Chapter 019

 

      Chapter 19

 

NOTES OF DECISIONS

 

      This chapter does not apply to workers’ compensation proceedings since it governs appellate review of lower court decisions and not decisions of administrative tribunals. SAIF v. Maddox, 60 Or App 507, 655 P2d 214 (1982), aff’d 295 Or 448, 667 P2d 529 (1983)

 

      19.010

 

      See annotations under ORS 19.205.

 

      19.015

 

      See annotations under ORS 19.225.

 

      19.020

 

      See annotations under ORS 19.245.

 

      19.023

 

      See annotations under ORS 19.240.

 

      19.026

 

      See annotations under ORS 19.255.

 

      19.028

 

      See annotations under ORS 19.260.

 

      19.029

 

      See annotations under ORS 19.250.

 

      19.033

 

      See annotations under ORS 19.270.

 

      19.034

 

      See annotations under ORS 19.235.

 

      19.035

 

      See annotations under ORS 19.265.

 

      19.069

 

      See annotations under ORS 19.385.

 

      19.078

 

      See annotations under ORS 19.370.

 

      19.095

 

      See annotations under ORS 19.395.

 

      19.125

 

      See annotations under ORS 19.415.

 

      19.130

 

      See annotations under ORS 19.420.

 

      19.140

 

      See annotations under ORS 19.425.

 

      19.160

 

      See annotations under ORS 19.445.

 

      19.205

(formerly 19.010)

 

NOTES OF DECISIONS

 

In general

 

      An order denying a motion to dismiss is not final and does not fall within the provisions of this section. Green v. Lilly Enterprises, Inc., 273 Or 952, 544 P2d 169 (1975)

 

      Court of Appeals lacked jurisdiction to review order sustaining demurrer to complaint. J. Gregcin, Inc. v. City of Dayton, 287 Or 709, 601 P2d 1254 (1979)

 

      Where trial court issued order awarding partial summary judgment in favor of plaintiff on issue of liability but no judgment was entered after order, order was not final judgment within meaning of this section, and court had discretion to vacate it. Journeymen, Inc. v. Judson, 45 Or App 249, 608 P2d 563 (1980), Sup Ct review denied

 

      Where court set aside verdict without entering judgment, order granting new trial was not appealable and lack of jurisdiction could not be cured by dating judgment nunc pro tuncas of date prior to notice of appeal. Mangus v. Progress Quarries, 290 Or 377, 622 P2d 319 (1981)

 

      Order of circuit court providing that “Court is not required to answer questions of the nature asked by plaintiff in his Declaratory Judgment and will not answer said questions” is non-appealable and appeal was dismissed on court’s own motion for want of jurisdiction. Meyer v. Joseph, 295 Or 588, 668 P2d 1228 (1983)

 

      Order granting defendants’ motion in its entirety and dismissing complaint without leave to replead was not final order within meaning of paragraph (2)(a) of this section; an “order” cannot take the place of a “judgment or decree.” City of Portland v. Carriage Inn, 296 Or 191, 673 P2d 531 (1983)

 

      Order denying motion for relief from contempt order is functionally identical to motion to vacate an order and is not appealable. State ex rel Washington County v. Betschart, 72 Or App 692, 697 P2d 206 (1985)

 

      Court order allowing execution on judgment was not a final order affecting substantial right; all rights had been finally adjudicated by dissolution decree under ORS 107.105. Foster and Foster, 74 Or App 282, 701 P2d 1053 (1985)

 

      Neither “order” directing personal representative to pay previously allowed claim nor “judgment-order” denying objection to claim underlying first order was appealable in circumstances of this case. Goeddertz v. Parchen, 299 Or 277, 701 P2d 781 (1985)

 

      Where trial judge entered one order declaring that decedent had died intestate and another order dismissing petition for reconsideration, appeal was premature because no judgment had been entered. Mitchell v. Estate of Mitchell, 84 Or App 58, 733 P2d 456 (1987)

 

      Judgment dismissing action was appealable. Austin Mutual Ins. Co. v. Madril, 94 Or App 219, 764 P2d 1378 (1988)

 

      Award of attorney fees is itself to be considered judgment and is thus appealable. Marquez v. Meyers, 96 Or App 214, 772 P2d 437 (1989)

 

      Where defendant was not party to murder trial and thus could not have appealed any judgment entered therein and where mandamus would be impractical, defendant’s only opportunity to raise issue of validity of underlying order was by appealing judgments of contempt. State v. Nefstad, 99 Or App 12, 781 P2d 358 (1989), Sup Ct review denied

 

      Order denying entry of arbitration decision and award and granting trial de novo is not appealable final order. Cessna v. Chu-R&T, Inc., 185 Or App 39, 57 P3d 936 (2002), Sup Ct review denied

 

      Order denying post-judgment motion for DNA testing under ORS 138.690 is not civil in nature and, thus, is not appealable under this provision. State v. Johnson, 254 Or App 447, 295 P3d 677 (2013), Sup Ct review denied

 

      Where case was presented three times to jury and each time resulted in mistrial and no judgment was reached, trial court has not “effectively determined” action to justify appeal under this section. Taylor v. Portland Adventist Medical Center, 269 Or App 151, 344 P3d 119 (2015), Sup Ct review denied

 

“A judgment or decree”

 

      An order denying a motion to dismiss a petition is not a judgment or decree, and is not appealable. Children’s Serv. Div. v. Zach, 18 Or App 288, 525 P2d 185 (1974)

 

      A mere order of default alone when no judgment has been entered does not dispose of the case with finality and is not appealable. Union Oil Co. of Calif. v. Linn-Benton Distrib. Co., 270 Or 588, 528 P2d 520 (1974)

 

      Orders are not appealable until the controversy is completely and finally settled in the trial court; overruling Salem King’s Products Co. v. LaFollette, 100 Or 11, 196 P 416 (1921). Moran v. Lewis, 274 Or 631, 547 P2d 627 (1976)

 

      Order of abatement of arbitration is not a judgment for purpose of appeal. Brodine v. Employment Exchange, Inc., 33 Or App 237, 576 P2d 384 (1978), Sup Ct review denied

 

      Order signed by trial court stating that defendant’s motion for judgment notwithstanding verdict was allowed was not “judgment or decree” which could be reviewed on appeal. Ragnone v. Portland School Dist. No. 1J, 289 Or 339, 613 P2d 1052 (1980)

 

      Entry of final judgment, without any express provision to contrary, terminates pendente lite restraining order by definition and thus lower court had no authority to compel husband to do anything after final judgment. Sletager and Sletager, 97 Or App 448, 776 P2d 584 (1989)

 

      Trial court’s order denying motion to reconsider is not appealable. Douglas National Bank v. Becker, 102 Or App 143, 792 P2d 1246 (1990)

 

      Trial court order denying motion for entry of judgment is judgment for purpose of being reviewed on appeal. Gillespie v. Kononen, 310 Or 272, 797 P2d 361 (1990)

 

      Where document is titled as judgment, whether judgment is appealable is determined by substance of disposition in document, not by labeling employed by court. Galfano v. KTVL-TV, 196 Or App 425, 102 P3d 766 (2004)

 

“An order affecting a substantial right, and which in effect determines the action or suit”

 

      Order sustaining demurrer to counterclaim is not appealable. Gen. Constr. Co. v. Fish Comm., 19 Or App 485, 528 P2d 122 (1974)

 

      Order denying motion for intervention is not appealable. Gen. Constr. Co. v. Fish Comm., 19 Or App 485, 528 P2d 122 (1974)

 

      Summary judgment for plaintiff on defendant’s counterclaim is not final, appealable order. Central Lincoln PUD v. Mountain Air Helicopters, 31 Or App 1315, 572 P2d 662 (1977)

 

      An appellate court lacks jurisdiction over an appeal prematurely filed even though there has been a final order from which there could have been an appeal. Johnson v. Assured Employment, 277 Or 11, 558 P2d 228 (1977)

 

      Order entered in dissolution proceeding declaring husband to be father of wife’s child did not “determine suit so as to prevent decree therein,” and order was not reviewable where decree of dissolution had not been entered. Williams and Williams, 37 Or App 169, 586 P2d 381 (1978)

 

      Where plaintiff appealed partial summary judgment, dismissal of this appeal did not prevent further appeal where plaintiff had sought to file amended complaint after granting of summary judgment and before dismissal of appeal. Thunderbird Motel v. City of Portland, 40 Or App 697, 596 P2d 994 (1979), Sup Ct review denied

 

      In contract action, order denying stay pending appraiser’s valuation precluded appraisal but not judicial action, and thus was not “judgment” subject to 30-day appeal limitation under [former] ORS 19.026. Budget Rent-A-Car v. Todd Investment Co., 43 Or App 519, 603 P2d 1199 (1979)

 

      Decree was not final and appealable where, inter alia, it provided that trial court retained jurisdiction of matter until escrow was closed, plaintiff could apply to court for supplemental decree transferring deed if defendant failed to execute it or escrow instructions, and decision on award of attorney fees was reserved. David M. Scott Construction v. Farrell, 285 Or 563, 592 P2d 551 (1979)

 

      Order allowing motion for summary judgment is not appealable. Cenci v. The Ellison Company, 289 Or 603, 617 P2d 254 (1980)

 

      Order forfeiting motor vehicle following defendant’s conviction on charge of unlawful possession of controlled substance was final order affecting substantial right creating appellate jurisdiction. State v. Curran, 291 Or 119, 628 P2d 1198 (1981)

 

      Although order requiring appellant to refund $100,000 paid himself as attorney’s fees to the conservator’s estate placed him in a difficult position, it does not decree a final distribution of the estate nor terminate the conservatorship and thus the order is not appealable. Harrington v. Thomas, 63 Or App 292, 663 P2d 1298 (1983), Sup Ct review denied

 

      Since denial of motion to intervene practically determines action so as to prevent judgment on intervenor’s claim or defense, denial is immediately appealable. Samuels v. Hubbard, 71 Or App 481, 692 P2d 700 (1984), Sup Ct review denied

 

      Statement of partial satisfaction of judgment by reason of Personal Injury Protection reimbursement payments is appealable as “final order affecting a substantial right”. Dougherty v. Gelco Express Corp., 79 Or App 490, 719 P2d 906 (1986)

 

      No continuing triable controversy existed when there was final judgment where court dismissed first claim with prejudice and plaintiff voluntarily dismissed second claim, which arose out of same aggregate of operative facts. Woods v. First American Title Ins. Co., 104 Or App 100, 798 P2d 1121 (1990), Sup Ct review denied

 

      Order dismissing complaint was not subject to appellate review because order permitted judgment rather than denied judgment. Kelley v. City of Gresham, 126 Or App 733, 870 P2d 845 (1994)

 

      Order on motion to replace personal representative of estate is appealable. Amundson v. Brookshire, 133 Or App 450, 891 P2d 710 (1995)

 

      Order denying fee waiver for indigent plaintiff is appealable. Stanwood v. Multnomah County, 135 Or App 58, 898 P2d 196 (1995)

 

Interlocutory orders or decrees

 

      An order quashing service is not an appealable order. Vanecek v. Vanecek, 16 Or App 173, 517 P2d 1206 (1974)

 

      An interlocutory partial summary judgment pursuant to ORCP 47C is not a final appealable judgment. Raykovich v. Wilkinson, 59 Or App 560, 651 P2d 747 (1982)

 

      Order for new trial is not order preventing entry of judgment. Gentry v. Brian Clopton Excavating, Inc., 214 Or App 396, 164 P3d 1225 (2007)

 

      Because order under ORS 109.324, that mother’s consent was not required for adoption of mother’s child by parents of child’s father, was interlocutory and did not itself effectuate termination of mother’s parental rights, court lacked jurisdiction under this section to hear mother’s appeal of order. A.M. v. N.E.D., 287 Or App 36, 400 P3d 1036 (2017)

 

Order made after judgment or decree

 

      The receivership court’s entry approving the master’s recommendation concerning payment of claims is a “final order.” Dean v. Exotic Veneers, Inc., 271 Or 188, 531 P2d 266 (1975)

 

      An order dismissing a third party complaint after summary judgment in favor of the third party defendant is not appealable prior to the termination of the main action. Lulay v. Earle, Wolfer, 278 Or 511, 564 P2d 1045 (1977)

 

      Where there was dispute over carrying out property division decreed as part of dissolution of marriage, order for accounting was not appealable “final decree.” Linder and Linder, 44 Or App 153, 605 P2d 714 (1980)

 

      Where, in original filiation proceedings, issue of support was continued, and order provided that in event no agreement on support was reached, hearing could be held upon motion of either party, order was not final and enforceable. State ex rel Adult and Family Services v. Copeland, 45 Or App 35, 607 P2d 222 (1980), Sup Ct review denied

 

      Order denying motion to vacate appealable judgment, decree or order is not appealable unless motion is made on ground that judgment is void or that it was entered as result of mistake, inadvertence, surprise or excusable neglect. Fehrenbacher v. Fehrenbacher, 76 Or App 244, 708 P2d 1197 (1985)

 

      Although arbitration award was not appealable, refusal of court to set aside judgment based on arbitration award was appealable post-judgment order. Green Seasons Turf v. Shiva’s Restaurant Corp., 125 Or App 227, 864 P2d 1345 (1993)

 

      Where judgment was entered without trial being held, order setting aside judgment is not appealable as order granting new trial. Mann and Mann, 171 Or App 75, 15 P3d 42 (2000)

 

      Order entered after judgment and affecting substantial right is appealable, whether or not it is final order. Bhattacharyya v. City of Tigard, 212 Or App 529, 159 P3d 320 (2007)

 

Amount in controversy

 

      Petitioner’s challenge to constitutionality of small claims judgment was appealable, notwithstanding that claim in question was less than $250. Carden v. Johnson, 282 Or 169, 577 P2d 513 (1978)

 

      Where plaintiff alleges sufficient amount in controversy to make action appealable, answer that asserts lesser amount in controversy is presumed denied by plaintiff and does not divest appellate court of jurisdiction. Beckett v. Olson, 75 Or App 610, 707 P2d 635 (1985)

      Order granting motion to set aside summary judgment is an appealable judgment or decree and is equivalent to order granting “new trial” within statute allowing appeal from order setting aside judgment granting new trial. Carter v. U.S. National Bank, 304 Or 538, 747 P2d 980 (1987)

 

      Order issued under ORS 151.487 for payment of appointed counsel costs is not “action” subject to requirement that amount in controversy be more than $250. State v. Shank, 206 Or App 280, 136 P3d 101 (2006)

 

Special statutory proceeding

 

      Expunction of criminal record is special statutory proceeding permitting appeal by state. State v. Young, 24 Or App 5, 544 P2d 179 (1976), Sup Ct review denied

 

      A probation revocation hearing is not a special statutory proceeding within the meaning of this section. State v. Baxley, 27 Or App 73, 555 P2d 782 (1976)

 

      Neither this section nor [former] ORS 138.060 (3) grants the state the right to appeal a suppression order. State v. Baxley, 27 Or App 73, 555 P2d 782 (1976)

 

      Order entered pursuant to [former] ORS 33.230 directing parties to proceed with arbitration is not one which determines the action or suit so as to prevent a judgment or decree, but is rather a procedure “ancillary” to special proceeding and appeal may only be taken after entry of judgment on arbitration award. Peter Kiewit v. Port of Portland, 291 Or 49, 628 P2d 720 (1981)

 

      Proceeding must be separate from all other judicial proceedings to qualify as “special statutory proceeding.” State v. Threet, 294 Or 1, 653 P2d 960 (1982)

 

      This section requires final and complete determination of matter in special proceeding before appeal is appropriate. Dept. of Rev. v. Universal Foods Corp., 311 Or 537, 815 P2d 1237 (1991)

 

      Appeal of appointment of special conservator must be taken within 30 days of entry of order. Connell v. Franklin, 120 Or App 414, 852 P2d 924 (1993), aff’d as modified 123 Or App 68, 858 P2d 911 (1993), Sup Ct review denied

 

      Court decision upholding Department of Justice investigative demand under Unlawful Trade Practices Act was appealable. Garganese v. Dept. of Justice, 318 Or 181, 864 P2d 364 (1993); Vendall Marketing Corp. v. Dept. of Justice, 318 Or 189, 863 P2d 1263 (1993)

 

      Abuse Prevention Act proceeding is special statutory proceeding subject to de novo review. Strother and Strother, 130 Or App 624, 883 P2d 249 (1994), Sup Ct review denied

 

      Post-trial order denying motion to seal defense expense records is appealable. State v. Cunningham, 161 Or App 345, 985 P2d 827 (1999)

 

      Federal law based on congressional power to regulate interstate commerce cannot provide basis to appeal interlocutory order. Bush v. Paragon Property, Inc., 165 Or App 700, 997 P2d 882 (2000)

 

      Special statutory proceeding is separate and distinct from other proceeding sharing same case name and number if each proceeding is functionally independent of other proceeding. State v. Branstetter, 332 Or 389, 29 P3d 1121 (2001)

 

      19.225

(formerly 19.015)

 

NOTES OF DECISIONS

 

      An appeal from an order denying class action status is not appealable before final judgment as a matter of right, but rather at the discretion of the appellate court exercising jurisdiction after the trial court has certified the order for appeal. Joachim v. Crater Lake Lodge, Inc., 276 Or 875, 556 P2d 1334 (1976)

 

      Scope of appellate review is limited to answering controlling questions identified by trial court. Shea v. Chicago Pneumatic Tool Co., 164 Or App 198, 990 P2d 912 (1999), Sup Ct review denied

 

      Exercise of appellate court discretion under this section is guided by same principles established for appeal from interlocutory orders in federal court. Pearson v. Phillip Morris, Inc., 208 Or App 501, 145 P3d 298 (2006)

 

      Action filed as class action is “class action under ORCP 32,” whether or not court orders proceeding maintained as class action. Joarnt v. Autozone, Inc., 343 Or 187, 166 P3d 525 (2007)

 

      19.230

 

      See annotations under ORS 34.102.

 

      19.235

(formerly 19.034)

 

NOTES OF DECISIONS

 

      Trial court order is subject to summary determination of appealability only if Court of Appeals specifically denominates it as such. Hawkins v. City of LaGrande, 93 Or App 63, 760 P2d 1346 (1988)

 

      Mere possibility that additional controversy could develop in future does not prevent dismissal of moot controversy. Brumnett v. Psychiatric Security Review Board, 315 Or 402, 848 P2d 1194 (1993)

 

      19.240

(formerly 19.023)

 

NOTES OF DECISIONS

 

      Failure to attach proof of service is not jurisdictional defect. Pohrman v. Klamath Co. Commrs., 272 Or 390, 538 P2d 70 (1975)

 

      It is not necessary as a matter of due process that, for the protection of the children’s interests, a parent’s right to appeal from an order terminating parental right be foreclosed for failure to serve notice of appeal on children. State ex rel Juvenile Dept. of Multnomah County v. Navarette, 29 Or App 121, 563 P2d 1221 (1977)

 

      In equity case reviewed de novo, where defendant appeals from only portion of decree, and plaintiff fails to file notice of appeal or to cross-appeal, plaintiff cannot raise other objections to trial court’s decree. Williams v. Mallory, 284 Or 397, 587 P2d 85 (1978)

 

      Court of Appeals had jurisdiction to hear appeal where notice of appeal described non-appealable order, but also referred to a judgment and copy of judgment was attached. Ensley v. Fitzwater, 293 Or 158, 645 P2d 1062 (1982)

 

      Party whose stipulated order for dismissal without prejudice was signed by trial court had appeared within meaning of this section and failure to serve that party with notice of appeal required dismissal of appeal for lack of jurisdiction. Jacobson v. Mountain Park Homeowners Assoc., 65 Or App 269, 670 P2d 633 (1983), Sup Ct review denied

 

      When transcript is designated, service of notice of appeal on trial court reporter within statutory time period is jurisdictional and failure to serve such notice of appeal required dismissal for lack of jurisdiction. State v. Hutchinson, 66 Or App 970, 675 P2d 1112 (1984)

 

      Required notice to court reporters and clerks of trial courts is not “jurisdictional” within meaning of [former] ORS 19.033. McQuary v. Bel Air Convalescent Home, Inc., 296 Or 653, 678 P2d 1222 (1984); Custom Harvesting Oregon v. Smith Truck and Tractor, 296 Or 711, 678 P2d 268 (1984)

 

      Service on law firm, which was plaintiff in action on debt, did not constitute service on individual firm members who were third party defendants in complaint for legal malpractice, a separate action. O’Connell, Goyak and Ball v. Silbernagel, 297 Or 207, 681 P2d 1159 (1984)

 

      Private party specially appearing on collateral matter in criminal trial is not party entitled to notice on appeal from criminal conviction. State v. Pelham, 136 Or App 336, 901 P2d 972 (1995), Sup Ct review denied

 

      Where city attorney appears in traffic infraction case on behalf of state, service of notice of appeal on city attorney is sufficient. City of Pendleton v. Elk, 137 Or App 513, 905 P2d 237 (1995)

 

      For appeal notice mailing date to be effective as date of service on party or attorney, notice must be timely mailed to last known address as provided in ORCP 9B. McCall v. Kulongoski, 339 Or 186, 118 P3d 256 (2005)

 

      For service of notice of appeal to be proper, appellant or appellant’s agent must have taken action that caused notice to be served. Gadda v. Gadda, 341 Or 1, 136 P3d 1099 (2006)

 

      19.245

(formerly 19.020)

 

NOTES OF DECISIONS

 

      Where nothing in record or claims made by purported appellant identified any interest in or relationship to domestic relations case, appeal dismissed because it was brought by nonparty. Davis and Davis, 97 Or App 594, 776 P2d 877 (1989)

 

      “Judgment . . . by confession” means judgment entered pursuant to voluntary act or agreement of one party. Russell v. Sheahan, 324 Or 445, 927 P2d 591 (1996)

 

      Person stipulating to judgment loses status as “party to judgment” and waives ability to appeal stipulated judgment. Russell v. Sheahan, 324 Or 445, 927 P2d 591 (1996); Jensen and Jensen, 169 Or App 19, 7 P3d 691 (2000). But see Brown and Shiban, 155 Or App 238, 963 P2d 105 (1998), Sup Ct review denied

 

      Default judgment under ORCP 69A is judgment “for want of answer.” Gibbons and Gibbons, 153 Or App 377, 956 P2d 1069 (1998), on reconsideration 155 Or App 262, 964 P2d 1050 (1998)

 

      Stipulated judgment is not made appealable by judgment provision that attempts to reserve party’s right of appeal. Rauda v. Oregon Roses, Inc., 329 Or 265, 986 P2d 1157 (1999)

 

      Prohibition against appeal from judgment entered for want of answer applies to appeal from final disposition of petition terminating parental rights. State ex rel Juvenile Dept. v. Jenkins, 209 Or App 637, 149 P3d 324 (2006), Sup Ct review denied

 

      19.250

(formerly 19.029)

 

NOTES OF DECISIONS

 

       Where case was tried on single point, and respondent did not allege prejudice, failure to file statement of points relied upon with appeal did not require dismissal of appeal. Gowans v. Northwestern Pac. Indem. Co., 260 Or 618, 489 P2d 947, 491 P2d 1178 (1971)

 

      Where cause of action was equitable in nature, designated record must consist of entire record of proceeding. Moore v. Brown, Burke, 19 Or App 199, 527 P2d 132 (1974)

 

      Where notice of appeal is timely served and filed, appellate court has jurisdiction and may exercise discretion whether failure to comply with statutory form for notice of appeal warrants dismissal. Pohrman v. Klamath County Commissioners, 272 Or 390, 538 P2d 70 (1975)

 

      Where new counsel is appointed for appeal, trial counsel has obligation to assist in preparing designation of record and statement of points where required by this section. State ex rel Acocella v. Allen, 288 Or 175, 604 P2d 391 (1979)

 

      Under this section, together with [former] ORS 19.078 and [former] ORS 138.185, imposing duty on court reporter to produce transcript within 30 days, reporter lacked authority to determine for herself that free-lance depositions had priority over timely filing of transcripts. In the Matter of Virginia Hanks, 44 Or App 521, 606 P2d 1151 (1980), aff’d 290 Or 451, 623 P2d 623 (1981)

 

      Notice of appeal which recited wrong date for entry of judgment and attached copy of order denying new trial rather than copy of judgment did not deprive Court of Appeals of jurisdiction over appeal since notice was given that it was “judgment” from which appeal was to be taken. Werline v. Webber, 54 Or App 415, 635 P2d 15 (1981), Sup Ct review denied

 

      Where language in notice of appeal and brief was singular, but attorney identification implied both appellants, appeal did not omit necessary party. Street v. Gibson, 60 Or App 768, 655 P2d 604 (1982), aff’d on other grounds, 295 Or 112, 663 P2d 769 (1983)

 

      Court of Appeals had jurisdiction to hear appeal where notice of appeal described non-appealable order, but also referred to a judgment and copy of judgment was attached. Ensley v. Fitzwater, 293 Or 158, 645 P2d 1062 (1982)

 

      Notice of appeal was sufficient to perfect appeal against plaintiffs as representatives of class as well as individuals, as class members are not “parties” within meaning of this section and, accordingly, did not have to be named in or served with notice of appeal. Guinasso v. Pacific First Federal, 89 Or App 270, 749 P2d 577 (1988), Sup Ct review denied, on reconsideration95 Or App 233, 769 P2d 212 (1989)

 

      Notice of appeal is not jurisdictionally defective because it attaches wrong document or incorrectly identifies date of judgment as long as there is final judgment. Smith and Koors, 149 Or App 198, 942 P2d 807 (1997); Crainic v. Multnomah County Adult Care Home Program, 190 Or App 134, 78 P3d 979 (2003)

 

LAW REVIEW CITATIONS: 51 OLR 652, 655, 656 (1972); 73 OLR 785 (1994)

 

      19.255

(formerly 19.026)

 

NOTES OF DECISIONS

 

      Where clerk neglected to timely enter final judgment on register, entry of judgment nunc pro tunc was effective to cure premature filing of appeal. Turlay v. Farmers Ins. Exch., 259 Or 612, 488 P2d 406 (1971)

 

      A motion to reduce the amount of attorney fees awarded by the court upon default is in the nature of a request for rehearing and must be filed prior to the date the decree becomes final. Lowe v. Institutional Investors Trust, 270 Or 814, 529 P2d 920 (1974)

 

      A motion for a new trial in a writ of review proceeding had no bearing on the time within which a notice of appeal was filed under this section. Tierney v. Duris, 21 Or App 604, 536 P2d 431 (1975)

 

      In equity case reviewed de novo, where defendant appeals from only portion of decree, and plaintiff fails to file notice of appeal or to cross-appeal, plaintiff cannot raise other objections to trial court’s decree. Williams v. Mallory, 284 Or 397, 587 P2d 85 (1978)

 

      Filing of request for proposed specific findings of fact does not toll time period for filing appeal. Fox & Sons Construction Co. v. Carlton, 42 Or App 689, 601 P2d 835 (1979)

 

      In contract action, order denying stay pending appraiser’s valuation precluded appraisal but not judicial action, and thus was not “judgment” within meaning of [former] ORS 19.010 subject to 30-day appeal limit under this section. Budget Rent-A-Car v. Todd Investment Co., 43 Or App 519, 603 P2d 1199 (1979)

 

      For purpose of this section, extending time for filing notice of appeal, defendant’s motion and requested instruction on punitive damages was sufficient to support motion for judgment n.o.v. Crooks v. Payless Drug Stores, 285 Or 481, 592 P2d 196 (1979)

 

      Decree was not final and appealable, so as to require dismissal of appeal not filed within 30 days under this section, where, inter alia, decree provided that court retained jurisdiction of matter until escrow was closed, plaintiff could apply to court for supplemental decree transferring deed if defendant failed to execute it or escrow instructions, and decision on award of attorney fees was reserved until review. David M. Scott Construction v. Farrell, 285 Or 563, 592 P2d 551 (1979)

 

      Time for filing notice of appeal is to be computed from date of clerk’s entry of judgment in journal pursuant to [former] ORS 18.030. Blackledge v. Harrington, 289 Or 139, 611 P2d 292 (1980)

 

      Motions for reconsideration or to vacate and set aside judgment were not appealable orders and do not extend time for filing an appeal. Credit Bureau v. Marshall, 53 Or App 46, 630 P2d 910 (1981)

 

      When clerk of court docketed judgment in judgment docket, which had been consolidated with the journal, that act constituted “entry of the judgment” within meaning of this section. Henson and Henson, 61 Or App 210, 656 P2d 345 (1982)

 

      Where judgment is amended, time for filing appeal commences on date of amendment if rights or obligations determined under original decree are materially altered or additional appeal right is created. Mullinax and Mullinax, 292 Or 416, 639 P2d 628 (1982); State v. Christopherson, 159 Or App 428, 978 P2d 1039 (1999); Ramis Crew Corrigan & Bachrach, LLP v. Stoelk, 193 Or App 700, 92 P3d 154 (2004)

 

      Motion for reconsideration of trial court’s final order does not extend time for filing notice of appeal under this section. Portello and Portello, 62 Or App 475, 660 P2d 1098 (1983)

 

      If order disposing of motion for judgment notwithstanding verdict is entered before judgment, time limit for appeal following denial of motion does not have effect of shortening time for appeal following entry of judgment. Yarbrough v. The Oregon Bank, 64 Or App 370, 668 P2d 451 (1983)

 

      “Motion to reconsider,” although treated as motion for new trial, did not toll running of appeal period under this section because motion was improper under ORCP 64F, having been filed more than 10 days after judgment. Schmidling v. Dove, 65 Or App 1, 670 P2d 166 (1983)

 

      Procedural distinction between law and equity having been abolished, “motion for reconsideration” seeks same ruling contemplated by motion for new trial and can toll appeal period. Schmidling v. Dove, 65 Or App 1, 670 P2d 166 (1983)

 

      Clerk’s failure to notify counsel of entry of judgment does not create exception to this section. Junction City Water Control v. Elliot, 65 Or App 548, 672 P2d 59 (1983); Amvesco, Inc. v. Key Title Co., 69 Or App 740, 687 P2d 1121 (1984); U.S. National Bank v. Heggemeier, 106 Or App 693, 810 P2d 396 (1991)

 

      Motion for reconsideration to the tax court is not analogous to motion for new trial and does not have the effect of suspending 30 day period within which appeals must be taken. Multistate Tax Comm. v. Dow Chemical Co, 295 Or 831, 671 P2d 108 (1983)

 

      Extended filing period for appeal from denial of motion for new trial applies to appeal from summary judgment. Scheid v. Harvey, 73 Or App 481, 698 P2d 991 (1985)

 

      Because clerk failed to date entry, there was no basis to determine date of entry of order and therefore nothing to determine when appeal time began to run under this section. Simpson v. Simpson, 299 Or 578, 704 P2d 509 (1985)

 

      “Entry of judgment” under this section refers to entry in journal and, in absence of journal, 30-day period runs from date of entry in judgment docket. Gordon v. Schumaker, 77 Or App 435, 713 P2d 658 (1986)

 

      Where trial court entered supplemental judgment allowing plaintiff’s costs, disbursements and attorney fees and defendant, more than 30 days after entry of supplemental judgment, filed motion for relief from default and amended notice of appeal from supplemental judgment, motion was properly denied because 30-day time limit for filing notices of appeals set by this section applies and court was without authority to extend it. Jansen v. Atiyeh, 302 Or 314, 728 P2d 1382 (1986)

 

      Where court’s review involved only issues of law, motion for new trial did not toll time for appeal. Alt v. City of Salem, 86 Or App 627, 740 P2d 216 (1987), aff’d 306 Or 80, 756 P2d 637 (1988)

 

      Order granting motion to set aside summary judgment is an appealable judgment or decree and is equivalent to order granting “new trial” within statute allowing appeal from order setting aside judgment granting new trial. Carter v. U.S. National Bank, 304 Or 538, 747 P2d 980 (1987)

 

      This section does not by its terms extend time to appeal when “motion for reconsideration” has been filed and any document not clearly labeled as motion for new trial or judgment notwithstanding verdict will not extend 30-day period for filing notice of appeal under this section. Alternative Realty v. Michaels, 90 Or App 280, 753 P2d 419 (1988)

 

      Where court issues order granting new trial, subsequent entry of judgment does not extend time for filing appeal from order that disposed of motion. E.A. Mock & Sons, Inc. v. Mehdizadehkashi, 91 Or App 453, 755 P2d 739 (1988)

 

      Order by tax court dismissing complaint does not itself commence time in which notice of appeal must be filed because that time commences upon entry of judgment in register. NW Medical Lab. v. Good Samaritan Hospital, 307 Or 448, 770 P2d 905 (1989); NW Medical Lab. v. Healthlink, 307 Or 455, 770 P2d 908 (1989)

 

      Filing of notice of appeal before entry of final judgment on register does not comply with time limit for filing appeal and is therefore ineffective. S. W. v. Schellenberg, 152 Or App 33, 952 P2d 567 (1998)

 

      Notice of appeal filed before time to appeal commences is jurisdictionally defective. Welker v. Teacher Standards and Practices Commission, 332 Or 306, 27 P3d 1038 (2001)

 

      Where notice of appeal is filed prematurely, appellate court has jurisdiction to decide merits of appeal without first requiring filing of new notice of appeal if, when initial notice of appeal was filed, trial court intended to enter an appealable judgment. Association of Unit Owners of Timbercrest Condominiums v. Warren, 242 Or App 425, 256 P3d 146 (2011), aff’d 352 Or 583, 288 P3d 859 (2012)

 

      If summary judgment ruling does not examine issue of fact in way that constitutes “trial” under ORCP 64, plaintiff’s motion for reconsideration of summary judgment ruling under this section does not constitute “motion for new trial.” Association of Unit Owners of Timbercrest Condominiums v. Warren, 352 Or 583, 288 P3d 859 (2012)

 

LAW REVIEW CITATIONS: 51 OLR 652 (1972)

 

      19.260

(formerly 19.028)

 

NOTES OF DECISIONS

 

      Proof of registered or certified mail date is by verification obtained from post office at time of mailing. Modoc Lumber Co. v. EBI Companies, 295 Or 598, 668 P2d 1225 (1983)

 

      This section applies to filing of notice of appeal on Workers’ Compensation Board under ORS 656.298. Southwest Forest Industries v. Anders, 299 Or 205, 701 P2d 432 (1985)

 

      Service and filing of notice of appeal are separate events and both must be accomplished within appeal period and this section merely provides that document, if mailed in certain way, is deemed filed or served on date mailed. Hein v. Columbia County, 96 Or App 576, 773 P2d 791 (1989), Sup Ct review denied

 

      Notice of appeal was not properly served on adverse party where notice was inadvertently addressed in attorney’s name but to trial court administrator’s post-office box. Harris and Harris, 104 Or App 209, 799 P2d 699 (1990), Sup Ct review denied

 

      Petition for judicial review received after deadline was not properly filed without contemporaneous proof of mailing. Walther v. SAIF, 312 Or 147, 817 P2d 292 (1991)

 

      Timeliness of filing petition for review of disciplinary order is controlled by state, not federal, law and depends on date of mailing if sent by registered or certified mail or depends on date court receives petition if otherwise filed. Norby v. Santiam Correctional Institution, 116 Or App 239, 841 P2d 1 (1992)

 

      Proof of nonreceipt of service copy of notice of appeal may be probative of whether notice was mailed. Mullens v. L.Q. Development, 312 Or 599, 825 P2d 1376 (1992)

 

      For appeal notice mailing date to be effective as date of service on party or attorney, notice must be timely mailed to last known address as provided in ORCP 9B. McCall v. Kulongoski, 339 Or 186, 118 P3d 256 (2005)

 

      19.265

(formerly 19.035)

 

NOTES OF DECISIONS

 

      Legislative requirement of filing fee as prerequisite to processing appeal from administrative ruling is not such a restriction upon the performance of judicial function that it must be ignored by courts. Ortwein v. Schwab, 262 Or 375, 498 P2d 757 (1972), aff’d 410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973), rehearing denied, 411 US 922 (1973)

 

      When applied to indigent litigants, this section was not unconstitutional as abridging right to petition government for redress of grievances under United States Constitution. Ortwein v. Schwab, 262 Or 375, 498 P2d 757 (1972), aff’d 410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973), rehearing denied, 411 US 922 (1973)

 

      When applied to indigent litigants, there was no violation of due process under Oregon Constitution to require payment of filing fees in order to secure judicial review of Welfare Division’s orders. Ortwein v. Schwab, 262 Or 375, 498 P2d 757 (1972), aff’d410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973), rehearing denied, 411 US 922 (1973)

 

      When applied to indigent litigants, right to obtain judicial review of ruling of State Welfare Division was not such a “fundamental personal right” that it denied equal protection of laws under United States Constitution to make such right dependent upon ability to pay $25 filing fee. Ortwein v. Schwab, 262 Or 375, 498 P2d 757 (1972), aff’d 410 US 656, 93 S Ct 1172, 35 L Ed 2d 572 (1973), rehearing denied, 411 US 922 (1973)

 

      19.270

(formerly 19.033)

 

NOTES OF DECISIONS

 

      It is consistent with the 1959 revision to hold that when notice of appeal, in any form, is served and filed, the appellate court has jurisdiction. Pohrman v. Klamath Co. Comm. 272 Or 390, 538 P2d 70 (1975). But see Stahl v. Krasowski, 281 Or 33, 573 P2d 309 (1978)

 

      Failure to properly describe trial court action being appealed from is jurisdictional defect requiring dismissal. Stahl v. Krasowski, 281 Or 33, 573 P2d 309 (1978)

 

      An award of attorney fees by supplemental decree is not among powers which trial court may exercise after notice of appeal has been filed. Bank of Oregon v. Hiway Products Inc., 41 Or App 223, 598 P2d 318 (1979)

 

      Trial court has no authority to set aside one judgment and enter another for sole purpose of extending time to appeal. Far West Landscaping v. Modern Merchandising, 287 Or 653, 601 P2d 1237 (1979)

 

      Where court reporter had statutory duty to produce transcript within 30 days, only Court of Appeals had authority, under this section, to determine when performance of that duty could be excused due to extraneous circumstances. In the Matter of Virginia Hanks, 44 Or App 521, 606 P2d 1151 (1980), aff’d 290 Or 451, 623 P2d 623 (1981)

 

      Court of Appeals had jurisdiction to hear appeal where notice of appeal described non-appealable order, but also referred to a judgment and copy of judgment was attached. Ensley v. Fitzwater, 293 Or 158, 645 P2d 1062 (1982)

 

      Trial court’s order for attorney fees and costs, entered after first notice of appeal was filed, is void. Truax and Truax, 62 Or App 130, 659 P2d 983 (1983)

 

      Where husband appealed support awards and interest rate and, while appeal was pending, moved trial court to modify decree as to support payments, motion in trial court was nullity because trial court no longer had jurisdiction in the case; overruling Wilson v. Wilson, 242 Or 201, 407 P2d 898, 408 P2d 940 (1965). Nickerson and Nickerson, 296 Or 516, 678 P2d 740 (1984)

 

      Action that is without legal effect and that can further no interest of party does not constitute acquiescence in judgment precluding appeal. Nickerson and Nickerson, 296 Or 516, 678 P2d 740 (1984)

 

      Notice to court reporters and clerks of trial courts is not jurisdictional within the meaning of this section. McQuary v. Bel Air Convalescent Home, Inc., 296 Or 653, 678 P2d 1222 (1984); Custom Harvesting Oregon v. Smith Truck and Tractor, 296 Or 711, 628 P2d 268 (1984)

 

      This statute has not been interpreted to mean that compliance with every detail specified anywhere in [former] ORS 19.023 to 19.029 is necessary to give appellate courts jurisdiction of an appeal. McQuary v. Bel Air Convalescent Home, Inc., 296 Or 653, 678 P2d 1222 (1984)

 

      Where record does not disclose whether trial court intended to dispose of defendant’s counterclaim or intended to enter appealable judgment without doing so, this section, which provides that trial court shall have jurisdiction, with leave of appellate court, to enter appealable judgment, is inapplicable. Central Oregon Production Credit v. Butler, 82 Or App 203, 728 P2d 53 (1986)

 

      Notice of appeal from judgment entered pursuant to ORCP 67B does not divest trial court of jurisdiction to try remaining claims against other parties not affected by judgment. State ex rel Gattman v. Abraham, 302 Or 301, 729 P2d 560 (1986)

 

      “Cause” may include case or proceeding or any part thereof, depending upon circumstances, for which judgment has been entered. State ex rel Gattman v. Abraham, 302 Or 301, 729 P2d 560 (1986)

 

      Where petitioner sought post-conviction relief contending he had received invalid consecutive sentences and post-conviction court dismissed petition and entered order relying on grounds neither presented to court nor responsive to petition, remand to Court of Appeals for consideration to enter proper final order was appropriate. Wilson v. Maass, 305 Or 434, 752 P2d 840 (1988)

 

      Trial court may be given authority to enter appealable judgment only if it has decided all triable issues and only action remaining to be taken is entry of judgment embodying decision. State v. Rickey, 97 Or App 41, 775 P2d 327 (1989); State v. Cortright, 136 Or App 421, 902 P2d 598 (1995)

 

      After parents prematurely filed notice of appeal from jurisdictional determination, juvenile court lacked jurisdiction to disposition. State ex rel Juv. Dept. v. Boyce, 99 Or App 43, 781 P2d 369 (1989)

 

      Where appeals were not taken from appealable judgments court must not consider merits unless court makes determination granting trial court leave to enter appealable judgment. State v. Bonner, 307 Or 598, 771 P2d 272 (1989)

 

      This statute does not limit trial courts’ continuing authority to administer probation, which, despite filing of appeal, includes modifying conditions of probation “at any time.” State v. Peterson, 116 Or App 418, 841 P2d 666 (1992)

 

      Where Court of Appeals gains jurisdiction over case when notice of appeal is filed and subsequently determines that trial court “judgment” is defective in form and grants trial court leave to enter appealable judgment, this section does not require appellant to file new or amended notice of appeal for Court of Appeals to retain jurisdiction. Baugh v. Bryant Limited Partnerships, 312 Or 635, 825 P2d 1383 (1992)

 

      Requirement for filing of modified appeal to challenge supplemental judgment awarding attorney fees applies only if original appeal is still pending at time supplemental judgment is issued. Ricciardi v. Frink, 133 Or App 436, 891 P2d 1336 (1995), Sup Ct review denied

 

      Where trial court is otherwise authorized to appoint counsel, authority continues during appeal. Cerda and Cerda, 136 Or App 104, 901 P2d 263 (1995), Sup Ct review denied

 

      Jurisdiction of appellate court is not defeated by incorrect recitations if notice of appeal contains information sufficient to identify appealable judgment and give notice to adverse parties. State v. Etchison, 142 Or App 396, 921 P2d 1333 (1996), Sup Ct review denied

 

      If parties with interest in judgment receive reasonable notice that their rights in particular judgment might be affected, content defect in notice is not jurisdictionally fatal. Jeffries v. Mills, 165 Or App 103, 995 P2d 1180 (2000)

 

      During pendency of appeal from judgment of dissolution of marriage, trial court retains subject matter jurisdiction over motions requesting temporary orders regarding care, custody, support and maintenance of minor children and regarding parenting time rights. Chester and Chester, 172 Or App 462, 18 P3d 1111 (2001)

 

      For appeal notice mailing date to be effective as date of service on party or attorney, notice must be timely mailed to last known address as provided in ORCP 9B. McCall v. Kulongoski, 339 Or 186, 118 P3d 256 (2005)

 

      Where appellant timely filed and served copy of notice of appeal on other party in action but failed to serve notice of appeal on party’s attorney required under this section, result was jurisdictional defect that deprived Court of Appeals of jurisdiction. J.A.H. v. Heikkila, 355 Or 753, 333 P3d 275 (2014)

 

      Trial court lacks jurisdiction to enter order determining merits of issue where appeal from previous order on same issue is pending. Johnson v. Premo, 287 Or App 307, 403 P3d 547 (2017)

 

LAW REVIEW CITATIONS: 51 OLR 652 (1972)

 

      19.335

 

NOTES OF DECISIONS

 

      Judgment for “recovery of money” refers to money due for past events or conduct and does not include support obligation for amounts due in future. McGinley and McGinley, 156 Or App 449, 965 P2d 486 (1998)

 

      Value of use and occupation of property for purpose of forcible entry and detainer action is fair market rental value of property. LIG Investments LLC v. Roach, 215 Or App 210, 170 P3d 561 (2007)

 

      Filing of supersedeas undertaking on appeal pursuant to section tolls 60-day limit on issuance of process to enforce judgment for restitution of premises under ORS 105.159 (3). Pine Ridge Park v. Fugere, 252 Or App 456, 287 P3d 1268 (2012), Sup Ct review denied

 

      This section, when read with ORS 105.161, allows tenant to remain in possession of property, despite landlord’s wishes and contrary to forcible entry and detainer judgment, in exchange for immediate undertaking to assure payment of value of unwanted use and occupancy of property during appeal regardless of outcome of appeal. Willamette Landing Apartments v. Burnett, 282 Or App 814, 387 P3d 501 (2016)

 

      19.360

 

NOTES OF DECISIONS

 

      Appellate court is not required to convene department of judges to review and decide motions relating to undertaking or stays filed with appellate court in first instance. Bova v. City of Medford, 236 Or App 257, 236 P3d 760 (2010), Sup Ct review denied

 

      19.365

 

NOTES OF DECISIONS

 

      Materials that are part of trial court file or that were received in evidence or judicially noticed and materials erroneously omitted from trial court file may be designated as part of record on appeal. State ex rel Department of Human Services v. Lewis, 193 Or App 264, 89 P3d 1219 (2004)

 

      Correspondence between trial judge and others regarding case is part of trial court file and may be designated as part of record on appeal, notwithstanding that correspondence might not qualify as part of evidentiary record for purposes of challenging or defending trial court decision. State ex rel Department of Human Services v. Lewis, 193 Or App 264, 89 P3d 1219 (2004)

 

      19.370

(formerly 19.078)

 

NOTES OF DECISIONS

 

      Evidentiary matters not presented during trial in any manner were not “additional parts of the proceedings.” State v. Jorgensen, 8 Or App 1, 492 P2d 312 (1971), Sup Ct review denied

 

      Authority of trial judge to correct errors in transcript does not permit total deletion of offer of proof made at hearing before court. Rachau v. Brownton, 260 Or 459, 490 P2d 170 (1971)

 

      Under this section, together with [former] ORS 19.029 and [former] ORS 138.185, imposing duty on court reporter to produce transcript within 30 days, reporter lacked authority to determine for herself that free-lance depositions had priority over timely filing of transcripts. In the Matter of Virginia Hanks, 44 Or App 521, 606 P2d 1151 (1980), aff’d 290 Or 451, 623 P2d 623 (1981)

 

LAW REVIEW CITATIONS: 51 OLR 652, 655, 656, 660 (1972)

 

      19.385

(formerly 19.069)

 

LAW REVIEW CITATIONS: 51 OLR 652 (1972)

 

      19.395

(formerly 19.095)

 

LAW REVIEW CITATIONS: 51 OLR 652, 656 (1972)

 

      19.405

 

LAW REVIEW CITATIONS: 81 OLR 477 (2002)

 

      19.415

(formerly 19.125)

 

NOTES OF DECISIONS

 

      Judgment will not be reversed where omission in pleading is attacked for first time on appeal and omission could have been supplied by amendment and omission did not cause surprise or prejudice. Fulton Ins. Co. v. White Motor Corp., 261 Or 206, 493 P2d 138 (1972)

 

      Waste of judicial time is a sufficiently important factor to require a plaintiff seeking a reversal to demonstrate not only error, but prejudicial error. Fassett v. Santiam Loggers, Inc., 267 Or 505, 517 P2d 1059 (1973)

 

      When the case is tried anew, the determination of the trial judge is afforded weight. Jewell v. Kroo, 268 Or 103, 517 P2d 657, 518 P2d 1305 (1973); Westenskow and Westenskow, 18 Or App 438, 525 P2d 1057 (1974)

 

      Action for a declaratory judgment that the city had improperly terminated a franchise was equitable in nature, and the court’s review was de novo. Rose City Transit Co. v. City of Portland, 18 Or App 369, 525 P2d 325 (1974), aff’d as modified 271 Or 588, 533 P2d 339 (1975)

 

      In an appeal from a portion of a decree in an equity case, appellant is required to provide the appellate court with a complete transcript of the testimony and evidence below. Moore v. Brown, Burke, 19 Or App 199, 527 P2d 132 (1974)

 

      To sustain judgment based upon trial court’s findings, it must appear that findings support judgment on all material issues. Briscoe v. Pittman, 268 Or 604, 522 P2d 886 (1974)

 

      Although appeals from suit in equity are heard de novo, reviewing court accords great weight to findings of fact by trial judge, when evidence is conflicting. Haines Commercial Equip. Co. v. Butler, 268 Or 660, 522 P2d 472 (1974)

 

      In case tried by court, sitting without jury, it is assumed that trial judge disregarded inadmissible evidence as basis for his findings. Haines Commercial Equip. Co. v. Butler, 268 Or 660, 522 P2d 472 (1974)

 

      In case tried before court upon waiver of jury in an action at law, findings of the court have effect of jury verdict, and they cannot be set aside if supported by substantial evidence. Schlatter v. Willson, 270 Or 685, 528 P2d 349 (1974)

 

      Giving abstract jury instruction which creates erroneous impression of the law is reversible error. Fickert v. Gallagher, 274 Or 139, 544 P2d 1032 (1976)

 

      Deference to be given trial court finding of fact and selection of equitable remedy depends on relative importance of observing manner and demeanor as determined by issue in dispute. McCoy and McCoy, 28 Or App 919, 562 P2d 207 (1977)

 

      Foreclosure of possessory lien on truck was suit in equity, and thus upon appeal was to be tried anew upon record under this section. United Engine Parts v. Ried, 283 Or 421, 584 P2d 275 (1978)

 

      For purposes of collateral estoppel, affirmance without opinion by Court of Appeals means that any special or necessary findings made by trial court in that case remain in effect. Children’s Services Div. v. Cash, 43 Or App 117, 602 P2d 326 (1979)

 

      De novo review does not consist of review for abuse of discretion, but for reasoned preference of sufficient degree to justify disturbing lower court decree. Haguewood and Haguewood, 292 Or 197, 638 P2d 1135 (1981)

 

      Court of Appeals did not err in refusing to review de novotrial court’s finding that plaintiff had not proven estoppel since equitable defense does not operate to convert legal action into equitable for purposes of this section. Ben Rybke Co. v. Royal Globe Ins. Co., 293 Or 513, 651 P2d 138 (1982)

 

      [Former] ORS 19.125 gives Supreme Court option, when allowing petition, to limit review to questions of law. Willbanks v. Goodwin, 300 Or 181, 709 P2d 213 (1985)

 

      Refusal of proper request for oral argument was error not sufficiently prejudicial to require reversal. Zehr v. Haugen, 318 Or 647, 871 P2d 1006 (1994)

 

      Whether erroneous discovery ruling substantially affects rights of party depends on availability of essentially equivalent information from other sources. Baker v. English, 324 Or 585, 932 P2d 57 (1997)

 

      Denial of right to counsel may not be presumed to be harmless error based on speculation regarding outcome had counsel been provided. Hunt v. Weiss, 169 Or App 317, 8 P3d 990 (2000)

 

      Where appellate court cannot determine whether judgment or general verdict was based on valid or invalid specification, court may not reverse or modify judgment. Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 61 P3d 928 (2003)

 

      Unless appellate court exercises its discretion to review de novo, standard of review of trial court’s best interests determination on motion to modify parenting plan is for abuse of discretion. Sjomeling v. Lasser, 251 Or App 172, 285 P3d 1116 (2012), Sup Ct review denied

 

LAW REVIEW CITATIONS: 9 WLJ 369 (1973)

 

      19.420

(formerly 19.130)

 

NOTES OF DECISIONS

 

      A respondent seeking to sustain the judgment is not required to cross-appeal from the judgment in order to preserve for the appellate court’s consideration alleged errors by the trial court, but he must unequivocally make the alleged error an issue on appeal and clearly contend that if the judgment cannot be sustained he is entitled to a new trial or other relief because of the alleged error of the trial court. Artman v. Ray, 263 Or 529, 501 P2d 63 (1972)

 

      When a tort claim against defendant rests only on the doctrine of respondeat superior and defendant’s agent is found not liable at first, the case should be remanded for entry of judgment in favor of defendant. Sisk v. McPartland, 267 Or 116, 515 P2d 179 (1973)

 

      To obtain reversal due to lack of notes, records or exhibits, appellant must show that appellant made every reasonable effort to secure missing item and must make at least prima facie showing of error, of unfairness at trial or that there has been miscarriage of justice. Ethyl Corp. v. Jalbert, 270 Or 651, 529 P2d 368 (1974); Smith v. Custom Micro, Inc., 311 Or 375, 811 P2d 1371 (1991); State v. Dam, 116 Or App 210, 840 P2d 1317 (1992); State ex rel Juvenile Dept. v. Dahl, 158 Or App 479, 974 P2d 783 (1999)

 

      Where defendant appeals conviction for driving under influence of intoxicants and assigns error to trial court’s admission of statements made to police, failure to take judicial notice of certain facts and instruction to jury, trial court did not err in admitting statements that defendant had driven earlier that evening, committed harmless error in failure to take notice that Eskalith comes in various size capsules and since record relating to jury instruction was not preserved, Appeals Court unable to review whether trial court sufficiently apprised jury of grounds for exception. State v. Kennedy, 95 Or App 663, 771 P2d 281 (1989)

 

      Evidence supporting jury decision against judgment n.o.v. was not limited to plaintiff’s case in chief. King v. All Pro Services, Inc., 120 Or App 479, 852 P2d 943 (1993)

 

      19.425

(formerly 19.140)

 

NOTES OF DECISIONS

 

      In cases in which a demurrer has been sustained to one of several causes of action or theories of recovery alleged, the filing of an amended complaint omitting the cause or theory to which the demurrer was sustained does not waive the pleader’s right on appeal to object to the sustaining of the demurrer. Moore v. W. Lawn Memorial Park, 266 Or 244, 512 P2d 1344 (1973)

 

      Order requiring husband to pay travel and lodging expenses for wife to return to Oregon to appear against motion to eliminate spousal support was reviewable because husband could not obtain hearing on merits of motion until he had paid wife’s expenses. Scholze and Scholze, 68 Or App 679, 682 P2d 827 (1984), Sup Ct review denied

 

      Order disposing of motion for new trial is subject to review only upon timely appeal as provided in ORS 19.255, not as intermediate order. E.A. Mock & Sons, Inc. v. Mehdizadehkashi, 91 Or App 453, 755 P2d 739 (1988)

 

 

      19.440

 

NOTES OF DECISIONS

 

      Award of attorney fees on appeal is subject to any statutory limitations placed on award of attorney fees at trial. Williams v. Cabinet Masters, Inc., 335 Or 49, 57 P3d 145 (2002)

 

      Denial of petition for review by Supreme Court is not action or proceeding on appeal for which appellate court may order payment of attorney fees. Polacek and Polacek, 349 Or 278, 243 P3d 1190 (2010)

 

      19.445

(formerly 19.160)

 

NOTES OF DECISIONS

 

Purpose of section

 

      The purpose of this section is to prevent the taking of an appeal where there is no probable cause therefor and to impose a penalty where the purpose of the appeal is for delay. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

 

      Appellate court shall impose ten percent damages for delay if it determines that judgment below was for recovery of money or personal property, or value thereof; appellate court affirms judgment; and court finds that there was no probable cause for taking appeal. Broyles v. Brown, 295 Or 795, 671 P2d 94 (1983)

 

      Court awarded damages under this section where defendant rejected plaintiff’s offer of full amount of counterclaim on grounds that defendant wanted to see truth brought out at trial and defendant, without adequate grounds, appealed award of attorney fees. Carleton v. Lowell, 107 Or App 98, 811 P2d 642 (1991), Sup Ct review denied

 

“Probable cause for taking the appeal”

 

      Even where there is but slight merit to the appeal, damages under this section are inappropriate. Employers’ Fire Ins. v. Love It Ice Cream, 64 Or App 784, 670 P2d 160 (1983)

 

      Term “probable cause for appeal” means there is presented a case in which appellant has assigned or may assign grounds that are open to doubt or are debatable, or over which rational, reasonable or honest discussion may arise. Broyles v. Brown, 295 Or 795, 671 P2d 94 (1983); Stronach v. Ellingsen, 108 Or App 37, 814 P2d 175 (1991), Sup Ct review denied

 

      Damages for taking appeal without probable cause may be awarded under this section even where monetary relief in underlying judgment consists only of costs and attorney fees. Cooper v. Maresh, 98 Or App 371, 779 P2d 200 (1989), Sup Ct review denied; Stronach v. Ellingsen, 108 Or App 37, 814 P2d 175 (1991), Sup Ct review denied

 

Damages for delay

 

      Where 10 percent statutory damages are assessed under this section, appellant’s surety is also liable therefor. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

 

      The term “damages for delay” was not intended to be limited to interest on a money judgment or other measurable damages resulting from the delay of an appeal. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

 

      Ten percent statutory damages for frivolous appeal may be levied whether undertaking on appeal is cost bond or supersedeas bond. Stirling v. Dari-Delite, Inc., 262 Or 359, 491 P2d 1168, 494 P2d 252, 498 P2d 753 (1972)

 

      19.450

 

NOTES OF DECISIONS

 

      Opinion that appellate court issues with decision is not part of appellate judgment. International Brotherhood of Electrical Workers Local No. 48 v. Oregon Steel Mills, Inc., 180 Or App 265, 44 P3d 600 (2002)

 

      Where employer’s cross-petition is dismissed as moot when court affirmed Workers’ Compensation Board order in favor of employer, statute requires employee cross-respondent to be designated prevailing party of decision to dismiss cross-petition. Vaida v. Howells Custom Cabinets, 288 Or App 386, 405 P3d 201 (2017)