Chapter 043

      43.130

NOTES OF DECISIONS

      Individuals in privity with named parties include those who control in action though not a party to it, those whose interests are represented by a party to the action, and successors in interest to those having derivative claims. Gaul v. Tourtellotte, 260 Or 14, 488 P2d 416 (1971)

      In determining whether a second action is upon the same “cause of action” as the first, “cause of action” means an aggregate of operative facts which compose a single occasion for judicial relief. Dean v. Exotic Veneers, Inc., 271 Or 188, 531 P2d 266 (1975)

      Administrative hearing is not court and hearings officer in executive branch agency is not judge and this section has no application to administrative procedure for suspension of license when driver refuses breath test when suspected of driving while intoxicated. State v. Ratliff, 304 Or 254, 744 P2d 247 (1987)

      Defendant, assignee of vendor’s interest in land sale contract, was not bound by judgment against assignor for fraud in sale of property where defendant received its interest in contract prior to commencement of action against assignor and was not made party thereto. Gerke v. Burton Enterprises, Inc., 97 Or App 629, 776 P2d 879 (1989), Sup Ct review denied

      When plaintiffs did not appeal decision by Court of Appeals that all claims in complaint were subject to exclusive federal jurisdiction, subsequent dismissal by federal district court of some of those claims as pendant state law claims did not act to revive claims barred by claims preclusion. Van De Hey v. U.S. National Bank, 313 Or 86, 829 P2d 130 (1992)

COMPLETED CITATIONS: Wagner v. Savage, 195 Or 128, 244 P2d 161 (1952), overruled by Dean v. Exotic Veneers, Inc., 271 Or 188, 531 P2d 266 (1975); Jarvey v. Mowrey, 235 Or 579, 385 P2d 336 (1963), overruled by Dean v. Exotic Veneers, Inc., 271 Or 188, 531 P2d 266 (1975)

      43.150

NOTES OF DECISIONS

      The effect of the doctrine of res judicata was not avoided by making the City of Portland an additional defendant in another suit. Erwin v. City of Portland, 23 Or App 734, 543 P2d 695 (1975)

      43.160

NOTES OF DECISIONS

In general

      Where express findings of fact do not appear on face of decision, discretionary action does not form basis for collateral estoppel effect. Estate of Bocek v. Greentree Development Co., 86 Or App 320, 738 P2d 1008 (1987), Sup Ct review denied

      Decision of tribunal can have issue preclusive effect in later proceeding if: 1) issue is identical, was actually litigated and was essential to final prior proceeding decision on merits; 2) party sought to be precluded had full and fair opportunity to be heard and is same party or in privity with party to prior proceeding; and 3) proceeding was type to which court will give preclusive effect. Nelson v. Emerald People’s Utility District, 318 Or 99, 862 P2d 1293 (1993)

In civil cases

      Where the decision of the trial court is based upon two findings of fact, either of which is sufficient as a basis for that decision, the appellate court cannot assume that either was any less necessary than the other to the decision, at least in the absence of some showing to the contrary. Holmgren v. Westport Towboat Co., 260 Or 445, 490 P2d 739 (1971)

      Where a claim could have been raised in an earlier action between the parties by cross-claim and where the operative facts were actually litigated, the plaintiff is barred by res judicata. Colhouer v. Union Pac. R.R., 275 Or 559, 551 P2d 1291 (1976)

In criminal cases

      Where issue of fact was material to revocation of defendant’s probation, was actually litigated at revocation hearing and appeared on face of court’s order as having been decided in favor of defendant, state was collaterally estopped from asserting same issue in subsequent prosecution. State v. Bradley, 51 Or App 569, 626 P2d 403 (1981); State v. McAllister, 72 Or App 611, 696 P2d 1138 (1985)

      Where factual issue of whether defendant was driving motor vehicle was finally and necessarily determined by jury verdict acquitting defendant of driving while suspended, state is precluded from trying defendant on DUII charge alleged to have occurred in the same act or transaction. State v. Hollandsworth, 64 Or App 44, 666 P2d 1373 (1983)

      Although prosecutor mentioned at probation revocation hearing that new criminal charges were pending against defendant, state was not collaterally estopped from prosecuting on those charges because order revoking probation did not specify particular ground or fact for revocation, no finding was made about criminal charge and state was able to obtain revocation other grounds. State v. Barza, 84 Or App 19, 733 P2d 72 (1987)

COMPLETED CITATIONS: State v. Harp, 6 Or App 85, 485 P2d 1123 (1971), Sup Ct review denied

      43.470

See annotations under ORS 40.570.