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Keywords

litigationappealtrialmotionmotion to dismisspartition action
plaintifflitigationappealtrialmotionmotion to dismisspartition action

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Webb v. Underhill, 174 Or.App. 592, 27 P.3d 148

Facts

On March 4, 1997, Lavelle Underhill filed a partition action against Wayne Webb and Delores Rhodig in Wasco County Circuit Court. On May 2, 1997, Webb and Rhodig filed a separate partition action concerning the same property. The two cases involved the same parties and claims, but the co-tenants were served first in their action. The trial court denied Underhill's motion to dismiss the co-tenants' action based on the pendency of her earlier-filed case and granted a default judgment against her.

On March 4, 1997, Underhill filed an action against Webb and Rhodig in Wasco County Circuit Court (Case No. 017) seeking, among other claims for relief, partition of real property that the parties own as tenants in common. On May 2, Webb and Rhodig filed this action (Case No. 036) in the same court, seeking partition of the same property. The two actions involved the same parties, and the only claim made in Case No. 036 is identical—except for the reversal of parties—to the partition claim in Case No. 017.

Issue

Did the trial court err in denying Underhill's motion to dismiss the co-tenants' partition action on the grounds that another action was pending between the same parties for the same cause?

Did the trial court err in denying Underhill's motion to dismiss the co-tenants' partition action on the grounds that another action was pending between the same parties for the same cause?

Rule

An action is considered 'pending' when it is commenced by the filing of a complaint, regardless of whether service of summons has been completed. Under ORCP 21 A(3), a court must dismiss a case if another action is pending between the same parties for the same cause.

An action is considered 'pending' when it is commenced by the filing of a complaint, regardless of whether service of summons has been completed. Under ORCP 21 A(3), a court must dismiss a case if another action is pending between the same parties for the same cause.

Analysis

The Court of Appeals determined that Underhill's partition action was pending when the co-tenants filed their action, as it was filed first. The court emphasized that the trial court erred in denying Underhill's motion to dismiss because the two actions involved the same parties and claims. The court clarified that the trial court did not have the discretion to consolidate the actions instead of dismissing the later-filed case, as this would allow for simultaneous litigation of duplicative claims.

The Court of Appeals determined that Underhill's partition action was pending when the co-tenants filed their action, as it was filed first. The court emphasized that the trial court erred in denying Underhill's motion to dismiss because the two actions involved the same parties and claims. The court clarified that the trial court did not have the discretion to consolidate the actions instead of dismissing the later-filed case, as this would allow for simultaneous litigation of duplicative claims.

Conclusion

The Court of Appeals reversed the trial court's decision, ruling that Underhill's motion to dismiss the co-tenants' partition action should have been granted.

The Court of Appeals reversed the trial court's decision, ruling that Underhill's motion to dismiss the co-tenants' partition action should have been granted.

Who won?

Lavelle Underhill prevailed in the appeal because the Court of Appeals found that the trial court had erred in its rulings regarding the motions to dismiss and consolidate.

Lavelle Underhill appeals from a default judgment for plaintiffs Wayne Webb and Delores Rhodig in an action for the partition of real property. ORS 105.205. Underhill assigns error to three trial court rulings that preceded the entry of the default judgment: (1) the denial of her motion to dismiss this action under ORCP 21 A(3) on the ground that another action was pending between the same parties for the same cause.

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