2007 ORS 43.160¹
What determined by former judgment

That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto.

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


1 Legislative Counsel Committee, CHAPTER 43—Public Writings, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­043.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 43, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­043ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.