Duckworth v. Duckworth ( 2023 )

No. 384 July 26, 2023 219
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Duane DUCKWORTH
and Kathy Duckworth,
Plaintiffs-Appellants,
v.
Ruth DUCKWORTH,
Individually and as Trustee of the
Ruth Duckworth Living Trust
u/a/d (March 21, 2006),
Defendant-Respondent.
Jackson County Circuit Court
16CV36652; A176530
Timothy C. Gerking, Judge.
Submitted November 28, 2022.
Michael W. Franell filed the briefs for appellants.
Charles F. Lee and Charles F. Lee P.C. filed the brief for
respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
220 Duckworth v. Duckworth
Cite as 327 Or App 219 (2023) 221
AOYAGI, P. J.
Plaintiffs Duane and Kathy Duckworth appeal a
judgment dismissing their civil claims against defendant
Ruth Duckworth.1 The parties’ dispute centers around a
motel property in Medford that was originally purchased by
Paul Duckworth, now deceased, who was Duane’s father and
Ruth’s husband. For many years, plaintiffs lived at the prop-
erty and managed the motel. Defendant ended that arrange-
ment in 2016 and evicted plaintiffs in a forcible entry and
detainer (FED) action. Plaintiffs later brought this action
for breach of contract, fraud, quiet title, and wages. The trial
court granted summary judgment for defendant on the first
three claims, based on the FED judgment being preclusive
that Duane and his father did not have an enforceable oral
agreement regarding ownership of the property. The court
dismissed the wage claim under ORCP 54 B(2). Plaintiffs
challenge those rulings on appeal. We affirm.
I. FACTS
Paul Duckworth purchased the Bear Creek Motel
in Medford in the 1980s. The property was put into trust
around 1987. Starting in approximately 1992, Duane
managed the motel and lived at the property. Duane later
married Kathy, who moved onto the property and assisted
with managing the motel. Paul died in 2005. After Paul’s
death, the property was transferred by deed from the Paul
L. Duckworth Trust to the Ruth Duckworth Living Trust.
Things otherwise continued as they were until 2016, when
the parties got into a dispute over the property being cited
for an environmental violation. Defendant sent a letter to
plaintiffs terminating Duane as manager of the motel and
terminating their work-related occupancy of the premises.
When plaintiffs did not vacate the premises, defen-
dant filed an FED action under ORS 91.120, which allows for
the use of FED proceedings to evict an “employee described
in ORS 90.110(7),” that is, “an employee of a landlord whose
1
The parties have had different designations in different proceedings. To
avoid confusion, we use their trial court designations in the current litigation at
all times, regardless of which proceeding or stage of proceeding we are discuss-
ing. We also use first names as needed, because everyone involved shares the
same last name.
222 Duckworth v. Duckworth
right to occupancy is conditional upon employment in and
about the premises.” Plaintiffs immediately filed a civil
action to quiet title to the property and moved to abate the
FED action pending resolution of the quiet-title litigation.
Defendant objected to abatement. While the motion was
pending, plaintiffs answered in the FED action, including
asserting as an “affirmative defense” that Duane owned the
motel property under an oral agreement with his father and
therefore could not be evicted. The FED court denied the
abatement motion. At the FED trial, Duane testified to an
oral agreement with his father (the terms of which changed
over time), and plaintiffs also offered evidence of property
tax payments, utility payments, and business records to try
to prove partial performance.
The FED court ultimately entered a judgment for
defendant. In support of that judgment, the FED court found
that defendant was the title owner of the property by deed. It
further found that Duane was the motel manager and lived
at the property with his wife Kathy; that defendant had ter-
minated Duane as motel manager and terminated his and
his family’s work-related occupancy of the property in March
2016; and that plaintiffs failed to vacate the premises. The
FED court rejected on multiple alternative grounds plain-
tiffs’ “affirmative defense” that Duane owned the property
under an oral agreement with his father. It found that Paul
lacked authority to agree to sell the property; that Duane’s
testimony was not credible; that the terms of the alleged
oral agreement were “so uncertain that, if true, they are
unenforceable”; and that any oral agreement was void under
the statute of frauds in any event.
Plaintiffs did not appeal the FED judgment. Instead,
they filed this civil action, asserting claims for quiet title,
breach of contract, fraud, and wages.2 Plaintiffs alleged that
Duane owned the motel property under an oral agreement
with his father (quiet title); that defendant breached the
oral agreement (breach of contract); that defendant was a
party to fraud to the extent that Paul lacked authority to
enter into the oral agreement (fraud); and that, if the oral
2
Plaintiffs’ first quiet-title action—the one filed immediately after com-
mencement of the FED action—was dismissed for want of prosecution. This is a
different action.
Cite as 327 Or App 219 (2023) 223
agreement was unenforceable, then plaintiffs were at least
entitled to unpaid wages for their work at the motel.
Defendant moved for summary judgment on the
quiet title, breach of contract, and fraud claims. As relevant
here, defendant argued that the FED court had already
decided that there was no enforceable agreement between
Duane and his father and that such finding was entitled
to preclusive effect under the doctrine of issue preclusion.
Plaintiffs opposed summary judgment, arguing that issue
preclusion did not apply because an FED court has no
authority to resolve title disputes. The trial court agreed
with defendant that issue preclusion applied and, on that
basis, granted summary judgment for defendant on plain-
tiffs’ first three claims.
The case proceeded to a bench trial on the wage
claim. At the close of plaintiffs’ evidence, defendant moved
to dismiss. The court granted the motion under ORCP 54
B(2), stating that plaintiffs had failed to prove that they
worked as employees rather than copartners or independent
contractors, had failed to prove a right to payment at a fixed
rate, and had failed to prove damages cognizable in a wage
claim action.3
Plaintiffs appeal, challenging both the summary
judgment ruling and the involuntary dismissal ruling.4
II. SUMMARY JUDGMENT RULING
(ISSUE PRECLUSION)
Plaintiffs contend that the trial court erred in
granting summary judgment on their quiet title, breach of
3
In moving to dismiss, defendant did not specify the legal authority for her
motion. The trial court stated orally that it was granting “directed verdict” but,
in the general judgment, clarified that it understood defendant to have moved
under ORCP 54 B(2) and granted the motion under ORCP 54 B(2). The judgment
is controlling.
4
The opening brief does not assign error to specific rulings as required by
ORAP 5.45 and illustrated in Appendix 5.45. Properly assigning error serves
important purposes. Village at North Pointe Condo. Assn. v. Bloedel Constr., 278
Or App 354, 359, 374 P3d 978, adh’d to as modified on recons, 281 Or App 322,
383 P3d 409 (2016). Nonetheless, if a claim of error is discernible, we will typi-
cally address it. Id. at 361. Here, based on plaintiffs’ four “questions presented
on appeal,” we understand plaintiffs to assign error to the summary judgment
ruling and to the ORCP 54 B ruling.
224 Duckworth v. Duckworth
contract, and fraud claims. They argue that the FED court
lacked jurisdiction or authority to decide the title dispute
and that, consequently, it was error to give preclusive effect
to the FED court’s finding that no enforceable agreement
existed between Duane and his father. Defendant responds
that FED courts can resolve ownership disputes attendant
to deciding possession and that such findings are entitled to
preclusive effect in a civil action such as this one.
“We review a trial court’s grant of summary judg-
ment for errors of law and will affirm if there are no genuine
disputes about any material fact and the moving party is
entitled to judgment as a matter of law.” Beneficial Oregon,
Inc. v. Bivins, 313 Or App 275, 277, 496 P3d 1104 (2021)
(internal quotation marks omitted); see also Berg v. Benton,
297 Or App 323, 327, 443 P3d 714 (2019) (“We review whether
the trial court erred in applying issue preclusion for errors
of law.”).
A. General Overview of Oregon FED Law
We begin our discussion with a brief general over-
view of FED law in Oregon, as a basic understanding of this
area of the law and its history provides a helpful foundation
for understanding the specific legal issue that we address in
this opinion.
FED procedures have existed in Oregon since ter-
ritorial days, and they are purely a creature of statute.
Thompson v. Wolf, 6 Or 308, 308 (1877). At common law, “the
only means of trying the right to the possession of property”
was an ejectment action, wherein the court could “deter-
mine the question of which party has the paramount legal
title to the premises for the purpose of determining who has
the right to possession.” Olds Bros. Lumber Co. v. Rushing,
64 Ariz 199, 203-04, 167 P2d 394, 397 (1946) (citing 28 CJS,
Ejectment §§ 4, 5, 7-10 at 850-58); see also Thompson, 6 Or
at 311 (in a common-law ejectment action, “it is necessary
that the plaintiff set forth the nature of his estate in the
property, whether it be in fee, for life, or for a term of years,
thereby enabling the courts to settle the question of title,
which is the great end of the action of ejectment” (internal
citation omitted)).
Cite as 327 Or App 219 (2023) 225
As discussed more below, FED laws were first
enacted in feudal England to stem violent land disputes, and
they appeared among the earliest American statutes. Like
all FED laws, the purpose of Oregon’s FED procedure “is to
provide an orderly means of obtaining possession of premises
without an actual breach of the peace.” Crossen v. Campbell,
102 Or 666, 676, 202 P 745 (1921); see also Friedenthal v.
Thompson, 146 Or 640, 643, 31 P2d 643 (1934) (explaining
that FED “was intended as an expeditious method to obtain
possession of real property that was being withheld from
the owner by force * * * and provided a special procedure for
the trial of such causes”).
FED actions are currently governed by ORS 105.105
to 105.168. An FED action may be maintained against a
person who unlawfully entered premises, or against a per-
son who lawfully entered premises but now holds posses-
sion unlawfully by force. ORS 105.110. “Unlawful holding by
force” is statutorily defined and, modernly, does not require
physical force or threat thereof. ORS 105.115(1) (describ-
ing what constitutes “holding by force”); see also Twiss v.
Boehmer, 39 Or 359, 362, 65 P 18 (1901) (recognizing the
principle of “constructive” force in connection with FED).
Historically, the concept of unlawful holding by force
(as distinct from unlawful entry) was limited to landlord-
tenant relationships. Schroeder v. Woody, 166 Or 93, 97, 109
P2d 597 (1941) (stating that “unlawful holding by force” in
FED statute “refers only to cases where the relation of land-
lord and tenant exists”). Basically, the quick procedure of
FED could be used to evict a person who entered premises
unlawfully or a tenant who entered lawfully but held the
premises unlawfully; otherwise, disputes over possession of
real property had to be resolved in a common-law ejectment
or trespass action. Purcell v. Edmunds, 175 Or 68, 70, 151
P2d 629 (1944) (“The summary remedy given by statute for
the forcible entry and detainer of land is not a substitute for
an action of trespass or ejectment[.]”).
Over time, the Oregon legislature has authorized
the use of FED procedures in certain circumstances regard-
less of whether a landlord-tenant relationship exists. Most
pertinently, a landlord may use FED procedures to evict
226 Duckworth v. Duckworth
an employee whose right to occupy premises was “condi-
tional upon employment in and about the premises,” ORS
90.110(7), and who “remains in possession after the expi-
ration of a valid notice terminating the person’s right to
occupy the premises,” ORS 105.115(1)(g). Such a person is
considered to unlawfully hold the premises by force, ORS
105.115(1)(g), and may be evicted in an FED action, ORS
91.120 (“An employee described in ORS 90.110(7) may only
be evicted pursuant to ORS 105.105 to 105.168 after at least
24 hours’ written notice of the termination of employment or
a notice period set forth in a written employment contract,
whichever is longer.”). Using FED procedures in such cir-
cumstances “does not create the relationship of landlord and
tenant between a landlord and such employee.” ORS 91.120.
Another circumstance of some relevance—because
we will later discuss case law regarding it—is that the
Oregon Trust Deed Act (OTDA) allows the purchaser of real
property at a trustee’s sale to use FED procedures to evict
a “tenant at sufferance,” i.e., a person who “remains in pos-
session after the 10th day [after the trustee’s sale] under
any interest, except an interest prior to the trust deed, or
an interest the grantor or a successor of the grantor created
voluntarily[.]” ORS 86.782(6)(a) (providing for the purchaser
to “obtain possession of the property from a tenant at suffer-
ance by following the procedures set forth in ORS 105.105 to
105.168”).
Because FED proceedings are designed to be quick
and summary, counterclaims generally are not allowed,
unless expressly permitted by statute. ORS 105.132. The
counterclaims permitted by statute are limited. See, e.g.,
ORS 90.370 (counterclaims for rent); ORS 90.375 (damages
for unlawful ouster or willful diminution of services); ORS
90.380 (damages for building or housing code violations).
Defendants in Oregon FED actions are entitled,
however, to present defenses relevant to possession. Hughes
v. Ephrem, 275 Or App 477, 486, 365 P3d 613 (2015) (hold-
ing that the trial court correctly allowed the defendant in
an FED action to raise an equitable defense that, if proved,
would defeat the plaintiffs’ right to possession); Schmidt v.
Hart, 237 Or App 412, 421, 241 P3d 329 (2010), rev den, 350
Cite as 327 Or App 219 (2023) 227
Or 130 (2011) (although an FED proceeding is limited to
determining the right to possession, the defendant is enti-
tled to present defenses relating to the right to possession).
Oregon is unusual in allowing equitable defenses to
be raised in FED, and the history of that practice provides a
good example of the complicated history of many aspects of
FED procedure in Oregon. “The general rule in [FED] cases
is that equitable defenses may not be raised, and that a
defendant who depends upon equitable defenses must bring
an original suit in equity, by which the [FED] action may be
stayed and a final determination had of the respective rights
of the parties in relation to the property.” Leathers et ux. v.
Peterson, 195 Or 62, 66, 244 P2d 619 (1952). In Oregon, how-
ever, when courts were historically divided between “law”
and “equity,” a statute expressly permitted the defendant in
an action at law to raise equitable defenses in their answer,
rather than having to file a complaint on the equity side of
the court—and that statute was understood to apply to both
ordinary actions and special proceedings such as FED. Id.
at 66-67.
In 1934, the Supreme Court acknowledged that
the statute allowing equitable defenses to be raised in the
answer in an action at law had been silent about its appli-
cability to special proceedings since 1917, when a statutory
amendment was made. Friedenthal, 146 Or at 645. The court
nonetheless held that equitable defenses were available in
an FED action, because “the practice has been that, when
an action of forcible entry and detainer is filed in the circuit
court, the defendant may set up an equitable defense, and
this practice has received the sanction of this court.” Id.; see
also Leathers, 195 Or at 66-67 (discussing same). In other
words, the court allowed the practice to continue, despite the
lack of express statutory language. Nearly 70 years later,
in 2002, the court employed the opposite reasoning, relying
on the statutory silence itself to explain why an equitable
defense could be raised in an FED action: “We perceive no
reason to allow the equitable defense of excusable neglect in
an original proceeding in equity, but to deny it in an FED
case. Certainly, nothing in the FED statutes suggests that
a party may not raise equitable defenses in a statutory FED
228 Duckworth v. Duckworth
action.” 2606 Building v. MICA OR I Inc., 334 Or 175, 185,
47 P3d 12 (2002).
B. Resolution of Title Issues in FED Actions
The key legal issue on appeal is whether and to
what extent Oregon circuit courts have authority to resolve
title disputes in FED actions. On that issue, plaintiffs and
defendant rely on a small number of cases to argue their
respective positions. Plaintiffs quote from the Supreme
Court’s 1941 decision in Schroeder, 166 Or at 96, and point
to two of our decisions—Balboa Apartments v. Patrick, 237
Or App 391, 241 P3d 317 (2010), aff’d, 351 Or 205, 263 P3d
1011 (2011), and Kerr v. Jones, 193 Or App 682, 91 P3d 828
(2004)—to argue that circuit courts lack “subject matter
jurisdiction” to decide title disputes in FED actions, such
that any ruling on title in an FED action is legally invalid
and not a proper subject of issue preclusion. In response,
defendant relies on Lawton v. Simpson, 133 Or App 489, 891
P2d 1371 (1995), and an unpublished federal district court
case, to argue that courts are free to decide title in an FED
action when doing so is a necessary predicate to deciding
possession.
From that starting point, we embarked on a long
and arduous journey through 179 years of Oregon FED stat-
utes and case law. We began that journey confident that,
because FED is a creature of statute, the historical statutes
and case law would inevitably reveal the origins of the oft-
cited principle that title to property cannot be adjudicated
in an FED action, at which point it would be a relatively
simple matter to determine whether that principle still
applies today. We end the journey less convinced. We none-
theless must answer the question, which requires providing
a highly condensed overview of what we found.
1. The first 133 years of Oregon FED law (1844-1977)
FED proceedings find their origin in English law.
In 1166, King Henry II instituted statutes “designed to reg-
ulate self-help evictions,” by creating a “summary remedy
granting legal protections of the possession of real prop-
erty” to “discourage forcible entry and minimize violence.”
Luis Jorge DeGraffe, The Historical Evolution of American
Cite as 327 Or App 219 (2023) 229
Forcible Entry and Detainer Statutes, 13 Seton Hall Legis
J 129, 133-34 (1990). Later, King Richard II enacted the
Forcible Entry Act of 1381, making forcible entry a crimi-
nal offense. Id. at 134. By the 1800s, FED procedures were
quite familiar, and they were frequently included among the
earliest territorial and state laws in the United States. See
Smith v. Reeder, 21 Or 541, 546-49, 28 P 890 (1892) (dis-
cussing the history of FED, including describing the Oregon
statute as largely “the same as the original forcible entry
and detainer act of 5 Rich. II, after which the statutes in
most of the states are modeled”).
Oregon’s FED law dates back to 1844, when the
provisional government generally adopted “[a]ll the stat-
ute laws of Iowa Territory passed at the first session of the
Legislative Assembly of said Territory,” including Iowa’s
FED law. Laws of a General and Local Nature Passed by
the Legislative Committee and Legislative Assembly [of
the Oregon Provisional Legislature], An Act regulating
the Executive Power, the Judiciary, and for other purposes,
Article III, § 1, p 100 (Bush 1853) (“1844 Oregon Act”). The
Iowa statute provided for FED actions to be heard by jus-
tices of the peace and tried to a jury. The Statute Laws of
the Territory of Iowa, An act to prevent forcible entry and
detainer, § 3, p 231 (Russell & Reeves 1839) (“1839 Iowa
Act”). Although Iowa’s FED statute was silent as to title dis-
putes, the fact that FED actions were to be heard by justices
of the peace, who had limited jurisdiction, created a de facto
limitation: “No justice of the peace shall have cognizance
* * * [o]f any action, where the title to lands and tenements
shall come in question.” The Statute Laws of the Territory of
Iowa, An act to provide for the appointing of Justices of the
Peace, to prescribe their powers and duties, and to regulate
their proceedings, Article II, § 3, p 303 (Russell & Reeves
1839).
It is not entirely clear, but it appears that the
same de facto limitation applied in Oregon. An Oregon law
enacted in December 1844 gave circuit courts “concurrent
jurisdiction with justices of the peace” in FED cases. Laws
of a General and Local Nature Passed by the Legislative
Committee and Legislative Assembly, An Act Amendatory
230 Duckworth v. Duckworth
of an Act passed June 27, 1844, entitled “An Act regulat-
ing the Executive Power, the Judiciary, and for other pur-
poses,” § 1, p 84 (Bush 1853). However, it appears that cir-
cuit courts may have exercised only appellate jurisdiction in
FED cases. See 1844 Oregon Act, at Article II, § 3, p 99 (giv-
ing the circuit courts “original jurisdiction” in all cases in
law and equity in which a party was seeking $150 or more,
and “appellate jurisdiction from justices of the peace”);
id. § 10, p 100 (giving justices of the peace “jurisdiction in all
civil cases in all sums not exceeding [$150]”).
Notably, although in modern FED actions it is gen-
erally the possessor of the premises (e.g., the tenant) who
is alleged to have entered or held by force—and the force
is usually constructive in nature—FED laws originated
in response to physical violence and threats of violence by
landlords against tenants. DeGraffe, 13 Seton Hall Legis J
at 135-36. Those origins are evident in Oregon’s first FED
statute (adopted by cross-reference to the Iowa statute),
which was focused on physical force and addressed violence
by either party:
“Sec. 1. * * * [N]o person shall hereafter make any entry
into lands, tenements, or other possessions, but in cases
where entry is given by law; and in such cases not with
strong hand, nor with multitude of people, but only in a
peaceable and easy manner; and if any person from hence-
forth do to the contrary, and therefore be duly convicted, he
shall be punished by fine.
“Sec. 2. If any person shall enter upon or into any land,
tenements, or other possessions, and detain and hold the
same with force or strong hand, or with weapons, or break-
ing open the doors or windows, or other part of a house,
whether any person be in or not, or by threatening to kill,
maim, or beat the party in possession, or by such words or
actions as have a natural tendency to excite fear, or appre-
hension of danger, or by putting out of door, or conveying
away the goods of the party in possession, or by entering
peaceably and then turning out by force, or frightening by
threats or other circumstances of terror, or in any other
way that would be a forcible entry or detainer at common
law, the party out of possession, in such case every person
so offending shall be deemed guilty of a forcible entry and
detainer within the meaning of this act.
Cite as 327 Or App 219 (2023) 231
“Sec. 3. That a justice of the peace shall have authority
to enquire by jury, as hereafter directed, as well against
those who make unlawful and forcible entry into lands,
tenements, or other possessions, and with strong hand
detain the same, as against those who, having lawful and
peaceable entry into lands, tenements, or other posses-
sions, unlawfully and by force detain the same, and if it
be found upon such enquiry that an unlawful and forcible
entry hath been made, and that the same lands, tenements,
and other possessions are held and detained by force and
strong hand, or that the same, after a lawful entry, are held
unlawfully and with force and with strong hand, then such
justice shall cause the party complaining to have restitu-
tion thereof.”
1839 Iowa Act, §§ 1-3, p 231-32 (source of quotation); 1844
Oregon Act, Article III, § 1, p 100 (adopting 1839 Iowa Act
as Oregon law).
In 1850, Oregon’s territorial legislature drafted
its own FED statute, which replaced the Iowa statute. The
1850 statute conceived of FED in the same way, and it con-
tained some similar provisions, such as FED actions being
heard by a justice of the peace and tried to a jury. However,
the 1850 statute also contained new details and provisions,
such as requiring written notice to evict tenants:
“Sec. 1. No person shall enter upon or into any lands,
tenements, or other possessions, and detain or hold the
same but where entry is given by law, and then only in a
peaceable manner.
“Sec. 2. If any person shall enter upon or into any lands,
tenements, or other possessions, and detain and hold the
same with force or strong hand, or with weapons, or break-
ing open the doors and windows, or other parts of a house,
whether any person be in it or not, or by threatening to kill,
maim, or beat the party in possession, or by such words
or actions as to have a natural tendency to excite fear or
apprehension of danger, or by putting out of doors or carry-
ing away the goods of the party in possession, or by entering
peaceably and then turning out by force, or frightening by
threats, or other circumstances of terror, the party to yield
possession, in such case every person so offending shall be
deemed guilty of a forcible entry and detainer, within the
meaning of this act.
232 Duckworth v. Duckworth
“Sec. 3. When any person shall willfully and with force,
hold over any lands, tenements or other possessions, after
the determination of the time for which they were demised
or let to him, or the person under whom he claims, or shall
lawfully and peaceably obtain possession, but shall hold
the same unlawfully and by force, and after demand made
in writing for delivery of possession thereof, by the person
having the right to such possession, his agent or attorney,
shall refuse or neglect to quit such possession, such person
shall be deemed guilty of an unlawful detainer.
“* * * * *
“Sec. 17. When the jury is sworn, the justice of the peace
shall cause the complaint to be read to them, and then call
on the plaintiff to support the same; but the plaintiff shall
not be required to make further proof the forcible entry and
detainer, (or unlawful detainer,) than that he was lawfully
possessed of the premises, and that the defendant unlaw-
fully entered into and detains the same, (or lawfully enter-
ing, unlawfully detains.)
“Sec. 18. If the jury on the trial find the defendant
guilty, the justice of the peace shall record the verdict, and
give judgment thereon with costs, and also issue a writ of
restitution directed to the sheriff or constable, to cause the
plaintiff to be repossessed, to which shall be added a clause
commanding the officer to levy the costs of the goods and
chattels of the defendant.”
Acts of the Legislative Assembly of the Territory of Oregon,
Justices of the Peace, Article XII, Forcible Entry and
Detainer, pp 54-57 (Moore 1850).5
Most importantly for present purposes, the 1850
statute included a new provision expressly prohibiting
inquiries into the merits of title in an FED action:
5
It was apparently the practice that the justice of the peace’s decision in an
FED action could be appealed to the circuit court, even when the FED statute did
not expressly provide for such an appeal. See Wolfer v. Hurst, 47 Or 156, 161, 82 P
20 (1905) (denying motion to dismiss appeal of circuit court judgment reviewing
justice court’s FED judgment, because “the right to an appeal in such cases is
fairly to be inferred from the statute,” and “the cause of justice would * * * be pro-
moted by continuing the practice so long observed”); Twiss, 39 Or at 360 (stating,
in 1901, “This is an action of forcible entry and detainer, commenced in a justice’s
court, and appealed to the circuit court * * *.”); Thompson, 6 Or at 308 (stating,
in 1877, that “justices of the peace are invested with jurisdiction” in FED actions
and that “the right of appeal is given to Circuit Courts”). As previously noted,
earlier Oregon statutes had expressly provided for circuit courts to hear appeals
from decisions of justices of the peace. See 1844 Oregon Act, Article II, § 3, p 99
(giving the circuit courts “appellate jurisdiction from justices of the peace”).
Cite as 327 Or App 219 (2023) 233
“Sec. 23. The estate or the merits of the title shall in
no wise be inquired into on any complaint which shall be
exhibited by virtue of this act.”
Id. at p 57.
One of the earliest published decisions of the Oregon
Supreme Court enforced the foregoing limitation on FED
actions. In Shortess v. Wirt, 1 Or 90, 90 (1854), the deceased’s
land claim was sold at an administrator’s sale and eventu-
ally came into the defendant’s possession. The guardian of
the deceased’s minor children sued for unlawful detainer,
asserting that the children had title and that the adminis-
trator’s sale was void. Id. The court concluded that it would
be “impossible to sustain this action without inquiring into
‘the merits of the title’ to the [land] claim in question,” given
that the “whole case” reduced to “a question as to the valid-
ity of conflicting titles.” Id. at 91. That was deemed “fatal
to the action.” Id. “The sole object of this [FED] action is to
determine the right of immediate possession to real estate,
without reference to title, and to hold otherwise would be to
allow justices of the peace to adjudicate titles to land con-
trary to the express provisions of the organic act.” Id.Similarly, in Altree v. Moore, 1 Or 350, 352 (1861),
the court noted that, in an FED action, a defendant cannot
claim title as a defense and that if “he, defendant, have a
title paramount, he must assert it in a different manner.”
In Aiken v. Aiken, 12 Or 203, 207-08, 6 P 682 (1885), the
court reversed an FED judgment and “remanded to the
circuit court with directions to dismiss it for the want of
jurisdiction of the justice’s court, and of [the circuit] court,
upon appeal,” where the plaintiff widow claimed title to land
through her husband, who had title before his death, and
title was “necessarily litigated” and “effectually tried” in
deciding possession.
The provision prohibiting inquiry into the mer-
its of title in an FED action remained in the Oregon FED
statute until 1909, when the legislature did a major stat-
utory overhaul. The provision regarding title inquires was
removed. Or Laws 1909, ch 185, § 29. Circuit courts also
were expressly given jurisdiction of FED actions. Id.; Lord’s
Oregon Laws, title XLVIII, ch XVIII, § 7568 (1910) (allowing
234 Duckworth v. Duckworth
an FED action to be maintained “in the circuit court of [the
county in which the property is situated], or before any jus-
tice of the peace of said county”).
Since 1909, Oregon’s FED statutes have been silent
regarding the resolution of title disputes. Until relatively
recently, however, de facto limitations continued to exist,
insofar as FED actions were frequently heard in courts of
limited jurisdiction, until the abolition of district courts in
1998.6 For example, in 1909, justice courts had jurisdiction
to hear FED actions, but they generally lacked jurisdic-
tion to resolve title disputes and were required to transfer
to circuit court any action involving a title dispute. Lord’s
Oregon Laws, title XLVIII, ch XVIII, § 7568 (1910) (juris-
diction to hear FED actions); id. at title XII, ch V, § 952 (no
jurisdiction to hear “an action in which the title to real prop-
erty shall come in question”); id. at title XX, ch III, § 2435
(requiring transfer from justice to circuit court if pleadings
or evidence put title in question). In 1940, that was the sit-
uation for both justice courts—see OCLA § 8-313 (jurisdic-
tion to hear FED actions); OCLA § 27-105(1) (jurisdiction
“does not extend * * * [t]o an action in which the title to real
property shall come in question”)—and district courts—see
OCLA § 13-302(5) (jurisdiction to hear FED actions); OCLA
§ 13-302(10) (requiring the court to strike the pleading or
transfer the case “[w]henever it shall appear from the plead-
ings in any cause that the title to real property is in dis-
pute”). Eventually, justice courts and district courts were
given limited authority to address title disputes, without
preclusive effect, as discussed later. See 327 Or App at 242
(discussing justice courts); 327 Or App at 238-41 (discussing
district courts).
As for the circuit courts, which had concurrent
jurisdiction of FED actions after 1909, the historical case
law is unclear as to whether circuit courts resolved title
disputes that arose in FED actions, or whether they under-
stood some constraint to prevent them from doing so, even
6
As noted later, to this day, FED actions may still be brought in justice
courts, which have limited authority to address title disputes. However, with the
abolition of district courts, most FED actions are now filed in circuit courts.
Cite as 327 Or App 219 (2023) 235
after the legislature removed the express prohibition from
Oregon’s FED statute in 1909.
Consider the Supreme Court’s 1941 decision in
Schroeder, which is the case on which plaintiffs primarily
rely in the present appeal. Schroeder was an FED action
between the vendees in possession of real property under
a contract to purchase and the vendors who contracted to
sell and convey it to them. 166 Or at 94. The circuit court
sustained a demurrer and dismissed the action, and the
Supreme Court affirmed. Id. at 98. The court first described
the law regarding FED, including relying on a non-Oregon
secondary source as authority that, except for “incidental”
title questions, title disputes cannot be litigated or deter-
mined in an FED action:
“The proceeding in an action of forcible entry and detainer
is possessory only and the remedy is purely of statutory
origin. The only question involved in such case is the plain-
tiff’s right to possession of the premises in dispute and no
controversy can be raised as to the merits of the title. * * *
‘Except in so far as they may be incidentally involved in
showing the right of possession, questions of title are not
involved and cannot be litigated or determined.’ 36 C.J.,
p. 623.”
Id. at 95.
The court then proceeded to hold that it was proper
to sustain the demurrer for two independent reasons. The
first reason was that the case did not involve unlawful entry
(because the defendants had entered peaceably) or unlawful
detainer (because the parties were not in a landlord-tenant
relationship), so an FED action did not lie. Id. at 97-98. In
explaining that ruling, the court indicated that it did not
matter that the action had been heard in a court of gen-
eral jurisdiction, because FED is a special statutory pro-
ceeding: “Even if the action is tried in a court of record, the
latter does not proceed therein by virtue of its power as a
court of general jurisdiction, but derives its authority wholly
from the statute, and in such proceeding is, therefore, to
be treated as a court of special and limited jurisdiction.”
Id. at 96 (internal quotation marks omitted). The court did
not explain further.
236 Duckworth v. Duckworth
The second reason given for why it was proper to
sustain the demurrer in Schroeder was that title cannot be
decided or even discussed in an FED action:
“There is another reason why this action will not lie in
the instant case. Under all the authorities, evidence of title
is never admissible in a forcible entry and detainer action.
‘Title’, says Blackstone, ‘is the means whereby the owner of
lands has the just possession of his property’. 2 Bl. Comm.,
195. Or, as sometimes said, ‘Title is the means whereby
a person’s right to property is established’, and, as said
in Sommer v. Compton, 52 Or 173, 178, 96 P 124 [(1908)],
‘Legal title draws to it the possession.’
“Under the provisions of this contract and under the
allegations of this complaint, it would not be possible for
the plaintiffs to regain possession of this property in any
form of action or suit except upon proof of their compliance
with the contract and of defendants’ default and failure to
perform. Such proof would be proof of title and of their pres-
ent ownership and right to the possession of the property.
Such proof, as held in Twiss v. Boehmer, 39 Or 359, 65 P 18[(1901)], and by the authorities above cited, would be inad-
missible in an action of forcible entry and detainer. From
this it follows that, if evidence of title is not admissible in
a forcible entry and detainer action, then the setting up
in a complaint of facts constituting title, which could not
be proved upon the trial of such action, adds nothing to
the sufficiency of the complaint when challenged by demur-
rer. This affords an additional ground for holding that the
demurrer was properly sustained.”
Id. at 98.
It is important to know that, in 1941, Oregon’s FED
statute was silent as to title disputes. See OCLA §§ 8-301 to
8-328. It is also notable that Schroeder relied almost entirely
on non-Oregon secondary sources for its broad pronounce-
ments regarding title issues in FED. The only Oregon case
cited on that point was Twiss, a case decided in 1901 when
the Oregon FED statute expressly prohibited inquiry into
the merits of title in an FED action.7 See The Codes and
7
Twiss does not appear to have involved a title dispute and only briefly men-
tions a title-related issue. In Twiss, the plaintiff leased certain real property for
use as a blacksmith shop. 39 Or at 360. When the tenant turned it over to a new
tenant without permission, the owner brought an FED action to evict the new
Cite as 327 Or App 219 (2023) 237
Statutes of Oregon, title XLIII, ch XIX, § 5760 (Bellinger &
Cotton 1902) (providing that, in an FED action, “the merits
of the title shall not be inquired into”).
Describing the full history of Oregon FED law is
a gargantuan task that we cannot undertake in this opin-
ion. Suffice it to say that, like the history of English and
American FED laws more generally, the history of Oregon
FED law is lengthy, complex, and peppered with seeming
inconsistencies and statutory ambiguities. Every thesis that
we have tested to fully synthesize the large body of existing
case law, by reference to the contemporaneous statutes, has
failed in the end. Perhaps it is simply too much to ask in an
area of the law with more than 850 years of history, includ-
ing 179 years in Oregon.
What will suffice for present purposes is to make a
few key observations regarding the first 133 years of Oregon
FED law, from 1844 to 1977:
• From 1850 to 1909, Oregon’s FED statute expressly
provided that the merits of title were not to be
inquired into in an FED action.
• Since 1909, Oregon’s FED statute has been silent
regarding title disputes in FED actions. Nonetheless,
there has remained in the ether an understand-
ing that title is not to be decided in FED actions.
That understanding is partially, but not entirely,
accounted for by jurisdictional limits on the courts
that most often heard FED actions (justice courts,
county courts, and district courts).
• It is unclear whether, after 1909, circuit courts con-
sidered themselves to have authority to decide title
disputes in FED actions.
Having made those observations, we now jump to the year
1977, where we resume a more detailed analysis.
tenant. Id. at 360-61. The action was “commenced in a justice’s court, and appealed
to the circuit court, where judgment was rendered in favor of the plaintiff.” Id. at
360. The only portion of the opinion addressing title states, “It is next insisted that
the court erred in permitting the plaintiff to testify that the property belonged to
her. But this was a mere preliminary matter, not offered or intended as proof of
title, and could not have been prejudicial to the defendant.” Id. at 363.
238 Duckworth v. Duckworth
2. The end of the district court era (1977-1998)
Beginning in 1977, district courts8 had “exclu-
sive jurisdiction” in FED actions. Former ORS 46.060(1)(e)
(1977).9 Notwithstanding that district courts had “exclusive”
jurisdiction, justice courts and circuit courts also continued
to have FED jurisdiction. See ORS 105.110 (1977) (allowing
an FED action to be maintained “in the circuit court, dis-
trict court or before any justice of the peace of the county”).
Also in 1977, the legislature added a provision to
the district courts’ jurisdictional statutes that opened the
door for their making nonpreclusive title decisions in FED
actions (although we would not announce that construction
until nearly two decades later in Lawton). Or Laws 1977,
ch 876, § 6. The new provision applied to all actions, includ-
ing FED actions, and provided:
“While the title to real property may be controverted or
questioned in an action in district court, the judgment in
8
The history of district courts is briefly summarized in Paul J. De Muniz,
Oregon Courts Today and Tomorrow, 50 Willamette L Rev 291, 293-94 (2014):
“The 1913 legislative session produced Oregon’s first district court, exer-
cising its authority under Article VII (Amended) of the Oregon Constitution,
vesting the judicial power in one Supreme Court and in such other courts
as may from time to time be created by law. The district courts were, in
large part, a substitute for justice courts in urban areas, having (like justice
courts) limited civil and criminal jurisdiction. By 1997, thirty of Oregon’s
thirty-six counties had district courts with sixty-three district judges.
However, as early as the 1970’s, efforts were underway to consolidate the
trial courts. In 1998, unable to withstand the mounting pressure for consol-
idation, the Oregon Legislature abolished all district courts and transferred
judicial authority and pending cases to the circuit courts. Without executive
appointment or popular election, but by virtue of consolidation, all sitting
district court judges became circuit judges.”
(Internal quotation marks and footnotes omitted.) See also Or Const, Art VII
(Amended), § 1 (“The judicial power of the state shall be vested in one supreme
court and in such other courts as may from time to time be created by law.”);
Stephen P. Armitage, How the Supreme Court Expanded, in History of the Oregon
Judicial Department, Part 2: After Statehood, available at https://soll.libguides.
com/c.php?g=519362&p=3551697 (last visited Jul 17, 2023) (current location of
the article that is cited in the De Muniz article).
9
Former ORS 46.060 (1977), amended by Or Laws 1983, ch 149, § 1; Or Laws
1985, ch 342, § 1; Or Laws 1985, ch 496, § 28; Or Laws 1985, ch 588, § 3a; Or Laws
1987, ch 714, § 8; Or Laws 1989, ch 839, § 33; repealed by Or Laws 1995, ch 658,
§ 127. In this opinion, when we cite “former ORS 46.060” without specifying a
year, we mean to refer to the former statute in general terms, rather than in a
specific year.
Cite as 327 Or App 219 (2023) 239
said action shall in no way affect or determine title between
the parties or otherwise.”
Former ORS 46.084 (1977), amended by Or Laws 1987,
ch 714, § 7, repealed by Or Laws 1995, ch 658, § 127.10
Somewhat strangely, until 1987, that provision
coexisted with former ORS 46.060(4), which also applied
to all actions in district court, including FED actions, and
required a district court to strike the pleading or transfer
to circuit court any action in which the pleading indicated a
dispute regarding title to real property. We have been unable
to find anything in the legislative history that explains how
those two provisions coexisted. It is possible that former ORS
46.060(4) applied when a title dispute was evident from the
pleadings, whereas former ORS 46.084 applied when title
disputes arose at trial.
In any event, we continued to enforce former ORS
46.060(4). In Long v. Storms, 50 Or App 39, 45, 622 P2d
731, rev den, 290 Or 727, adh’d to as modified on recons, 52
Or App 685, 629 P2d 827 (1981), Long filed an FED action
in the district court, and Storms asserted in defense that
she had a “security arrangement” with Long under which
“both parties have an equitable interest in the property.”
The district court eventually dismissed the FED action with
prejudice to both parties. Id. at 45-46. Long later filed a sec-
ond FED action, and Storms again asserted an equitable
interest in the property. Id. at 46-47. The second FED action
was transferred to circuit court under former ORS 46.084
because Storms’s “answer and counterclaims raised an issue
regarding the determination of title to real property.” Id. at
41. The circuit court found in Long’s favor, including possi-
bly relying on the dismissal with prejudice of the first FED
action having preclusive effect in the second FED action.
Id. at 49. On appeal, we held, in relevant part, that the first
FED action did not have preclusive effect, as “res judicata
* * * does not apply to matters over which the original court
did not have jurisdiction,” id. at 46, and the district court
did not have jurisdiction to determine title to real property:
10
In this opinion, when we cite “former ORS 46.084” without specifying a
year, we mean to refer to the former statute in general terms, rather than in a
specific year.
240 Duckworth v. Duckworth
“[Storms’s] contention in the first FED action that [Long]
had only a security interest in the property put the title to
the property in issue. Because district courts lack power to
determine title to real property, [former] ORS 46.084, the
trial court in the first FED action lacked jurisdiction over
[Storms’s] defenses, and the disposition in the district court
had no res judicata effect.”
Id. at 47.
In 1987, the legislature removed former ORS
46.060(4) from the district court jurisdictional statutes. Or
Laws 1987, ch 714, § 8. At the same time, it added a new
waiver provision to former ORS 46.084, which allowed dis-
trict courts to conclusively resolve title disputes in certain
limited circumstances:
“(1) Except as provided in subsection (2) of this sec-
tion, while the title to real property may be controverted or
questioned in an action in district court, the judgment in
the action shall in no way affect or determine title between
the parties or otherwise.
“(2) In an action in a district court involving title to
real property and in which objections to the jurisdiction
of the court are considered waived as provided in [former
ORS 46.064(3)], a judgment of the court that would affect
or determine title to the real property and that is docketed
in the judgment docket of the circuit court shall, from the
time of that docketing, affect or determine title to the real
property as if it were a judgment of the circuit court where
it is docketed.”
Or Laws 1987, ch 714, § 7; see also former ORS 46.064(3)
(1987), amended by Or Laws 1995, ch 664, § 78, repealed by
Or Laws 1995, ch 658, § 127 (“If no party has made a motion
to transfer and the court is otherwise unaware that a claim
is outside the jurisdiction of the court and as a result the
court has failed to order a transfer of the case, all objec-
tions that jurisdiction is not in the district court but is in
the circuit court shall be waived, and a judgment of the dis-
trict court in the action shall not be void or voidable or sub-
ject to direct or collateral attack on the ground that juris-
diction was not in the district court but was in the circuit
court.”).
Cite as 327 Or App 219 (2023) 241
In 1995, we applied former ORS 46.084(1) in Lawton,
the case on which defendant primarily relies in the pres-
ent appeal. The Simpsons brought an FED action in district
court to recover possession of real property from Lawton,
and Lawton asserted in defense that the Simpsons had
defrauded him, that he was the owner of the property, and
that he had an enforceable contract to purchase it. Lawton,
133 Or App at 491. The district court found in the Simpsons’
favor and entered an FED judgment that included findings
against Lawton’s defenses. Id. Lawton subsequently brought
a civil action against the Simpsons in circuit court for fraud
and other claims. Id. The circuit court ruled that the FED
judgment barred Lawton from relitigating his claims in the
civil action. Id. We disagreed and reversed, explaining that,
under former ORS 46.084(1), the district court had authority
to consider Lawton’s defenses in the FED action insofar as it
affected the right to possession, but that the district court’s
judgment “was not determinative as to how those defenses
affected title” and should not have been given preclusive
effect in a civil action regarding title. Id. at 491-93.
We reached a similar conclusion a few years later
in Option One Mortgage Corp. v. Wall, 159 Or App 354, 977
P2d 408 (1999), which is the last published decision constru-
ing the district-court jurisdictional statutes. We explained
that former ORS 46.084(1) (1997) allowed title to be “ ‘contro-
verted or questioned’ but not ‘determined’ ” by district courts,
which we construed to mean that district courts could “con-
sider[ ] arguments regarding the validity of plaintiff’s title”
in determining whether the plaintiff had the right to pos-
session. Id. at 358 (emphasis in Option One Mortgage Corp.).
Thus, both Lawton and Option One Mortgage Corp.
stand for the proposition that, under the statutory scheme
that was in place from 1987 (when the statute was last
amended) until 1998 (when district courts were abolished),
district courts could decide title in FED actions insofar as
it was necessary to decide the right to possession, but such
title decisions lacked preclusive effect in other actions.
And what about circuit courts that heard FED
actions? For the two decades that district courts had “exclu-
sive jurisdiction” to hear FED actions (1977 to 1997), circuit
242 Duckworth v. Duckworth
courts continued to hear FED actions in counties without
a district court, see former ORS 46.060(2) (1975), as well as
hearing FED actions transferred from district court because
they raised issues beyond the district court’s jurisdiction,
see former ORS 46.060(4) (1975). The very fact of the trans-
fer provision suggests that circuit courts could decide title
disputes. As with the earlier period, however, the case law is
seemingly silent as to whether circuit courts actually made
a practice of resolving title disputes in FED actions. We
have found no direct references to their doing so, although
the case law is admittedly vast enough that we cannot say
with certainty that none exist.
3. The modern era (1998-present)
In 1998, district courts were abolished in Oregon,
and “[a]ll jurisdiction, authority, powers, functions and
duties of the district courts” were transferred to the circuit
courts. Or Laws 1995, ch 658, §§ 1, 3. FED actions are now
heard only by circuit courts and justice courts. ORS 105.110
(an FED action may be maintained “in the circuit court or
before any justice of the peace of the county” where the prop-
erty is situated).
Oregon circuits courts have jurisdiction “in respect
to any cause of action or suit.” ORS 14.030. By contrast, jus-
tice courts have limited jurisdiction, which “does not extend
to * * * [a]n action in which the title to real property shall
come in question.” ORS 51.090(1). Somewhat confusingly,
justice courts are supposed to transfer to circuit court any
action in which it appears from the pleadings or evidence
“that the title to real property is in question,” ORS 52.560,
but, at the same time, under ORS 52.590, “title to real prop-
erty may be controverted or questioned in an action in a jus-
tice court,” subject to the limitation that the justice court’s
judgment “shall in no way affect or determine the title as
between the parties, or otherwise.”
For present purposes, our focus is the circuit courts.
“Modernly, there is a single category of general jurisdiction
trial court in the state of Oregon, the circuit courts, and
those courts have subject matter jurisdiction over FED
actions, see ORS 105.110, as well as all other civil actions.”
Cite as 327 Or App 219 (2023) 243
Balboa Apartments, 237 Or App at 399-400. It follows that
any limitation on circuit courts adjudicating title disputes
in FED actions must derive from the FED statutes, rather
than court jurisdictional statutes. Id. at 400.
It is readily apparent that, unlike the Oregon FED
statutes in effect from 1850 to 1909, the current Oregon
FED statutes do not contain any express limitation on the
resolution of title disputes in FED proceedings. Oregon
courts have nonetheless continued to occasionally invoke
or allude to that historical limitation. The most significant
statements in that regard are in Schroeder, the previously
discussed 1941 decision in which the Supreme Court stated
in strong terms that title disputes cannot be resolved in
FED actions, even in circuit court, and, despite allowing for
an exception for “incidental” questions of title, relied on that
principle as an independent basis to affirm the dismissal of
an FED action involving a title issue. Schroeder, 166 Or at
95, 98.
More recently, in Bunch v. Pearson, 186 Or App 138,
141-42, 62 P3d 878, rev den, 335 Or 422 (2003), in the context
of explaining that the trial court lacked authority to award
possession to the plaintiff in an FED action because the par-
ties lacked a landlord-tenant relationship (and thus there
was no “unlawful holding by force” as statutorily defined),
we stated:
“FED proceedings are statutory in nature and are
‘designed to be quick and summary, to obtain peaceful res-
olutions of possessory disputes.’ Class v. Carter, 293 Or 147,
150, 645 P2d 536 (1982). Under ORS 105.105 to 105.168,
the issue that is to be decided in FED cases is entitlement
to possession. Although other statutes may allow for addi-
tional remedies, under the FED statutes, ‘[o]nly one issue is
involved: the right of possession.’ Class, 293 Or at 150.”
(Footnote omitted.)
Even more recently, in Balboa Apartments, 237 Or
App at 400, we summarily acknowledged that title cannot
be adjudicated in an FED action, stating, “Although it is
true that title to property cannot be adjudicated in an FED
action, see Kerr v. Jones, 193 Or App 682, 91 P3d 828 (2004),
that is a limitation of statutory authority, not a limitation
244 Duckworth v. Duckworth
of the circuit court’s subject matter jurisdiction.” The only
“limitation of statutory authority” discussed in Kerr was the
historical limitation that only parties in a landlord-tenant
relationship could utilize FED procedures. In Kerr, the
defendant entered the premises lawfully as a tenant and
later claimed an ownership interest. 193 Or App at 684. The
plaintiff purchased the property at public auction, received
a bargain and sale deed, and brought an FED action against
the defendant, alleging unlawful holding by force. Id. The
defendant claimed ownership and a resulting entitlement to
possession. Id. The court entered an FED judgment in the
plaintiff’s favor. Id. On appeal, we agreed with the defendant
“that the trial court lacked authority to award possession
to plaintiff in an FED action because both parties claimed
title to the property and there was no landlord-tenant rela-
tionship between them.” Id. at 684-85 (emphasis added).
Without a landlord-tenant relationship, the defendant was
not unlawfully holding by force, as that term is defined, and
the parties’ dispute could not be resolved in an FED action.
Id. at 686-87.
Only two years ago, we noted briefly in Bunch v.
Lowry, 313 Or App 398, 399 n 1, 496 P3d 660 (2021), that “an
FED proceeding is limited to the determination of the right
to possession of premises in the context of a landlord-tenant
relationship.” (Citing Schmidt, 237 Or App at 421.)
At the same time, in a series of cases involving non-
judicial foreclosures decided in recent years, we have implic-
itly taken the view that Oregon circuit courts have authority
to resolve title disputes in FED actions. As noted previously,
a purchaser of real property at a trustee’s sale may evict
a tenant at suffrage in an FED action. ORS 86.782(6)(a).
In Wolf v. GMAC Mortgage, LLC, 276 Or App 541, 543, 370
P3d 1254 (2016), we held that, under the OTDA, a person’s
interest in real property cannot be terminated by a trust-
ee’s sale unless a “trustee” as defined in the OTDA executed
the sale. Wolf itself was a declaratory judgment action, but
we have applied Wolf to reverse FED judgments where the
plaintiff failed to prove that the “trustee” executed the sale
and, thus, failed to prove the right to possession. See Bank
of New York Mellon v. Owen, 299 Or App 348, 350-51, 450
Cite as 327 Or App 219 (2023) 245
P3d 1009 (2019) (concluding that, where the FED defendant
challenged the validity of the trustee’s deed and the trust-
ee’s authority to conduct the foreclosure sale, as relevant
to the plaintiff’s right to possession, the FED court should
have addressed those issues and was wrong to view the FED
action as “ ‘not the appropriate forum to challenge the prior
foreclosure’ ”); Troubled Asset Solutions v. Wilcher, 291 Or
App 522, 530-31, 422 P3d 314 (2018), rev’d in part on other
grounds, 365 Or 397, 445 P3d 881 (2019) (similar, except
that quiet-title action and FED action were consolidated);
Federal Home Loan Mortgage Corp. v. Smith, 287 Or App
42, 47, 400 P3d 1009 (2017) (similar); Bank of America, N. A.
v. Payne, 279 Or App 239, 243 n 2, 379 P3d 816 (2016)
(reversing an FED judgment where there was “no evidence
in the record that the sale of the property was conducted by
a validly appointed trustee for purposes of the OTDA” so as
to establish that the plaintiff was a purchaser entitled to
possession).
4. Conclusions regarding resolving title disputes in
FED actions
Our recitation of the history of Oregon FED law has
barely scratched the surface of 179 years of statutes and case
law, yet even what relatively little we have said should give
some indication of how complex it is. Spending time in the
historical case law can leave one with the distinct impres-
sion that certain fundamental principles about FED exist
in the ether, untethered to statutory language (even when
it exists), particularly that FED actions are supposed to be
quick and summary, that they are limited to the issue of
possession, and that they are not the proper forum to resolve
title disputes.
Ultimately, however, we have not found any current
controlling authority for prohibiting or limiting the resolu-
tion of title disputes in FED actions in Oregon circuit courts.
The occasional statements found in our own case law since
1909 that could be read to support plaintiffs’ position in this
appeal appear to be dicta. In cases where the parties lack a
landlord-tenant or other relationship that allows for the use
of FED procedures—such as Bunch v. Pearson and Kerr—it
would be more accurate to say that the parties cannot resolve
246 Duckworth v. Duckworth
anything in an FED action, than to say that an FED action
is limited to the issue of possession. And generic statements
about “possession” being the sole issue in an FED action—
as made in Balboa Apartments and Bunch v. Lowry—are
potentially misleading given the complex history of different
courts’ authority to decide title disputes as part of deciding
possession.
The most difficult precedent to account for is
Schroeder. The Supreme Court’s statements in that case—
that controversies regarding the merits of title cannot be
raised in FED actions, except perhaps “incidental” ques-
tions of title (an exception neither explained nor applied),
and that evidence of title is inadmissible in FED actions—
cannot be understood as dicta, because they formed the
legal basis for an alternative holding. See Schroeder, 166 Or
at 95, 98. At the same time, those statements seem entirely
untethered to the 1941 Oregon FED statute—despite the
court’s emphasis on the statutory nature of FED and the
importance of adhering strictly to the statutory procedures.
See id. at 96 (“As said in 22 Am Jur, p 934, section 35: ‘Since
the action of forcible entry and detainer is a special statu-
tory proceeding, summary in its nature, and in derogation
of the common law, it is a rule of universal application in
such actions that the statute conferring jurisdiction must be
strictly pursued in the method of procedure prescribed by it,
or the jurisdiction will fail to attach, and the proceeding be
coram non judice and void.’ ”11).
The Schroeder court relied for those statements
primarily on non-Oregon secondary sources, citing only
one Oregon case regarding title in FED actions, which was
decided in 1901 and is readily distinguishable because,
in 1901, Oregon’s FED statute expressly prohibited any
inquiry into the merits of title in an FED action—a provi-
sion that was removed from the FED statute in 1909, more
than three decades before Schroeder was decided. Lacking
any insight into the statutory source for Schroeder’s reason-
ing, we cannot discern its logic or meaningfully compare the
11
A case tried by a court “ ‘that hath no jurisdiction of the cause’ ” is “ ‘coram
non judice, and utterly void.’ ” Trutch v. Bunnell, 11 Or 58, 60, 4 P 588 (1883)
(quoting Hobart 53).
Cite as 327 Or App 219 (2023) 247
1941 FED statute to the current FED statutes to determine
whether that logic still holds or whether, due to statutory
changes over the past 80 years, it is simply no longer good
law. Notably, however, our court has issued various decisions
since 1995 that effectively disregard Schroeder’s broad pro-
nouncements regarding title issues in FED actions, presum-
ably based on an understanding that they do not control our
construction of the modern FED statutes. We refer partic-
ularly to Lawton, 133 Or App at 491; Option One Mortgage
Corp., 159 Or App at 357-58; and the aforementioned line of
cases involving nonjudicial foreclosure. We similarly decline
to view Schroeder as controlling authority at this point,
with respect to resolution of title disputes in FED actions,
as we simply cannot reconcile Schroeder with the current
FED statutes or our last 28 years of case law regarding FED
actions.
We therefore reject plaintiffs’ argument that
Oregon circuit courts lack jurisdiction to resolve title dis-
putes in FED actions. It is indisputable that Oregon circuit
courts have subject matter jurisdiction to decide title dis-
putes. As for statutory authority to do so in an FED action,
resolving title disputes in FED actions is somewhat at odds
with the oft-cited principle that FED actions are “quick and
summary” in nature. Class, 293 Or at 150; Bunch, 313 Or
App at 399 n 1; see also, e.g., Lexton-Ancira, Inc. v. Kay, 269
Or 1, 5-6, 522 P2d 875 (1974) (“An FED proceeding is a spe-
cial statutory proceeding of a summary nature designed to
secure the speedy restitution of premises forcibly or unlaw-
fully detained.”); Friedenthal, 146 Or at 643 (describing
FED “as an expeditious method to obtain possession of real
property that [i]s being withheld from the owner by force”);
Wolfer v. Hurst, 47 Or 156, 166, 82 P 20 (1905) (“The relief by
forcible entry and detainer is unquestionably designed as a
summary proceeding to give speedy and prompt relief[.]”).
Indeed, some states expressly provide in their FED
statutes that a title dispute cannot be litigated in an FED
action, at least in part due to the summary nature of FED
proceedings. E.g., Ariz Rev Stat Ann § 12-1177(A) (“On the
trial of an action of forcible entry or forcible detainer, the
only issue shall be the right of actual possession and the
248 Duckworth v. Duckworth
merits of title shall not be inquired into.”); Alaska Stat
§ 09.45.150 (“In an action to recover the possession on the
land, tenement, or other real property where the entry is
forcible or when the possession is unlawfully held by force,
there shall be no inquiry into the merits of the title.”); see
also, e.g., Fla Stat § 82.04 (“The court shall determine only
the right of possession and any damages. Unless it is neces-
sary to determine the right of possession or the record title-
holder, the court may not determine the question of title.”).
On this point, the Arizona Supreme Court has stated:
“[T]he object of a forcible entry and detainer action is to
afford a summary, speedy and adequate remedy for obtain-
ing possession of premises withheld by tenants, and for
this reason this objective would be entirely frustrated if the
defendant were permitted to deny his landlord’s title, or to
interpose customary and usual defenses permissible in the
ordinary action at law.”
Olds Bros. Lumber Co., 64 Ariz at 204-05, 167 P2d at 397.
As previously discussed, Oregon FED law used to
contain such a provision. From 1850 to 1909, the Oregon
FED statute expressly prohibited inquiry into the merits
of title in an FED action. See 327 Or App at 232-34). That
provision was removed in 1909, however, and the legisla-
ture has not seen fit to put it back. It is possible that the
1909 legislature assumed that the limitation would still
apply, as somehow fundamental to the nature of FED, but
that is purely speculation on an issue shrouded in history.
Regardless of why the provision was removed in 1909 or
what the 1909 legislature expected, the fact is that FED
is a creature of statute, and no one has identified, nor have
we found, anything in the current Oregon statutes that in
any way can be read to prohibit or limit resolution of title
disputes in FED actions in circuit court.
Under the circumstances, we can only conclude
that circuit courts are free to resolve title disputes in
FED actions. Circuit courts are not necessarily required to
resolve a title dispute in an FED action. See Bunch, 313 Or
App at 399 n 1 (“To the extent that the trial court was con-
cerned that certain overlapping issues related to possession
were better addressed in the civil action than the quick and
Cite as 327 Or App 219 (2023) 249
summary FED procedure, the proper remedy would have
been an appropriately crafted stay of the FED action rather
than dismissal.”). However, they have the jurisdiction and
authority to do so. They also have discretion to deny a defen-
dant’s request that an FED action be stayed pending reso-
lution of title in an ordinary civil action, as was exercised in
this case.
C. The Application of Issue Preclusion
Having concluded that Oregon circuit courts have
authority to resolve title disputes in FED proceedings, we
turn to the matter of issue preclusion, specifically whether
findings regarding title made in an FED action are issue
preclusive.
“If one tribunal has decided an issue, the deci-
sion on that issue may preclude relitigation of the issue in
another proceeding if five requirements are met[.]” Nelson v.
Emerald People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293(1993). Those requirements are: (1) the issue in the two pro-
ceedings is identical; (2) the issue was actually litigated and
was essential to a final decision on the merits in the prior
proceeding; (3) the party sought to be precluded has had a
full and fair opportunity to be heard on that issue; (4) the
party sought to be precluded was a party or was in privity
with a party to the prior proceeding; and (5) the prior pro-
ceeding was the type of proceeding to which this court will
give preclusive effect. Id. Ultimately, the court “must also
consider the fairness under all the circumstances of pre-
cluding a party.” Minihan v. Stiglich, 258 Or App 839, 855,
311 P3d 922 (2013) (internal citations omitted).
In this case, it is undisputed that plaintiffs were
parties to the FED action. Plaintiffs dispute that the issue
is identical, characterizing the issue in the FED action as
“possession” and the issue in this action as “title”; however,
that is really just a reiteration of their argument that the
circuit court lacked authority to decide title in the FED
action, which we have already rejected. As for whether
plaintiffs had a full and fair opportunity to be heard on the
issue, we can easily imagine a situation in which a party
could successfully argue that they were not given a full and
250 Duckworth v. Duckworth
fair opportunity to litigate title in an FED proceeding, such
that issue preclusion should not apply to any title findings.
Here, however, we do not understand plaintiffs to make that
argument, or at least they have not meaningfully developed
such an argument on appeal (and only indirectly made such
an argument in opposing summary judgment in the trial
court). The record suggests that plaintiffs may have been
surprised by the denial of their abatement motion in the
FED proceeding. But plaintiffs have never argued that they
lacked sufficient time to prepare to litigate title in the FED
action, under circumstances that would constitute the lack
of a full and fair opportunity to be heard on that issue, or
that the FED court did not provide them sufficient time to
present their evidence.
Rather, we understand plaintiffs’ argument against
issue preclusion to turn on the fifth requirement, i.e., that
“the prior proceeding was the type of proceeding to which
this court will give preclusive effect.” Nelson, 318 Or at 104.
We have already rejected plaintiffs’ primary argument,
that circuit courts generally lack jurisdiction or authority
to resolve title disputes in FED actions. That does not nec-
essarily resolve, however, whether FED actions are a type
of proceeding to which we will give preclusive effect, so we
consider that issue further.
As a general rule, “[a] circuit court’s findings in
the context of an FED proceeding are entitled to preclusive
effect.” Schmidt, 237 Or App at 420. In Carter v. Ricker, 241
Or 342, 345, 405 P2d 854 (1965), the Supreme Court held
that an FED judgment was entitled to preclusive effect in
a civil fraud action, such that the plaintiffs could not reliti-
gate whether they had a five-year lease for real property.
Our decision in Perkins v. Conradi, 151 Or App
585, 950 P2d 380 (1997), adh’d to as modified on recons,
153 Or App 273, 956 P2d 1022 (1998), adh’d to as modified
on recons, 154 Or App 439, 959 P2d 1013, rev den, 328 Or
40 (1998), is especially pertinent. The Conradis instituted
an FED action to recover possession of a 40-acre parcel of
property from Perkins, and Perkins argued in defense that
he owned five acres of the property. Id. at 587. The FED
action was transferred from district court to circuit court
Cite as 327 Or App 219 (2023) 251
for trial because of the title dispute. Id. The circuit court
“ruled that [the Conradis] had failed to prove their FED
claim and that [Perkins] was the owner of the five-acre par-
cel.” Id. Meanwhile, Perkins filed a declaratory judgment
action, alleging that he owned the entire 40-acre parcel. Id.
at 587-88. The court granted summary judgment for the
Conradis in the declaratory judgment action, reasoning that
claim preclusion barred the action because Perkins “had the
opportunity to litigate his interest in the remaining 35 acres
in the FED proceeding.” Id. at 588.
We affirmed. Id. at 590. We pointed out that the
Conradis had sought to evict Perkins from the entire 40-acre
parcel in the FED action; that Perkins “reduced the dispute
to who owned five acres of the 40-acre parcel”; that nothing
prevented Perkins “from making the same claim as to the
remaining 35 acres” in the FED action; and that Perkins
offered the same evidence to prove ownership of the 40 acres
in the declaratory judgment action as he had used to prove
ownership of five acres in the FED action. Id. at 589-90. In
giving preclusive effect to the FED judgment, we contrasted
Lawton, 133 Or App at 491-92, which we described as “hold-
ing that because an FED action was tried in district court,
the court did not have jurisdiction to determine title to real
property and, thus, the plaintiff was not barred from bring-
ing [another] action.” Perkins, 151 Or App at 590 n 3.
With respect to title disputes relevant to the right
to possession, Perkins supports the proposition that an FED
action tried in the circuit court is a type of proceeding to
which we will give preclusive effect—and that the same was
true even when we would not give preclusive effect to title
determinations by district courts.
The fifth and final requirement for issue preclusion—
that “the prior proceeding was the type of proceeding to
which this court will give preclusive effect,” Nelson, 318 Or
at 140—is therefore satisfied in this case. Accordingly, the
trial court did not err by giving preclusive effect to the FED
judgment—specifically as to the issue of whether an agree-
ment existed between Duane and his father regarding own-
ership of the motel property—or by consequently granting
summary judgment for defendant on plaintiffs’ quiet title,
252 Duckworth v. Duckworth
breach of contract, and fraud claims. We affirm the sum-
mary judgment ruling.
III. INVOLUNTARY DISMISSAL RULING
(WAGE CLAIM)
That leaves the wage claim, which was tried to the
court. Plaintiffs brought the wage claim under ORS 652.140,
which provides that, “[w]hen an employer discharges an
employee * * *, all wages earned and unpaid at the time of
the discharge * * * become due and payable not later than the
end of the first business day after the discharge * * *.” The
Wage Claim Act does not define “employer” or “employee”
specifically for purposes of ORS 652.140, but we have previ-
ously looked to the definitions in ORS 652.210 to interpret
undefined terms in ORS 652.140. Wyatt v. Body Imaging,
P.C., 163 Or App 526, 530, 989 P2d 36, rev den, 330 Or 252(1999). ORS 652.210(2) defines an “employee” as “any indi-
vidual who, otherwise than as a copartner of the employer,
[or] as an independent contractor * * *, renders personal ser-
vices wholly or partly in this state to an employer who pays
or agrees to pay such individual at a fixed rate.”
Plaintiffs presented evidence from Ruth, Duane, and
Kathy about the work that plaintiffs had done at the motel
property over the years, their expectations of compensation
for that work, and the communications between Duane,
Kathy, Paul, and Ruth about compensation. Plaintiffs also
contended that the judgment in the FED action had issue
preclusive effect as to the existence of an employment rela-
tionship for purposes of their wage claim.
At the close of plaintiffs’ evidence, defendant moved
to dismiss the wage claim under ORCP 54 B(2), which
allows dismissal if “upon the facts and the law the plain-
tiff has shown no right to relief.” Dismissal under ORCP
54 B(2) may be based on the plaintiff’s failure to present a
prima facie case, or on the trial court’s assessment of the
ultimate persuasiveness of the plaintiff’s evidence. Venture
Properties, Inc. v. Parker, 223 Or App 321, 340-41, 195 P3d
470 (2008).
The court rejected plaintiffs’ contention that
issue preclusion applied and established an employment
Cite as 327 Or App 219 (2023) 253
relationship for the wage claim. It also granted the ORCP
54 B(2) motion, stating “that plaintiffs * * * failed to prove
that they had worked at the Bear Creek Motel in the rele-
vant period other than as a copartner of the employer or as
an independent contractor, that the plaintiffs * * * failed to
prove that defendant as an employer had paid or agreed to
pay plaintiffs at a fixed rate, and that plaintiffs * * * failed
to prove monetary damages recognizable in a wage claim
action.”
On appeal, plaintiffs make three arguments regard-
ing the dismissal of the wage claim, which we address in
turn, again reviewing the application of issue preclusion for
errors of law. Berg, 297 Or App at 327. Where, as here, we
are not reviewing de novo, we will affirm the trial court’s
dismissal of a claim under ORCP 54 B if “any evidence” sup-
ports rejecting the claim, “regardless of whether the plain-
tiff has proffered legally sufficient evidence of the claim.”
Venture Properties, Inc., 223 Or App at 332.
First, plaintiffs argue that their status as employ-
ees was a fact actually litigated and established in the
FED action that should have been given preclusive effect in
the quiet-title action. The FED court expressly found that
Duane “was the manager of the motel.” Moreover, defendant
filed the FED action under ORS 91.120, which applies to
eviction of an “employee described in ORS 90.110(7),” i.e.,
“an employee of a landlord whose right to occupancy is
conditional upon employment in and about the premises.”
On appeal, plaintiffs argue that those facts “evidenc[e] an
employer-employee relationship for the purposes of this
case” and, consequently, that the trial court erred in not
applying issue preclusion as to the employment issue.
The problem with plaintiffs’ first argument is that
it fails to acknowledge that the term “employee” is suscepti-
ble of more than one meaning. Before the trial court, plain-
tiffs argued that the FED judgment conclusively established
an employment relationship for purposes of the wage claim.
Defendant responded that (1) “employment” refers to differ-
ent things in different contexts and can include relationships
that are not subject to wage claims, and (2) the employment
relationship at issue in the FED action—Duane’s status as an
254 Duckworth v. Duckworth
“employee” for purposes of ORS 90.110(7)—is one not subject
to wage claims. The trial court agreed with defendant. On
appeal, plaintiffs reassert their argument that an employ-
ment relationship was established in the FED action, but
they do not acknowledge or respond to the trial court’s con-
clusion that whether plaintiffs were employees for purposes
of making wage claims is different from whether Duane was
an employee within the meaning of ORS 90.110(7). In the
absence of any argument on that point, plaintiffs have not
shown any error by the trial court in rejecting their con-
tention that issue preclusion applied as to the employment
issue.
Second, plaintiffs argue that the trial court erred
in stating that a promise to pay equity in the hotel was
not a promise to pay “wages” within the meaning of ORS
652.140. Plaintiffs contend that they proved that Paul and
Ruth promised to pay Duane 50 percent of the increase in
equity in the Bear Creek Motel “at such time as the motel
was sold,” along with any amounts that Duane put into the
motel, and that such promise was a promise to pay “wages”
under ORS 652.140.
In light of the trial court’s other findings, that
argument cannot lead to reversal. As explained above, the
court found that “plaintiffs * * * failed to prove that they
had worked at the Bear Creek Motel in the relevant period
other than as a copartner of the employer or as an indepen-
dent contractor.” That is, the court found that plaintiffs had
failed to establish an employment relationship of the kind
required by ORS 652.140. ORS 652.140 provides that “[w]hen
an employer discharges an employee * * *, all wages earned
and unpaid at the time of the discharge * * * become due and
payable not later than the end of the first business day after
the discharge * * *.” (Emphasis added.) Absent an employ-
ment relationship, it does not matter whether the promise
to pay 50 percent of the equity at such time as the motel was
sold was too indefinite to qualify as “wages.” Thus, we do not
consider plaintiffs’ second argument further.12
12
In their reply brief, plaintiffs seem to argue, for the first time, that, even
if issue preclusion did not apply, their evidence was sufficient to show that they
were employees of defendant within the meaning of ORS 652.140. Even assuming
Cite as 327 Or App 219 (2023) 255
Third, plaintiffs argue that the trial court should
have at least required defendant to pay them $2,000 per
month as compensation, based on Ruth’s testimony that
Paul had told her at one point that plaintiffs were taking
the first $2,000 of motel earnings each month, coupled with
Kathy’s testimony that neither she nor Duane ever received
any money from the motel that they did not put back into
the motel. That argument fails to appreciate the standard
of review for an ORCP 54 B(2) motion. It does not matter
whether there was evidence that would have supported a
verdict for plaintiffs; all that matters is whether “any evi-
dence” supports rejecting the claim. Venture Properties, Inc.,
223 Or App at 332. Having reviewed the record, we can-
not say that the court was required to find that plaintiffs
were entitled to $2,000 per month in wages that they did not
receive.
Ultimately, we understand plaintiffs’ wage-claim
arguments to proceed from the premise that, because the
trial court rejected at summary judgment their claims of
ownership in the motel property—defeating their other
claims against defendant—the trial court was obligated to
ensure some compensation for their work running the motel
by awarding them wages. That premise fails to account for
the nature of a wage claim, however, which applies only in
specific circumstances, as discussed above. In this case,
where those specific circumstances were not proven to exist,
a wage claim cannot stand in for an unjust enrichment
claim or some other equitable claim for compensation that
was not brought. We affirm the dismissal of the wage claim
under ORCP 54 B(2).
Affirmed.
that we would consider an argument raised for the first time in the reply brief,
we note that, under our standard of review, the question is not whether their evi-
dence was sufficient to allow a trier of fact to find that they were employees, but,
rather, whether “any evidence” supports the trier of fact’s finding that they were
not. Venture Properties, Inc., 223 Or App at 332. Under that standard of review,
their argument is unavailing.