Bunch v. Lowry

                                  398

       Submitted May 27, 2020, reversed and remanded July 14, 2021


                      Maryjane BUNCH
                    and Melodie Tilander,
                     Plaintiffs-Appellants,
                                v.
                   Johnna LOWRY, et al.,
                    Defendant-Respondent.
               Clackamas County Circuit Court
                     19LT07838; A171643
                              

   Ann M. Lininger, Judge.
   Tyler D. Smith, J. Ryan Adams, Joseph A. Pickels, and
Tyler Smith & Associates, P. C., filed the briefs for appellants.
   Richard D. Franklin filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Reversed and remanded.
Cite as 

 (2021)                                               399

           PER CURIAM
         Plaintiffs appeal a judgment that dismissed their
Forcible Entry and Wrongful Detainer (FED) action pursuant to ORCP 21 A(3) (providing for dismissal where “there
is another action pending between the same parties for the
same cause”). The trial court based the dismissal on the fact
that defendants had earlier filed an action against plaintiffs
involving the same property and in which defendants alleged
claims for quiet title, adverse possession, and an equitable
mortgage. That action, the court ruled, would allow for a
“fuller litigation of what’s happening in this case,” noting
that “the interest of judicial efficiency also favors having
these cases—having this dispute be heard in one forum.”
          A detailed discussion of the underlying facts of
the FED action and related procedural history would not
benefit the bench, bar, or public. In short, we agree with
plaintiffs that the court erred in treating the FED case,
which involved plaintiffs’ right to possession of the property under ORS 105.105 to 105.168, as presenting the same
cause as the civil action involving questions of title to the
property; although the two cases may have involved overlapping issues, they did not present the same cause for
purposes of ORCP 21 A(3). See Smith v. Morris, 

, 

 (1992) (explaining that, despite
overlapping issues between an FED action and a contemporaneous common-law action, the two actions were not
“ ‘for the same cause’ within the meaning of ORCP 21 A(3)
… because [the FED] action concerns plaintiff’s right to
possession of the building” whereas the other “lawsuit concerns defendants’ right to recover damages for a breach of
the lease”); accord Bunch v. Pearson, 

,

, rev den, 

 (2003) (“While this action
might have been proper under ORS 105.005 as an action for
ejectment, an FED action ‘is not a substitute for an action
of trespass or ejectment.’ ” (Quoting Purcell v. Edmunds,

, 

 (1944); footnote omitted.)).1
    1
      In Schmidt v. Hart, 

, 

 (2010), rev den,

 (2011), we held that, although an FED proceeding is limited to the
determination of the right to possession of premises in the context of a landlordtenant relationship, that determination can have issue-preclusive effect in
other proceedings. To the extent that the trial court was concerned that certain
400                                                        Bunch v. Lowry

We therefore reverse and remand the judgment of dismissal.2
           Reversed and remanded.




overlapping issues related to possession were better addressed in the civil action
than the quick and summary FED procedure, the proper remedy would have
been an appropriately crafted stay of the FED action rather than dismissal.
Cf. ORS 105.140 (setting forth requirements for granting continuances to defendants longer than two days in FED actions).
    2
      The related action regarding title has since been litigated and judgment
entered in favor of plaintiffs, and it is not clear from this record whether this
appeal presents a live controversy apart from the entitlement to attorney fees.
Defendants sought attorney fees in the trial court after prevailing on the motion
to dismiss, and the trial court stayed its ruling on the motion pending the outcome of this appeal; for that reason, we do not understand this appeal to be moot.
See, e.g., Owen J. Jones & Son, Inc. v. Gospodinovic, 

, 

 (1980) (explaining that, even after a controversy over the right to possession becomes moot, questions regarding entitlement to attorney fees related to an
FED action may remain and prevent the appeal from becoming moot).