Wave Form Systems, Inc. v. Hanscom

Under Aguire v. Albertson’s, 201 Or App 31 (2005) and Restatement (Second) of Judgments § 26(1)(a), parties that acquiesce to a split claim “waive[] the ability to assert the defense of claim preclusion[,]” even in the context of sequential proceedings.

Wave Form Systems, Inc. appealed the dismissal of its intentional interference with economic relations and contract action against Hanscom. Wave Form assigned error to the trial court’s grant of summary judgment to Hanscom, finding that claim preclusion barred the suit. On appeal, Wave Form argued that Hanscom was not in privity with the corporate defendant in a prior lawsuit and that, even if he was, an issue of fact existed as to whether the corporate “waived Hanscom’s ability to assert . . . claim preclusion by objecting to joining him in the previous action.” In response, Hanscom argued that he acted as the corporate defendant’s “agent when engaging in the conduct underlying Wave Form’s complaint” in the prior case and is indemnified by the company. Under Aguire v. Albertson’s, 201 Or App 31 (2005) and Restatement (Second) of Judgments § 26(1)(a), parties that acquiesce to a split claim “waive[] the ability to assert the defense of claim preclusion[,]” even in the context of sequential proceedings. The Court acknowledged that Hanscom’s relationship to the conduct in the prior case and indemnification arrangement with the corporation would ordinarily make the judgment against the corporation preclusive as to Hanscom. However, the Court reasoned that the corporate defendant’s refusal to allow Wave Form to join Hanscom in the original case, constituted Hanscom’s consent to splitting the claims because the privity necessary for claim preclusion is also the privity necessary for the corporation to consent to the split claim on Hanscom’s behalf. Reversed and remanded.