Miсhelle K. FOSTER, Respondent on Review, v. Hector S. MIRAMONTES, Petitioner on Review.
(CC 0510408; CA A138024; SC S058847)
In the Supreme Court of the State of Oregon
September 14, 2012
287 P3d 1045
WALTERS, J.
Argued and submitted March 6, decision of Court of Appeals and judgment of circuit court affirmed in part and reversed in part; case remanded to circuit court for further proceedings September 14, 2012
Andy Simrin, Andy Simrin PC, Portland, argued the cause and filed the briefs for petitioner on review.
Lorena M. Reynolds, The Reynolds Law Firm PC, Corvallis, argued the cause and filed the brief for respondent on review.
Cody Hoesly, Larkins Vacura LLP, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.
Judy C. Lucas, Senior Assistant Attorney General, Salem, filed a brief for amicus curiae State of Oregon. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
WALTERS, J.
WALTERS, J.
In this case, we decide that, in an action under
Plaintiff1 filed a petition under
Defendant appealed, raising three assignments of error, and the Court of Appeals affirmed. The court discussed only defendant‘s first assignment of error—that the trial court had erred when it conducted the trial on plaintiff‘s claim for compensatory damages without a jury. Foster v. Miramontes, 236 Or App 381, 383, 236 P3d 782 (2010).3
The court held that defendant had neither a statutory nor a constitutional right to a jury trial. The court reasoned that the text of
We allowed defendant‘s petition for review, and we, too, discuss only the first issue that he raises—whether he had a right to a jury trial on plaintiff‘s claim for compensatory money damages.4 For the reasons that follow, we reverse the decision of the Court of Appeals on that issue and the judgment of the circuit court on plaintiff‘s claim for compensatory damages and remand this case to the circuit court for further proceedings.
Defendant rests his argument that he had a right to jury trial on plaintiff‘s claim for compensatory damages on
“(1) A person may bring a civil action in a circuit court for a court‘s stalking protective order or for damages, or both, against a person if:
“(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person‘s immediate family or household thereby alarming or coercing the other person;
“(b) It is objectively reasonable for a person in the victim‘s situation to have been alarmed or coerced by the contact; and
“(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim‘s immediate family or household.
“(2) At the time the petition is filed, the court, upon a finding of probable cause based on the allegations in the petition, shall enter a temporary court‘s stalking protective order that may include, but is not limited to, all contact listed in
ORS 163.730 . * * *“(3)(a) At the hearing, whether or not the respondent appears, the court may continue the hearing for up to 30 days or may proceed to enter a court‘s stalking protective order and take other action as provided in
ORS 163.738 .“* * * * *
“(4) The plaintiff may recover:
“(a) Both special and general damages, including damages for emotional distress;
“(b) Punitive damages; and
“(c) Reasonable attorney fees and costs.
“* * * * *
“(8) The remedy provided by this section is in addition to any other remedy, civil or criminal, provided by law for the conduct giving rise to the claim.”
“(9) No filing fee, service fee or hearing fee shall be charged for a proceeding under this section if a court‘s stalking ordеr is the only relief sought.”
Nothing in the wording of that statute expressly grants a right to a jury trial. Nor are we aware of any statutory context suggesting that the legislature intended to grant a right to jury trial to parties to a stalking damages claim.
In Goodyear, 322 Or at 415, this court held that an express grant of a right to trial by jury is not necessary, as long as a legislative intent to provide one is clear. The Oregon Trial Lawyers Association (OTLA), appearing as an amicus curiae in this proceeding, proffers legislative history that it contends provides that clear demonstration of legislative intent. OTLA argues that the legislative history shows that the legislature intended stalking damages claims to be treated the same as other civil damages claims, which, in turn, suggests that the legislature intended stalking damages claims to be tried to a jury. OTLA points to the fact that the bill that ultimately became
That chain of inferences does not lead us to the conclusion that OTLA wishes us to draw. Although the legislature may have
Plaintiff counters with two related but alternative arguments, both of which are based on this court‘s рronouncement in State v. 1920 Studebaker Touring Car et al., 120 Or 254, 263, 251 P 701 (1927), that the right to a jury trial in a civil case is guaranteed not only in those cases in which the right was customary at the time the constitution was adopted, “but is to be extended to cases of like nature as they may hereafter arise.” The first is that there is no constitutional right to a jury trial on a claim under
contends that the constitutional right to a jury trial does not extend to equitable claims, because, at the time of the Oregon Constitution‘s adoption in 1857, those claims would have been tried to the court without a jury.
We begin with the constitutional provisions that provide a right to jury trial. As noted,
“It is argued that thеse proceedings concern matters in respect to prohibitory laws enacted since the adoption of the Constitution, and for that reason are not within the guarantee of the Constitution, and that controversies concerning violations of them may be disposed of by the courts in any manner the legislature sees fit to adopt. The answer to this contention is, that the constitutional right of trial by jury is not to be narrowly construed, and is not limited strictly to those cases in which it had existed before
the adoption of the Constitution,
but is to be extended to cases of like nature as they may hereafter arise.”
Id. at 263. Thus, the court in Studebaker held that the relevant inquiry is not whether a newly created statutory claim existed at common law, but whether, because of its nature, it falls “within the guarantee of the Constitution” to a jury trial. Id.
The cases that followed Studebaker also looked beyond the “new” status of a claim, and they began to flesh out what kind of case, because of its “nature,” requires a jury trial. In In re Idleman‘s Commitment, 146 Or 13, 27 P2d 305 (1933), for example, the court held that a newly created statutory proceeding to require the estate and/or relatives of “insane and feeble-minded persons” to rеimburse the state for the cost of their care and maintenance did not carry a right to jury trial. The court observed that such a proceeding and such an obligation did not exist at common law, but it did not rely on that observation in holding that the statute did not violate the defendant‘s constitutional right to jury trial. Rather, the court noted that proceedings to determine lunacy and appoint guardians for incompetents were tried to the court at common law and that it had held that probate proceedings were not “civil cases” within the contemplation of the constitutional jury trial provision. Id. at 29-30. The court concluded that it was evident that,
“in proceedings of the character now before us[,] trial by jury was not available at the time of the enactment of our constitution.”
Id. at 30; accord Mallatt v. Luihn et al., 206 Or 678, 695, 294 P2d 871 (1956) (statute directing that proceeding to require relatives to contribute to the state‘s support of “needy persons” proceed as a suit in equity did not violate right to jury trial, because facts involved in such proceeding were not triable by jury at time of adoption of constitution).
In Molodyh v. Truck Insurance Exchange, 304 Or 290, 744 P2d 992 (1987), this court followed a similar analysis to conсlude that the plaintiff was constitutionally entitled to a jury trial. The statute at issue in Molodyh provided for appraisal, in lieu of a jury trial, to determine
the amount of an insured‘s damages in a contract action on an insurance policy. The court observed that, in contract actions, juries had traditionally determined whether a breach of contract had occurred and the consequent amount of damages to be awarded. Id. at 296. Because the court could find neither legislative antecedent nor case law to support the defendants’ argument for “an historical exception” for appraisals, it held that, “as long as this form of dispute is tried as an action at law, a jury trial is required.” Id. at 297.
Plaintiff contends that this court has consistently held that there is no right to a jury trial for newly created statutory claims that provide new, previously unavailable, remedies. Plaintiff cites a number of cases for our consideration, but, in all but four of those cases, the claims at issue either were recognized and triable to a court at common law or, like those considered in In re Idleman‘s Commitment and Mallatt, were of such a nature that they would have been tried to the court at common law.6 Three of the remaining
The first of those is Cornelison v. Seabold, 254 Or 401, 460 P2d 1009 (1969). In that case, an employee who had been injured at work when a water tank then under construction fell on him sued his employer and the designers of the tank. The defendants filed supplemental answers, alleging that the employee‘s sole remedy was that provided by the workers’ compensation statute. The workers’ compensation statute provided, among other things, that the question whether a particular injury was covered under that scheme was itself an issue triable to a court without a jury. The employee contended that that provision violated his constitutional right to a jury trial because the overall claim was, in essence, one for damages for personal injuries.8 The court acknowledged that a claim for personal injuries was “known to the common law” and at common law would have been tried to a jury, but, after observing that workers’ compensation is a creation of the legislature and not the common law, the court concludеd that “it should be the nature of the particular issue in the proceeding, rather than that of the entire proceeding, which should dictate whether this issue is to be tried with or without a jury.” Id. at 406.
The “particular issue” that the supplemental answers presented and on which the plaintiff claimed a right to jury trial was a preliminary question of law—whether the workers’ compensation statute applied to the employee‘s claim and provided his sole remedy. Given that questions of law generally are the province of judges and not of juries, Glaze v. Whitley, 5 Or 164, 168 (1874) (so stating), it is not surprising that the court in Cornelison decided that the employee did not have a constitutional right to have a jury decide the legal question at issue in that case. Although plaintiff reads Cornelison as holding that there is no right to a jury trial for claims that did not exist at common law, the court, in fact, was quite clear that it was focusing not on the nature of the overall claim but on the nature of the particular issue presented. 254 Or at
406. To read Cornelison as plaintiff suggests would create a conflict between Cornelison and Studebaker, which the court in Cornelison cited but did not overrule. 254 Or at 405-06. Because Studebaker holds that the right to jury trial is not limited to claims that were cognizable at common law, Cornelison is properly understood as standing only for the narrow proposition that a statute that permits a court to decide the preliminary legal question of thе applicability of the procedure that it creates is not unconstitutional.
The other two cases that plaintiff cites and that merit further discussion are Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995), and Hughes v. PeaceHealth, 344 Or 142, 178 P3d 225 (2008). Both Greist and Hughes are cases in which the plaintiffs sought damages for the wrongful death of decedents. The question presented in those cases was the constitutionality of a statute that limited the damages that the plaintiffs could recover. In Greist, the plaintiff argued that application of the statutory damages cap violated her right to a jury trial as provided in
“[w]hen
Article I, section 17 , and the constitution were adopted, a jury‘s determinatiоn of the amount of damages to be awarded in tort actions was not protected from judicial alteration.”
In Hughes, the court reconsidered that rationale. The court acknowledged that it had erred in its understanding of the extent of a court‘s authority, in 1857, to modify a damage award, but nevertheless adhered to the result that it had reached in Greist. The court explained that, in 1857, there was no common-law rule that defined the elements of a claim
for wrongful death or the damages that were recoverable in such an action. Therefore, the court held, the legislature retained the authority to define the right to recover for wrongful death, including the authority to establish the nature and amount of the damages that were recoverable. Hughes, 344 Or at 156. Thus, the court concluded,
“Because the common law does not, and did not in 1857, recognize a right to unlimited damages in wrongful death actions, the only relevant source of substantive law respecting damages is the statutory law, which expressly places a cap on noneconomic damages. Thus, any right to a jury trial that plaintiff might have under
Article I, section 17 , cаnnot confer a right to a jury award of a kind or amount of damages that is contrary to that statutory law.”
Id. at 156-57 (first emphasis added, second emphasis in original).
With regard to the right to jury trial, the court specifically noted that the parties had tried their case to a jury and that it was not deciding the “separate question” of whether they were constitutionally entitled to do so.9 Id. at 156 n 12. The parties in Greist also had tried their case to a jury and had not raised the issue of whether the constitution entitled them to do so. Therefore, neither Greist nor Hughes stands for the proposition that there is no right to a jury trial in a statutory action that did not exist at common law.
In summary, our cases do not support plaintiff‘s argument that newly created statutory claims that provide new remedies necessarily are not “of like nature” to any claim known at common law and, for that reason, are not triable to a jury. We therefore reject that argument. The question still remains, however, whether plaintiff‘s claim for damages in her civil stalking case is “of like nature” to claims that were triable to a jury at common law.
The parties appear to agree that, if plaintiff had sоught only money damages under
been at law and the right to jury trial would have attached. We concur. A claim seeking only monetary compensation for injuries inflicted is an “action at law,” and the constitution, by its terms, preserves the right to jury trial for such legal claims. See Fleischner v. Citizens’ Real Estate & Inv. Co., 25 Or 119, 130, 35 P 174 (1893) (where the complaint is for compensation for injury caused, the remedy is an action at law); Carey v. Hays, 243 Or 73, 77, 409 P2d 899 (1966) (claim is at law if relief sought is a certain sum of money); Molodyh, 304 Or at 297 (contract dispute tried as action at law requires jury trial); Thompson v. Coughlin, 329 Or 630, 637-38, 997 P2d 191 (2000) (right to jury trial attaches to legal claim for specified sum of money).
Of course, plaintiff in this case also sought a stalking protective order, a form of injunctive relief, which is equitable in nature. See Swett v. Bradbury, 335 Or 378, 386, 387, 67 P3d 391 (2003) (injunction is equitable remedy). Plaintiff asserts, and defendant agrees, that if plaintiff had sought only injunctive relief, her claim would have been equitable in nature, and the constitution
The problem that this case presents and that plaintiff addresses in her second argument is whether the right to jury trial attaches in a case in which a party seeks both legal and equitable relief. Plaintiff argues that her claim under
Defendant argues that the correct mode of analysis is not to determine the overall “gist” of plaintiff‘s claim but to separately determine the nature of each claim or request for relief. According to defendant, plaintiff‘s equitable claim or request for equitable relief may be tried to the court, but
her legal claim or request for legal relief must be tried to a jury.
To analyzе the parties’ arguments, we find it helpful to understand the origins of the distinction between law and equity and the procedural differences to which that distinction gave rise. The law/equity dichotomy is rooted in the separate development of the common law courts and the chancery court in England. As early as 1250, the English Chancellor began to provide litigants with assistance because of the inflexibility of the rules and procedures used by the existing English common law courts. By 1600, that practice developed into an entirely separate equity court, which applied a separate body of substantive law permitting more flexible remedies. Because of that differing function, the chancery court developed a completely different procedural system. Frederic R. Merrill, Abolishing Procedural Distinctions Between Actions At Law and Suits in Equity; Right to Jury Trial, ORCP 2, in Oregon Law Institute, 1980 Civil Procedure Rules 224 (1979). Under that procedural system, the chancery court decided the cases over which it had jurisdiction without a jury. Robert Wyness Millar, Civil Procedure in the Trial Court in Historical Perspective 23-26 (1952).
In America, some English colonies (and, later, states) also set up separate courts of law and equity, while others had one court with two different “sides” and two different sets of procedures. “All retained a fairly clear distinction between law and equity. This was required by the fact that the common law system of forms of action could not function without the separation, and common law procedure was so technical that it was inappropriate for equity.” Merrill, Abolishing Procedural Distinctions at 224. After the American Revolution, federal law did not provide for separate courts of law and courts of chancery, but made a distinction between the law and equity “sides” of the court. Millar, Civil Procedure at 39.
When the question arose in both federal and state courts as to whether the constitutional right to jury trial10
applied to cases brought in the equity courts or on the equity “side” of the courts, the United States Supreme Court and the supreme courts of many states held that it did not. Dan B. Dobbs, 1 Dobbs’ Law of Remedies § 2.6(2), 153 (2d ed 1993). As a result, cases properly brought in equity courts or by courts exercising equitable jurisdiction were tried by judges and not by juries. Id. When a plaintiff cоrrectly filed a case in equity, but also asserted claims or sought remedies that were legal in nature, equity courts sometimes assumed jurisdiction over all the issues in the case, on the ground that the legal issues fell within its jurisdiction to decide “incidental” legal issues. Dobbs, 1 Dobbs’ Law of Remedies § 2.6(4) at 169. That is, if the equity court concluded that the gist or the essence
In 1938, the Federal Rules of Civil Procedure (FRCP) abolished the division between cases filed in law and those filed in equity and provided for only one form of action—the civil action.11
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
under that new circumstance, and courts and scholars suggested various different ways to do so:
“It was suggested variously that the whole case should be labeled as ‘basically legal’ or ‘basically equitablе,’ or that the court should be guided by the plaintiff‘s preferred remedy, or should resort to history for guidance as to which party could have controlled whether the case would have gone to a jury under the old practice, or should identify a certain issue as ‘basic’ and the right to a jury trial made to turn on its characteristics.”
Wright and Miller, Federal Practice & Procedure: Civil § 2306, 128 (3d ed 2008).
The United States Supreme Court settled on a mode of analysis for use in the federal courts in Dairy Queen v. Wood, 369 US 469, 82 S Ct 894, 8 L Ed 2d 44 (1962). In Dairy Queen, the plaintiff sought an accounting for an alleged trademark infringement and requested both monetary and injunctive relief. The Court focused on the nature of the relief requested and recognized that the plaintiff‘s request for a money judgment raised an issue that was unquestionably legal. Therefore, the Court stated, it could not classify the case as “purely equitable.” 369 US at 477-80. The Court also held that the parties had a right to a jury trial on the legal issue even if the evident equitable issues were the “basic” issues or the legal issue could be characterized as “incidental” to the equitable issues.13 Id. at 470. Moreover, to protect that right, the Court explained, the legаl issue must be determined prior to final resolution of the equitable issues. In that regard, quoting from its decision in Beacon Theatres, Inc. v. Westover, 359 US 500, 510-11, 79 S Ct 948, 3 L Ed 2d 988 (1959), the Court held that ““only under the
most imperative circumstances * * * can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Dairy Queen, 369 US at 472-73.14 Thus, the Supreme Court‘s decision in Dairy Queen is
State courts, of course, are not required to follow Dairy Queen to decide whether there is a state constitutional right to jury trial in cases in which a plaintiff seeks both legal and equitable remedies. State courts have adopted varying approaches:
“Some states have accepted the Dairy Queen idea for at least some mixed equity-law claims, or at least have cited cases in the Dairy Queen line with a degree of tacit or explicit approval. Others historically used incidental jurisdiction theories to try the entire case as an ‘equity’ case and continue to state the incidental or clean-up jurisdiction approach or to decide ad hoc on thе order of trial of the two claims.”
Dobbs, 1 Dobbs’ Law of Remedies § 2.6(4) at 172-73 (footnotes omitted).
Our review of the development of the distinction between law and equity discloses that the positions of the parties in this case split according to their acceptance of the Dairy Queen approach. Plaintiff effectively rejects
Dairy Queen, arguing that her claim for monetary relief is “incidental” to what is essentially an equitable claim and that, because Oregon permitted a court trial of such incidental requests in 1857, it should continue to do so. Defendant argues for a Dairy Queen approach that permits a judge to decide equitable claims and requests for equitable relief but that requires a jury to decide legal claims and requests for legal relief.
To assess the parties’ arguments, we again find it helpful to trace the distinction between law and equity, but now focus on how that distinction developed in Oregon. Oregon‘s territorial code and its first state procedural code included separate procedures for “actions at law” and “suits in equity.” Merrill, Abolishing Procedural Distinctions at 225. As noted, equitable proceedings were tried to courts without juries and this court has held that the procedure is constitutionаl.
In Fleischner, 25 Or 119, the court considered whether the right to jury trial attached when a party sought money damages in a case that was otherwise equitable in nature. There, the plaintiff filed suit in equity seeking both to enjoin a nuisance and obtain an award of money damages. The defendant contended that a newly enacted statute that permitted a plaintiff to file an action at law to obtain those remedies furnished a complete and adequate remedy at law and, therefore, that the court of equity was without jurisdiction to act. This court disagreed, explaining that courts of equity had concurrent jurisdiction to entertain suits to enjoin nuisances and that the new statute did not deprive them of that authority. The court then considered the authority of courts of equity to award monetary damages notwithstanding the right to a jury trial under
“if a court of equity acquires either exclusive or concurrent jurisdiction it may go on to complete adjudication, and establish purely legal rights and grant legal remedies, which would otherwise be beyond the scope of its authority.”
Id. at 131. Based on that reasoning, the court concluded that a court of equity had jurisdiction to both abate the nuisance and award incidental monetary relief, and could do so without violating the constitutional right to jury trial. Id. at 132. Thus, in Fleischner, the court applied the
Nearly 80 years later, in Mayer v. First National Bank of Oregon, 260 Or 119, 134-36, 489 P2d 385 (1971), the court relied on waiver principles in deciding that a plaintiff who had improperly joined legal and equitable claims had no right to a jury trial of the legal claims. In Mayer, the plaintiff had invoked the aid of a court of equity to establish his equitable right of subrogation, but he also had joined a claim that he characterized as purely legal—a claim for money had and received. The trial court denied the plaintiff‘s request for a jury trial on the claim for money had and received, and this court affirmed. The court held that, because the plaintiff had improperly joined the two claims, the situation in which he found himself was of his own making, and he would not be heard to complain. 260 Or at 135. The court noted, however, that a different rule pertained in federal courts, where law and equity had been merged. In the federal courts, this court observed,
“[c]ases involving both legal and equitable causes are common, and plaintiffs in such cases are entitled to a jury determination of the legal causes.”
Id. at 135-36 (citing Dairy Queen and other federal cases).
Soon thereafter, the Oregon legislature adopted the Oregon Rules of Civil Procedure (ORCP) and dispensed with the procedural distinctions between law and equity.16
“There shall be one form of action known as a civil action. All procedural distinctions between actions at law and suits in equity are hereby abolished, except for those distinctions specifically provided for by these rules, by statute, or by the Constitution of this state.”
“A plaintiff may join in a complaint, either as independent or as alternate claims, as many claims, legal or equitable, as the plaintiff has against an opposing party.”
In drafting those rules, the Council on Court Procedures recognized that the merger of law and equity could not affect the constitutional right to jury trial. Memorandum of Frederic Merrill to Council on Court Procedures, Distinction Between Law and Equity, Nov 29, 1977. In adopting
“The right of trial by jury as declared by the Oregon Constitution or as given by a statute shall be preserved to the parties inviolate.”
In his 1980 Oregon Law Institute article, Abolishing Procedural Distinctions Between Actions at Law and Suits in Equity, Merrill discussed how the substantive constitutional right to a jury trial would be determined under the new procedural regime, and wrote,
“Under our modern system, elements are incorporated into one case which historically would have required separate cases in law and equity. The availability of jury trial must be separately determined for different issues when a case arises presenting both legal and equitable issues. * * * Some issues in the same case may involve a right to jury trial while others do not.”
Merrill, Abolishing Procedural Distinctions at 227. Merrill noted that, when both equitable and legal issues arise in the same case, the order in which those issues are decided could have constitutional implications. In that regard, Merrill cited Dairy Queen and Beacon Theatres and cautioned that
“some care is necessary in order of trial in mixed law and equity cases because of the constitutional right to jury trial.
If there are overlapping factual issues between a legal claim and an equitable defense * * *, having the court pass on the defense first would settle those factual issues and bind the jury. If under the historical test the plaintiff actually would have been able to maintain an action at law and have the jury pass on those factual issues, the result may be a denial of the
right to jury trial. * * * The question of order of trial should not be allowed to obscure the question of right to jury trial.”
Id. at 227.
Although Merrill thus believed that Oregon should adopt a Dairy Queen-like approach, under which a party‘s right to jury trial is determined on an issue-by-issuе basis, this court has not, until now, decided that question. The cases that the court has decided after the adoption of the Oregon Rules of Civil Procedure do not, however, foreclose that approach.
In the first relevant case, Rexnord, Inc. v. Ferris, 294 Or 392, 657 P2d 673 (1983), the plaintiffs joined claims for injunctive relief, compensatory damages, and punitive damages. The plaintiffs tried the case to the court, and the court granted the injunction and awarded compensatory damages. The court also found that the plaintiffs had proved tortious conduct that would have supported an award of punitive damages, but it refused to award those damages, because, in an earlier case, this court had held that a party who seeks injunctive relief cannot also obtain, from the same court, an award of punitive damages. The plaintiffs appealed, and, on review, this court overruled that prior decision, holding that the then-newly adopted Rules of Civil Procedure permitted joinder of legal and equitable claims and that, if a party pleads and proves the right to recover punitive damages, joinder of a request for injunctive relief does not prevent a court from awarding both punitive damages and injunctive relief. Id. at 395-96.
The court also considered but rejected on preservation grounds the defendants’ argument that they were entitled to a jury trial on the plaintiff‘s punitive damages claim. The court concluded that the defendants had waived their right to a jury trial by failing to raise the issue until after the trial court had made its factual
findings and determined that a punitive damages award would not be appropriate. 294 Or at 402. In its discussion of that issue, the court quoted both Merrill‘s citation to Dairy Queen and his caution that the order of trial should not be allowed to obscure the question of right to jury trial. Id. at 402 n 4. The court stopped short of expressly adopting the federal approach, however, and stated that its holding was not intended to restrict a court of equity from awarding equitable compensation “when equitable relief is, for some reason, impossible or when damages are incidental to the equitable relief sought.” Id.
In the next case that raised a related issue, Thompson, 329 Or 630, the plaintiff and the defendants were partners in an insurаnce business and, on dissolution of the partnership, the plaintiff sought an accounting and a money judgment for commissions under Oregon‘s Uniform Partnership Act. In deciding whether the parties had a right to jury trial in that statutory proceeding, the court first noted that, generally, at common law, jurisdiction for partnership accountings lay in equity because of the inconvenience of examining complicated, long-standing accounts, the confidential relationship between the partners, and the necessity of discovery. Also, at common law, it was generally established that an equitable accounting was a condition precedent to an action in law between partners. However, the court reasoned, “[a]lthough an action such as an accounting was ‘originally only cognizable in equity,’ an action nonetheless could be maintained in law if the relief sought can adequately be given at law.” 329 Or at 637 (quoting Carey, 243 Or at 77). Thus, the court concluded, the determination whether jurisdiction of an action lay in law or equity required an examination of the nature of the relief sought in the comрlaint. Id. at 637-38. In that case, because the plaintiff sought a judgment for a specified sum of money determinable without an accounting, the court decided that the plaintiff sought legal relief, and it held that the trial court had erred in denying the defendants’ demand for a jury trial. Id. at 640.
Finally, in McDowell, 345 Or 272, a plaintiff sued for breach of a contract, alleging that the defendants had failed to pay for work that the plaintiff had done on a construction
project. The defendants denied that allegation and alleged, as an affirmative defense, that the plaintiff had entered
On review, this court relied on Thompson for the proposition that it must look to the pleadings and the relief sought to decide whether the plaintiff was entitled to a jury trial on the counterclaim or affirmative defense. McDowell, 345 Or at 279. The court determined that, because both the affirmative defense of release and the counterclaim for specific performance were equitable in nature, the plaintiff was not entitled to a jury trial on the factual issues that they raised. Id. at 284-86.
Thus, in Thompson and McDowell, the court looked to the nature of the relief sought and recognized a constitutional right to jury trial for claims or defenses that sought legal, as opposed to equitable, relief. The court did not attempt to determine, more generally, the “gist” of those cases as a whole or whether, at common law, a court of equity that entertained them would have had jurisdiction to grant the relief requested.17
As we have explained, before the mеrger of law and equity, this court cited various reasons for upholding an equity court‘s exercise of jurisdiction over what could otherwise be considered legal claims, including the circuity and expense of two trials and the notion that a plaintiff who
improperly joined equitable and legal claims had waived the right of jury trial. Because Oregon has eliminated the procedural distinctions between law and equity, there is no longer any necessity for or benefit in perpetuating that system. That is, with the merger of law and equity, there no longer is a risk of delay or expense associated with a second trial, and, therefore, there is no longer a need for equity courts to grant incidental or ancillary relief to avoid those risks. Similarly, there is no reason to apply waiver principles to enforce pleading rules that are no longer in effect.
In sum, it is neither necessary nor advantageous to courts or litigants to decide the substantive question of whether a party is entitled to a jury trial based on whether a case is “essentially” equitable in nature, or whether a court of equity would have had “incidental” jurisdiction to decide a legal issue as an adjunct to deciding an equitable issue in 1857. Rather, the right to jury trial must depend on the nature of the relief requested and not on whether, historically, a court of equity would have granted the relief had the legal issue been joined with a separate equitable claim. To reach a different conclusion would be to import into current practice procedures that may have been necessary at one time but that our legislature has long since abandoned. Instead, we conclude that
With that understanding in mind, we turn to defendant‘s contention that he had a right to a jury trial on plaintiff‘s claim for
of relief, two of which are relevant on review: a stalking protective order enjoining defendant from engaging in certain conduct, and an award of compensatory money damages.
Defendant asserts that plaintiff‘s claim for compensatory money damages seeks relief that is legal, as opposed to equitable, in nature and that the constitutional right to jury trial therefore extends to that claim. Plaintiff does nоt argue otherwise, and she does not assert any other basis for concluding that her claim for compensatory money damages does not come within the ambit of
The final issue for our consideration is the terms of our order on remand. As discussed above, we have rejected defendant‘s challenges to the merits of the trial court‘s issuance of a stalking protective order, and defendant did not seek review in this court of the part of the trial court‘s order awarding attorney fees. We therefore affirm the parts of the Court of Appeals decision that affirm those two aspects of the trial court‘s judgment and do not disturb those two aspects of the trial court‘s general judgment. However, because we conclude that defendant was entitled to a jury
trial on plaintiff‘s claim for compensatory money damages, we reverse the part of the Court of Appeals decision that affirms the trial court‘s ruling to the contrary. We also reverse the part of the trial court judgment that awards plaintiff compensatory money damages. We remand the case to the trial court for a jury trial on plaintiff‘s claim for compensatory money damages.18
The decision of the Court of Appeals and the judgment of the circuit court are affirmed in part and reversed in part. The