Bernard v. Gary J. Lekas, P.C.

LEESON, J. Plaintiff filed an action against Gary J. Lekas, P.C., a domestic professional corporation, for slander of title. We refer to that case as Bernard I. Several months later, plaintiff moved to dismiss that action without prejudice. The court allowed the motion. The professional corporation appealed to this court on the ground that the action should have been dismissed with prejudice. That appeal is still pending. On the same day that plaintiff filed his motion to dismiss Bernard I, he filed a new civil action against Gary J. Lekas, P.C., and two individuals, Gary J. Lekas and Douglas Gordon, for various tort and contract claims. We refer to that case as Bernard II. Defendants professional corporation and Lekas filed a motion under ORCP 21A(3) to dismiss plaintiffs action in Bernard II as to them. ORCP 21A(3) provides that a party may move to dismiss on the ground that “there is another action pending between the same parties for the same cause.” The court granted the motion and entered a judgment dismissing plaintiffs action against those defendants without prejudice. Plaintiff then filed this appeal. Plaintiff assigns error to the court’s order. He argues that defendant Lekas, the individual, is not the same party as defendant professional corporation. We agree. In general, the law treats a corporation as a distinct legal entity. Ehrman v. Galloway, 160 Or 418, 424, 86 P2d 445 (1939). The same principle applies to a professional corporation. The court erred by allowing defendant Lekas’ motion to dismiss, because he is not a party to Bernard I. As to him, Bernard I and Bernard II are not actions between the same parties. However, as to defendant professional corporation, Bernard I and Bernard II are actions between the same parties. Plaintiff argues that when the court ruled on the motion to dismiss in Bernard II, Bernard I was not a pending action, because it was on appeal. He is wrong. “A case in which the merits remain in dispute at some judicial level is necessarily pending.” Beetham v. Georgia-Pacific, 87 Or App 592, 595, 743 P2d 755 (1987). Plaintiff makes no argument that Bernard I and Bernard II fail to satisfy the same cause requirement in ORCP 21A(3). See Holmes v. Anthony, 56 Or App 666, 643 P2d 372, rev den 293 Or 235 (1982). [610] The court properly dismissed plaintiffs action against defendant professional corporation under ORCP 21A(3). However, the court erred by dismissing the plaintiffs action against defendant Lekas, because he is not a party in Bernard I. Dismissal of claim against defendant Lekas reversed; otherwise affirmed.