Umpqua Safari RV Park v. McGrew ( 2022 )

775
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted on April 2, on respondent’s motion to dismiss filed December 16,
2021, and appellant’s response to respondent’s motion to dismiss filed April 5;
motion to dismiss as moot denied; reversed and remanded July 13, 2022
UMPQUA SAFARI RV PARK,
Plaintiff-Respondent,
v.
Jessica McGREW
and all other occupants,
Defendant-Appellant.
Douglas County Circuit Court
20LT01645; A173913
Jason R. Thomas, Judge pro tempore.
Harry Ainsworth filed the brief for appellant.
George W. Kelly filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Motion to dismiss as moot denied; reversed and remanded.
776 Umpqua Safari RV Park v. McGrew
ORTEGA, P. J.
Defendant appeals a judgment that dismissed
counterclaims she asserted in response to plaintiff’s com-
plaint for forcible entry and detainer (FED). The trial court
ruled that it was required to dismiss defendant’s counter-
claims once it had granted a motion by plaintiff to dismiss
the initial FED complaint. The court reasoned that, because
the FED complaint “was dismissed in open court before any
evidence was presented or any witnesses heard, the coun-
terclaims must be dismissed along with the complaint.” On
appeal, defendant argues that the court’s ruling was based
on an incorrect view of the law: The dismissal of the under-
lying FED complaint does not require the dismissal of coun-
terclaims that are authorized by statute.
Plaintiff concedes that the trial court’s rationale for
dismissal of the counterclaims was erroneous, and that con-
cession is well taken. Initially, plaintiff also conceded that
this case should be reversed and remanded for further pro-
ceedings. However, plaintiff subsequently filed a motion to
dismiss the appeal as moot based on events that transpired
later—namely, plaintiff’s filing of a new FED complaint,
which gave defendant an opportunity to assert any counter-
claims that erroneously had been dismissed, and the court’s
subsequent judgment in plaintiff’s favor on that new com-
plaint, which awarded possession of the premises to plaintiff.
According to plaintiff, defendant’s answer in the later FED
action “was her one opportunity to bring forth all claims,
whatever they were, against plaintiff,” and rules against
claim-splitting will bar her from litigating her counter-
claims on remand in this action. For that reason, plaintiff
argues, this court cannot provide meaningful relief and
should dismiss the appeal as moot.
We reject plaintiff’s contention that, on the record
before us, the doctrine of claim preclusion would operate to
bar defendant’s counterclaims on remand. As we recently
explained in Wave Form Systems, Inc. v. Hanscom, 320 Or
App 285, 292, 514 P3d 126 (2022), “we have recognized that,
by acquiescing in split litigation, a party waives the ability
to assert the defense of claim preclusion.” That appears to
be what happened here. Plaintiff conceded in this case that
Nonprecedential Memo Op: 320 Or App 775 (2022) 777
the judgment must be remanded for further proceedings
on the counterclaims, and nothing that plaintiff has sub-
mitted in support of its motion to dismiss as moot suggests
that plaintiff objected to the split proceedings while the
other action was being litigated to judgment. Accordingly,
we reject plaintiff’s argument that the case is moot, accept
plaintiff’s concession of error, and reverse and remand for
further proceedings.
Motion to dismiss as moot denied; reversed and
remanded.