Summary
In Smith, the Oregon Court of Appeals held the plaintiff's FED action was not an action "for the same cause" within the meaning of Oregon Rule of Civil Procedure 21 A(3) as the defendant's action for breach of lease because the FED action concerned the plaintiff's right to possession of the property and the breach of lease action concerned the defendant's right to recover damages for breach of the lease.
Summary of this case from Hagel v. Portland State UniversityOpinion
91-8117; CA A70184
Argued and submitted December 20, 1991
Reversed and remanded March 25, 1992
Appeal from District Court, Clatsop County.
George F. Cole, Judge.
D. Richard Fischer, Astoria, argued the cause for appellant. With him on the brief was Larson Fischer, Astoria.
John F. Hunnicutt, St. Helens, argued the cause and filed the brief for respondent.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Reversed and remanded.
Plaintiff appeals from an order dismissing his forcible entry and detainer (FED) action under ORS 105.105 to ORS 105.165. The court dismissed the action, because there was "another action pending between the same parties for the same cause." ORCP 21A(3). We reverse.
Plaintiff leased a building to defendants. A dispute developed concerning the lease, and defendants sued plaintiff for breach of the lease. Plaintiff asserted several counterclaims, but not a claim for possession of the building. Plaintiff brought this action separately against defendants to recover possession.
The issue is whether the two actions are "for the same cause" within the meaning of ORCP 21A(3). They are not, because this action concerns plaintiff's right to possession of the building. Defendants' lawsuit concerns defendants' right to recover damages for a breach of the lease. In Owen J. Jones Son, Inc. v. Gospodinovic, 46 Or. App. 101, 104, 610 P.2d 1238 (1980), we held that a trial court properly refused to abate an FED action due to the pendency of another action for rent. The holding in Gospodinovic that an FED action is not "for the same cause" as an action based on alleged breach of the lease is still the law, even though the plea in abatement used in Gospodinovic has been replaced with the motion to dismiss in ORCP 21A(3).
Reversed and remanded.