder of claims and that "[d]efendants cite no authority which would have required [plaintiff] to counterclaim to assert his ownership of the entire tax lot." He also argued that "[i]t was not necessary or appropriate in the former FED action for [plaintiff] to prove facts tending to show unjust enrichment or a constructive trust regarding the entire acreage." The trial court rejected plaintiff's arguments and ruled that claim preclusion barred this action because he had had the opportunity to litigate his interest in the remaining 35 acres in the FED proceeding.

On appeal, plaintiff argues: (1) ORS 105.132 prohibits counterclaims in FED actions and, thus, he could not have brought a counterclaim in that proceeding; and (2) even if ORS 105.132 is not controlling, he did not have the opportunity to litigate his claim to the remaining 35 acres in the FED action. The first issue regarding the effect of ORS 105.132 on this action was not argued to the trial court. Plaintiff argued only that a counterclaim was not necessary or appropriate because of Oregon's permissive joinder rule and that the claims made in the present action were different from the defenses he raised in the first proceeding. We will not address an issue raised for the first time on appeal, ORAP 5.45(2), and, therefore, we decline to address the issue of whether ORS 105.132 applies to this proceeding.

The question remains whether under these facts, plaintiff is precluded from filing his claims. See Conner v. Delon Oldsmobile Co., 66 Or.App. 394, 398, 674 P.2d 1180 (1984) (when a defendant files a counterclaim, claim preclusion applies in the same way as if the defendant had made the claims as plaintiff). In Peterson v. Temple, 323 Or. 322, 329-32, 918 P.2d 413 (1996), the court held that, notwithstanding ORCP 24 A, claim preclusion requires a party to litigate all claims that arise from the same transaction or series of connected transactions out of which the action or proceeding arises. The doctrine of claim preclusion can apply to matters pleaded originally as a defense when used subsequently as a basis for affirmative relief. Jarvy v. Mowrey, 235 Or. 579, 583, 385 P.2d 336 (1963); ² see also Colhouer v. Union Pacific R.R., 275 Or. 559, 562-64, 551 P.2d 1291 (1976) (holding that claim preclusion applied to cross-claims, notwithstanding Oregon's permissive cross-claim statute). The Supreme Court has defined claim preclusion as follows:

"[A] plaintiff who has prosecuted one action against a defendant through to a final judgment * * * is barred [i.e., precluded] * * * from prosecuting another action against the same defendant where the claim in the second action is one which is based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action." Drews v. EBI Companies, 310 Or. 134, 140, 795 P.2d 531 (1990) (quoting Rennie v. Freeway Transport, 294 Or. 319, 323, 656 P.2d 919 (1982)).

In Whitaker v. Bank of Newport, 313 Or. 450, 456-59, 836 P.2d 695 (1992), the court looked at a number of factors, including time, space, origin, motivation, convenience, and similar acts, to determine whether two different claims concerned the "same factual transaction." The court in Jarvy focused on whether the plaintiff's theory in the first case produced evidence necessary to dispose of the claim brought in the second case. Jarvy, 235 Or. at 586-87, ...