§ 5.5 Joinder of Claims

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 5.5 JOINDER OF CLAIMS

§ 5.5-1 Broad Discretion and General Rules

Joinder of claims is related to joinder of parties. The joinder-of-claims rule (ORCP 24) and the joinder-of-parties rule (ORCP 28) permit great latitude in joining numerous claims in a single complaint. However, the basic pleading rule of stating each claim separately in the complaint applies. ORCP 24 C.

When multiple issues of law or fact exist in the same case, the court, either on its own motion or on the motion of a party, may order the separate trial of one or more issues. ORCP 53 B; see Jones v. Flannigan, 273 Or 563, 565, 542 P2d 907 (1975) (affirming trial court's order of separate trial on issue of estoppel by judgment, saying that "[t]he trial court did not transgress the provisions of the statute when it segregated for trial an issue which would be tried expeditiously and which could be determinative of the entire case"). See Forms 5-2 and 5-3.

To further judicial economy or to avoid prejudice, the court may order the separate trial of any claim, cross-claim, counterclaim, or separate issue. ORCP 53 B; see Black v. Funderburk, 277 Or 157, 159-60, 560 P2d 272 (1977) (affirming trial court's order separating personal-injury claims from the issue whether plaintiff had released defendant from any claims). See Forms 5-4 and 5-5.

Because the prior statutes on consolidation (former ORS 11.050) and severance (former ORS 11.060) are essentially identical to ORCP 53, cases decided under those statutes may be persuasive in interpreting the scope and applicability of the present rules on consolidation and severance. In prior cases, those statutes were construed to give the court broad discretion in consolidating and separating trials. Cf. FRCP 42.

NOTE: Cross-claiming codefendants and third parties have similar rights to separate trials granted under the provisions of ORCP 22 E. See ORCP 32 for class actions.

PRACTICE TIP: For complex trials or cases requiring extensive proof of a single issue, the lawyer should consider bifurcating the trial. In such a case, the issue requiring complex proof could be deferred, while other potentially outcome-determinative issues are resolved. Moreover, when a defendant has asserted a defense that, if proved, would constitute a bar to the action, the lawyer should consider trying that defense before litigating the rest of the case. Examples of such defenses would be claim preclusion, statute of limitations, and accord and satisfaction.

§ 5.5-2 Bifurcation

The Oregon Supreme Court revisited bifurcation of issues at trial in Bremner by & through Bremner v. Charles, 312 Or 274, 278-80, 821 P2d 1080 (1991), adh'd to on recons, 313 Or 339...