Andrews v. Christenson

BUTTLER, J.,

dissenting.

If we were writing on a clean slate, I would agree with the majority’s conclusion, because statutorily, the joinder of “causes of action,” former ORS 16.221, or claims for relief, ORCP 18, is permissive. ORCP 24. Strangely, the majority seems to say that it would reach the opposite result if it were not for Winters v. Bisaillon, 153 Or 509, 57 P2d 1095 (1936). It is apparent that we are looking at different slates.

I start with the majority’s premise that Winters precludes the application of res judicata here, because the court held that the legislature intended that “separate and distinct actions may be maintained,” 153 Or at 512, when injury to person and property results from the same tort. However, the sole basis for divining that legislative intent in Winters was section 118(8), Oregon Code 1930, which provided:

“ ‘The plaintiff may unite several causes of action in the same complaint when they all arise out of:
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“ ‘8. Injuries both to the person and property, when caused by the same wrongful act or omission.’ ” 153 Or at 512.

There was a sound basis for the court’s holding, given that express statutory provision. The majority appears to believe that the holding in Winters is reinforced by its reaffirmance of Winters in Gaul v. Tourtellotte, 260 Or 14, 488 P2d 416 (1971). In Gaul, however, the court again premised its holding on the above statute, which, by that time, had been codified as ORS 16.220. 260 Or at 17.

The majority recognizes that

*449“* * * in three cases beginning in 1975 it [Supreme Court] adopted the transactional approach of the Restatements and required that all claims arising out of a particular set of factual circumstances be brought in a single action. Rennie v. Freeway Transport, 294 Or 319, 656 P2d 919 (1982); Troutman v. Erlandson, 287 Or 187, 598 P2d 1211 (1979); Dean v. Exotic Veneers, Inc., 271 Or 188, 531 P2d 266 (1975). * * *” 71 Or App at 446.

It goes on to say that the theoretical basis for the court’s recent cases is inconsistent with Winters and that, if Winters had not been explicitly based on the legislature’s intent that there be separate actions for injury to person and property, it would no longer consider Winters as binding precedent.

It seems plain to me that the statutory predicate for the court’s conclusion of what the legislature intended in this context was changed after Winters and Gaul were decided. In 1973, ORS 16.220 was amended by deleting the language permitting joinder of several causes of action in the same complaint when they all arise out of: “(h) injuries both to the person and property, when caused by the same wrongful act or ommission.” In 1977, that statute was replaced by a more expansive provision, former ORS 16.221, which did not reenact the language deleted in 1973 from former ORS 16.220. The present joinder provision, applicable to this case, is ORCP 24A, adopted in 1979. It provides:

“A plaintiff may join in a complaint, either as independent or as alternate claims, as many claims, legal or equitable, as the plaintiff has against an opposing party.”

Given the statutory changes that have occurred since the Gaul case (1971) reaffirming Winters (1936), it seems apparent that it is not necessary for the courts to change the law — the legislature has done it. Furthermore, ORCP 18A no longer requires that a complaint allege a “cause of action”; rather, it requires that a pleading contain “a plain and concise statement of the ultimate facts constituting a claim for relief.” That language is consistent with the rationale of Dean v. Exotic Veneers, Inc., supra, in its application of res judicata, as discussed in Troutman v. Erlandson, supra, where the court said:

“For res judicata purposes a ‘claim’ or ‘cause of action’ does not mean the particular form or proceeding by which a *450certain kind of relief is sought but, rather, a group of facts which entitled plaintiff to relief. * * *
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“The trend of the law in the direction which we take in disposing of this case is evident. The legislature of this state has been steadily liberalizing the rules of joinder of causes of action and of suit. See, Or Laws 1975, ch 158, § 1; Or Laws 1977, ch 356, § 2 (codified ORS 16.221); Or Laws 1979, ch 284, § 18. Related thereto is the abolishment of the distinction between law and equity. See, Rule 2 ORCP (Oregon Rules of Civil Procedure) and Or Laws 1979, ch 284, § 4(2). It is reasonable to conclude that the public policy, of this state encourages the disposition in one proceeding of claims between parties litigant.
“Not only is that true with respect to the statutory law of this state but of the common law generally. This is accomplished by a fresh approach to determining what is a ‘claim.’ We read the American Law Institute’s Tentative Draft No.5 of March 10, 1978, Restatement (Second) of the Law of Judgments, § 61, as being in accordance with our previous decision in Dean and reflecting the trend of the case law. The draft sets forth its impression of the law as follows:
“ ‘Dimensions of “Claim” for Purposes of Merger or Bar— General Rule Concerning “Splitting”
“ ‘(1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar (see §§ 47,48), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
“ ‘(2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.’ ” 287 Or at 201-04.

In Dean, the court said:

“* * * As permissible joinder of requests for various forms of relief and amendments during trial become broader and more liberal, the reasons behind res judicata dictate that *451parties to actions be required to make use of such liberal procedures and not be permitted to protract litigation through a multiplicity of suits or actions which can be disposed of in one proceeding. * * *” 271 Or at 192.

The majority recognizes that the theoretical basis of Dean and Troutman is inconsistent with Winters, but says that the court must follow Winters, because of the legislature’s intent at the time that case was decided. In that conclusion, I think the majority is wrong. Not only has the statute on which Winters and Gaul are based been changed, the Supreme Court has adopted the “transactional view” of what constitutes a “cause of action,” and ORCP does not use that expression, but refers to “claims for relief.” The cases decided since Gaul have required that all claims arising out of a particular set of circumstances be brought in a single action or be barred by the doctrine of res judicata. See Rennie v. Freeway Transport, supra; Troutman v. Erlandson, supra; Dean v. Exotic Veneers, Inc., supra. The trial court properly applied those cases in holding that this action is barred by res judicata.

As I pointed out in my dissent in Bankston v. Hooper, 46 Or App 431, 438, 611 P2d 1179, rev den (1980), the upshot of these developments has resulted in the compulsory joinder of claims, notwithstanding the clearly permissive language of ORCP 18. It appears that the Supreme Court has either blended or confused the application of res judicata and collateral estoppel. Under the expanded “transactional view” of claims and the Supreme Court’s application of res judicata, if a claim could have been asserted in a prior action, it is barred by res judicata.

The slate that I see is not clean because of the Supreme Court’s decisions in Rennie, Troutman and Dean and this court’s decision in Bankston. The majority sees a slate on which Winters and Gaul have been etched. Given my view of the slate, I would affirm; accordingly, I respectfully dissent.

Joseph, C. J., and Warden, J., join in this dissent.