What determined by former judgment
Source:
Section 43.160 — What determined by former judgment, https://www.oregonlegislature.gov/bills_laws/ors/ors043.html.
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
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