Business Men's Service Co. v. Union Gospel Ministries , 120 Or. App. 228 ( 1993 )

852 P.2d 199 (1993) 120 Or. App. 228

BUSINESS MEN'S SERVICE CO., an Oregon corporation, Appellant,
v.
UNION GOSPEL MINISTRIES, dba Union Gospel Ministries Thrift Store, aka Union Gospel Mission, Respondent.

92C760654; CA A76525.

Court of Appeals of Oregon.

Argued and Submitted March 1, 1993. Decided May 12, 1993.

Jeffrey I. Hasson, Portland, argued the cause, for appellant. With him on the brief was Hasson & Zimmerman, Portland.

Mark L. DeLapp, Portland, argued the cause and filed the brief, for respondent.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.

PER CURIAM.

Plaintiff appeals a judgment that dismissed its complaint on the ground that its claims are barred by claim preclusion, because the complaint alleges claims arising out of the same breach of contract that had previously been litigated to judgment. The trial court dismissed the complaint pursuant to ORCP 21 A. Although the court did not further specify which subsection applied, the only relevant one is subsection (8). On a pretrial motion under ORCP 21A(8), the trial court can dismiss only if the pleading on its face fails to state a claim. See O'Gara v. Kaufman, 81 Or.App. 499, 503, 726 P.2d 403 (1986). Nothing on the face of the complaint mentions a former action. The trial court erred when it went outside the complaint to conclude that the claims were barred.^[1]

Reversed and remanded.

NOTES

[1] Defendant cites two California cases that held that res judicata can be grounds for a motion to dismiss: Olwell v. Hopkins, 28 Cal. 2d 147, 168 P.2d 972 (1946); Stafford v. Yerge, 129 Cal. App. 2d 165, 276 P.2d 649 (1954). We decline to adopt the reasoning in those cases in the light of the express language of ORCP 21 A that only motions to dismiss under ORCP 21 A(1)-(7) can be supported by facts outside the complaint.