Full Opinion (html_with_citations)

746                December 28, 2023                  No. 683

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                     Ann DaMOTA
                 and Kenneth DaMota,
                 Plaintiffs-Respondents,
                            v.
                   Jennifer JAHNIG
                    and Eric Jahnig,
                       Defendants,
                           and
                   Tiffany SUPPLEE
                  and William Supplee,
                 Defendants-Appellants.
             Josephine County Circuit Court
                  21LT01142; A176637

  Pat Wolke, Judge.
  Submitted November 3, 2022.
   William Supplee and Tiffany DaMota-Supplee filed the
briefs pro se.
  George W. Kelly filed the briefs for respondents.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  POWERS, J.
  Reversed and remanded.
Cite as
329 Or App 746
 (2023)   747
748                                         DaMota v. Jahnig

        POWERS, J.
          Defendants appeal from a general judgment entered
in favor of plaintiffs on their claims for ejectment and declar-
atory relief arising out of a dispute over real property, known
as the “Sand Creek Road property,” in Grants Pass. In three
assignments of error, defendants contend that (1) the court
erred in failing to require joinder of necessary parties;
(2) the court erred in applying the statute of frauds; and
(3) the court abused its discretion by not allowing defendants
to amend their answer, add counterclaims, and postpone
the trial date. As explained below, although we reject defen-
dants’ second and third assignments of error, we agree with
defendants’ first assignment and conclude that the court
erred in proceeding on the declaratory judgment claim and
granting declaratory relief in the absence of necessary par-
ties. Accordingly, we reverse the judgment and remand for
further proceedings.
          Joinder of necessary parties. In their first assign-
ment of error, defendants argue that the trial court should
have granted their motion to dismiss for failure to join nec-
essary parties, viz., plaintiffs’ three siblings who owned
the Sand Creek Road property as tenants-in-common with
plaintiffs. The trial court, relying on the rule that one tenant
can maintain an action for ejectment against nonowners,
denied defendants’ motion. See, e.g., South Portland L. Co. v.
Munger,
36 Or 457, 460-61
,
54 P 815
 (1898) (observing that
“the several and distinct freeholds of each co-tenant may be
the subject of a separate action for its recovery”; “the party
claiming the whole may proceed separately against each
person claiming to hold such an interest in the disputed
premises”; and “it may be convenient—perhaps proper—to
join all the co-tenants claiming adversely, yet it is not indis-
pensable or necessary that it should be done”); see also Le
Vee v. Le Vee,
93 Or 370, 382
,
183 P 773
 (1919) (“Tenants in
common hold their interest in realty independent of each
other. * * * It is true that as against a stranger one tenant
in common may recover possession of the whole of the land
held by” the tenant and the cotenants, “but this is because of
the only unity which is an ingredient of such an estate, viz.,
that of possession.”).
Cite as
329 Or App 746
 (2023)                                   749

          The trial court’s ruling was based on case law
regarding ejectment claims; however, ejectment was not the
only claim that plaintiffs brought. Plaintiffs’ operative com-
plaint alleged two claims: a claim for ejectment and a claim
for declaratory relief. On the second claim, plaintiffs sought
a decree “[r]equiring defendants and all persons claiming
under defendants to set forth the nature of their claims,
if any, to the [Sand Creek Road property]”; “[d]etermining
all adverse claims, if any, of defendants and all persons
claiming under defendants”; “[d]eclaring plaintiffs to be the
owner in fee simple of the real property described above
and entitled to possession thereof, free of any estate, title,
claim, lien, or interest of defendants or those claiming under
defendants and quieting title in the premises in plaintiffs”;
and “[e]njoining defendants and those claiming under defen-
dants from asserting any estate, title, claim, lien, or interest
in the premises or any portion thereof[.]” Defendants, on the
other hand, took the position that they had an interest in
the Sand Creek Road property based on an agreement with
all of the owners to the effect that defendants could renovate
and live in a house on the property.
         The trial court ultimately granted relief on both
claims, concluding that it agreed with plaintiffs’ arguments
and would “award ejectment, [and] a declaratory judg-
ment.” It then entered a judgment that did not differenti-
ate between the relief granted on each claim but included
a number of declarations that appear to have been based
on plaintiffs’ claim for declaratory relief, including that
“Defendants, or those claiming under Defendants, have no
estate, title, claim, lien, or interest in the [Sand Creek Road
property]” and that “Defendants, and those claiming under
Defendants, are enjoined from asserting any estate, title,
claim, lien, or interest in” the Sand Creek Road property.
         As defendants correctly point out, a claim for declar-
atory relief is governed by ORS 28.110, which provides:
      “When declaratory relief is sought, all persons shall be
   made parties who have or claim any interest which would
   be affected by the declaration, and no declaration shall prej-
   udice the rights of persons not parties to the proceeding.”
750                                        DaMota v. Jahnig

That requirement is “more rigorous” than the joinder
requirement that ordinarily applies to civil actions under
ORCP 29 A, “which, in some instances, permits a court
to proceed in the absence of a person that has ‘an interest
relating to the subject of the action.’ ” State ex rel Dewberry
v. Kulongoski,
220 Or App 345, 358
,
187 P3d 220
 (2008),
aff’d,
346 Or 260
,
210 P3d 884
 (2009). Instead, ORS 28.110
has been understood as a “jurisdictional” requirement that
“serves a broader purpose than the protection of an absent
party’s interests. It also protects the certainty of the judg-
ment itself.” Vance v. Ford,
187 Or App 412, 424-25
,
67 P3d 412
 (2003). Thus, even if the absent party would not have
been bound by the judgment, ORS 28.110 prevents courts
from issuing declaratory judgments “when others, not
bound, might later raise the identical question and deprive
the declaration of that final and pacifying function it is cal-
culated to subserve.”
Id.
 at 424-25 (quoting Stanley, Adm. v.
Mueller,
211 Or 198, 209
,
315 P2d 125
 (1957) (internal cita-
tion and quotation marks omitted)).
         Here, the other owners of the Sand Creek Road
property had interests that would be affected by the declar-
atory relief sought by plaintiffs, and they might later raise
identical questions to those resolved by any declaratory
judgment issued in this case. Plaintiffs requested a dec-
laration about the interests that defendants held in the
Sand Creek Road property, and the trial court entered a
judgment that included declarations about plaintiffs’ and
defendants’ interests in the property—issues that turned,
in part, on evidence about what each of the sibling owners
had intended and what had been communicated to defen-
dants. Thus, we conclude that, under ORS 28.110, the trial
court lacked authority to enter a declaratory judgment
regarding the interests in the Sand Creek Property with-
out joining those other owners of the property. See Miller
v. Shenk,
272 Or App 12, 18
,
354 P3d 732
, rev den,
358 Or 374
 (2015) (holding that a declaration that the plaintiff had
an easement over a roadway would directly affect holders
of an easement over the same roadway, such that the other
holder was a necessary party to the plaintiff’s declaratory
judgment action).
Cite as
329 Or App 746
 (2023)                              751

         The question then becomes one of remedy. In this
case, the trial court had personal jurisdiction over the par-
ties and subject matter jurisdiction over their dispute, but
it lacked the power to enter a declaratory judgment without
all necessary parties before it. See Kaiser Foundation Health
Plan v. Doe,
138 Or App 428, 432
,
908 P2d 850
, rev den,
324 Or 394
 (1996) (describing that distinction). As we explained
in Oregon Trucking Assns. v. Dept. of Transportation,
288 Or App 822
, 836,
407 P3d 849
 (2017), aff’d,
364 Or 210
,
432 P3d 1080
 (2019), the ordinary remedy “in a case in which
a necessary party has not been joined is to remand with
instructions to dismiss the action unless the necessary party
is joined within a reasonable time,” but “[i]n some cases * * *
the appellate courts have determined that the absent par-
ty’s interests were protected by one of the named parties
and remanded with instructions simply to add the absent
party before entering final judgment.” (Internal quotation
marks omitted.) In Oregon Trucking Assns., it appeared that
the defendants may have adequately protected the absent
party’s interests, which would have permitted entry of a
final judgment in accordance with the court’s opinion, pro-
vided that the absent party was first joined.
Id.
 Accordingly,
we reversed and remanded for the trial court to dismiss the
claim “unless [the necessary party] is joined within a time
to be set by the trial court, and, if [the necessary party] is
joined, for the trial court to proceed to enter declaratory
judgment consistent with this opinion unless it determines
that there is insufficient identity of interests between defen-
dants and [the necessary party].”
Id.
         This case and Oregon Trucking Assns. present sim-
ilar situations. Here, plaintiffs may have adequately pro-
tected the interests of the other tenants-in-common (each
of whom testified as a witness called by plaintiffs), which
would permit entry of judgment, provided that they are first
joined as parties. Accordingly, we reverse the judgment and
remand for the trial court to dismiss the declaratory judg-
ment claim unless the other owners of the Sand Creek Road
property are joined within a time to be set by the trial court;
and, if they are joined, for the trial court to proceed to enter
declaratory judgment consistent with this opinion unless
752                                                     DaMota v. Jahnig

it determines that there is insufficient identity of interests
between plaintiffs and the other owners.1
          Statute of frauds. In light of our conditional remand
as to the declaratory relief, we proceed to address defendants’
remaining assignments of error because they could provide
greater relief if defendants were to prevail on those assign-
ments. In their second assignment, defendants argue that
the trial court erroneously applied the statute of frauds and
should have concluded that the circumstances fell within
an exception for partial performance of an oral agreement.
Defendants essentially reargue the facts presented to the
trial court and ask us to take de novo review. Under ORAP
5.40(8)(c), we exercise our discretion to take de novo review
only in “exceptional” cases. See also ORAP 5.40(8)(d) (out-
lining nonexclusive list of criteria relevant to whether we
will exercise our discretionary authority to review de novo).
Defendants did not explain why this is an exceptional case
in which we should exercise our discretion, and we are not
persuaded that de novo review is warranted in this case. In
light of the court’s factual findings, which we do not revisit
on appeal, defendants have not demonstrated any legal error
in the trial court’s application of the statute of frauds.
          Request to amend answer and postpone trial. In
their third assignment, defendants assert that the trial
court erred in denying them the ability to file an amended
answer, assert counterclaims, and postpone the trial date.
A trial court has broad discretion under ORCP 23 in deter-
mining whether to allow a party to amend the pleadings.
See, e.g., Crandon Capital Partners v. Shelk,
219 Or App 16, 40
,
181 P3d 773
, rev den,
345 Or 158
 (2008). We will uphold
the trial court’s decision unless it exercises that discretion
in a manner that is unjustified by, and clearly against, rea-
son and evidence. See, e.g., Sanford v. Hampton Resources,
Inc.,
298 Or App 555, 576-77
,
447 P3d 1192
, rev den,
366 Or 64
 (2019) (discussing our standard of review and out-
lining factors used to evaluate a court’s exercise of discre-
tion). Similarly, a trial court has broad authority to rule on
     1
       As noted above, the judgment does not delineate between the relief granted
on the two claims; on remand, the court will have the opportunity to specify the
relief granted on each claim.
Cite as
329 Or App 746
 (2023)                            753

a motion to postpone trial, and we review the court’s ruling
for an abuse of discretion. See J. D. v. Klapatch,
275 Or App 992, 997
,
365 P3d 1169
 (2015) (so stating). On this record,
where defendants had been granted a continuance to hire
counsel, were later denied a second continuance after coun-
sel still had not been hired, and where defendants’ motion to
enlarge the time for pleading and for postponing trial were
filed less than a week before the rescheduled trial date, the
court did not abuse its discretion in denying the motions.
        Reversed and remanded.