HASELTON, P.J.

This case is on remand from the Oregon Supreme Court, which reversed our prior decision and remanded the case to us for further proceedings concerning several cross-assignments of error that we had no occasion to address in light of our disposition. Ram Technical Services, Inc. v. Koresko, 215 Or.App. 449, 171 P.3d 374 (2007) (Ram I), adh'd to as clarified on recons., 217 Or.App. 463, 177 P.3d 10 (2008) (Ram II), rev'd, 346 Or. 215, 208 P.3d 950 (2009) (Ram III). The issues on remand concern the trial court's denial of various motions to dismiss under ORCP 21. Specifically, we must determine whether the trial court erred in denying various defendants'1 motions to dismiss (1) under ORCP 21 A(8) for failure to state a claim; (2) under ORCP 21 A(9) on statute of limitations grounds; and (3) under ORCP 21 A(3) because "an earlier action already was pending in Pennsylvania." Further, we must determine whether the trial court erred in denying a motion to dismiss defendant Koresko under ORCP 21 A(2) on the ground that it lacked personal jurisdiction over him in light of the "fiduciary shield doctrine." As explained below, we conclude that the trial court did not err in denying the motions. Accordingly, in light of the Supreme Court's decision in Ram III and our rejection of the Corben and Crosswhite defendants' and the VEBA defendants' cross-assignments of error, we reverse and remand on appeal and dismiss the cross-appeal as moot.

I. THE FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are complex. For that reason and to provide context, we begin with a general overview of the undisputed procedural facts. To the extent that resolution of the issues on remand requires that we augment those facts, we do so in the context of addressing the parties' contentions.

In July 2003, plaintiffs filed an action against defendants in the United States District Court for the District of Oregon. In their complaint in that action,

Ram I, 215 Or.App. at 452-53, 171 P.3d 374. Pursuant to 29 U.S.C. section 1132(a)(3) of the Employee Retirement Income Security Act (ERISA), plaintiffs sought either rescission of their agreement or imposition of a constructive trust on payments that they had made to defendants. Defendants moved to dismiss plaintiffs' complaint for failure to state a claim under ERISA, and the district court granted their motion, noting that "an action to rescind an employee benefit plan because of fraud in the inducement arises, if at all, under state law." Ram III, 346 Or. at 219, 208 P.3d 950.

In April 2004, while the federal litigation was still pending, two of the VEBA defendants filed a complaint against plaintiffs as well as defendant Great Southern in Pennsylvania state court (the Pennsylvania action). In general, those VEBA defendants raised, inter alia, fraud and negligent misrepresentation claims against Great Southern and the Corben and Crosswhite defendants based on alleged statements concerning the operation, benefits, and tax consequences of the benefit plan and a claim to rescind the underlying insurance policies.

Then, in October 2004, also during the pendency of the federal action (and during the pendency of the Pennsylvania action), plaintiffs filed this action in Clackamas County Circuit Court. In their complaint, plaintiffs

Ram I, 215 Or.App. at 454, 171 P.3d 374.

The Corben and Crosswhite defendants filed various motions to dismiss the case pursuant to ORCP 21. As pertinent to the issues on remand, the Corben and Crosswhite defendants contended that this case should be dismissed for failure to state a claim pursuant to ORCP 21 A(8) on the ground that the dismissal of the federal action "was on the merits and has a res judicata effect against all claims plaintiffs raised or could have raised" in that action. Alternatively, the Corben and Crosswhite defendants contended that, because plaintiffs filed this case in October 2004—more than two years after they knew of the alleged misrepresentations —plaintiffs' fraud claim was barred by the two-year statute of limitations and the trial court should have dismissed it pursuant to ORCP 21 A(9).

The VEBA defendants also filed various motions to dismiss pursuant to ORCP 21. Two of those motions command the bulk of our consideration on remand. See 240 Or. App. at 629-40, 247 P.3d at 1256-62.

First, the VEBA defendants moved to dismiss this case under ORCP 21 A(3) because the Pennsylvania action was pending. Specifically, they contended that the court should dismiss plaintiffs' claims in this case because the Pennsylvania action "will necessarily adjudicate the claims" whether or not plaintiffs assert a counterclaim in that action. (Emphasis in original.) In response, plaintiffs asserted that, under basic preclusion principles, "[b]ecause there are no compulsory counterclaims in Pennsylvania, and because plaintiffs have not sought any affirmative relief in Pennsylvania, the pending action in Pennsylvania does not preclude this action,"3 and, accordingly, the court should not dismiss it.

Second, the VEBA defendants moved to dismiss defendant Koresko under ORCP 21 A(2) on the ground that the court lacked personal jurisdiction over him in light of the "fiduciary shield doctrine."4 They urged the trial court to adopt that doctrine and explained that, because "the fiduciary shield doctrine provides protection to Mr. Koresko, who was acting in his capacity for [defendant] Penn-Mont[,]" plaintiffs' "claims against him should be dismissed for lack of personal jurisdiction." Plaintiffs responded that the court should not adopt the "fiduciary shield doctrine" but that, even if it did, the doctrine would not apply under the circumstances of this case because the evidence submitted in opposition to the VEBA defendants' motions supported the allegations in their complaint and demonstrated that "Koresko acted at least in part on behalf of himself" rather than "solely in his capacity as counsel for and agent for Penn Mont[.]"

Ultimately, the trial court, without elaboration, denied the various defendants' motions to dismiss under ORCP 21.

Thereafter, defendants moved for summary judgment, arguing that claim preclusion and the statute of limitations provided complete defenses to plaintiffs' claims. The gravamen of defendants' claim preclusion argument was that plaintiffs' common-law fraud claim could have been brought by way of supplemental jurisdiction in the federal litigation and that no recognized exception to claim preclusion applied in these circumstances. Ram I, 215 Or.App. at 455, 171 P.3d 374. The trial court granted summary judgment on both grounds and entered judgment in defendants' favor.

Plaintiffs appealed, challenging the dismissal on summary judgment of their common-law fraud claim against defendants as being barred by claim preclusion arising from the determination of prior federal litigation between the parties. In Ram I, we held that, because plaintiffs could have raised their common-law claims in their prior federal litigation with defendants, they were precluded from litigating those claims in state court. That holding was essentially predicated on our understanding that "broadened [federal] supplemental jurisdiction rules not only allow[ed] plaintiffs to litigate both state and federal issues at once in federal court, but they also compel[led] plaintiffs to assert all of their transactionally related claims in a single federal forum—or risk losing them to claim preclusion." Id. at 461, 171 P.3d 374.

Given that holding and in light of our reasoning, we did not address whether "the statute of limitations also and independently barred the prosecution of this action." Id. at 452 n. 2, 171 P.3d 374. Further, we did not address various cross-assignments of error raised by the Corben and Crosswhite and the VEBA defendants that were directed at the trial court's denial of various defendants' motions to dismiss pursuant to ORCP 21 A.5 Id.

As noted, in Ram III, the Supreme Court reversed our decision. The court held that, "[b]ecause the record demonstrates that the district court would not have exercised supplemental jurisdiction over plaintiffs' state law claims, * * * claim preclusion does not bar plaintiffs from pursuing those claims in state court." 346 Or. at 229, 208 P.3d 950.

Having rejected defendants' contentions concerning claim preclusion, the court then addressed defendants' alternative argument that, "even if claim preclusion is not a bar, plaintiffs' state action is untimely." Id. As the Supreme Court noted, and as was understood by the parties, the dispositive issue was whether the extended statute of limitations in ORS 12.220 applied to the circumstances of this case.6 Id. The Supreme Court concluded that "plaintiffs' state action is based on the `same claim' that plaintiffs pled in the federal action," id. at 236, 208 P.3d 950, and that "this is not a case in which the district court's ruling on plaintiffs' ERISA claim adjudicated the merits of their state fraud claims," id. at 235-36, 208 P.3d 950. Accordingly, the court held that "the extended statute of limitations in ORS 12.220 applies" and "plaintiffs' state action is timely." Id. at 236-37, 208 P.3d 950. As a consequence, the Supreme Court reversed our decision and remanded the case so that we could consider the cross-assignments of error that, because of our analysis, we had no occasion to address in Ram I.

II. THE CORBEN AND CROSSWHITE DEFENDANTS' MOTIONS TO DISMISS PURSUANT TO ORCP 21 A(8) AND ORCP 21 A(9)

Given the Supreme Court's directive, we turn first to the Corben and Crosswhite defendants' cross-assignments of error concerning the trial court's denial of their motions to dismiss for failure to state a claim "on the grounds of res judicata," ORCP 21 A(8), and statute of limitations, ORCP 21 A(9). We understand those motions to have been predicated on legal premises pertaining to claim preclusion and the operation of ORS 12.220 that the Supreme Court rejected in Ram III in reversing the allowance of summary judgment on those grounds. Accordingly, in light of the Supreme Court's disposition and analysis in Ram III, we reject the Corben and Crosswhite defendants' cross-assignments of error without further discussion.

III. THE VEBA DEFENDANTS' MOTIONS TO DISMISS PURSUANT TO ORCP 21 A(3) AND ORCP 21 A(2)

Resolution of the VEBA defendants' cross-assignments of error, however, requires a detailed discussion. Specifically, the VEBA defendants contend that the trial court "err[ed] in refusing to dismiss the Oregon action on the grounds that an earlier action already was pending in Pennsylvania," ORCP 21 A(3), and erred "as a matter of law in not dismissing plaintiffs' claims against [defendant Koresko] for lack of personal jurisdiction on the basis of the fiduciary shield doctrine," ORCP 21 A(2).

A. The Denial of Dismissal Pursuant to ORCP 21 A(3)

We turn first to their cross-assignment of error concerning the court's failure to dismiss pursuant to ORCP 21 A(3) because there was another pending action in Pennsylvania that had been filed by two of the VEBA defendants against plaintiffs in this case as well as Great Southern and the Corben and Crosswhite defendants.7 Because it provides context for the parties' contentions on review, we begin by describing the principles that inform our analysis of that legal ruling. See Eli v. Lampert (A116201), 194 Or.App. 280, 282, 94 P.3d 170 (2004), rev. den., 338 Or. 57, 107 P.3d 626 (2005) (reviewing ruling pursuant to ORCP 21 A(3) "for errors of law").

ORCP 21 A(3) provides for the dismissal of an action when "there is another action pending between the same parties for the same cause." In Lee v. Mitchell, 152 Or.App. 159, 164, 165, 953 P.2d 414 (1998), we recognized that a dismissal for another action pending under ORCP 21 A(3) furthers the same purpose as that underlying the application of general claim preclusion principles— viz., to "prevent[ ] requiring a party to litigate the same claim twice on the merits." Thus, there is a "close connection" between dismissal under ORCP 21 A(3) and the claim preclusion doctrines of merger and bar, and "determining whether either applies involves similar considerations." Lee, 152 Or.App. at 164-65, 953 P.2d 414. Accordingly, "[i]f entry of a judgment in the other pending actions would preclude plaintiffs from asserting any claims in this case, the court should dismiss those claims." Id. at 166, 953 P.2d 414 (omitted).

In making that determination, we are guided by claim preclusion principles that we outlined in G.B. v. Morey, 229 Or.App. 605, 608-09, 215 P.3d 879 (2009), rev. den., 347 Or. 608, 226 P.3d 43 (2010). Specifically, in that case, we explained:

229 Or.App. at 608-09, 215 P.3d 879 (citations, internal quotation marks, and brackets omitted).

Although claim preclusion principles operate generally to prohibit "claim splitting," there are some recognized rules that allow such splitting under certain circumstances. As pertinent here, one of those rules is that, in the absence of a compulsory counterclaim statute, "claim preclusion does not apply when the plaintiff in the second case failed, as a defendant in the first case, to raise a counterclaim." Id. at 609, 215 P.3d 879 (emphasis omitted). See also Lee, 152 Or.App. at 166, 953 P.2d 414. Without such a rule, application of the principles of claim preclusion "would, in effect, create a law of compulsory counterclaim in Oregon" even though "[t]he law in this state is to the contrary." Burlington Northern v. Lester, 48 Or.App. 579, 583, 617 P.2d 906 (1980).

That rule, however, is subject to an exception—viz., "if the first case necessarily adjudicated the claim that the plaintiff pleads in the second case, that claim is precluded."8 G.B., 229 Or.App. at 609, 215 P.3d 879 (emphasis added). As amplified below, the "necessarily adjudicated" exception is the predicate and lynchpin of the VEBA defendants' invocation of ORCP 21 A(3). Accordingly, we address its provenance and content in detail.

The "necessarily adjudicated" exception derives from a statement in the Supreme Court's decision in Gwynn v. Wilhelm, 226 Or. 606, 610, 360 P.2d 312 (1961). In that case, the Supreme Court stated:

226 Or. at 610, 360 P.2d 312 (emphasis added).

Although the "necessarily adjudicated" exception has developed in the context of claim preclusion, the Supreme Court recently elucidated that the exception is, in fact, predicated on principles of issue preclusion. In State ex rel. English v. Multnomah County, 348 Or. 417, 433 n. 11, 238 P.3d 980 (2010), the court, quoting the italicized statement from Gwynn, explained:

Unlike claim preclusion, issue preclusion, in broad terms, "precludes future litigation on a subject issue only if the issue was actually litigated and determined in a setting where its determination was essential to the final decision reached." Drews v. EBI Companies, 310 Or. 134, 139, 795 P.2d 531 (1990) (internal quotation marks omitted; emphasis added). Accordingly, and given the Supreme Court's explanation of the underpinnings of the "necessarily adjudicated" exception, we understand that it applies when the factual and legal issues that the plaintiff raises in the second case were actually adjudicated and essential to the determination of the first case. Indeed, that understanding comports literally with the Supreme Court's description of the exception, viz., "which was necessarily adjudicated," Gwynn, 226 Or. at 610, 360 P.2d 312 (emphasis added)—and not "which will be necessarily adjudicated."

With those principles in mind, we turn to the VEBA defendants' contention that, "[u]nder ORCP 21 A(3), the Circuit Court should have dismissed this action in favor of the first-filed Pennsylvania case filed by the VEBA Defendants." Specifically, the VEBA defendants assert that,

(Internal quotation marks and citations omitted.)

In sum, the VEBA defendants recognize that the availability of dismissal under ORCP 21 A(3) depends on the "necessarily adjudicated" exception. Specifically, the VEBA defendants appear to acknowledge that, because counterclaims are not compulsory in Pennsylvania,9 preclusion would not prohibit plaintiffs, who failed to raise counterclaims as defendants in the first-filed Pennsylvania action, from raising their current claims unless the "necessarily adjudicated" exception applies. In invoking that exception, the VEBA defendants contend that the dispositive issue is "whether the first-filed Pennsylvania case will necessarily adjudicate the fraud claim in this later filed case"—and not that issues essential to the Oregon claims have actually been adjudicated in the Pennsylvania action. (Emphasis added.)

For their part, plaintiffs disagree that the "necessarily adjudicated" exception applies. Specifically, they disagree with the VEBA defendants' characterization of the exception as requiring a speculative examination of whether the first-filed Pennsylvania action will necessarily adjudicate their claims. Instead, they posit that the exception does not apply because the Pennsylvania action had not yet been adjudicated. Alternatively, they assert that, "[e]ven assuming [that] the Pennsylvania action makes its way to trial and * * * [the pertinent VEBA defendants prevail], plaintiffs in this case will not receive the relief to which they are entitled."

As framed by the parties, the dispositive legal issue is whether the "necessarily adjudicated" exception applies under the circumstances of this case.10 As previously described, that exception applies only when the factual and legal issues that a plaintiff raises in a second action were actually adjudicated and essential to the determination of the first-filed action. See 240 Or.App. at 631-33, 247 P.3d at 1257-58. Because we understand that the Pennsylvania action has not been adjudicated, the exception does not apply.

In so holding, we emphasize three salient considerations. First, as noted—and consistently with Gwynn's "was necessarily adjudicated" formulation, 226 Or. at 610, 360 P.2d 312 (emphasis added)—the "necessarily adjudicated" exception finds its origin in issue preclusion principles that require the actual litigation and determination of pertinent legal and factual issues. Second, any determination that the Pennsylvania action will necessarily adjudicate the claims that plaintiffs raised here is speculative until a judgment is entered disposing of that case—indeed, the Pennsylvania action could settle without an adjudication of the merits. Third, applying the VEBA defendants' proposed "will necessarily adjudicate" construct would completely abrogate the rule (viz., in the absence of a compulsory counterclaim statute, a plaintiff who, as a defendant, did not assert a counterclaim in the first action is not barred from raising that claim in the second action) that the "necessarily adjudicated" exception was intended to merely qualify. That is so, because defendant's formulation would, in effect, transmute noncompulsory counterclaims into compulsory ones. See Burlington Northern, 48 Or.App. at 583, 617 P.2d 906 (stating the general rule that, in the absence of a compulsory counterclaim statute, claim preclusion does not apply when the plaintiff in the second case failed, as a defendant in the first case, to raise a counterclaim; reasoning that the rule is necessary to avoid requiring compulsory counterclaims where the law does not otherwise so provide).

Plaintiffs are not precluded from raising their current claims. Accordingly, the trial court did not err in denying the VEBA defendants' motion to dismiss pursuant to ORCP 21 A(3) on the ground that there was another action pending.

B. The Denial of Dismissal Pursuant to ORCP 21 A(2)

We proceed, finally, to the VEBA defendants' cross-assignment of error challenging the trial court's denial of their motion to dismiss defendant Koresko under ORCP 21 A(2), for "lack of jurisdiction over the person." In particular, they assert that such a dismissal is compelled under the "fiduciary shield doctrine." According to the VEBA defendants, the "fiduciary shield doctrine" is a principle that "bars this court's exercise of personal jurisdiction over an individual who at all times was acting within his official capacity and scope of duty as an officer of a corporate defendant."11 (Emphasis added.)

In Kotera v. Daioh Int'l U.S.A. Corp., 179 Or.App. 253, 262, 40 P.3d 506 (2002), we explained that,

(Emphasis omitted.) Further, "[w]here, as here, the trial court made no express findings, we assume that the court found facts consistent with its judgment" and "review the court's assumed factual findings to determine whether they are supported by any competent evidence[.]" Sutherland, 131 Or. App. at 28, 883 P.2d 1318 (internal quotation marks omitted). "Once the jurisdictional facts are established, we review the determination of personal jurisdiction for errors of law." Kotera, 179 Or.App. at 262, 40 P.3d 506.

Given that standard, we recount the material content of the pleadings and the parties' submissions pertaining to jurisdiction in some detail. In their complaint, plaintiffs alleged, in part, that defendants "Koresko and Crosswhite, on behalf of themselves, Corben, Penn-Mont, and Great Southern, told Plaintiffs that annual contributions by the Plaintiffs were not required in order to sustain the VEBA-funded benefit plan" and that plaintiffs were harmed as a result of their reasonable reliance on those representations.

As previously described, the VEBA defendants moved to dismiss defendant Koresko for lack of personal jurisdiction under the "fiduciary shield doctrine" and submitted a supporting affidavit from Koresko.13 Specifically, the VEBA defendants explained:

"Mr. Koresko is the general counsel of Penn-Mont, alleged by plaintiffs to be the Plan administrator. Supposedly, according to plaintiffs, Mr. Koresko made representations both on behalf of himself as an individual and on behalf of Penn-Mont, but plaintiffs do not specify what representation was made in which capacity. However, Mr. Koresko states in his affidavit that all of his dealings with plaintiff have been in a representative capacity. Based upon this evidence, unless plaintiffs allege and can prove some act or omission by Mr. Koresko outside the scope of his duties for Penn-Mont, jurisdiction over him in Oregon is barred by the fiduciary shield doctrine."

Plaintiffs responded with their own argument and evidentiary submissions. Their arguments were two-fold. First, plaintiffs contended that the VEBA defendants "fail[ed] to offer authority to this Court that would support the proposition that Oregon should adopt the fiduciary shield doctrine." Second and alternatively, plaintiffs contended that, even if the trial court adopted the "fiduciary shield doctrine," it would not apply to the circumstances of this case because plaintiffs' evidence submitted in opposition to the VEBA defendants' motion supported the allegations in their complaint that "Koresko acted at least in part on behalf of himself" rather than "solely in his capacity as counsel for and agent for Penn Mont[.]"

Plaintiffs' evidence pertaining to personal jurisdiction included an affidavit from plaintiff Charles Stalnaker and various documents provided to plaintiffs as they considered whether to create the benefit plan that identified Koresko individually as an attorney or certified public accountant without reference to an association with Penn-Mont or any other VEBA defendant. In his affidavit, Stalnaker also states that, in October 2000, he attended a meeting at a hotel in Lake Oswego at which "Mr. Koresko specifically told me, in response to my question, that annual contributions were not required in order to sustain the VEBA."

As previously indicated, the trial court denied the motion without elaboration.

On appeal, the parties essentially reiterate the contentions that they raised to the trial court. For their part, the VEBA defendants again posit that,

The VEBA defendants' contentions on appeal are exceptionally narrow in scope. Consistently with their position before the trial court, on appeal the VEBA defendants do not contend that plaintiffs failed to demonstrate that the court had personal jurisdiction over Koresko under the standards articulated in ORCP 4, which provides various bases for an Oregon court's exercise of personal jurisdiction over a defendant. In fact, the VEBA defendants assert that

(Emphasis in original.) Thus, we understand the VEBA defendants' position to be that personal jurisdiction over Koresko is lacking only if (a) the court adopts the "fiduciary shield doctrine" as an exception to the requirements of ORCP 4 and (b) the doctrine applies to the circumstances of this case.

We need not determine whether to adopt the "fiduciary shield doctrine" as described by the VEBA defendants.14 That is so because, even if the VEBA defendants are correct that the "fiduciary shield doctrine" bars the "exercise of personal jurisdiction over an individual who at all times was acting within his official capacity and scope of duty as an officer of a corporate defendant," plaintiffs submitted evidence in opposition to the VEBA defendants' motion from which the trial court could have found that Koresko was not at all times acting within his "official capacity."

Despite various documents indicating that Koresko was acting in a representative capacity and Koresko's statements in his affidavit indicating that all of his visits and dealings with plaintiffs' "welfare benefit arrangement" were in his capacity as an officer or attorney for Penn-Mont, plaintiffs alleged that Koresko acted, at least in part, on his own behalf and, in support of those allegations, submitted some documentary evidence in which Koresko was held out as an individual without reference to any association with Penn-Mont or any other VEBA defendant. In light of our standard of review, that evidence was sufficient for the trial court to determine that, even if Oregon courts adopted the "fiduciary shield doctrine" as formulated by defendants, it did not apply to the circumstances of this case because Koresko, in his dealings with plaintiffs, did not at all times act "within his official capacity and scope of duty as an officer" of any of the VEBA defendants.15

The trial court did not err in denying the VEBA defendants' motion to dismiss for lack of jurisdiction under ORCP 21 A(2).

IV. DISPOSITION

As previously described, plaintiffs appealed following the dismissal of their action after the trial court granted defendants summary judgment on claim preclusion and statute of limitations grounds. Within the context of that appeal, the Corben and Crosswhite defendants raised cross-assignments of error in which they sought to reverse the trial court's ruling concerning certain ORCP 21 motions. Similarly, the VEBA defendants also sought to reverse the trial court's rulings concerning two of their ORCP 21 motions. However, rather than raising cross-assignments of error in the context of plaintiffs' appeal, the VEBA defendants filed a cross-appeal. As we previously indicated, that cross-appeal was "miscast," and, for purposes of our analysis, we have treated the VEBA defendants' contentions as cross-assignments of error. Thus, in light of the Supreme Court's decision in Ram III and our rejection of the Corben and Crosswhite defendants' and the VEBA defendants' cross-assignments of error, we reverse and remand on appeal and dismiss the cross-appeal as moot.

Reversed and remanded on appeal; cross-appeal dismissed as moot.