Underwood v. City of Portland

Underwood was convicted of second-degree assault in a prior criminal action stemming from a previous altercation. Underwood appealed the trial court’s grant of summary judgment in his claims for the torts of assault, battery, false imprisonment, and negligence against Appelo.  Underwood contends that the trial court abused its discretion in vacating an order of default and granting summary judgment to Appelo, dismissing his claims of assault and battery. Appelo contended that by convicting Underwood, the jury concluded that Underwood was the initial aggressor and is collaterally estopped from litigating his tort claims. In response, Underwood argued that his criminal conviction does not prove that Appelo did not commit a tort. “At  the  summary  judgment  stage,  issue  preclusion  applies  as a matter of law only if it can be conclusively established from the record that “all the Nelson requirements [are] sat-isfied.” Barackman  v.  Anderson,  338  Or  365,  372 (2005). The Court reasoned that because the jury in the criminal proceeding could have rejected Underwood’s self-defense claim for various reasons, the identical issues in the criminal proceeding and civil case were not necessarily decided. The Court concluded that the trial court erred when it found that Underwood was impermissibly making a collateral attack on his criminal conviction through the assault and battery claims. Reversed and remanded as to claims of assault and battery; otherwise affirmed.