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Berg v. Benton

Court of Appeals of Oregon

May 1, 2019

Irene BERG, Personal Representative, on behalf of the Estate of Deborah Lee Higbee, aka Deborah Lee Benton, Plaintiff-Respondent,
v.
Lynn Edward BENTON, Defendant-Appellant.

          Argued and Submitted October 4, 2018

          Multnomah County Circuit Court 14CV05443; David F. Rees, Judge.

          Jessie Y. Minger argued the cause for appellant. On the opening brief were Jan K. Kitchel, Casey M. Nokes, and Cable Huston, LLP. On the reply brief were Jan K. Kitchel and Cable Huston, LLP.

          J. William Savage argued the cause for respondent. On the brief was also J. William Savage, P.C.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [297 Or.App. 324]Case Summary:

         Defendant appeals a judgment awarding money damages to plaintiff, the personal representative of the Deborah Higbee estate, in a wrongful death action. In his criminal case, defendant was convicted of two counts of aggravated murder, one count of attempted murder, and two counts of conspiracy to commit murder. During the wrongful death proceeding, plaintiff fled a motion for partial summary judgment, asserting that liability and causation were established in defendant's criminal case and, therefore, issue preclusion barred defendant from relitigating those issues in this civil case. Defendant fled a motion to postpone the court's ruling on plaintiff's motion, arguing that he intended to appeal his criminal conviction and, with his appeal pending, he did not have a fair and full opportunity to be heard on liability and causation. The trial court ultimately granted plaintiff's motion for partial summary judgment, resulting in a denial of defendant's motion for postponement. On appeal, defendant assigns error to both rulings. Held: Defendant did not establish a basis for avoiding summary judgment based on whether he had a full and fair opportunity to be heard on the issue sought to be precluded and likewise did not establish that the trial court acted outside the range of allowable discretion in denying the motion to postpone.

         Affirmed.

         [297 Or.App. 325] ORTEGA, P.J.

         Defendant appeals a judgment awarding money damages to plaintiff, the personal representative of the Deborah Higbee estate, in a wrongful death action. Defendant was accused of participating in Higbee's murder and, after a jury trial, he was convicted of two counts of aggravated murder, one count of attempted murder, and two counts of conspiracy to commit murder. During the wrongful death proceeding, plaintiff filed a motion for partial summary judgment asserting that liability and causation were established in defendant's criminal case and, therefore, issue preclusion barred defendant from relitigating those same issues in this civil case. Defendant argued that he intended to appeal his criminal convictions and filed a motion to postpone the court's ruling on plaintiff's motion until after his criminal appeal was resolved. However, the trial court granted plaintiff's motion for partial summary judgment, resulting in a denial of defendant's motion for postponement and, on appeal, defendant assigns error to both rulings. Because we conclude that defendant did not establish a basis for avoiding summary judgment based on whether he had a full and fair opportunity to be heard on the issue sought to be precluded, and likewise did not establish that the trial court acted outside the range of allowable discretion in denying the motion to postpone, we affirm.

         Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. ORCP 47 C. To determine whether a genuine issue of material fact exists in this case, we review the summary judgment record in the light most favorable to defendant-the nonmoving party-and draw all reasonable inferences in defendant's favor. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). We state the facts consistently with that standard.

         Higbee was defendant's wife at the time of her murder. Defendant was accused of soliciting and paying others to kill Higbee, and the state charged him with several counts of aggravated murder, attempted murder, and conspiracy to commit murder. Defendant was taken into custody and was awaiting trial when plaintiff-Higbee's mother and personal [297 Or.App. 326] representative of her estate-filed a wrongful death action requesting noneconomic damages for the loss caused by defendant's actions. Because defendant's criminal trial had not yet occurred, the court placed the wrongful death case in abatement.

         During that criminal trial, the state had to prove, beyond a reasonable doubt, that defendant was criminally liable for Higbee's death, which required the state to prove that defendant's actions caused Higbee's death. After a lengthy trial, the jury returned a unanimous guilty verdict on two counts of aggravated murder, one count of attempted murder, and two counts of conspiracy to commit murder; defendant was sentenced to life in prison without the possibility of parole. Defendant filed a notice of appeal, but plaintiff's wrongful death case was removed from abatement.

         Plaintiff filed a motion for partial summary judgment on liability and causation. Specifically, plaintiff asserted that, because "there are no remaining issues regarding the liability of defendant for the death of plaintiff s decedent, and that defendant caused the death of plaintiff's decedent, partial summary judgment in favor of plaintiff of the issue of liability should be granted." Defendant responded that the trial court "should either deny the motion for partial summary judgment, or postpone a ruling on it until defendant's criminal appeal is over" because it "would be unfair and illegal to grant summary judgment based solely on the criminal conviction when a criminal appeal is pending." As a result, defendant contended that the judgment in his criminal case could not ...


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