S057387, Opinion — State ex rel English v. Multnomah County

3 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted January 6, decision of Court of Appeals affirmed; judgment
of circuit court reversed, and case remanded to circuit court with instructions to
issue peremptory writ of mandamus directing county to pay judgment for
$1,150,000 June 17, 2010

STATE ex rel DOROTHY ENGLISH,
Deceased,
by and through Douglas James Sellers,
Personal Representative of the
Estate of Dorothy English, Deceased,
Respondent on Review,

v.

MULTNOMAH COUNTY,
a public corporation incorporated in the State of Oregon;
Carol Ford,
in her capacity as Director of the Department
of County Management for Multnomah County;
and Mindy Harris,
in her capacity as Finance Officer for Multnomah County,
Petitioners on Review.

(CC 070708042; CA A137217; SC S057387)
238 P3d 980

<!-- PageBreak -->

418

<!-- PageHeader="State ex rel English v. Multnomah County" -->
<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->
<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->
<!-- PageFooter="CJS, Eminent Domain § 411." -->
<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

On review from the Court of Appeals .*

Stephen L. Madkour, Assistant County Attorney, Office of
Multnomah County Attorney, Portland, argued the cause
and filed the brief for petitioners on review. With him on the
brief was Agnes Sowle, County Attorney for Multnomah
County.

D. Joe Willis, Schwabe, Williamson & Wyatt, P.C.,
Portland, argued the cause for respondent on review. With
him on the brief were Michael T. Garone and Andrew J. Lee.

Stephanie L. Striffler, 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 Jerome Lidz, Solicitor General.

Barton C. Bobbitt, Sisters, and Jeannette L. Moore, The
Gilroy Law Firm, PC, Tigard, filed a brief for amici curiae
Virginia Louise Bleeg, Darrin Black, Roger J. Miracle,
Ann M. Miracle, Harold MacLaughlan, and Rebeca
MacLaughlan.

Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, and Linder, Justices .**

BALMER, J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court with instructions to issue a per-
emptory writ of mandamus directing the county to pay the
judgment for $1,150,000.

\* Appeal from Multnomah County Circuit Court, Jerry B. Hodson, Judge. 227
Or App 419, 206 P3d 224 (2009).

** Gillette, J., did not participate in decision of this case. Walters, J., did not
participate in the consideration or decision of this case.

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

# BALMER, J.

This mandamus action requires us to determine the
effect of a final judgment, containing a "money award," that
was entered "pursuant to" Measure 37, a land use statute
that applies here but that has now been substantially super-
seded by later legislation. Dorothy English, an owner of land
in Multnomah County, filed a cause of action under Measure
37 against the county, ultimately obtaining a judgment
"against [the county] for just compensation pursuant to the
provisions of [Measure 37] in the sum of $1,150,000."
Although the county initially appealed that judgment, it later
dismissed its appeal. English requested payment of the trial
court judgment, and, when the county failed to pay the
$1,150,000, she sought mandamus to compel payment.1 The
mandamus court dismissed the alternative writ of manda-
mus, concluding that the trial court judgment was payable
only at the county's discretion. English appealed, and the
Court of Appeals reversed and remanded with instructions to
issue a peremptory writ of mandamus directing the county to
pay the judgment for $1,150,000. State ex rel English v.
Multnomah County, 227 Or App 419, 206 P3d 224 (2009). We
allowed the county's petition for review and, for the reasons
that follow, now affirm the decision of the Court of Appeals.

# I. MEASURE 37

In 2004, the voters approved Ballot Measure 37
(2004), codified at ORS 197.352 (2005), renumbered as ORS
195.305 (2007) (Measure 372), which authorized awards of
"just compensation" to landowners if a government entity

1 We refer to the original Measure 37 proceeding as the "trial court proceed-
ing," to the circuit court in that proceeding as the "trial court," and to the judgment
entered in that proceeding as the "trial court judgment." We refer to this case as the
"mandamus proceeding" and to the circuit court in this case as the "mandamus
court." The defendants in the mandamus proceeding include two county officials,
acting in their official capacity, as well as the county itself. During the pendency of
this proceeding, English died and her personal representative was substituted as
the real party in interest. Throughout this opinion, for sake of clarity, we refer to
the parties in the trial court proceeding and in the mandamus proceeding as
"English" and "the county."

2 For ease of reference, we refer to the entire statutory scheme of former ORS
197.352 as "Measure 37." All citations to the specific provisions of ORS 197.352 are
to the 2005 version of the statute.

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

enforced land use regulations that reduced the fair market
value of the landowners' property. In particular, ORS
197.352(1) provided:

"If a public entity enacts or enforces a new land use reg-
ulation or enforces a land use regulation enacted prior to
December 2, 2004, that restricts the use of private real
property or any interest therein and has the effect of reduc-
ing the fair market value of the property, or any interest
therein, then the owner of the property shall be paid just
compensation."

Certain land use regulations were exempt from the compen-
sation provision, including those "[r]estricting or prohibiting
activities for the protection of public health and safety." ORS
197.352(3)(B).3 The statute authorized a landowner whose
property had been affected by a nonexempt regulation to sub-
mit a "written demand for compensation * * * to the public
entity enacting or enforcing the land use regulation." ORS
197.352(4), (5). If the public entity continued to apply the reg-
ulation to the property more than 180 days after the land-
owner made that written demand, the landowner was per-
mitted to file an action in the circuit court:

"If a land use regulation continues to apply to the sub-
ject property more than 180 days after the present owner of
the property has made written demand for compensation
under this section, the present owner of the property, or
any interest therein, shall have a cause of action for

3 ORS 197.352(3) provided:

"Subsection (1) of this section [providing for just compensation] shall not
apply to land use regulations:

"(A) Restricting or prohibiting activities commonly and historically rec-
ognized as public nuisances under common law. * * *;

"(B) Restricting or prohibiting activities for the protection of public health
and safety, such as fire and building codes, health and sanitation regulations,
solid or hazardous waste regulations, and pollution control regulations;

"(C) To the extent the land use regulation is required to comply with fed-
eral law;

"(D) Restricting or prohibiting the use of a property for the purpose of sell-
ing pornography or performing nude dancing. Nothing in this subsection, how-
ever, is intended to affect or alter rights provided by the Oregon or United
States Constitutions; or

"(E) Enacted prior to the date of acquisition of the property by the owner
or a family member of the owner who owned the subject property prior to acqui-
sition or inheritance by the owner, whichever occurred first."

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

compensation under this section in the circuit court in
which the real property is located, and the present owner of
the real property shall be entitled to reasonable attorney
fees, expenses, costs, and other disbursements reasonably
incurred to collect the compensation."

ORS 197.352(6).

Measure 37 also contained a provision that permit-
ted the public entity to waive the relevant land use regula-
tion or land use regulations instead of paying just compen-
sation:

"Notwithstanding any other state statute or the availa-
bility of funds under subsection (10) of this section, in lieu of
payment of just compensation under this section, the gov-
erning body responsible for enacting the land use regula-
tion may modify, remove, or not to apply [sic] the land use
regulation or land use regulations to allow the owner to use
the property for a use permitted at the time the owner
acquired the property."

ORS 197.352(8). Finally, the statute contained a provision
addressing both payment of claims and waiver of regulations:

"Claims made under this section shall be paid from
funds, if any, specifically allocated by the legislature, city,
county, or metropolitan service district for payment of
claims under this section. Notwithstanding the availability
of funds under this subsection, a metropolitan service dis-
trict, city, county, or state agency shall have discretion to
use available funds to pay claims or to modify, remove, or
not apply a land use regulation or land use regulations
pursuant to subsection (6) of this section [providing
landowner with a cause of action for compensation]. If a
claim has not been paid within two years from the date on
which it accrues, the owner shall be allowed to use the prop-
erty as permitted at the time the owner acquired the
property."

ORS 197.352(10). The government's option, based on those
sections of Measure 37, to pay compensation or to waive
applicable land use regulations, is sometimes referred to as
"pay or waive."

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

## II. FACTUAL BACKGROUND AND TRIAL COURT PROCEEDING

On December 2, 2004, the day that Measure 37
became effective, English filed a written demand for compen-
sation with Multnomah County in the amount of $1,150,000.
She argued that, when she purchased her property in 1953,
she lawfully could have used the property by partitioning it to
create two separate parcels per year and constructing single-
family homes on those parcels. Ultimately, she argued, she
could have created at least eight separate parcels. She listed
various regulations that were being enforced against her
property that she claimed prevented or restricted that origi-
nally permissible use. In response, the Board of County Com-
missioners issued an order (the 2005 order), in which it
waived some of the 61 regulations listed in English's written
demand. It refused to waive the other listed regulations,
asserting that those regulations either were exempt from
Measure 37 or did not prevent English from partitioning her
land into two parcels per year for a total of eight parcels, the
intended use that she had described in her written demand.

English was unsatisfied with the board's order, and,
on May 16, 2006, she filed an action for just compensation in
the Multnomah County Circuit Court. The complaint alleged
that various land use regulations restricted English's
intended use of the property-"partitioning it into two par-
cels per year and then selling the partitioned parcels for con-
struction of single family homes and appropriate ameni-
ties"-and that, as a result, she was entitled to just
compensation "in the amount of $1,150,000 (and probably an
even higher figure based on information learned after sub-
mitting the written demand for Just Compensation)." The
complaint alleged that that figure "represents the amount
equal to the reduction in value of the fair market value of the
Property on or about December 2, 2004, resulting from enact-
ment or enforcement of the land use regulations complained
of."

Two days after English filed her complaint, the
board issued another order (the 2006 order), in which it
waived additional regulations. The county then filed an
answer to English's complaint, asserting, as an affirmative

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

defense, that it had waived all regulations affecting the pro-
posed development of English's property, except "1) regula-
tions restricting or prohibiting activities for protection of
public health and safety, and 2) regulations which provide for
the procedure for land divisions and development of real
property in Multnomah County." The county explained that
health and safety regulations are expressly exempt from
Measure 37 and argued that the procedural regulations "are
not within the purview of Measure 37 because they do not
restrict the use of private real property."

On August 2, 2006, English moved for summary
judgment, arguing that she had demonstrated that she was
entitled to just compensation as a matter of law in the
amount of $1,150,000 and that there was no genuine dispute
as to any fact material to her claim. In the alternative, she
argued that, if any factual dispute existed as to the amount of
compensation due, she was entitled at least to summary
judgment "on all liability issues." Again, the county
responded that it had waived all nonexempt regulations and
that English was therefore not entitled to any compensation.
On September 22, 2006, the trial court held a hearing on
English's motion for summary judgment. English argued
that the waivers in the 2006 order were irrelevant because
they came too late. According to English, the county was
required to waive the regulations within 180 days of her writ-
ten demand. Because it had failed to do so, she asserted that

the county had an absolute obligation to pay her just compen-
sation and no longer had the option to "pay or waive." In any
event, she argued, the 2006 order did not waive all the rele-
vant regulations; specifically, she argued (1) that Measure 37
did not provide the exemption that the county claimed for
procedural regulations and (2) that at least some of the reg-
ulations that the county had labeled as "health and safety
regulations" did not qualify for that exempt status.

The trial court granted English's motion for sum-
mary judgment as to liability. The court reasoned that,
although health and safety regulations were exempt from
Measure 37, the county had refused to waive "quite a few"
regulations "that have nothing to do with health and safety."
The court also rejected the county's position that various pro-
cedural regulations were not within the purview of Measure

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

37\. Because "the County did fail to modify, remove or not
apply various land use ordinances, including a land division
ordinance[,] in its March 17, 2005 order, or in its May 18,
2006 order," the court granted English's motion for summary
judgment "as to liability." However, the court refused to
grant summary judgment as to the amount of just compen-
sation, because English had presented no evidence proving
the amount of the reduction in her property value that had
been caused by the county's continued enforcement of the
nonexempt regulations.

After the court entered an order granting English's
motion for summary judgment, the county moved to bifurcate
trial on the two remaining issues in the case: (1) which regu-
lations were exempt as health and safety regulations under
Measure 37 and (2) how much English's property value had
been decreased by the continued enforcement of each non-
exempt regulation. The court acknowledged that "there's
more to the case than just trying the amount of damages,"
but nonetheless denied the county's motion, reasoning
that "liability and damages are commonly combined in one
trial."

The court then set a trial date of December 11, 2006,
and the parties submitted trial memoranda. However, before
trial, the county stipulated that "just compensation for the
claim set forth in [English's] Complaint is $1,150,000." As a
result, the court never decided which regulations were
exempt as health and safety regulations4 or how much the
enforcement of each individual regulation decreased the
value of English's property.

The parties then submitted proposed forms of judg-
ment. Each party's proposed judgment stated that English
would "have judgment against [the county] for just compen-
sation pursuant to the provisions of ORS 197.352 in the sum
of $1,150,000." Each party's proposed judgment also included

4 English did stipulate that some of the regulations were, in fact, health and
safety regulations under Measure 37. However, English and the county continued
to disagree as to other regulations.

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

a separate section labeled "Money Judgment," including
information such as the judgment creditor's name and
address, the judgment debtor's name and address, and the
amount of the award.5 The county's proposed judgment
included an additional paragraph, stating that "pursuant to
ORS 197[.]352(10)[,] the judgment for $1,150,000 shall be
payable only from funds, if any, specifically allocated by [the
county] for payment of claims under ORS 197.352." The only
other significant difference between the two judgments was
that English's proposed judgment included interest in the
"Money Judgment" section, and the county's did not.

At the hearing on the form of judgment, the trial
court first concluded that English was not entitled to inter-
est. When English offered to "type * * * up" a new judgment
that did not include interest, the court noted that the county
had submitted a proposed judgment that did not include
interest. The court was concerned, however, about the addi-
tional paragraph providing that the judgment would be pay-
able only from specifically allocated funds, stating that it
"would sign a judgment exactly like this one that was sub-
mitted without that paragraph. Because the actual statute
has other provisions that allow the County to use its discre-
tion to pay it from other available funds and so forth." The
court reasoned, "The law is what it is, and I don't think it's
necessary to be included in the general judgment." The
county argued that it was important to include the statutory
wording regarding the specifically allocated funds so as to
limit English's ability to enforce the judgment, but the court
stated, "My preference would be to just say that the judgment
shall be payable pursuant to [ORS] 197.352(10)."

Several days after the hearing, the court entered a
judgment. That judgment was entitled "General Judgment"
and provided, in part:

"Based on the stipulation of the parties as to just
compensation,

5 English's original proposed form of judgment labeled the section "Money
Judgment Information To Comply with ORCP 70A(2)(a)." The county noted in its
objection to English's proposed form of judgment that ORCP 70 A had been
repealed and that the relevant statute was ORS 18.042.

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

"IT IS HEREBY ORDERED AND ADJUDGED:

"1. That [English] have judgment against [the county]
for just compensation pursuant to the provisions of ORS
197.352 in the sum of $1,150,000.

"2. That [English] have judgment for her reasonable
attorney fees, expenses, costs and other disbursements
reasonably incurred pursuant to 197.352, ORCP 68 and
Supplemental Judgment.

### "MONEY JUDGMENT

"Judgment Creditors:

Dorothy English

***** *

"Judgment Debtors: **** * *

Multnomah County, Oregon

"Amount of Money Judgment:

$1,150,000

"Pre-Judgment Interest:

None.

"Post-Judgment Interest:

None.

"Attorney Fees, Expenses,

To Be Determined

Costs, and Other

Pursuant to ORS

Disbursements:

197.352, ORCP 68

and Supplemental Judgment"

The court later entered a corrected judgment, in which it
crossed out the word "Judgment" in the section heading
"MONEY JUDGMENT" and replaced it with the word
"Award," to track the wording of ORS 18.042, which
describes the information that must be included in a judg-
ment in order to create a judgment lien.6 The county
appealed.

On February 15, 2007, a little over a month after the
trial court had entered the trial court judgment, the board

6 ORCP 70 A used the term "Money Judgment" in describing the section con-
taining the information that must be included in a judgment to create a judgment
lien. As noted, that rule had been repealed at the time of entry of judgment. It
appears that the use of the term "Money Judgment" was an oversight, carried over
from English's original form of judgment.

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

issued a third order, in which it waived the procedural rules,
provided a process for English to request approval of her new
parcels, and listed several regulations that would continue to
be enforced as "health and safety" regulations. On that same
day, the county moved to dismiss its appeal of the trial court
judgment. The Court of Appeals granted the motion, and the
appellate judgment issued on February 23, 2007. On May 24,
2007, the board issued a fourth order, in which it waived
another "health and safety" regulation and modified the proc-
ess for English to request approval of her parcels. English
maintains that even the fourth order did not waive all nec-
essary regulations.

# III. MANDAMUS PROCEEDING

On June 6, 2007, English sent the county a certified
copy of the trial court judgment and requested that the
county pay the $1,150,000 money award. See ORS 30.390
(describing process for obtaining satisfaction of judgment
against a public corporation). The county failed to pay, and
English initiated this mandamus action. The mandamus
court issued an alternative writ of mandamus, directing the
county to pay the award or show cause why it had not done
so. The county moved to dismiss the alternative writ, arguing
that, even after English's claim was reduced to a final judg-
ment, the county retained the discretion to determine
whether it would pay the award of just compensation or
waive the applicable regulations. The county argued that it
had exercised its discretion to waive the applicable regula-
tions, and it therefore was not required to pay the $1,150,000
award. The trial court granted the county's motion, conclud-
ing that "a judgment entered pursuant to [Measure 37] is
payable only at the discretion of the government[ ] and that
[English] cannot compel the payment of the judgment."

English appealed, arguing that, because the county
had dismissed its original appeal and allowed the trial court
judgment to become final, it was prohibited from raising any
defenses that it may have had under Measure 37 to the judg-
ment requiring it to pay just compensation. The county
responded that English's claim was moot in light of the pas-
sage of Ballot Measure 49 (2007), Oregon Laws 2007, chapter
424 (Measure 49), which fundamentally altered the claims

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

and remedies that previously had been available to land-
owners under Measure 37. The county also contended that
claim preclusion did not prohibit its defenses to English's
attempt to collect the judgment and that, under Measure 37,
the county had complete discretion as to whether to pay the
judgment.

The Court of Appeals reversed and remanded with
instructions to the trial court to issue a peremptory writ of
mandamus directing the county to pay the $1,150,000 judg-
ment. The court first concluded that Measure 49 did not
deprive final judgments that had been issued pursuant to
Measure 37 of continuing viability. Thus, because English's
Measure 37 claim had been reduced to a final judgment,
Measure 49 did not prevent her from seeking enforcement of
that judgment. English, 227 Or App at 428. Next, the court
held that the county was prohibited from raising defenses
that it could have raised in the underlying trial court pro-
ceeding-in particular, its defenses (1) that it was not
required to pay English just compensation because it had not
specifically allocated funds for that purpose; (2) that it was
not required to pay just compensation because it had waived
all land use regulations that restricted English's intended
use of her property; and (3) that, two years after English's
cause of action accrued, the land use regulations were auto-
matically waived under Measure 37, and the county there-
fore was not required to pay just compensation. Id. at 430-33.
Finally, the court held that Measure 37 did not make pay-
ment of the final, unconditional judgment contingent upon
the county's exercise of discretion. Id. at 433. The county then
filed a petition for review, which we allowed.

# IV. ANALYSIS

## A. Effect of Measure 49

On review, the county first renews its argument that
English's claim for just compensation is controlled by
Measure 49 and that the judgment that she received pursu-
ant to Measure 37 therefore has no continuing legal effect. In
November 2007, more than eight months after English's trial
court judgment became final, Oregon voters approved
Measure 49, which altered the remedies and procedures that
had been available under Measure 37. As we explained in

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

Corey v. DLCD, 344 Or 457, 465, 184 P3d 1109 (2008),
Measure 49 "extinguish[ed] and replace[d] the benefits and
procedures that Measure 37 granted to landowners." Fur-
ther, "Measure 49 pertains to all Measure 37 claims, success-
ful or not, and regardless of where they are in the Measure 37
process." Id. (emphasis in original). As a result, the county
argues, Measure 49 applies to English's claim, despite the
fact that she was successful in obtaining a final judgment
against the county pursuant to Measure 37. According to the
county, English must pursue her claim under Measure 49,
rather than requesting that the court enforce her final judg-
ment by writ of mandamus. In short, the county argues that
the passage of Measure 49 renders English's Measure 37
judgment unenforceable.

We disagree. As the Court of Appeals correctly rea-
soned, when a claim is reduced to a final judgment, the
underlying claim is extinguished, "merging" into the judg-
ment; as a result, the "rights upon the judgment are substi-
tuted for the former claim." Barrett and Barrett, 320 Or 372,
378, 886 P2d 1 (1994). For example, if a trial court incorpo-
rates a contract, such as a settlement agreement in a disso-
lution case, into its final judgment, then the parties' contract
claims are extinguished, and the parties' rights to enforce the
judgment are substituted for the previously held rights on
the contract. See Webber v. Olsen, 330 Or 189, 196, 998 P2d
666 (2000) (noting that once settlement agreement is incor-
porated into judgment, contractual remedies are no longer
available); see also Rigdon v. Rigdon, 219 Or 271, 276-79, 347
P2d 43 (1959) (concluding that settlement agreement merged
with judgment).

That rule applies equally in this context: English's
Measure 37 claim was extinguished once her claim was
reduced to a final judgment. When the county dismissed its
appeal and the Court of Appeals issued the appellate judg-
ment, English's rights under Measure 37 were replaced with
her rights-if any-under the trial court judgment. The issue
in this mandamus proceeding, therefore, is the interpretation
and enforceability of English's final judgment against the
county in the amount of $1,150,000, not the propriety of her
claim under Measure 37. Although, as we discuss below, the
proper interpretation of Measure 37 might become relevant

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

in interpreting the trial court judgment, it is the judgment
that controls. Our interpretation of the judgment and our
determination as to whether that judgment is enforceable are
not controlled by Measure 49, as Measure 49 supersedes only
those proceedings that are governed by Measure 37. See
Corey, 344 Or at 466-67 (Measure 49 applies to Measure 37
claims and nullifies "orders disposing of Measure 37 claims").
The Court of Appeals correctly determined that the final
judgment in this case was not voided by Measure 49.7

## B. Claim Preclusion

Having determined that Measure 49 did not void the
trial court judgment, we turn to whether the county is pro-
hibited by principles of claim preclusion from asserting cer-
tain defenses in this mandamus proceeding. We begin with a
brief overview of the principles concerning the preclusive
effect of a final judgment. As this court noted in Drews v. EBI
Companies, 310 Or 134, 139, 795 P2d 531 (1990), the over-
arching principle of preclusion "comprises two doctrines:
claim preclusion, also known as res judicata, and issue pre-
clusion, also known as collateral estoppel."8 (Footnotes omit-
ted.) Further, the doctrine of claim preclusion can be sepa-
rated into two concepts: the rule of merger and the rule of
bar. See Restatement (Second) of Judgments § 17 (1982)
(describing merger, bar, and issue preclusion); see also Ira v.
Columbia Food Co. et al, 226 Or 566, 570, 360 P2d 622 (1961)
("The term res judicata is frequently used in a broad sense as
including merger, bar, [and issue preclusion].").

Issue preclusion prevents parties from relitigating
issues that were actually litigated and determined in a prior
action. Nelson v. Emerald People's Utility Dist., 318 Or 99,
103-04, 862 P2d 1293 (1993). See also Restatement § 27
(describing issue preclusion). Claim preclusion is broader

7 The county similarly argues that "English's claim for just compensation
relies on a now non-existent statutory provision"-Measure 37-and that her claim
must fail because "there is no present legal authority for English's claim for com-
pensation." For the reasons discussed above, the "legal authority" for English's
claim is the trial court judgment itself, not Measure 37.

¿ Before Drews, this court had referred to preclusion principles generally-
including both issue and claim preclusion-as res judicata. We now use "the more
exact terms 'claim preclusion' or 'issue preclusion' to denote the respective
branches of preclusion by former adjudication." Drews, 310 Or at 139.

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

than issue preclusion in that it may bar litigation of an issue
that could have been raised, even if that issue was not actu-
ally raised, in an earlier proceeding. Drews, 310 Or at 140. As
noted, claim preclusion can be separated into two concepts:
the rule of merger and the rule of bar.

We turn first to the rule of merger.9 As discussed
above, once a plaintiff obtains a valid, final judgment, the
plaintiff's underlying claim merges into the final judgment
and is extinguished. For that reason, the plaintiff can no
longer maintain an action on the underlying claim. See
Barrett, 320 Or at 378 (describing principles). The plaintiff
may, however, be able to maintain an action to enforce and
effectuate the judgment, and, in that action, "the defendant
cannot avail himself of defenses he might have interposed, or
did interpose, in the first action." Restatement § 18; see also
Security Inv. Co. v. Miller, 189 Or 246, 251, 218 P2d 966
(1950) (describing merger and conclusive effect of judgment).
In other words, when a plaintiff seeks to enforce a valid judg-
ment, the defendant may not collaterally attack the judg-
ment as being erroneously issued.

. The second aspect of claim preclusion, known at com-
mon law as the rule of bar, is the principle most often
described by the term "claim preclusion." That rule prohibits
parties from splitting claims by requiring plaintiffs to "bring
all claims arising from the same factual transaction or cir-
cumstances in a single action." Peterson v. Temple, 323 Or
322, 327, 918 P2d 413 (1996). Thus, a plaintiff who has
brought an action against a defendant and obtained a final
judgment in that action is prohibited from later bringing an
action against the same defendant based on the same factual
transaction or circumstances.

In past cases, this court has referred to the foregoing
concepts collectively as claim preclusion, often without dis-
tinguishing between merger and bar. In Drews, for example,

9 The rule began as one of common law, but ORS 43.130(2) now codifies it:

"[A] judgment, decree or order is, in respect to the matter directly deter-
mined, conclusive between the parties, their representatives and their succes-
sors in interest by title subsequent to the commencement of the action, suit or
proceeding, litigating for the same thing, under the same title and in the same
capacity."

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

after describing the rule of bar, the court noted that "[c]laim
preclusion applies equally to a defendant's defense."1º 310 Or
at 140. For that proposition, the court cited section 18 of the
Restatement, the section dealing with the rule of merger. Id.
It is true, as discussed above, that the rule of merger applies
to a defendant's defense: a defendant cannot raise defenses in
an action to enforce a judgment that he or she did raise or
could have raised in the action in which the judgment was
entered. However, the statement from Drews can create con-
fusion, because, in Oregon, the rule of bar does not apply in
the same way; instead, under the rule of bar, if, in one action,
certain facts create both a defense and a counterclaim, "fail-
ure to assert such facts, either as a defense or as a counter-
claim, does not preclude [the] defendant from thereafter
bringing a separate action based upon those facts." Buck v.
Mueller, 221 Or 271, 277, 351 P2d 61 (1960).11 That is
because, in Oregon, unlike in the federal courts, there are no
compulsory counterclaims. Compare FRCP 13(a) (pleading
"must state" certain claims as counterclaims) with ORCP
22 A (defendant "may set forth" counterclaims). We therefore
refer to the rule at issue in this case as the rule of merger,
rather than the more generic term of "claim preclusion."

With the foregoing framework in mind, we return to
the parties' arguments in this case. English argues that the
county is prohibited, by the principles of claim preclusion dis-
cussed above, from raising its Measure 37 defenses in this
mandamus action and that the county is bound by the trial
court's valid, final judgment. Although English uses the more

10 Indeed, the Court of Appeals quoted that sentence from Drews in its claim
preclusion analysis and, throughout its opinion, referred to "claim preclusion" gen-
erally, without distinguishing between the concepts of merger and bar. State ex rel
English v. Multnomah County, 227 Or App 419, 429-33, 206 P3d 224 (2009).
Although we agree that the rule of merger prohibits the county from raising any
defenses in this mandamus proceeding that it could have raised in the trial court
proceeding, for the reasons discussed in the text, we refer to the relevant rule as the
rule of merger rather than by the generic term "claim preclusion," which also
describes the rule of bar.

11 Of course, if the defendant actually raises a counterclaim in the first action,
the rule of bar applies as though the defendant was a plaintiff in the first action.
Further, the rules of issue preclusion apply so that "a party can not recover in a
separate action on a cause of action which he failed to plead in a prior action by way
of setoff or counterclaim but which was necessarily adjudicated by the former judg-
ment." Gwynn v. Wilhelm, 226 Or 606, 610, 360 P2d 312 (1961).

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

general term "claim preclusion," the substance of her argu-
ment is correct, and the county is prohibited, by the rule of
merger, from raising any defenses in this mandamus pro-
ceeding that it could have raised, or that it raised and lost, in
the original trial court proceeding.

The county argues, however, that it is not prohibited
from "asserting its defenses to the collectability of the [trial
court] judgment based on the plain language of [Measure
37]," because it could not have raised those defenses in the
trial court proceeding. The county contends that the only
issue in the trial court proceeding was the amount of compen-
sation, not the county's obligation to pay compensation. The
county reasons that the sole purpose of the cause of action
provision of Measure 37 was to provide a procedure for liqui-
dating Measure 37 claims, after which the governing body
(here, the county), could decide whether to pay the liquidated
amount or to waive the regulation. In the county's view, the
trial court judgment determined only that the value of
English's claim was $1,150,000, and not that the county was
required to pay that amount. Thus, the county argues, it
would have been premature for the county to raise any
defense during the trial court proceeding concerning the
county's obligation to pay.

We view the county as arguing, at least in part, that
the trial court judgment potentially created no remedy at all
for English. In other words, the county appears to argue that,
after the trial court entered the judgment, the county
retained the following options: (1) to pay English $1,150,000,
but only if it specifically allocated funds for that purpose as
described in ORS 197.352(10); (2) to affirmatively waive all
relevant land use regulations; or (3) to do nothing, in which
case all relevant regulations would be automatically waived
two years after English's cause of action accrued, by opera-
tion of ORS 197.352(10). Under the third circumstance,
applying the county's reasoning, English would have no rem-
edy under the judgment; instead, her only remedy would be
the automatic waiver already contained in Measure 37.

To the extent that the county argues that the trial
court judgment creates no remedy for English-and imposes
no obligation on the county-we disagree. As noted, the trial

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

court granted English's motion for summary judgment "as to
liability" after determining that the county had continued to
enforce nonexempt land use regulations that decreased the
value of English's property. Although we agree with the
county that the trial court did not necessarily conclude, in
granting English's motion for summary judgment, that
English was entitled to payment, the trial court did conclude
that English was entitled to some remedy-either payment
or waiver of the land use regulations. Thus, we cannot agree
with the county that the judgment determined only the
amount of compensation and granted English no remedy at
all.

## C. Interpretation of Trial Court Judgment

We also read the county's brief as raising an addi-
tional, slightly more nuanced argument than the one just
described-an argument based on its interpretation of the
judgment itself. At times, the county appears to concede that
the trial court judgment grants some remedy to English; the
county nonetheless argues that it retained discretion to elect
whether that remedy would be payment or waiver of the reg-
ulations. In other words, the trial court judgment, although
creating an obligation to pay, conditioned that obligation on
the county's continued enforcement of the relevant land use
regulations. According to the county, that is so because the
judgment expressly provides that it was entered "pursuant to
the provisions of [Measure 37]," and Measure 37, in turn, pro-
vides the county with the discretion to either pay just com-
pensation or waive the applicable land use regulations. As a
result, the county appears to argue, the judgment provides
the county with the discretion to either pay or waive the reg-
ulations.

The county's argument might be plausible if we con-
sidered, in isolation, the wording in the judgment that states
that it is a judgment against the county "for just compensa-
tion pursuant to the provisions of [Measure 37]." (Emphasis
added.) However, the remainder of the judgment indicates
that the trial court intended to enter an unconditional judg-
ment awarding $1,150,000 to English. Initially, we note that
the court included a section labeled "money award," which,
like other judgments making unconditional awards of money,

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

included information about English, identified as the "judg-
ment creditor," and information about the county, identified
as the "judgment debtor." ORS 18.042 requires that any
"judgment document for a judgment in a civil action that
includes a money award" contain a section, like the one
included in the judgment here, that is "clearly labeled as a
money award" and that provides certain information about
the judgment creditor and judgment debtor. ORS 18.005(14)
then defines a "money award" as "a judgment or portion of a
judgment that requires the payment of money." (Emphasis
added.) Thus, by including the section labeled "money
award," along with the information required by ORS 18.042,
it appears that the trial court intended for the judgment to
require the payment of money.

Moreover, the trial court did not indicate-in the
trial court judgment, a letter opinion, or elsewhere-which
regulations the county would be required to waive to avoid
paying just compensation. It is likely that, if the trial court
had intended the judgment to require either payment of
$1,150,000 or waiver of certain land use regulations, the
court would have included a list of the land use regulations
that the county would need to waive to satisfy the judgment.
That is particularly true because it is apparent from the trial
court record that the court understood that the parties disa-
greed as to which regulations were exempt from Measure 37
and which regulations reduced the value of English's prop-
erty; indeed, that was the focus of the hearing on English's
motion for summary judgment. The county's argument
appears to assume that the trial court intended for that issue
to be resolved in a later proceeding. That is, once the county
had waived certain regulations, English would bring another
action to determine whether she was entitled to recover some
or all of the $1,150,000 award contained in the judgment.
However, the trial court labeled the judgment a "general
judgment," thereby indicating that the document was a "con-
cluding decision of [the] court" and "decide[d] all requests for
relief in the action." ORS 18.005(7), (8). As a result, we do not
interpret the judgment as leaving open the issue of what was
required to satisfy the judgment. Instead, it appears that the
court included in the text of the judgment what was required
to satisfy it: payment of $1,150,000.

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

The county argues that, despite the text of the judg-
ment itself, the trial court's statements at the hearing on the
form of judgment indicate that the court did not intend to
require the payment of money when it entered the trial court
judgment. 12 As noted, the trial court expressed concern about
a paragraph in the county's proposed judgment that provided
that the judgment would be payable only from specifically
allocated funds, "[b]ecause the actual statute has other pro-
visions that allow the County to use its discretion to pay it
from other available funds and so forth." The court added,
"The law is what it is, and I don't think it's necessary to be
included in the general judgment." When the county urged
the court to include the text from Measure 37 in the judgment
so as to limit the county's liability, the court responded that
its preference "would be to just say that the judgment shall be
payable pursuant to [ORS] 197.352(10)."

Admittedly, the trial court's statements at the hear-
ing are not crystal clear. Those statements are open to sev-
eral interpretations, including that the trial court believed
(1) that the judgment would require payment of $1,150,000,
(2) that the judgment would require either payment of
$1,150,000 or waiver of some or all complained-of land use
regulations, or (3) that the court did not need to determine
what the judgment would require, because a later court
would sort it out. However, the court more clearly explained
that it was reluctant to include the county's proposed provi-
sion because, notwithstanding the availability of specifically
allocated funds, the county could "use its discretion to pay
\* \* \* from other available funds." See ORS 197.352(10) (so
stating). Thus, although some of the court's later statements
imply that the court believed that it did not need to deter-
mine whether the judgment could be satisfied by a later
waiver, the record of the proceedings that resulted in the
judgment, taken as a whole, suggests that the trial court
intended the judgment to unconditionally require payment.
In any event, the trial court judgment itself appears to uncon-
ditionally require the payment of money, and the court's

12 The county also argues that the trial court's statements indicate that the
court intended the judgment to determine the amount of compensation alone, with-
out creating any obligations or remedies. For the reasons discussed above, we
reject that argument.

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

statements at the hearing on the form of judgment do not
convince us that the court intended otherwise. We do not
read the trial court's equivocal statements at a brief, informal
hearing to contradict the text of the judgment, which sets out
a "money award" like any other judgment requiring the pay-
ment of money. We therefore interpret the judgment as a
general judgment requiring payment of $1,150,000.

We now turn to an argument by the county that is
based on the alleged similarity between the framework of
ORS chapter 35, which governs condemnation proceedings,
and Measure 37. In brief, the county argues that the condem-
nation statutes permit a condemner to litigate the amount of
compensation that it would be required to pay a property
owner and only then to decide whether to pay that amount
and take the property or, instead, not to take the property;
Measure 37, the county asserts, should be construed simi-
larly.

Pursuant to the condemnation statutes, a "con-
demner"-an entity with the power to exercise the right of
eminent domain-that wishes to condemn property must
seek out the owner of the property and attempt to reach an
agreement as to the compensation to be paid for taking the
property. See ORS 35.215(1) (defining "condemner"); ORS
35.235 (describing agreement). If the condemner cannot
locate the owner or cannot agree with the owner as to the
amount of compensation, the condemner may commence an
action to condemn the property. ORS 35.245(1). The parties
then litigate the amount of compensation at trial. See ORS
35.305 (describing conduct of trial). As the county correctly
points out, it may be difficult for the condemner to decide
whether to condemn the property without first liquidating
the amount of compensation that it will be required to pay for
the property. As a result, the condemnation statutes provide
ways for the condemner to elect not to take the property, even
after the jury renders a verdict determining the property
value. For example, a condemner may, within 60 days after a
verdict on the compensation amount, elect not to take the
property, ORS 35.335(3), and thus avoid paying compensa-
tion. And the judgment in a condemnation case is, by statute,
a conditional judgment. See ORS 35.325 (after jury assesses
compensation, court "shall give judgment appropriating the

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

property in question to the condemner, conditioned upon the
condemner's paying into court the compensation assessed by
the jury" (emphasis added)).

The county is correct in pointing out that there are
procedures in a condemnation action by which the con-
demner can avoid paying a compensation amount that
already has been determined in a legal proceeding by electing
not to take the property. The county may also be correct that
similar alternatives might have been available in Measure
37 actions. For instance, the trial court in this case might
have entered a judgment that explicitly conditioned the pay-
ment of $1,150,000 on the county's continued enforcement of
certain land use regulations and thereby given the county the
express option to "pay or waive." Alternatively, the trial court
might have granted the county a certain amount of time,
before entering the judgment, to consider whether to waive
the regulations or pay the compensation amount. Here, how-
ever, the court did not. As described above, the trial court
instead entered an unconditional judgment awarding
English $1,150,000. The county's arguments regarding the
benefits of first liquidating the amount of compensation and
then allowing the governmental entity to decide whether to
pay should have been made before the trial court and on
direct appeal of the trial court judgment. They were not.
Rather, despite the county's argument that the trial court
include a provision in the trial court judgment limiting
English's ability to enforce the judgment, the trial court
entered a judgment that required the county to pay English a
specified amount. The county appealed but, for whatever rea-
son, dismissed its appeal.

In sum, we conclude that the trial court judgment is
an unconditional money award, requiring the county to pay
English $1,150,000. The county had the opportunity to liti-
gate the form of judgment and to request a judgment that
either expressly was conditioned on continued enforcement
of the land use regulations or expressly indicated that it
determined only the amount of compensation and did not cre-
ate any obligation or remedy. If the county had wanted to
achieve that result in the trial court, its remedy when it did
not was to file a direct appeal. English obtained a final,
unconditional judgment, including a money award, and the

<!-- PageBreak -->

<!-- PageHeader="State ex rel English v. Multnomah County" -->

county cannot now collaterally attack that judgment as erro-
neous. We therefore have no occasion to address the majority
of the county's arguments concerning the proper construction
of Measure 37.

## D. Validity of Trial Court Judgment

Having concluded that the trial court judgment
unconditionally requires the payment of money, the only
remaining issue is whether Measure 37 itself prohibits or
voids otherwise final, unconditional judgments. See State v.
McDonnell, 343 Or 557, 562, 176 P3d 1236 (2007) ("[A] void
judgment is subject to collateral attack, while a voidable
judgment is subject only to direct attack." (Internal quotation
marks omitted; emphasis in original.)). In other words, the
county's only remaining argument is that, even if the trial
court intended to enter an unconditional judgment requiring
the payment of money, because of the framework of Measure
37, it was not permitted to do so, and the trial court judgment
is therefore unenforceable.

That argument is not well taken. "[W]hen a trial
court has both subject-matter and personal jurisdiction, a
judgment issued in excess of the court's authority is voidable,
not void." McDonnell, 343 Or at 563. Thus, even if the county
were correct that the trial court exceeded its authority under
Measure 37 by entering a judgment that unconditionally
requires the payment of money, the trial court judgment
would nonetheless be immune from collateral attack,
because such a judgment would be only "voidable." The only
issue that the county can raise in this mandamus proceeding
is whether the trial court judgment is void, not whether the
trial court exceeded its authority under Measure 37 by enter-
ing the trial court judgment.

The county correctly notes that certain provisions of
Measure 37 indicate that the county (and other governing
bodies) has discretion to decide whether to pay claims for just
compensation or waive the applicable land use regulations.
See ORS 197.352(8), (10) (so providing). However, to the
extent that the county argues that those provisions also void
final judgments that include unconditional money awards,
we disagree. The county has pointed to nothing in the text of
Measure 37 that would indicate such an intent, and we will

<!-- PageBreak -->

<!-- PageHeader="Cite as 348 Or 417 (2010)" -->

not assume that the voters intended to create such an
extraordinary result without having it clearly expressed in
the measure that they approved.13

# V. CONCLUSION

The Court of Appeals correctly concluded that the
county's defenses to enforcement of the trial court judgment
are either barred by preclusion principles or lack merit. The
trial court judgment is a final, valid judgment that requires
that the county pay English $1,150,000. We therefore affirm
the decision of the Court of Appeals, reversing the judgment
of the mandamus court.

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court with instructions to issue a per-
emptory writ of mandamus directing the county to pay the
judgment for $1,150,000.

13 The county also argues that English's death extinguishes her rights under
the trial court judgment. We reject that argument without discussion.