Berg v. Benton

“The pendency of an appeal does not *** prevent a judgment from operating as res judicata or collateral estoppel.” Ron Tonkin Gran Turismo v. Wakehouse Motors, 46 Or App 199, 207, 611 P2d 658, rev den, 289 Or 373 (1980).

Defendant appealed an award of money damages to Plaintiff in a wrongful death action for the murder of Deborah Higbee. Defendant was convicted of aggravated murder among other charges in a jury trial. Plaintiff moved for summary judgment on liability and causation from the Defendant’s criminal trial and issue preclusion prohibited Defendant from relitigating them.  The trial court granted Plaintiff’s motion, denying Defendant’s motion for postponement until his criminal appeal was complete.  Defendant assigned error to both of these decisions.  The defendant argued his pending appeal stopped him from having a fair and full opportunity to be heard but “[t]he pendency of an appeal does not *** prevent a judgment from operating as res judicata or collateral estoppel.” Ron Tonkin Gran Turismo v. Wakehouse Motors, 46 Or App 199, 207, 611 P2d 658, rev den, 289 Or 373 (1980). The Court ruled there was no err in the lower court’s application of issue preclusion.  Further, the Court found the trial court’s denial of the motion for postponement was “within the range of legally correct discretionally choices and produced a permissible, legal correct outcome.”  State v. Romero, 236 Or App 640, 643, 237 P3d 894 (2010). Affirmed.