author: DeVORE, J. James, J., dissenting. JAMES, J., dissenting.

text:
    Minka WALLACE, Plaintiff-Appellant, v. Stephen C. HOLDEN, Defendant-Respondent.
    A165520
    Court of Appeals of Oregon.
    Argued and submitted December 18, 2018. June 5, 2019
    Dean Heiling, Portland, argued the cause for appellant. Also on the briefs was Heiling Dwyer.
    Jonathan Henderson, Portland, argued the cause for respondent. Also on the brief were Cari Waters and Davis Rothwell Earle & Xóchihua, P.C.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   DeVORE, J.

Plaintiff appeals a judgment dismissing her complaint with prejudice for lack of personal jurisdiction over defendant. Plaintiff raises two assignments of error. First, plaintiff argues that Oregon courts have personal jurisdiction over defendant, a resident and citizen of the United Kingdom (UK), for a negligence action arising out of a motor vehicle accident that occurred in Vancouver, Washington, because defendant had an active Oregon driver's license. Next, plaintiff argues that the court erred in dismissing her case with prejudice. We affirm the dismissal for lack of personal jurisdiction but reverse and remand for entry of a judgment of dismissal without prejudice.

I. PROCEEDINGS

The issue in this case was presented on the pleadings, affidavits, declarations, and other evidence as permitted by ORCP 21 A. Plaintiff bears the burden of alleging and proving the facts necessary to establish jurisdiction.

Sutherland v. Brennan , 131 Or. App. 25, 28, 883 P.2d 1318 (1994), aff'd on other grounds , 321 Or. 520, 901 P.2d 240 (1995). When, as in this case, a trial court has found the jurisdictional facts after taking evidence, we review the trial court's factual findings to determine whether they are supported by "any competent evidence." O'Neil v. Martin , 258 Or. App. 819, 828, 312 P.3d 538 (2013), rev. den. , 355 Or. 381, 328 P.3d 697 (2014), abrogated on other grounds , 358 Or. 383, 365 P.3d 99 (2015) ; Sutherland , 131 Or. App. at 28, 883 P.2d 1318. Where the trial court made no express findings, we assume that the court found facts consistent with its judgment and likewise review to determine whether they are supported by "any competent evidence." Id .; Management Recruiters v. Harold Moore & Assoc. , 118 Or. App. 614, 616, 848 P.2d 644, rev. den. , 317 Or. 162, 856 P.2d 317 (1993).

Ultimately, we review the court's legal conclusion for errors of law. O'Neil , 258 Or. App. at 828, 312 P.3d 538 ; Sutherland , 131 Or. App. at 28, 883 P.2d 1318.

We recount the facts consistently with that standard. Defendant, a citizen of the United Kingdom, was an Oregon resident from about 2011 until May 2015. During his residency in Oregon, he acquired an Oregon driver's license. About May 6, 2015, defendant terminated the rental agreement for his residence and moved from Oregon back to the UK with the intent to remain there permanently. Defendant kept his Oregon driver's license, despite his permanent move to the UK, to use on future trips to the United States. He also had a UK license, permitting him to drive there, but he believed an Oregon license might allow him to rent a car more cheaply. At some point after his move to the UK, defendant changed the address listed with the Oregon DMV to a different Oregon address.

In July 2015, defendant went to Washington for a short business trip. He used his Oregon driver's license to rent a car in Washington. On July 19, 2015, plaintiff and defendant were involved in a car accident in Vancouver, Washington. At the time of the accident, about 10 weeks after moving, defendant was a resident of the UK and not a resident of Oregon, nor domiciled in Oregon. At the scene of the accident, defendant showed the Washington state police officer his passport, his Oregon driver's license, and provided his UK address. At that time, an Oregon address was listed on defendant's Oregon driver's license.

On September 28, 2016, plaintiff filed suit against defendant in Multnomah County Circuit Court, alleging negligence claims. Plaintiff alleged that defendant was negligent in driving at an excessive speed, failing to stop for a red light, failing to keep a proper lookout, and failing to keep his car under control. At the time plaintiff commenced the suit, defendant was still a resident of the UK and had been living in the UK for about 16 months. In January 2017, defendant changed the address on his Oregon license to his UK address. Defendant was not personally served with a summons and complaint in Oregon.

Defendant filed a motion to dismiss plaintiff's complaint pursuant to ORCP 21 A(2), asserting that the trial court lacked personal jurisdiction over him. The trial court agreed with defendant and granted defendant's motion. The court's judgment dismissed the case with prejudice.

On appeal, plaintiff argues that the court erred in dismissing for lack of personal jurisdiction and in dismissing the case with prejudice. Plaintiff argues that Oregon courts have personal jurisdiction over defendant because defendant had an active Oregon driver's license that he maintained despite his change of residency to the UK and because defendant was "driving under the authority of that license when he caused a car collision in Vancouver, Washington." Plaintiff claims that "[f]air play and substantial justice support that a defendant who avails himself of the rights and privileges granted by having an Oregon driver license is subject to Oregon's jurisdiction for wrongful acts while using that license." Defendant disagrees, arguing that plaintiff failed to establish that Oregon courts have personal jurisdiction over him, a nonresident, because plaintiff neither demonstrated that ORCP 4, Oregon's long-arm statute, was satisfied nor that defendant had minimum contacts with Oregon to satisfy due process under the federal constitution.

As framed by the parties, the question in this case is whether a nonresident defendant, who has maintained an Oregon driver's license, may be haled into Oregon courts for a negligence action arising out of a car accident that occurred in another state.

II. PERSONAL JURISDICTION

A. General Personal Jurisdiction

Personal jurisdiction is examined as either a question of general personal jurisdiction or specific personal jurisdiction. Not long ago, the United States Supreme Court emphasized that general and specific personal jurisdiction are not the same. In a case that happened to involve corporations, the court stressed:

"A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State. Specific jurisdiction, on the other hand, depends on an affiliatio[n] between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation. In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction."

Goodyear Dunlop Tires Operations, S.A., v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) (internal citations and quotation marks omitted). We will return to the distinction between general and specific jurisdiction when we address the dissenting opinion in this case.

Our jurisdictional inquiry begins with a determination whether any of the provisions described in of ORCP 4 apply. Initially, plaintiff argues that ORCP 4 A supports jurisdiction over defendant. That rule provides:

"A court of this state having jurisdiction of the subject matter has jurisdiction over a party served in an action *** under any of the following circumstances:
"A. In any action, whether arising within or without this state, against a defendant who when the action is commenced:
"A(1) Is a natural person present within this state when served; or
"A(2) Is a natural person domiciled within this state; or
"A(3) Is a corporation created by or under the laws of this state; or
"A(4) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise; or "A(5) Has expressly consented to the exercise of personal jurisdiction over such defendant."

ORCP 4 A. Plaintiff contends that defendant's maintenance of his Oregon driver's license, including changing the address on his license to a Portland address, constitutes "substantial and not isolated activities within" Oregon under ORCP 4 A(4).

Oregon courts have recognized that ORCP 4 A provides for "general" personal jurisdiction. See, e.g. , Swank v. Terex Utilities, Inc. , 274 Or. App. 47, 49-50, 360 P.3d 586 (2015), rev. den. , 358 Or. 551, 368 P.3d 26 (2016) (stating that ORCP 4 A provides for "general" jurisdiction). If ORCP 4 A(4) applies-if defendant has "substantial and not isolated contacts" with Oregon "when the action commenced"-then general jurisdiction exists regardless of where the accident occurred. Our case law indicates that ORCP 4 A(4) does not apply.

In State ex rel Circus Circus Reno, Inc. v. Pope, 317 Or 151, 854 P2d 461 (1993) , the Oregon Supreme Court considered whether Oregon courts had general jurisdiction under ORCP 4 A(4) over a nonresident defendant for injuries plaintiff sustained in Reno, Nevada. The defendant owned and operated a hotel in Reno. The plaintiff, an Oregon resident, was injured in Reno when he was hit by a liquor bottle thrown by an unknown person from a window of defendant's hotel. The plaintiff brought an action for negligence against defendant in Oregon state court, and the defendant moved to dismiss for lack of personal jurisdiction. The Oregon Supreme Court observed:

"It is undisputed by the parties that [the defendant] is not registered to do business in Oregon, pays no business tax here, and has no bank accounts, offices, real estate, employees, or exclusive agents in the state. [The plaintiff] argues, however, that the activities of [the defendant] in Oregon nevertheless are 'substantial,' because [the defendant] 'regularly' advertises its Reno hotel in The Oregonian , because it distributed brochures describing that hotel to [the plaintiff's] Oregon travel agent, because it maintains a toll-free number for the use of Oregon residents, and because, after [the plaintiff] reserved a room at its Reno hotel, [the defendant] called [the plaintiff] at his Oregon residence to confirm the reservation.
"We are not persuaded that those activities are 'substantial and not isolated activities within this state.' ORCP 4 A(4). See Merrill, supra , at 9 (citing Helicopteros Nacionales de Colombia v. Hall, supra , for examples of activities that were insufficient to support an exercise of general jurisdiction, including the defendant's negotiation of a contract and purchase of goods in the forum state, its sending personnel to be trained there, and its receipt of payments in checks drawn there)."

Id. at 154-55, 854 P.2d 461. The Supreme Court concluded that the defendant was not subject to general personal jurisdiction in the Oregon courts under ORCP 4 A(4).

In Bachman v. Medical Engineering Corp. , 81 Or. App. 85, 724 P.2d 858 (1986), we considered whether Oregon courts had general personal jurisdiction under ORCP 4 A(4) over the defendant, a Washington hospital, for a medical malpractice action. All of the actions by the defendant took place outside of Oregon at a time when the plaintiffs were Washington residents. Id. at 87, 724 P.2d 858. The evidence showed that three percent of the defendant's patients were Oregon residents and that the defendant "would be happy to have more" Oregon patients, the defendant had several Oregon physicians on its "courtesy staff," the defendant had a Portland telephone number, the defendant had a corporate affiliate with a clinic in Oregon, and the defendant hospital advertised in The Oregonian . Id . Nevertheless, we concluded that "[t]hose contacts do not add up to the 'substantial and not isolated activities within this state' which would make the hospital present in Oregon under ORCP 4 A(4)." Id . at 88, 724 P.2d 858.

Finally, in Sutherland , 131 Or. App. 25, 883 P.2d 1318, we concluded that the plaintiff failed to establish that Oregon courts had general personal jurisdiction over the nonresident defendant, who owned several properties in Oregon. We observed that "it is well established that the bare fact of real estate holdings, without more, cannot serve as the basis for establishing personal jurisdiction in an action that neither arises out of, nor relates to, defendant's property ownership." Id. at 30, 883 P.2d 1318.

Similarly, here, we conclude that defendant's maintenance of his Oregon driver's license, without more in this record, does not amount to "substantial and not isolated activities within this state," which would make defendant "present" or "at home" in Oregon under ORCP 4 A(4). At the time the suit was commenced, defendant had been a resident of the UK for 16 months, and he had spent only three days in Portland, visiting friends, since the July 2015 accident. Although defendant changed his address to a different Oregon address after his move to the UK in May 2015, that fact is not sufficient to constitute "substantial and not isolated activities within" Oregon. Distilled to its core, this is a case in which a car accident occurred in Washington between an Oregon driver and a foreign driver, who had maintained an Oregon license obtained during his prior residency in the state. In light of precedent, those facts are not enough to establish general personal jurisdiction over defendant in Oregon.

Although the particular question posed by this case appears to be a matter of first impression in Oregon, other states have reached the same conclusion. See, e.g. , Luker v. Luker , 776 S.W.2d 624 (1989) (Texas did not have personal jurisdiction over a nonresident defendant who maintained a Texas driver's license after moving to Louisiana, in violation of Louisiana law, in a personal injury suit arising from a motor vehicle accident that occurred in Louisiana, because the "mere possession of a driver's license issued by [Texas] does not satisfy the requirement of availing oneself to the benefits and protections of Texas"); Hoekstra v. Bose , 302 Ill.App.3d 704, 236 Ill.Dec. 340, 707 N.E.2d 185 (1998) (nonresident defendant's possession of Illinois driver's license was insufficient to justify personal jurisdiction over defendant in personal injury action arising out of motor vehicle accident that occurred in Michigan, because "the mere possession of an Illinois driver's license indicating an Illinois address while actually living in another state is a fact too attenuated to hale [the defendant] into court [in Illinois]"); Lucini v. Mayhew , 113 R.I. 641, 324 A.2d 663 (1974) (Rhode Island does not have general personal jurisdiction over a nonresident defendant who merely held a Rhode Island driver's license at the time of the Massachusetts car accident); Johnson v. Ward , 4 N.Y.3d 516, 829 N.E.2d 1201, 797 N.Y.S.2d 33 (2005) (New York courts did not have personal jurisdiction over nonresident defendant, who possessed a New York driver's license and vehicle registration at the time of the accident, in a personal injury action arising out of a motor vehicle accident that occurred out of state). Courts around the country agree that mere possession of a driver's license from a particular state does not confer general personal jurisdiction over a nonresident defendant for a negligence or personal injury action arising from a motor vehicle accident that occurred out of state.

B. Specific Personal Jurisdiction

Alternatively, plaintiff contends that, if general personal jurisdiction fails, specific personal jurisdiction is proper. Plaintiff argues that "specific jurisdiction is evident in that defendant's wrongful act-his negligent driving that injured plaintiff-was in furtherance of his holding an Oregon license as an officially-declared resident of Oregon." Despite the appeal that argument may have, we disagree. Specific personal jurisdiction requires more.

Oregon's long-arm statute, ORCP 4 B through ORCP 4 L, provides for "specific" personal jurisdiction. Swank , 274 Or. App. at 49-50, 360 P.3d 586. Plaintiff does not articulate in her brief which particular subsection of ORCP 4 confers specific personal jurisdiction over defendant, but we understand her to argue that ORCP 4 L is satisfied here. ORCP 4 L, the so-called catchall provision, confers specific personal jurisdiction to the extent permitted by due process:

"(L) Notwithstanding a failure to satisfy the requirement of sections B through K of this rule, in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States."

The extent that due process permits specific personal jurisdiction is described in judicial decisions.

The Oregon Supreme Court has observed, "Because Oregon does not have a due process clause in its constitution that would impose a state constitutional limit on jurisdiction, [Oregon courts] are guided by decisions of the Supreme Court of the United States that address the constitutionality of an invocation of jurisdiction under the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Robinson v. Harley-Davidson Motor Co. , 354 Or. 572, 577, 316 P.3d 287 (2013). Those decisions have long established that due process is satisfied when "minimum contacts" exist between the nonresident defendant and the forum state such that the suit in the forum state would not "offend traditional notions of fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291-92, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (internal quotation marks omitted).

The Oregon Supreme Court recently reviewed decisions of the United States Supreme Court on specific personal jurisdiction. The Oregon Supreme Court recognized that specific jurisdiction over a nonresident defendant "depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Robinson , 354 Or. at 579, 316 P.3d 287 (internal quotation marks and brackets omitted) (citing Goodyear Dunlop Tires Operations, S.A., 564 U.S. at 919, 131 S.Ct. 2846 ). At bottom, "specific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction." Id. (internal quotation marks omitted).

To determine whether specific jurisdiction exists over a nonresident defendant, courts engage in three inquiries. First, the defendant must have "purposefully directed its activities at this state." Id . at 594, 316 P.3d 287. Second, the "litigation must arise out of or relate to at least one of those activities." Id . (internal quotation marks omitted) (citing Helicopteros Nacionales de Colombia, S.A., v. Hall , 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). To satisfy that standard, the particular activity must be a but-for cause of the litigation and must be the sort of activity that makes being sued in the forum state reasonably foreseeable to the defendant. Id . Third, jurisdiction in the forum state must comport with "fair play and substantial justice." Id .

In Robinson , the court faced a question of specific personal jurisdiction. The plaintiff, an Oregon resident, was injured in a motorcycle accident in Wyoming after the Idaho defendant, a motorcycle dealership, allegedly performed faulty repairs in Idaho. The plaintiff brought her claim in Oregon. The defendant had a website that could be accessed by Oregon residents. Oregonians purchased about $ 60,000 in parts, services, and rentals per year, although nearly all those transactions occurred in Idaho. The court reasoned that it did not need to decide whether, but for the defendant's website advertising, the plaintiff would not have had her motorcycle repaired at the Idaho dealership. That was because, whether or not there was but-for causation, the "defendant's contacts in Oregon were [not] such that it was reasonably foreseeable that defendant would be sued in Oregon for repairs it undertook in Idaho." Id. at 595, 316 P.3d 287.

Likewise, here, we need not decide whether, "but for" defendant's Oregon driver's license, defendant might not have driven negligently in Washington. We need not consider his UK license, and we need not debate whether an Oregon license played any causal role in the accident. It is sufficient to determine that defendant's limited contacts in Oregon were not such that it was reasonably foreseeable that defendant would be sued in Oregon for negligent driving in another state. Plaintiff's injury occurred in Washington as a result of defendant's alleged negligence in driving that occurred in Washington, not from negligence in his application for, or the issuance of, an Oregon driver's license. Defendant rented the car involved in the accident in Washington. The injury did not arise out of any act occurring in Oregon. Although defendant had once lived in Oregon and kept an Oregon license, he had returned home to live in the UK. At the critical time that this action was commenced, he had been living in the UK for 16 months. At that time, defendant's contacts with Oregon, other than a driver's license, had ended.

Like the court in Robinson , we conclude that defendant's contacts in Oregon did not make it reasonably foreseeable that he would be sued in Oregon for driving in another state, after renting the car in another state, merely because he used an Oregon license for the rental. See id. at 596, 316 P.3d 287 ("[P]laintiff's claims did not arise out of or relate to defendant's activities in Oregon in a manner that allows our courts to exercise specific jurisdiction over defendant under ORCP 4 L."). Specific personal jurisdiction fails because the litigation does not "arise out of or relate to" defendant's activities in Oregon. Accordingly, we hold that the trial court did not err in granting defendant's motion to dismiss for lack of personal jurisdiction.

C. The Dissent

The dissent reaches a different conclusion in this case-a case worthy of a classroom in which to examine concepts of personal jurisdiction. The dissent acknowledges general personal jurisdiction in ORCP 4A(1) through (5) and specific personal jurisdiction in ORCP 4 B through ORCP 4 L, then declares, "In reality, the catchall provision of ORCP 4 L swallows all specific jurisdiction subsections, rendering provisions 4 B through K mere illustration." 297 Or. App. at 842, 445 P.3d at 925 (James, J., dissenting). Speaking in terms employed with specific personal jurisdiction under ORCP 4 L, the dissent recites that the exercise of jurisdiction over a "nonresident defendant" is permitted when that nonresident purposefully directs his activities at residents of the forum state and where the litigation arises out of or relates to those activities. 297 Or. App. at 843, 846-47 (James, J., dissenting). Speaking in terms employed with general personal jurisdiction under ORCP 4 A(5), the dissent concludes that defendant "was an Oregonian," had substantial contacts with Oregon, and had not "sufficiently disentangled" himself from Oregon at the time of the accident "six weeks" after moving away. 297 Or. App. at 841, 844, 847 (James, J., dissenting).

Rather than view jurisdictional issues as, more or less, a single question, we have reached our conclusion due to the fundamental distinction between general and specific personal jurisdiction. In Goodyear Dunlop Tires , 564 U.S. at 919-28, 131 S.Ct. 2846, the United States Supreme Court criticized the North Carolina Court of Appeals for failing to maintain the distinctions between general and specific personal jurisdiction. There, two boys from North Carolina were killed in a bus accident near Paris when tires manufactured by one of several Goodyear foreign subsidiaries were alleged to have failed. The North Carolina court determined it had personal jurisdiction over the foreign subsidiaries. Because other businesses had imported some of the subsidiaries' tires into the state, the North Carolina court concluded that a "stream-of-commerce" analysis, a concept borrowed from specific personal jurisdiction, allowed general personal jurisdiction.

The Supreme Court determined that the state court was "[c]onfusing or blending general and specific jurisdictional inquiries." Id. at 919, 131 S.Ct. 2846. "The North Carolina court's stream-of-commerce analysis elided the essential difference between case-specific and all-purpose (general) jurisdiction." Id . at 927, 131 S.Ct. 2846. The flow of products may well be related to specific personal jurisdiction. Id.

"But ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction."

Id. (emphasis in original). Once conceptual strands of specific and general jurisdiction were separated, the Supreme Court rejected the jurisdictional claims. Because the accident did not arise out of the North Carolina contacts, there was no specific personal jurisdiction, and because the foreign subsidiaries were not domiciled in North Carolina, there was no general personal jurisdiction. Id . at 919-28, 131 S.Ct. 2846.

After referring to considerations of both specific and general jurisdiction, the dissent posits that defendant did not lose his presence in Oregon when he left Oregon; a lingering incorporeal presence remained at least for some indeterminate period of time. Once a resident, the dissent concludes, defendant retained those substantial connections, "six weeks" later when the accident occurred in Washington State. 297 Or. App. at 846-47, 445 P.3d at 927-28 (James, J., dissenting). The dissent allows that there is no Oregon precedent for reliance on past connections, id . at 844-45, 445 P.3d at 926-27, and the dissent cites a pair out-of-state cases finding jurisdiction in odd circumstances. See, e.g. , Beasley v. Beasley , 260 Ga. 419, 396 S.E.2d 222 (1990) (Georgia wife's suit for support against husband who had lived, married, and divorced in Georgia, who remained a U.S. citizen with no other state, but resided in Saudi Arabia, where court exercised special personal jurisdiction); Greehoed v. Hensen , 277 Md. 220, 352 A.2d 818 (1976) (Maryland husband's action against wife's paramour, who had later moved out of state, for criminal conversation causing injury to Maryland marriage from sexual relations in Canada). Finding "substantial" connections, the dissent intimates that the court has general personal jurisdiction. 297 Or. App. at 847 (James, J., dissenting) (" contacts remained substantial"); see ORCP 4 A(4) (general personal jurisdiction through substantial contacts). Finding the accident in Washington State arose from defendant's contacts in Oregon, the dissent intimates that the court has specific personal jurisdiction. 297 Or. App. at 846-47 (James, J., dissenting).

We have reached our conclusion based on the standard enunciated by ORCP 4 A(5). That standard asks whether, "when the action is commenced ," a defendant "[i]s engaged in substantial and not isolated activities within this state." (Emphasis added.) Much to the same effect, ORCP 4 A(2) asks whether, "when the action is commenced ," a person is "domiciled within this state." The trial court found that defendant was no longer a resident of this state. Defendant's only connection to Oregon was a driver's license with an address at which he no longer lived. By its terms, ORCP 4 A poses its test of general personal jurisdiction in the present tense, not in the past tense. The rule asks whether defendant has substantial contacts at the time the lawsuit is commenced. Consequently, the required frame of reference is not the 10 weeks between defendant's departure from Oregon and the Washington accident. The frame of reference is defendant's Oregon connection at the time of the lawsuit. The action was commenced 16 months after defendant's Oregon residency had ended. After more than a year, no cognizable shadow of defendant's presence remained in Oregon.

III. DISPOSITION

Our conclusions on personal jurisdiction leave unresolved the second issue of whether the court erred in dismissing plaintiff's case with prejudice. Plaintiff contends that, because the case was dismissed for lack of jurisdiction, and the court did not issue a judgment "on the merits," the court erred in dismissing the case with prejudice. Plaintiff argues that she should not be precluded from pursuing her claim in the proper forum that has personal jurisdiction over defendant. We agree.

In Oregon, "a dismissal 'with prejudice' creates a claim-preclusive bar, even if the dismissal was due to a procedural fault and not a decision on the substantive validity of the action." Cornus Corp. v. Geac Enterprise Solutions, Inc., 252 Or. App. 595, 604-05, 289 P.3d 267 (2012), rev. den. , 353 Or. 428, 299 P.3d 889, cert. den. , 571 U.S. 952, 134 S.Ct. 421, 187 L.Ed.2d 279 (2013) ; see also Te-Ta-Ma Truth Foundation v. Vaughan , 114 Or. App. 448, 451, 835 P.2d 938 (1992) (a dismissal with prejudice generally precludes a subsequent action); Sandgathe v. Jagger , 165 Or. App. 375, 381, 996 P.2d 1001 (2000) (observing that the "term 'with prejudice,' expressed in a judgment of dismissal, has a well-recognized legal import" and operates as an adjudication on the merits).

The doctrine of claim preclusion prohibits a party "from prosecuting another action against the same defendant where the claim in the second action is one which is based on the same factual transaction that was at issue in the first action and the first action resulted in a judgment on the merits." Cornus Corp. , 252 Or. App. at 604, 289 P.3d 267 (internal quotation marks omitted). The Oregon Supreme Court has explained the meaning of "on the merits" in Rennie v. Freeway Transport , 294 Or. 319, 330-31, 656 P.2d 919 (1982) :

"The term 'on the merits' connotes a final definitive decision as to the substantive validity of plaintiff's cause of action, in contrast to a ruling based wholly on a procedural aspect of the case. Thus, where a court dismisses a plaintiff's action on a matter of procedure-e.g ., improper venue, lack of jurisdiction , or nonjoinder of an essential party-without ruling as to the substantive validity of plaintiff's claim for relief, that dismissal will not generally be res judicata so as to preclude subsequent action based on the same claim."

(Emphasis added.) Thus, generally, a dismissal for lack of jurisdiction is not a decision "on the merits" and therefore, does not preclude a subsequent action based on the same claim in the proper forum.

In Sandgathe , we held that, because of the preclusive effect of dismissal with prejudice, the termination of an action as premature should be without prejudice. 165 Or. App. at 384, 996 P.2d 1001. In that case, we reversed a judgment that dismissed, with prejudice, a legal malpractice claim based upon the defendant's allegedly inadequate representation of the plaintiff in a criminal case in which the plaintiff was convicted. The claim was dismissed because the plaintiff could not prove legally cognizable injury from the alleged malpractice in light of the fact that his conviction had not been overturned. We concluded that such a dismissal would improperly preclude the plaintiff from pursuing his claim against the defendant if his conviction were ultimately overturned. Id . at 379, 996 P.2d 1001 ; see ODOT v. Winters , 170 Or. App. 118, 130, 10 P.3d 961 (2000), rev. den. , 332 Or. 239, 28 P.3d 1174, cert. den. , 534 U.S. 996, 122 S.Ct. 465, 151 L.Ed.2d 382 (2001) (discussing Sandgathe ).

This case was dismissed for lack of personal jurisdiction. That type of dismissal is a matter of procedure, not a decision on the merits. See Rennie , 294 Or. at 330-31, 656 P.2d 919 (dismissal for lack of jurisdiction is not a decision on the merits, but rather a matter of procedure). When the court dismissed with prejudice, that designation precluded plaintiff from bringing her negligence action in the proper forum with jurisdiction over defendant or in Oregon in the event that jurisdiction might somehow become proper later. In the absence of any basis to bar plaintiff from bringing the claim on the merits, the court erred in dismissing plaintiff's case with prejudice.

Judgment remanded for an entry of judgment dismissing without prejudice; otherwise affirmed.

James, J., dissenting.

JAMES, J., dissenting.

In this case concerning personal jurisdiction, it is undisputed that defendant was a resident of Oregon for years. He had a home in Oregon. He ran his business from Oregon. He left Oregon less than eight weeks prior to the accident. Consequently, for me, the question is not whether defendant had "substantial and not isolated contacts" with Oregon. He clearly did-a result of his years as a resident. Rather, the question in this case is whether defendant's move to the United Kingdom (UK) had sufficiently disentangled those contacts with Oregon by the time this suit commenced so as to render jurisdiction in Oregon offensive to due process and "traditional notions of fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (internal quotation marks omitted). I conclude it had not.

Oregon's long-arm statute, ORCP 4, lists multiple bases for an Oregon court to exercise jurisdiction over an out-of-state defendant in a civil case. "The rule outlines five general bases for establishing personal jurisdiction under ORCP 4 A, enumerates several more specific bases for personal jurisdiction under ORCP 4 B through K, and also provides a catchall provision under ORCP 4 L that confers jurisdiction to the extent permitted by due process." Robinson v. Harley-Davidson Motor Co. , 354 Or. 572, 576-77, 316 P.3d 287 (2013) (relying on State ex rel Circus Circus Reno, Inc. v. Pope , 317 Or. 151, 154-56, 854 P.2d 461 (1993) ).

In reality, the catchall provision of ORCP 4 L swallows all the specific jurisdiction subsections, rendering provisions 4 B through K mere illustration. We ultimately look to the limits of due process and, if jurisdiction does not offend, it is permissible. As courts have noted:

" 'Oregon's long-arm statute confers jurisdiction to the extent permitted by due process.' Gray & Co. v. Firstenberg Machinery Co., Inc. , 913 F.2d 758, 760 (9th Cir. 1990) (citing ORCP 4 L). Thus, the question for this court, as it was before the district court, is whether the assertion of personal jurisdiction comports with federal due process law."

Siskiyou Properties, LLC v. Bennett Holdings, LC , 13 Fed. Appx. 553, 555 (9th Cir. 2001) ; see also Hayden v. Shin-Etsu Handotai America, Inc. , 80 F. Supp. 2d 1119, 1120-21 (D. Or. 1999) ("Oregon's jurisdictional statute confers personal jurisdiction coextensive with due process. *** As a result, this court need only analyze whether exercising jurisdiction comports with due process."); Dainippon Screen Manufacturing Co. v. CFMT, Inc. , 142 F.3d 1266, 1270 (Fed Cir. 1998) ("because California's long-arm statute is coextensive with the limits of due process, *** the two inquiries collapse into a single inquiry: whether jurisdiction comports with due process").

The bar for meeting due process is not high. In International Shoe Co. v. Washington , the Court held that a state court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate " 'traditional notions of fair play and substantial justice.' " 326 U.S. 310, 316, 66 S.Ct. 154, 90 L Ed 95 (1945) (quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L Ed 278 (1940) ); see also Insurance Corp. v. Compagnie des Bauxites , 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Even when the cause of action occurs outside of the forum state, "due process is not offended by a State's subjecting [a defendant] to its in personam jurisdiction when there are sufficient contacts between the State and the [defendant]." Helicopteros Nacionales de Colombia v. Hall , 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (emphasis added). Due process can be satisfied even when a defendant has essentially zero contacts with the forum, so long as service of process is accomplished while he is transiting through the forum. Burnham v. Superior Court of Cal. , 495 U.S. 604, 619, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990).

As the Oregon Supreme Court has made clear, the exercise of jurisdiction over a nonresident defendant is consistent with due process, and thus constitutional, if the defendant has minimum contacts with the forum state and the assertion of jurisdiction would comport with notions of fair play and substantial justice. Circus Circus , 317 Or. at 159-60, 854 P.2d 461. Minimum contacts exist when "the defendant has 'purposefully directed' its activities at residents of the forum state and where the litigation 'arises out of or relates to' those activities." Id . at 159, 854 P.2d 461 (quoting Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ) (emphasis in original). As the Ninth Circuit has summarized:

Therefore, the narrow, three-part question is:

(1) Did the defendant do "some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws?"
(2) Did the claim "arise out of the defendant's forum-related activities?"
(3) Is "the exercise of jurisdiction [on the facts of the case] reasonable?"

Gray & Co. v. Firstenberg Machinery Co., Inc. , 913 F.2d 758, 760 (9th Cir. 1990) (referencing Shute v. Carnival Cruise Lines , 897 F.2d 377, 381 (9th Cir. 1990) ). I find that the answers to those three questions support jurisdiction in this case.

Defendant moved to the United States in 1995, residing in Virginia. He obtained a United States social security number and formed and registered a business in the United States. Then, in 2011, he moved to Oregon, where he continued to operate that same business. With his move to Oregon, defendant rented an apartment and obtained an Oregon driver's license. As part of that application process, defendant averred that he was a resident of Oregon. Oregon law provides that "in order to be eligible for a driver license or permit issued by this state a person must be domiciled in or resident of this state." ORS 807.062(1). Defendant continued to reside in, and operate his business from, Oregon for the next four years, until May 2015.

Those four years of residency are what separate this case from the myriad personal jurisdiction cases involving out-of-state persons or corporations, like those relied upon by the majority, such as Circus Circus , 317 Or. at 153, 854 P.2d 461 ; Sutherland v. Brennan , 131 Or. App. 25, 28, 883 P.2d 1318 (1994), aff'd on other grounds , 321 Or. 520, 531, 901 P.2d 240 (1995) ; or Bachman v. Medical Engineering Corp. , 81 Or. App. 85, 88, 724 P.2d 858 (1986). Unlike all of those cases, here, defendant was an Oregonian. For years, he lived in Oregon, worked in Oregon, enjoyed what Oregon has to offer, and took advantage of the protections and privileges provided by Oregon. "One who resides in a state necessarily avails himself of the benefits and protections of its laws. The taking up of residence is, in fact, the quintessential act by which one avails himself of the privilege of conducting activities in the state." Geelhoed v. Jensen , 277 Md. 220, 231, 352 A.2d 818, 825 (1976).

The question, then, is when did those substantial contacts dissipate-in other words, when does one stop being an Oregonian? Although no Oregon case specifically answers that question, there is guidance from other jurisdictions, typically arising in the context of marital dissolution. In Beasley v. Beasley , the Georgia Supreme Court concluded that time away from the forum was one factor to consider, but in that case the defendant's absence from the forum for seven years had not, per se , eliminated his necessary contacts with the state:

"Due process requires that individuals have 'fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.' Burger King v. Rudzewicz , 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). In evaluating whether a defendant could reasonably expect to be hauled into court in a particular forum, courts examine defendant's contacts with the state, focusing on whether (1) defendant has done some act to avail himself of the law of the forum state; (2) the claim is related to those acts; and (3) the exercise of jurisdiction is reasonable, that is, it does not violate notions of fair play and substantial justice. ***
"Applying these principles to the facts set forth above, we conclude that defendant's contacts with this state are sufficient to satisfy due process. Under the first prong of [Smith v.] Smith , [254 Ga. 450, 330 S.E.2d 706 (1985) ], we note that defendant purposefully availed himself of the privilege of conducting activities in the forum by residing in this state for two years prior to marrying plaintiff, by obtaining a divorce from his former wife in this state, by marrying a resident of this state, by maintaining a marital residence in this state from 1979 to 1981, by returning to Georgia to retire from the military, by residing in Savannah for a short time thereafter, and by returning to Georgia for visits.
"The fact that defendant's contacts with this state took place several years ago does not affect the analysis under the first prong of Smith . Under the third prong of Smith , however, the length of time that has elapsed since defendant's purposeful activity in this forum may impact on the reasonableness of exercising jurisdiction."

260 Ga. 419, 421-22, 396 S.E.2d 222, 224-25 (1990).

Similarly, in Katz v. Katz , the New Jersey Superior Court concluded that time was a factor for consideration. However, it determined that 17 years was so lengthy as to render those contacts insignificant:

"Defendant left New Jersey seventeen years ago and has only returned here twice, briefly. Whatever ties he may have had with this State have evaporated over the years and New Jersey's power to exercise personal jurisdiction over him has similarly disappeared."

310 NJ Super 25, 32, 707 A.2d 1353, 1356 (1998).

The Maryland Court of Appeals also found personal jurisdiction over a former resident, noting the significance of the time when the cause of action arose, even though it was not committed in the state:

"A more significant question, perhaps, arises from the fact that in this case appellee's contacts with the State had ceased before the commencement of the action. This fact is not, however, dispositive, since here appellee was a resident of the State at the time the cause of action arose[.]"

Geelhoed , 277 Md. at 233, 352 A.2d at 826.

I draw from those principles in reaching my result here. In this case, the record established that defendant left Oregon only six weeks before the automobile accident that formed the basis of the lawsuit. When defendant departed Oregon, he notified his Oregon landlord that his new address would be 1604 Southeast 48th Avenue, Portland, Oregon, not the UK. He used that same Oregon address for receiving mail, including important financial mail, rather than having his mail forwarded to the UK. Further, defendant did not leave for the UK on a one-way flight, but rather booked a return ticket back to Portland in six weeks. His return to Portland was to attend two professional conferences, one in Oregon and one in Seattle, Washington, related to the business he had run from Oregon for the previous four years. His attendance at those conferences was already planned for while he resided in Oregon.

On the date of the accident that underlies this lawsuit, and in transit to one of these professional conferences, defendant was driving a rental car that he obtained by presenting his Oregon driver's license to a rental car company. In using that license to rent the vehicle, he held himself out, implicitly, as an Oregon resident. When he was involved in the accident, he presented his Oregon driver's license to the investigating officer-again, implicitly holding himself out to be connected to Oregon. There is simply no plausible argument that this incident did not arise from his contacts with Oregon. Further, those contacts continued after he departed the state and continued to exist at the time this suit was commenced. Defendant admitted in his deposition that well over a year after the accident he continued to intentionally retain his Oregon driver's license for the express purpose of securing a benefit from that state-issued privilege: reduced rates on rental cars when he returned to the United States in the future.

In light of those facts, I conclude that defendant had done very little to disentangle himself from Oregon. His contacts with Oregon, gained through residency, were not erased the moment his flight to the UK departed Portland International Airport. And while his move is certainly an important consideration, it is not a dispositive factor. The move must be assessed in light of the roots defendant had planted in Oregon, that the accident occurred only six weeks after his departure for the UK, that the suit commenced a mere year and a half later, and that, at the time of suit, his contacts continued to remain entangled through the maintenance of his Oregon driver's license. I conclude that his contacts remained substantial, that he continued to "avail himself of the privilege of conducting activities in the forum," and that the accident was linked with the conduct of his activities in Oregon. I cannot conclude that the exercise of personal jurisdiction by an Oregon court would surprise defendant, or otherwise not comport with due process or the tenants of "fair play and substantial justice." See World-Wide Volkswagen Corp. , 444 U.S. at 291-92, 100 S.Ct. 580.

I respectfully dissent.

      In relevant part, ORCP 21 A provides:
      "[T]he following defenses may at the option of the pleader be made by motion to dismiss: *** (2) lack of jurisdiction over the person ***. If, on a motion to dismiss asserting defenses (1) through (7), the facts constituting such defenses do not appear on the face of the pleading and matters outside the pleading, including affidavits, declarations and other evidence, are presented to the court, all parties shall be given a reasonable opportunity to present affidavits, declarations and other evidence, and the court may determine the existence or nonexistence of the facts supporting such defense ***."

      A police report shows that the car had Washington license plates and was rented through Budget Rental with an area code 360 phone number-a Washington area code.

      Plaintiff stresses that, when leaving Oregon, defendant had purchased a roundtrip ticket in May to the UK and back. Defendant explained that he knew he had to be back in Portland and Seattle for the July business conferences and the roundtrip ticket was cheaper than two one-way tickets.

      Although plaintiff also cites ORCP 4 A(1) and (5), plaintiff does not develop any substantive argument in support of jurisdiction under those provisions. To the extent plaintiff does argue that ORCP 4 A(1) or (5) confer jurisdiction over defendant, we reject such arguments. It is "not this court's function to speculate as to what a party's argument might be. Nor is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself." Beall Transport Equip. Co. v. Southern Pacific Transp ., 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons , 187 Or. App. 472, 68 P.3d 259 (2003).

      Defendant spent 11 days in the United States, three of which were in Portland. Plaintiff did not establish where defendant spent the other eight days.

      Plaintiff notes that "ORS 807.062 requires that a person must be domiciled in or a resident of Oregon in order to have an Oregon driver license." Plaintiff insists that an Oregon driver license, "which by law is available only to Oregon residents, in and of itself is substantial connection with the State of Oregon." Plaintiff overlooks the potential that a person might simply violate a licensing requirement by failing to be an Oregon resident. Our record does not contain information about the efficacy of licensing enforcement practices, nor the reasons why the Motor Vehicle Division might reasonably process an address change involving an out-of-state address.

      Other states have concluded that mere maintenance of a driver's license is insufficient to constitute "purposefully directing activities at the forum state." In Hoekstra, 302 Ill.App.3d at 708, 236 Ill.Dec. 340, 707 N.E.2d at 188, the court stated:
      "In this case, the possession of an Illinois driver's license does not constitute purposeful direction of activity toward Illinois residents. [Defendant] rented the car in Michigan, travelled in Michigan only, and was involved in an accident with plaintiff in the state of Michigan. Furthermore, although [defendant's] driver's license indicates a Wheeling, Illinois address, he indicated in his affidavit that he had not been a resident of Illinois since 1992."

      Defendant moved to the UK on May 6, 2015, according to his deposition, and the accident occurred July 19, 2015-t10 weeks and four days later.

      If that were so, general personal jurisdiction would mean that this UK resident could just as readily be sued in Oregon for an auto accident in Boston, a software contract in Miami, or a hotel bill in Honolulu.

      There is no indication that the dismissal with prejudice was intended to serve as a sanction for failure to comply with a court order, court procedure, or for otherwise acting improperly. See, e.g. , Stronach v. Ellingsen , 108 Or. App. 37, 814 P.2d 175, rev. den. , 312 Or. 151, 817 P.2d 758 (1991) (sanction of dismissal with prejudice was justified by plaintiff's failure to comply with order compelling production of copies of all reports of medical examinations); Martin v. Blakney , 85 Or. App. 203, 735 P.2d 1294 (1987) (dismissal with prejudice as discovery sanction was not an abuse of discretion, where plaintiff failed to appear for deposition which had already been rescheduled due to inability of plaintiff's counsel to attend previous setting, and plaintiff subsequently failed to appear for hearing on sanctions).


source: Caselaw Access Project

author: SHORR, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Kyle Alan AMES, Defendant-Appellant.
    A164966
    Court of Appeals of Oregon.
    Argued and submitted December 19, 2018. June 19, 2019
    Mark J. Kimbrell, Deputy Public Defender, argued the cause for appellant. On the opening brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services. Also on the supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.
    Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Defendant appeals from a judgment of conviction for three counts of second-degree burglary, two counts of first-degree theft, and one count of second-degree criminal mischief, assigning error to the trial court's denial of his request to waive a jury trial. For the reasons explained below, we reverse and remand.

The underlying facts are undisputed. Defendant was arrested and arraigned on charges of burglary, theft, and criminal mischief. Defendant was then conditionally released from custody. After he failed to appear at a subsequent hearing in this case, defendant was arrested on new charges. Defendant then personally appeared before the trial court in this case on March 17, 2017. During a plea hearing that occurred a few days later, defendant requested a jury trial. Trial was scheduled for May 2, 2017, with a trial readiness hearing scheduled for the preceding day. When defendant failed to appear at the trial readiness hearing on May 1, the court cancelled the jury trial. Later in the day on May 1, defendant was arrested on different charges, and the jury trial was reinstated for the following day.

On the scheduled day of trial, May 2, during discussion of pretrial matters with the court and before the jury was empaneled, defendant's counsel requested to waive defendant's right to a jury and asked that the case be tried to the court. Defendant was in custody and not present in the courtroom for that discussion. The prosecutor expressly took no position on defendant's request to waive a jury trial. The trial court denied defendant's request, explaining that it was doing so for three reasons. First, the trial court expressed concern about the "timing" of the request, coming on the morning of trial. Second, the court expressed an economic concern for the court having already incurred the cost for the jurors, stating that it would be "no more economical" to cancel the jury at such a late hour. Third, the court expressed a belief that the jury would be able to fully protect defendant's rights, noting that, unlike the court, the jury was not aware of defendant's custody status and his prior criminal record. To these points, the trial court stated as follows:

"I'm aware of the cases that have come out the last couple years. And it is a discretionary call by the Court.
"I'm not going to allow the waiver of the jury trial. He apparently was here for the change of plea [hearing], he requested a jury trial. We've got jurors who are here, waiting. In fact, I brought in quite a number of jurors here in this case.
"The timing is a concern on my part-the waiver on the-on the morning when I have the jury already here. If I would have known about it last night, I could have at least called the jury off.
"The other thing that I factor in is this. I actually have done a little work on this case in terms of looking at the proceeding sheet, looking at the charging instrument. I know that he's in custody. I mean, I know all those things that a jury wouldn't know. A jury is not going to know that he's in custody.
"I know a little bit about his background. I guess I'm hearing now that he's got warrants outstanding, or-
"* * * * *
"*** all of this is just a concern that I, as a neutral factfinder, I'm not so sure I-you know, I've got that information in my head."

After a recess, defendant was then brought into the courtroom, and the trial court again explained why it had decided to deny defendant's request to waive a jury trial. The court explained to defendant as follows:

"[T]here's some cases that [came] out in the last year or two from the Supreme Court which identifies some factors that I'm to consider. The * * * case, as I recall, is State v. Harrell . And one of the reasons that I'm not allowing a jury waiver is the timing of the waiver.
"My notes show that you and [defense counsel] were in front of the court back in March of 2017. You requested a jury trial at that time. We actually brought the jury-we notified the juries last night-jurors last night to show up today. And I've got quite a number of citizens that are in the back room waiting to serve as a jury.
"And I wasn't aware that you wanted to waive a jury until about 45 minutes before 9:30. So, the timing of the waiver is a concern. If the waiver had occurred earlier, the court might well have considered and approved a waiver. So, that's one factor that I considered is that the timing of the waiver comes way too late.
"The other factor is, the state [does] not express-does not take a position here. That's a factor I can consider.
"The other factor that I was thinking about is it's certainly no more economical in this particular case, to waive a jury. The jury is here. They're going to get paid for being here today. We will still have to pay them for being here today, even if they don't do the trial.
"So, we don't-it's no more economical to waive a jury in terms of money outstanding paid to a jury.
"And more importantly, I'm convinced that a jury would fully protect your rights. They're not going to know anything about the fact that you're in custody. They're not going to know that. They're not going to know anything about the fact that you've got outstanding warrants; or, according to [defense counsel], maybe a bit on the lam or on the run for a while. They're not going to know about that.
"They're just going to know you're sitting there as a human being, dressed appropriately. And they just aren't going to know about that. So, I think that weighs in favor of the defendant, as opposed to what a judge might know about this case.
"So, for those reasons, I'm not going to allow waiver of jury."

Defendant's case was then tried to a jury. The jury found defendant guilty on all counts, and the trial court entered a judgment of conviction. Defendant now appeals that judgment, assigning error to the court's denial of his request to waive a jury trial. Defendant contends that the court abused its discretion in denying the waiver because the court misapplied the relevant factors in reaching its decision.

Before reaching the merits of defendant's assignment of error, we address the state's contention that the error is unpreserved. The state asserts that the preservation doctrine prevents us from considering defendant's appeal because defendant did not object or make any further legal argument after the trial court denied his request to waive the jury. More specifically, the state contends that defendant did not alert the court that it had erred in weighing the relevant factors to be considered when determining whether defendant could waive his right to a jury trial. As a general rule, we will not consider a claim of error unless it was preserved in the trial court. State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000) ; ORAP 5.45(1). To preserve an error for appeal, a party must have provided the trial court "with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." Wyatt , 331 Or. at 343, 15 P.3d 22.

The touchstone for determining whether a contention is adequately preserved is whether the policies that underlie the preservation requirement-giving the opposing party a fair opportunity to respond, fostering appellate review through full development of the record, and giving the trial court the opportunity to fully consider and rule in the first instance-have been served in a particular case. State v. Parkins , 346 Or. 333, 340-41, 211 P.3d 262 (2009) ; Peeples v. Lampert , 345 Or. 209, 219-21, 191 P.3d 637 (2008). Those policies have been served in this case. The state took no position below on whether the court should have granted the jury waiver, and the factual record and the record of the trial court's reasoning is more than sufficient for our review. Cf. State v. Jones , 270 Or. App. 254, 257, 347 P.3d 346 (2015) (rejecting as unpreserved the defendant's argument that the trial court abused its discretion by not explaining its decision to refuse to consent to jury waiver when the record contained no explanation of the court's reasons and the defendant did not request an explanation). The remaining policy consideration is whether the trial court had a fair opportunity to correct its alleged error. In arguing that this matter is unpreserved, the state primarily argues that the court did not have a fair opportunity to correct any error after it ruled. The state raises State v. Rumler , 199 Or. App. 32, 110 P.3d 115 (2005), for the proposition that a party can fail to preserve a claim of error when the party does not take issue with a trial court's reasoning or ruling after that ruling is announced. In Rumler , the state argued on appeal that the trial court erred in excluding certain evidence because the evidence was admissible as evidence of a "habit" ( OEC 406 ) or as a "past recollection recorded" ( OEC 803(5) ), but the state had advanced neither of those arguments to the trial court. Id. at 37-38, 110 P.3d 115. We held that the matter was unpreserved because, after the trial court ruled to exclude the evidence, the state did not object on either of the bases that it argued on appeal. Rumler is distinguishable from the present case.

Our holding in Rumler was based in part on our conclusion that there was "no doubt" that the trial court would be surprised to learn of the state's arguments on appeal and would feel "blindsided" by a reversal on those grounds. Id. at 41, 110 P.3d 115. Here, to the contrary, the trial court should not feel surprised to learn of defendant's contention on appeal. The trial court had a fair opportunity to, and in fact did, thoroughly consider the relevant law and explain its ruling under that law. See State v. Harrell/Wilson , 353 Or. 247, 263-64, 297 P.3d 461 (2013) (setting out factors for trial court to consider on a jury waiver request). On appeal, defendant's argument is that the trial court struck the wrong balance under Harrell/ Wilson when weighing the relevant factors that underlie the decision for a trial court to consent to a defendant's jury trial waiver, not that a different law or other factors apply that the court failed to consider. In contrast, in Rumler , the state sought reversal on appeal based upon sections of the evidence code that the trial court did not have in mind or have an opportunity to consider in its ruling because they were never raised or discussed in the trial court.

The state similarly relies on Wyatt , in which the Supreme Court held that the defendant's arguments on appeal were unpreserved when the defendant failed to take issue with the trial court's ruling. 331 Or. at 343, 15 P.3d 22. There, the trial court determined that the defendant had committed a discovery violation by failing to include an expert witness on the defendant's witness list or otherwise inform the prosecutor that the defendant intended to call the witness at trial. Id. at 337-38, 15 P.3d 22. The trial court excluded the expert witness's testimony as a sanction for the discovery violation. After the court explained its decision to impose the sanction of exclusion, the defendant did not argue that no discovery violation had occurred, nor that the trial court was required to consider less onerous sanctions under ORS 135.865, although the defendant advanced those arguments on appeal. The defendant argued that the issues were preserved when the defendant opposed the state's motion to exclude the testimony and made an offer of proof as to the witness's testimony. The Supreme Court held that the defendant's objection and offer of proof were insufficient to preserve the issue because they did not adequately identify for the trial court the issue that the court erred in failing to consider the availability of a less onerous sanction. Id. at 343. Wyatt is distinguishable from the instant case because, here, defendant's request for waiver of the jury identified the issue for the trial court with enough specificity for the court to cite and apply the relevant legal principles. For these reasons, we reject the state's reliance on Rumler and Wyatt .

The state's arguments essentially boil down to an assertion that defendant did not preserve the precise arguments that he raises on appeal regarding how the trial court weighed the relevant factors, because once the court had ruled, defendant did not object or make any further legal argument. However, "[o]nce a court has ruled, a party is generally not obligated to renew his or her contentions in order to preserve them for the purposes of appeal." State v. Walker , 350 Or. 540, 550, 258 P.3d 1228 (2011). In Rumler and Wyatt , the contentions that the defendants raised on appeal had never been presented to the trial court. In contrast, here, defendant raised his contention when he initially requested to waive the jury. The trial court then proceeded to rule based on its weighing of the relevant factors. To require defendant to have made the objection that the state urges was needed here would be akin to requiring defendant to have had to ask the court to reconsider its ruling and reweigh those factors. We do not believe that the "preservation onion" needs to be sliced so thinly, particularly when the other policies underlying the preservation requirement were obviously served. State v. Amaya , 336 Or. 616, 629, 89 P.3d 1163 (2004) (recognizing "the problems that may arise if the preservation onion is sliced too thinly"). Therefore, we conclude that the matter was preserved.

We turn to the merits of defendant's appeal. Defendant assigns error to the trial court's denial of his request to waive a jury trial, arguing that the court misapplied the Harrell/Wilson factors that a trial court is to consider when deciding whether to consent to a jury trial waiver. We review the court's refusal to consent to defendant's request for a jury waiver for an abuse of discretion. Harrell/Wilson , 353 Or. at 253-54, 297 P.3d 461. For the reasons explained below, we agree with defendant that the court here abused its discretion in denying his request.

The Oregon Constitution provides that, in criminal proceedings,

"any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing[.]"

Or Const, Art I, § 11. A defendant's right to waive a trial by jury is a stand-alone right that "should be read in context as a right no less fundamental and no less personal than the other rights with which it is associated in the Oregon Constitution." Harrell/Wilson , 353 Or. at 263, 297 P.3d 461 ; see also State v. Austin , 274 Or. App. 114, 120, 360 P.3d 603 (2015) (explaining that a criminal defendant's right to waive a jury trial is "no minor matter"). "And if the exercise of that right is to be protected, then a trial court's consent under Article I, section 11, should focus on the validity of the defendant's election to waive a jury trial." Harrell/Wilson , 353 Or. at 263, 297 P.3d 461 ; cf. State v. Baker , 328 Or. 355, 364, 976 P.2d 1132 (1999) (holding as unconstitutional a statute that granted to the prosecutor a right to jury trial because the statute infringed on criminal defendants' right to waive a jury under Article I, section 11 ).

Choosing whether or not to consent to a jury waiver is a "classic example" of an exercise in judicial discretion, but that judicial discretion is not absolute. Harrell/Wilson , 353 Or. at 254, 297 P.3d 461. In the context of deciding whether to grant a defendant's request to waive a jury trial, a trial court's exercise of judicial discretion must "fall[ ] within a permissible range of legally correct outcomes" within the confines of Article I, section 11. Id . In determining the contours of that range, the Supreme Court in Harrell/Wilson -after reviewing the text, context, and history of the jury waiver provision in Article I, section 11-held that a trial court should "evaluate a criminal defendant's decision to waive trial by jury in the context of improving judicial economy, taking into account considerations of speed, economy, and the prosecutor's expressed preference for or against defendant's waiver, and the continued protection of the defendant's rights," as well as other considerations that may arise in a particular case. Id . at 264, 297 P.3d 461. As the court observed, the voters who enacted the jury waiver provision

"had reason to expect that the discretion undergirding a trial court's consent-or lack thereof-to [a defendant's request to waive a jury trial] for the most part would be informed by inquiries that corresponded to the amendment's overarching purpose: Will the resulting proceedings be faster? Will they be more economical? Will they fully protect the rights of the individual accused of a crime? As a general rule, affirmative answers to those questions logically would lead to the conclusion that a criminal defendant's jury waiver should be granted."

Id. at 260, 297 P.3d 461. We have since emphasized that, "[a]ll things considered, the paramount consideration remains whether a bench trial will fully protect a defendant's rights." Austin , 274 Or. App. at 120, 360 P.3d 603 (internal quotation marks and brackets omitted). Accordingly, we begin there.

In refusing to consent to defendant's waiver of a jury trial in this case, the trial court reasoned, in part, that it was "convinced that a jury would fully protect [defendant's] rights"; however, that reasoning does not take into account defendant's fundamental right to waive a jury trial under Article I, section 11. That the court was persuaded that a jury would be able to protect defendant's rights is not equivalent to a determination that defendant's rights would not be protected by his choice, under Article I, section 11, to waive a jury trial. See Harrell/Wilson , 353 Or. at 263, 297 P.3d 461 ("[I]n Oregon, the ability to waive trial by jury is a constitutional right that belongs to the individual who wishes to exercise it."); id. at 253, 297 P.3d 461 ("Under the Oregon Constitution, criminal defendants possess both the right to be tried by a jury and the concomitant right-albeit bounded by judicial consent-to waive that jury trial guarantee in favor of a bench trial." (Emphasis in original.)). In other words, the trial court's reasoning here that "a jury would fully protect [defendant's] rights" overlooks the precise right that defendant sought to exercise.

As noted above, in considering whether to consent to a jury waiver, the trial court's focus, with regard to protecting a defendant's rights, should be on whether a defendant's jury waiver is valid; that is, whether the waiver is voluntarily and knowingly made. Id . at 262, 297 P.3d 461 ("[I]f the exercise of [the jury waiver] right is to be protected, then a trial court's consent under Article I, section 11, should focus on the validity of the defendant's election to waive a jury trial."); Austin , 274 Or. App. at 120, 360 P.3d 603 ("In part, the consent requirement is to protect the defendant by assuring that waiver is voluntary and understandingly made with knowledge by the party of his or her rights." (Internal quotation marks and brackets omitted.)). The trial court's assertion that a jury trial would adequately protect defendant's rights does not address whether defendant knowingly and voluntarily made the waiver with an understanding of his rights, whether defendant accepted the court's premise or not. Thus, we agree with defendant that the trial court failed to properly consider that "paramount" factor.

We also find flaws in the trial court's reasoning with respect to its conclusion that interests of judicial economy weighed against granting defendant's waiver request.

Regarding "speed and economy," the Supreme Court has explained:

"[I]t is well-established that trial courts generally possess broad discretion to ensure that the proceedings before them are orderly and expeditious. [ State v. ] Rogers , 330 Or. [282, 301, 4 P.3d 1261 (2000) ]. See also ORS 1.010(3) (every court of justice has power to provide for orderly conduct of proceedings before it). And it goes without saying that, when defendants seek to waive jury trials in favor of bench trials, such a procedural change ordinarily results in a saving-often substantial-of time and money. Trial courts can realize those potential savings by consenting to a defendant's waiver of trial by jury."

Harrell/Wilson , 353 Or. at 261, 297 P.3d 461.

Here, the trial court reasoned that interests of speed and economy weighed against consenting to defendant's waiver of a jury trial, because the state had already expended financial resources by summoning potential jurors for a jury trial. The court explained:

"[I]t's certainly no more economical in this particular case, to waive a jury. The jury is here. They're going to get paid for being here today. We will still have to pay them for being here today, even if they don't do the trial."

However, the fact that the jurors had been summoned does not mean that a jury trial necessarily would be speedier and more economical than a bench trial. By focusing solely on the state financial resources that already had been expended in summoning the potential jurors, the trial court over-looked the time and resources that could be saved by going forward with a bench trial, for example by eliminating the time needed to conduct voir dire , to instruct the jury, and for the jury to deliberate. In addition, a bench trial could save the resources of the potential jurors' time in hearing and deciding the case because, presumably, those jurors would be excused or, perhaps, used for a different trial. In short, it does not appear that the court considered the expenditure of judicial resources as a whole when considering whether granting defendant's request would promote judicial economy.

Along similar lines, the trial court expressed concern about the timing of the waiver request-approximately 45 minutes before trial was set to begin-because the jurors had been notified the night before to appear and were "in the back room waiting to serve." As noted, trial courts ordinarily possess broad discretion in managing their courtroom proceedings. Id. (citing Rogers , 330 Or. at 301, 4 P.3d 1261, and ORS 1.010(3) ).

"[O]nce a trial has begun, a number of interests other than the defendant's Article I, section 11, rights come into play. Among those are the trial court's overriding obligation to ensure the fairness and integrity of the trial and its inherent authority to conduct proceedings in an orderly and expeditious manner."

State v. Hightower , 361 Or. 412, 417-18, 393 P.3d 224 (2017) ; see also Rogers , 330 Or. at 301, 4 P.3d 1261 ("A trial court's authority to exercise reasonable discretion to ensure that the trial is orderly and expeditious does not evaporate when the parties assert their constitutional rights during trial. Rather, a trial court is obliged to accommodate the exercise of all pertinent constitutional and statutory rights by all parties within the context of an orderly and expeditious trial." (Citations omitted.)).

We appreciate the trial court's frustration upon receiving defendant's waiver request at such a late hour, and we also appreciate the inconvenience to those in the jury pool who may have shown up to court only to be dismissed. However, defendant's requested waiver came before the trial had commenced and the jury had been empaneled, when the court could have dispensed with the jury without disrupting or prolonging the trial. Thus, the inconvenience to the court and the jurors was relatively minor, when weighed against defendant's exercise of his constitutional right to waive trial by jury.

For the reasons explained above, we conclude that the trial court's denial of defendant's right to waive trial by jury was not within the "permissible range of legally correct outcomes" and, therefore, was not a permissible exercise of the court's discretion. Accordingly, we reverse.

Reversed and remanded.

      Additionally, after the initial briefing was completed and following oral argument, defendant filed a supplemental brief that included five supplemental assignments of error, which all relate to the trial court's instruction to the jury that it could return a nonunanimous verdict. Defendant contends that the Sixth and Fourteenth Amendments to the United States Constitution require unanimous jury verdicts. We reject the supplemental assignments of error without further discussion.

      We do not understand the trial court to have determined that the court was not able to fully protect defendant's rights in a bench trial. If that were the case, recusal would be the proper course of action, not denial of defendant's jury-waiver request.

      A trial court may also consider the prosecutor's preference for a jury "when it is couched in terms of 'promoting judicial economy and seeking justice.' " Austin , 274 Or. App. at 120, 360 P.3d 603 (quoting Harrell/Wilson , 353 Or. at 261, 297 P.3d 461 ). Here, the prosecutor expressly took no position on defendant's request to waive a jury trial.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jeffrey Alan KERN, Defendant-Appellant.
    A165827
    Court of Appeals of Oregon.
    Submitted December 19, 2018. June 19, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah De La Cruz, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), a Class C felony, ORS 813.010(5). Among other terms, defendant's sentence for his DUII conviction included 60 months' imprisonment and an order to pay a "Fine-DUII" of $ 2,255. Defendant contends on appeal that the trial court erroneously believed that it was required to impose a $ 2,000 DUII fine and $ 255 conviction fee when, in fact, it had discretion to waive both amounts. Defendant concedes that he did not preserve his claims of error but asks us to review them for plain error. The state concedes that the trial court plainly erred in failing to exercise its discretion in imposing the $ 255 conviction fee. We agree and remand for resentencing, but otherwise affirm.

Under ORS 813.020, a court is generally required to order the defendant to pay a $ 255 DUII conviction fee. However, the court also has discretion to "waive all or part of the fee" in cases, like this one, "involving indigent defendants." ORS 813.030.

Here, it appears from the record that the court erroneously believed that it was required to impose an "assessment" fee under the DUII statute. Because the court failed to exercise its discretion whether to impose the $ 255 DUII conviction fee, we conclude that the court erred. State v. Larson , 289 Or. App. 60, 62, 408 P.3d 273 (2017) (court errs when it fails to consider under ORS 813.030 whether to require an indigent defendant to pay $ 255 DUII conviction fee).

Next, we address whether it is appropriate to exercise our discretion to correct the error. See Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382-83, 823 P.2d 956 (1991) (setting out factors to consider in the exercise of our discretion). Here, the gravity of the error and the ends of justice weigh in favor of exercising our discretion; $ 255 is a large sum of money for an indigent defendant who will be incarcerated for 60 months. See State v. Williams , 271 Or. App. 693, 694-95, 352 P.3d 742, rev. den. , 358 Or. 249, 364 P.3d 1002 (2015) (concluding that, for purposes of plain-error review, an unlawfully imposed $ 500 attorney-fee award was "not so small that it would not present a significant burden to a person without means"). We also see no strategic benefit to defendant from intentionally failing to object to the court's imposition of a fee when the court believed it was mandatory and not discretionary. Thus, we conclude that it is appropriate for us to exercise our discretion to correct the error. See State v. Sosa , 224 Or. App. 658, 663-64, 199 P.3d 346 (2008) (considering defendant's role in imposition of sentence).

Remanded for resentencing; otherwise affirmed.

      Because the case must be remanded for resentencing, we decline to address defendant's other unpreserved sentencing-related assignment of error under the strictures of plain-error review. On remand, defendant will have an opportunity to address the issue raised by the assignment. See, e.g. , State v. Jay , 251 Or. App. 752, 753 n. 1, 284 P.3d 597 (2012), rev. den. , 353 Or. 209, 297 P.3d 481 (2013) (similarly declining to reach unpreserved sentencing error where case was remanded for resentencing on a different assignment of error).


text:
    In the MATTER OF M. H. H., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. M. H. H., Appellant.
    A168313
    Court of Appeals of Oregon.
    Submitted January 4, 2019. August 7, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the Mental Health Division for a period not to exceed 180 days. ORS 426.130. Appellant contends that the trial court erred because the record does not contain clear and convincing evidence that appellant is a "person with mental illness." ORS 426.005(1)(f). The state concedes that the evidence is legally insufficient to support appellant's commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment of commitment.

Reversed.


text:
    In the MATTER OF T. M. W., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. T. M. W., Appellant.
    A169201
    Court of Appeals of Oregon.
    Submitted March 1, 2019. August 7, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and
    Hannah K. Hoffman, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing her to the Mental Health Division for a period not to exceed 180 days. ORS 426.130. In her first assignment of error, appellant contends that the trial court erred because the record does not contain clear and convincing evidence that appellant is a "person with mental illness." ORS 426.005 (1)(f). The state concedes that the evidence is legally insufficient to support appellant's commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the judgment of commitment. Based on that disposition, we do not reach appellant's second assignment of error.

Reversed.


text:
    In the MATTER OF A. W., a Person Alleged to have Intellectual Disabilities.
    State of Oregon, Respondent, v. A. W., Appellant.
    A167107
    Court of Appeals of Oregon.
    Submitted March 27, 2019. August 7, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Linder, Senior Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the Department of Human Services for a period not to exceed one year, ORS 427.215(1) and ORS 427.290, and an order prohibiting him from purchasing or possessing a firearm, ORS 426.130(1)(a)(D). In his first two assignments of error, appellant challenges his commitment on the bases that the record does not contain sufficient evidence that, due to an intellectual disability, appellant is a danger to himself and others and that the record does contain sufficient evidence that appellant was willing and able to participate in voluntary treatment. We reject those assignments of error without further discussion.

Appellant also challenges the order prohibiting him from purchasing or possessing a firearm under ORS 426.130(1)(a)(D). He argues that that statute only applies to a "person with mental illness" and that there is no authority to apply that statute to a person found to have an intellectual disability. The state concedes that the trial court lacked a statutory basis on which to enter the firearm order against appellant. We agree, accept the state's concession, and reverse the order prohibiting appellant from purchasing or possessing a firearm.

Order prohibiting purchase or possession of firearms reversed; otherwise affirmed.

      ORS 426.130(1)(a)(D) provides:
      "After hearing all of the evidence, and reviewing the findings of the examiners, the court shall determine whether the person has a mental illness and is in need of treatment. If, in the opinion of the court, the person:
      "(a) Is a person with mental illness based upon clear and convincing evidence, the court:
      "* * * * *
      "(D) Shall order that the person be prohibited from purchasing or possessing a firearm if, in the opinion of the court, there is a reasonable likelihood the person would constitute a danger to self or others or to the community at large as a result of the person's mental or psychological state as demonstrated by past behavior or participation in incidents involving unlawful violence or threats of unlawful violence, or by reason of a single incident of extreme, violent, unlawful conduct."


text:
    STATE of Oregon, Plaintiff-Respondent, v. Robert C. SHELBY, aka Robert Chieffoun Shelby, Defendant-Appellant.
    A166011
    Court of Appeals of Oregon.
    Submitted April 22, 2019. June 19, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Robert C. Shelby filed the supplemental brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for one count of first-degree burglary, four counts of first-degree kidnapping, one count of unlawful use of a weapon, four counts of first-degree rape, four counts of first-degree sexual abuse, one count of strangulation, two counts of fourth-degree assault, and three counts of first-degree sodomy. Those convictions arise from two separate events, involving two different victims, A and E. We write only to address the state's concessions on defendant's fifth, sixth, and seventh assignments of error. We reject defendant's remaining assignments of error, including the assignments of error raised in defendant's pro se supplemental brief, without written discussion.

In his fifth and sixth assignments of error, defendant contends that the trial court plainly erred in failing to merge the guilty verdicts on Counts 2 and 3, first-degree kidnapping of A, and on Counts 18 and 19, first-degree kidnapping of E. As against each victim, the two kidnapping counts were based on the same facts but were charged under two different legal theories. The state concedes that the trial court plainly erred in both instances. We agree with and accept the state's concessions. We further conclude that it is appropriate to exercise our discretion to correct the plain error for the reasons stated in State v. Camacho-Alvarez , 225 Or. App. 215, 217, 200 P.3d 613 (2009) -viz. , the state has no interest in our refusing to correct the error, we perceive no strategic or tactical reason for defendant's attorney not to have raised the issue at sentencing, and "the ends of justice are served by convicting and sentencing defendant according to the law." We thus reverse and remand Counts 2 and 3 for the court to merge those guilty verdicts and reverse and remand Counts 18 and 19 for the court to merge those guilty verdicts.

In his seventh assignment of error, defendant contends that the trial court erred in failing to merge the guilty verdicts on Counts 6, 7, and 8, first-degree sexual abuse of A, because the facts underlying those counts constituted a single, uninterrupted course of conduct against a single victim. See ORS 161.067(3) (setting out when there are separately punishable offenses for conduct against a single victim that violates a single statutory provision). Defendant argues that his assignment of error is preserved but, in the alternative, requests plain-error review. The state concedes that the assignment of error is preserved and that the trial court erred in failing to merge the verdicts, because this case is not materially distinguishable from State v. Nelson , 282 Or. App. 427, 386 P.3d 73 (2016). We agree with and accept the state's concessions. We thus reverse and remand Counts 6, 7, and 8 for the court to merge those guilty verdicts.

Convictions on Counts 2 and 3 reversed and remanded for entry of judgment of conviction for one count of first-degree kidnapping; convictions on Counts 18 and 19 reversed and remanded for entry of judgment of conviction for one count of first-degree kidnapping; convictions on Counts 6, 7, and 8 reversed and remanded for entry of judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.