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| November 4, 2004
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| Case decided November 4, 2004
The full text of these opinions can be found at http://www.publications.ojd.state.or.us
In Re: Complaint as to the Conduct of Magar E. Magar,
(OSB 01-196, 02-128, 02-129)(SC 51060)
On review of the decision of a trial panel of the Disciplinary Board of the Oregon State Bar. The accused is suspended from the practice of law for a period of one year, effective sixty days from the date of filing of the decision. Opinion of the Court Per Curiam.
Today, the Oregon Supreme Court held that Magar E. Magar (the accused) violated ORS 9.160 (holding self out as lawyer without authorization to do so)(two counts); Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3) (engaging in conduct involving dishonesty, deceit, or misrepresentation)(three counts); DR 2-101(A)(1) (making or causing to be made communication containing material misrepresentation about self, or omitting statement of fact necessary to make communication considered as whole not materially misleading)(two counts); DR 7-102(A)(5) (making false statement of fact)(one count); and DR 7-106(C)(7) (intentionally violating established rule of procedure)(one count).
The Oregon State Bar filed a complaint alleging that the accused, an inactive member of the Bar, violated ORS 9.160 (two counts); Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3)(three counts); DR 2-101(A)(1)(two counts); DR 7-102(A)(5)(one count); and DR 7-106(C)(7)(one count). The accused failed to attend the disciplinary hearing before the trial panel of the Disciplinary Board. As a result, the trial panel granted the Bar's motion for a default under Bar Rule of Procedure (BR) 5.8(a) and deemed the allegations of the Bar's formal complaint to be true. Subsequently, the trial panel concluded that those allegations established that the accused had violated the rules as charged. The panel imposed a one-year suspension.
On de novo review, the Supreme Court determined that, due to the accused's default, pursuant to BR 5.8(a), the allegations in the Bar's formal complaint were deemed to be true, and concluded that the Bar's alleged facts are sufficient to establish that the accused violated ORS 9.160, DR 1-102(A)(3), DR 2-101(A)(1), DR 7-102(A)(5), and DR 7-106(C)(7). The Court suspended the accused for one year, commencing sixty days after the date of filing of the decision.
On November 2, 2004, the Supreme Court:
1. Allowed a petition for review in*:
Bloomfield v. Weakland, S51768, A119891. Petitioner Jean Marie Weakland (defendant below) seeks review of a Court of Appeals decision that rejected her contention that the claims of most of the plaintiffs were barred by claim preclusion.
Defendant is the owner of Lot 14, an oceanfront lot in the Sea Woods Park subdivision near Waldport, which she acquired in 1972. Plaintiffs are owners of other lots in the subdivision. The plat for Sea Woods Park, which was recorded in 1957, depicts a 10-foot strip within the boundaries of Lot 14 that was labeled as a "private walkway." The owners of the subdivision used the walkway for beach access until 1991, when a stairway on the walkway became unuseable. Since that time, defendant has prohibited use of the walkway by anyone other than the owners of Lots 5 and 6.
The other owners formed Sea Woods Park, Inc., and filed a claim against defendant in 1994, asserting that the original owners who platted the subdivision intended to create a private dedication and grant an easement over the walkway for owners in the subdivision (but not for the public at large). The trial court granted defendant's motion for summary judgment on the basis that Sea Woods Park, Inc., had no ownership interest in any of the property and, therefore, was not a real party in interest. The court allowed the real parties in interest to join the litigation, but only one owner, Lin Craft (Craft) did so. Sea Woods Park, Inc., supported the litigation through payment of Craft's legal fees and through discussions with her about the issues in the case. Craft prevailed in the litigation, but on the basis of an express grant of an easement in a prior deed. The court declined to rule on the existence of an implied easement based on the plat, and rejected Craft's contention that she had a right to assign the easement to other owners.
In 2000, plaintiffs (most, but not all, of whom had been members of Sea Woods Park, Inc.) filed the complaint in this case, seeking a declaratory judgment establishing an easement by implication and an injunction. On cross-motions for summary judgment, the trial court ruled in plaintiffs' favor. In so ruling, the trial court rejected defendant's contention that plaintiffs' claims are barred by claim preclusion because of the earlier 1994 action.
Defendant appealed, asserting, in part, that most of plaintiffs' claims are barred by claim preclusion because plaintiffs were in privity with Craft. The Court of Appeals rejected that assertion and adhered to its holding in Ditton v. Bowerman, 117 Or App 483, 844 P2d 919, rev den, 316 Or 527 (1993), that control of prior litigation does not give rise to privity for purposes of claim preclusion (as opposed to issue preclusion). The court also determined that Craft's interests were not truly aligned with plaintiffs and that she could not have adequately represented the interests of the other owners. However, the court agreed with defendant that the trial court erred in entering summary judgment because there are genuine issues of material facts that cannot be resolved on summary judgment, and therefore reversed and remanded. The decision of the Court of Appeals is reported at 193 Or App 784, 92 P3d 749 (2004).
Defendant petitioned for review of the Court of Appeals decision on claim preclusion. On review, the issues are:
(1) Whether nonparties who control litigation are in privity with the named party in that litigation for purposes of claim preclusion as well as issue preclusion; and
(2) Whether privity requires that the named party and nonparties have precisely the same claims available to them when a named party acts as the representative of nonparties in litigation, or whether an identity of interest, an identity of facts, and a partial identity of claims suffices.
2. Allowed a petition for writ of mandamus in:
White v. Public Employees Retirement Board, S51789. Relators, Tier One members of the Public Employees Retirement System (PERS), filed an action in Multnomah County Circuit Court challenging a number of actions taken by defendant Public Employees Retirement Board (PERB). Subsequently, certain PERS employers commenced a separate action in Marion County Circuit Court, Canby Utility Board et al. v. State of Oregon, Case No. 04C-15356. Both cases involve challenges to the implementation of certain aspects of a settlement agreement entered into by PERB in another Marion County Circuit Court case, City of Eugene et al. v. State of Oregon, Case No. 99C-12794.
PERB filed a motion in the Multnomah County case seeking, in part, to transfer venue of the case to Marion County under ORS 14.110(1). ORS 14.110(1) provides, in part, that venue may be changed upon motion of a party if the motion is not made for the purpose of delay and (as relevant here) "the convenience of witnesses and the parties would be promoted by such change[.]" The court granted the motion to transfer venue to Marion County on the basis of judicial economy.
Relators then filed a petition for an alternative writ of mandamus from the Supreme Court, claiming that the trial court erred because judicial economy is not a basis for change of venue under ORS 14.110(1). On relator’s petition, the Court issued an alternative writ of mandamus to the Honorable Nely L. Johnson, directing her to vacate the order granting PERB's motion for change of venue.
At issue is whether venue for this action properly was transferred from Multnomah County to Marion County under ORS 14.110(1).
3. Denied petitions for review in:
State v. Worthey, S51505, A118147
State v. Redondo-Leiva, S51570, A119654
State v. Steele, S51713, A119069
Salinas v. One Stop Detail, S51724, A118384
Babcock v. Sherwood School District 88J, S51725, A121549
State v. Bouchard, S51759, A114910
Walton v. Belleque, S51763, A121788
State v. Moody, S51770, A116991
McGuigan v. Schiedler, S51782, A121370
Speigel v. Lampert, S51812, A120582
State v. Crain, S51821, A116504
State v. Selders, S51842, A119963
4. Denied a petition for reconsideration in:
Gall v. Dept. of Revenue, S51473 (Opinion issued on September 30, 2004)
5. Denied petitions for writ of mandamus in:
American National Property & Casualty Companies, S51807
State v. Sabol, S51822
Smith v. Board of Parole, S51851
State v. Reyes, S51852
State v. Barnum, S51855
6. Denied a petition for writ of habeas corpus in:
Moser v. Hill, S51857
*These summaries of cases in which the Supreme Court has allowed review are prepared for the benefit of members of the media to assist them in reporting the court’s activities to the public. Parties and practitioners should not rely on the summaries, or the statement of issues to be decided in the summaries, as indicating the questions that the Supreme Court will consider on review. Regarding the questions that the Supreme Court may consider on review, see Oregon Rule of Appellate Procedure 9.20.
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