No. 23 January 2, 2025 329
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Lela Ann WINES,
Plaintiff-Appellant,
v.
Teil Beth Hannah FREDEIC,
Personal Representative of the Estate of
Forrest Elwin Wines, Deceased,
Defendant-Respondent.
Jackson County Circuit Court
19CV08113, 17CV15521; A171113 (Control), A172403
Timothy C. Gerking, Judge. (General Judgment)
David G. Hoppe, Judge. (Supplemental Judgments)
Argued and submitted on May 10, 2023.
Rachele Selvig argued the cause for appellant. On the
brief were Elizabeth W. Armitage and Cauble, Selvig &
Whittington, LLP.
Edward Talmadge argued the cause and filed the brief
for respondent. Also on the brief was Edward H. Talmage
P.C.
Before Powers, Presiding Judge, Hellman Judge, and
Armstrong, Senior Judge.
ARMSTRONG, S. J.
Affirmed.
330 Wines v. Fredeic
ARMSTRONG, S. J.
In this consolidated appeal, plaintiff assigns error
to an order denying her motion to consolidate two actions
and to an order under ORCP 21 A(3)1 dismissing the second
of the two actions. We review the denial of a motion to consolidate actions for abuse of discretion, Rhodes v. Harwood,
280 Or 399, 404,
571 P2d 492 (1977), and the dismissal of an
action under ORCP 21 A(3) for legal error. Webb v. Underhill,
174 Or App 592, 597,
27 P3d 148 (2001). Applying those standards, we affirm.
The relevant facts are procedural. Plaintiff filed
an action against her son on April 17, 2017, alleging elder
abuse, unjust enrichment, and constructive trust. 2 The trial
court set the trial in the action for January 3, 2019. Plaintiff
did not serve a copy of the complaint for elder abuse on the
Oregon Attorney General within 30 days of filing the complaint, as required by ORS 124.100(6) (2015), amended by Or
Laws 2019, ch 345, § 1, Or Laws 2021, ch 478, § 8.3 Defendant
moved to dismiss the elder-abuse claim for failure to serve
the Attorney General, and the trial court granted the motion
on January 2, 2019. The record reflects that the court and
the parties understood that plaintiff intended to amend her
complaint to reallege her elder-abuse claim and to timely
serve a copy of the amended complaint on the Attorney
General. The court reset the trial date from January 3, 2019
to April 16, 2019, to give plaintiff time to replead and serve
the elder-abuse claim.
1
ORCP 21 A was renumbered in 2022. The 2022 amendment to the rule has
no bearing on our decision because we apply the law in effect at the time of the
trial court’s decision. Peters v. C21 Investments, Inc., 322 Or App 462, 465 n 1,
520
P3d 920 (2022) (so noting). Accordingly, all references to ORCP 21 A(3) are to the
rule as it existed when the court dismissed the second action.
Id.
2
Plaintiff’s son died while this appeal was pending; the personal representative of his estate has been substituted as defendant in the action.
3
An amended version of the statute took effect on January 1, 2020, after both
complaints in this consolidated appeal were filed, so the amendments have no
bearing on this case. Accordingly, all references to ORS 124.100(6) are to the 2015
version of the statute. The 2019 amendment of ORS 124.100(6) that took effect on
January 1, 2020, replaced the requirement to serve the complaint on the Attorney
General with a requirement to mail a copy of the complaint to the Attorney General
at the time the action commences. Importantly, the amendment further provided
that failure to mail a copy of the complaint to the Attorney General “is not a jurisdictional defect and may be cured at any time prior to entry of judgment.”
Nonprecedential Memo Op: 337 Or App 329 (2025) 331
Instead of filing an amended complaint in the original action, plaintiff filed a new action on February 20, 2019,
that alleged an elder-abuse claim and claims to set aside and
to invalidate a deed.4 The new action was assigned to a different judge from the judge assigned to the original action.
On April 3, 2019—13 days before the rescheduled trial in
the original action—plaintiff filed a motion to consolidate
the two actions. The trial court in the original action denied
the motion, principally on the ground that consolidation
would require the court to postpone the scheduled April 16
trial in the original action, and, in view of the age of the
original action and the readiness of the court and parties to
try that action, the court was unwilling to do that.
The parties tried the claims in the first action, as
scheduled, which resulted in a verdict in favor of defendant, on which the court later entered judgment. The court
thereafter dismissed the second action under ORCP 21 A(3)
on the ground that the claims alleged in that action came
within the same cause of action as the claims in the original action. Plaintiff appealed the judgments in both actions,
which were consolidated for appeal.
In her first assignment of error, plaintiff contends
that the trial court erred in denying her motion to consolidate her two actions. ORCP 53 A gives a trial court broad
discretion to consolidate actions “when more than one action
involving a common question of law or fact is pending before
the court.” See also Rhodes, 280 Or at 404 (“[W]hether …
to consolidate civil cases for trial is [a] matter ordinarily
left to the sound discretion of the trial [court].”). Under the
abuse-of-discretion standard, we will affirm a trial court’s
consolidation ruling so long as it “is within the range of
legally correct choices and produces a permissible, legally
correct outcome,” taking a “broad and pragmatic” view of
those legally correct choices. State v. Kindler,
277 Or App
242, 250,
370 P3d 909 (2016) (internal citations and quotations marks omitted).
4
Plaintiff apparently chose to file her elder-abuse claim in a new action,
rather than including it in an amended complaint in the original action, because
ORS 124.100(6) (2015) required elder-abuse claims to be served on the Attorney
General within 30 days of the filing of an action alleging such a claim, and the
time to do that had passed in the original action.
332 Wines v. Fredeic
Here, the trial court did not abuse its discretion
when it declined to consolidate the two actions. Plaintiff
took three months from the order dismissing her elder-abuse
claim to file a new action and move to consolidate it with
the original action, which consolidation motion, if granted,
would have required the court to again postpone the trial
of the original action, which was set for trial on a date two
years after the action had been filed. The parties and the
court were prepared to try the original action as scheduled,
and the court was unwilling to adjust its docket to accommodate a trial of the newly filed claims in the second action.
The considerations that led the court to deny the consolidation motion were legally permissible considerations and,
hence, the trial court did not abuse its discretion in denying
the motion.5
In her second assignment of error, plaintiff contends that the trial court erred in granting defendant’s
motion to dismiss the second action under ORCP 21 A(3).
At the time of the dismissal, ORCP 21 A(3) provided for
dismissal of a case when “there is another action pending
between the same parties for the same cause.” As noted,
plaintiff’s original action alleged three claims, including one
for elder abuse. Seven weeks after the trial court dismissed
the elder-abuse claim because plaintiff had failed to timely
serve the Attorney General, plaintiff filed a second action
alleging the elder-abuse claim and two additional claims.
The claims in the second action, as plaintiff’s trial counsel
correctly acknowledged, involved “the same plaintiff, same
defendant and related to the same series of events.” That is,
5
We acknowledge that, under Webb, 174 Or App 592, trial courts lack authority under ORCP 53 A to consolidate actions that involve the same cause of action.
The premise for that principle is that ORCP 21 A(3) is intended to require parties
to assert claims comprising a single cause of action in one action rather than
separating them into two or more actions and that allowing consolidation of a
later-filed action containing such claims, rather than dismissal of the action,
would undercut the rule. Webb,
174 Or App at 596-98. However, plaintiff’s failure to timely serve the Attorney General with her original complaint arguably
prevented her from adding her elder-abuse claim to the original action after the
court dismissed that claim from the action. Rather than decide whether Webb
nonetheless required the court to deny plaintiff’s consolidation motion as a
matter of law because the court lacked authority to grant the motion, we have
assumed under the peculiar circumstances of this case that the court had discretion to grant the motion and have applied an abuse-of discretion standard of
review to the court’s ruling on the motion.
Nonprecedential Memo Op:
337 Or App 329 (2025) 333
the two actions dealt with “the same parties for the same
cause.” ORCP 21 A(3).
The general principles of claim preclusion inform
our determination whether ORCP 21 A(3) should apply to
“another action pending between the same parties for the
same cause.” Borough v. Caldwell, 314 Or App 62, 67,
497
P3d 766, rev den,
368 Or 787 (2021). As we have stated, both
claim preclusion and ORCP 21 A(3) “prevent[ ] requiring a
party to litigate the same claim twice on the merits,” with
claim preclusion available “after the entry of a judgment in
the first case” and “dismissal under ORCP 21 A(3) … available before judgment in the second case, if [the judgment
in the first case] would have a preclusive effect on the second case.” Lee v. Mitchell,
152 Or App 159, 165,
953 P2d 313
(1998) (emphases in original). An action is considered pending for purposes of dismissal under ORCP 21 A(3) as soon as
the complaint in the action is filed. Webb,
174 Or App at 596.
Here, because the court had not entered a judgment in the original action when it granted the motion to
dismiss the second action, both actions were pending when
the court granted the dismissal motion under ORCP 21 A(3).
See Webb, 174 Or App at 596. Because the actions dealt with
the same parties and cause of action, the forthcoming entry
of judgment in the original action would have had a preclusive effect on the claims in the second action. See Lee,
152
Or App at 165-66 (so noting). Accordingly, the trial court did
not err in dismissing plaintiff’s second action under ORCP
21 A(3).
Affirmed.
