§ 5.6 Consolidation and Severance of Claims

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

§ 5.6 CONSOLIDATION AND SEVERANCE OF CLAIMS

§ 5.6-1 General Rule and Court's Discretion

When more than one action is pending involving a common issue of fact or law, the court may order a joint hearing on the common question or may consolidate the cases for a single trial. It may order the joint hearing or consolidation on the motion of any party. A joint hearing is one involving the hearing of two or more separate cases at the same time. A consolidation involves the joining of two or more cases into one action. ORCP 53 A. See Forms 5-2 and 5-3.

A trial court has broad discretion in matters of consolidation and joinder. Weiss v. Nw. Acceptance Corp., 274 Or 343, 356, 546 P2d 1065 (1976) (on plaintiff's motion, the trial court consolidated action brought by president of bankrupt corporation alleging fraud on part of secured party in transaction with corporation and action brought by trustee in bankruptcy of such corporation against same defendant alleging that sale of collateral was not commercially reasonable).

§ 5.6-2 Same Factual Transaction

Under pre-1975 Oregon law, two causes of action or claims for relief were the same if the same evidence would be required to prove both claims. Winters v. Bisaillon, 153 Or 509, 57 P2d 1095 (1936), abrogated by Peterson v. Temple, 323 Or 322, 918 P2d 413 (1996).

After 1975, the "same evidence" test was abandoned in favor of the "same factual transaction" test. Dean v. Exotic Veneers, Inc., 271 Or 188, 197, 531 P2d 266 (1975); Peterson, 323 Or at 331. The "same factual transaction" could be either (1) a single transaction or (2) a connected series of transactions. Whitaker v. Bank of Newport, 313 Or 450, 455, 836 P2d 695 (1992).

On the basis of this conceptualization of a claim for relief, if the same transaction involved facts that would, under various legal theories, provide for different kinds of relief, there would be but one claim for relief. See Elliott v. Mosgrove, 162 Or 507, 91 P2d 852 (1939) (adopting Judge Clark's definition of cause of action); C. Clark, Handbook on the Law of Code Pleading ch 7, § 69, at 455 (2d ed 1947) [hereinafter Clark on Code Pleading] (cause of action is "a unit of operative facts which may give rise to different legal claims"). That is, the criterion demarcating (the defining criterion) one claim for relief from another is not the available kinds of relief but the number of separate factual transactions (or series of transactions). See Dean, 271 Or at 193 (quoting with approval...