Business Men's Service Co. v. Union Gospel Ministries

852 P.2d 199, 120 Or. App. 228, 1993 Ore. App. LEXIS 711

Opinion

PER CURIAM

Plaintiff appeals a judgment that dismissed its complaint on the ground that its claims are barred by claim preclusion, because the complaint alleges claims arising out of the same breach of contract that had previously been litigated to judgment. The trial court dismissed the complaint pursuant to ORCP 21A. Although the court did not further specify which subsection applied, the only relevant one is subsection (8). On a pretrial motion under ORCP 21A(8), the trial court can dismiss only if the pleading on it's face fails to state a claim. See O’Gara v. Kaufman, 81 Or App 499, 503, 726 P2d 403 (1986). Nothing on the face of the complaint mentions a former action. The trial court erred when it went outside the complaint to conclude that the claims were barred. 1

Reversed and remanded.

1 Defendant cites two California cases that held that res judicata can be grounds for a motion to dismiss: Olwell v. Hopkins, 28 Cal 2d 147, 168 P2d 972 (1946); Stafford v. Yerge, 129 Cal App 2d 165, 276 P2d 649 (1954). We decline to adopt the reasoning in those cases in the light of the express language of ORCP 21A that only motions to dismiss under ORCP 21A(l)-(7) can be supported by facts outside the complaint.