APPEAL AND REVIEW CONTENTS

Transcription

1 APPEAL AND REVIEW CONTENTS ORAP Notice... iii 1 Appellate Review in Oregon (1993 ed)... James H. Clarke (1993 ed & 2002 supp)... Edward J. Harri 2 Jurisdiction of Oregon Appellate Courts (1993 ed)... Mildred Jean Carmack Ridgway K. Foley, Jr. (2002 supp)...james W. Nass Keith M. Garza 3 When and How to Take an Appeal (2002 rev)... Maureen Leonard Jacqueline L. Koch 4 Civil Appeals Special Considerations (1993 ed & 2002 supp)...i. Franklin Hunsaker Lisa E. Lear 5 Criminal Appeals Special Considerations (1993 ed)...brenda J Peterson Peter Gartlan (1993 ed & 2002 supp)...timothy A. Sylwester 6 Administrative Appeals Special Considerations (1993 ed & 2002 supp)... Janet A. Metcalf 7 Motion Practice (1993 ed)... Jeffrey M. Batchelor (2002 supp)... Thomas W. Sondag 8 Attorney Fees, Costs, and Sanctions (1993 ed & 2002 supp)...kathryn H. Clarke 2002 Rev

2 9 Briefing the Merits Oregon Court of Appeals (1993 ed & 2002 supp)... Hon. Rives Kistler Thomas W. Brown (2002 supp)... Wendy M. Margolis (1993 ed)... Robert M. Atkinson Michael C. Lewton 10 Technical Requirements for Briefs (1993 ed & 2002 supp)...kevin Keaney Thomas M. Christ 11 Strategies for an Effective Brief (1993 ed)... Hon. Susan P. Graber (1993 ed & 2002 supp)... Robert K. Udziela 12 Seeking Review in the Oregon Supreme Court (1993 ed)...hon. Virginia L. Linder (1993 ed & 2002 supp)...james N. Westwood (2002 supp)... Robert M. Atkinson 13 Oral Argument (1993 ed & 2002 supp)...john R. Faust 14 Compendium of Relevant Case Law (1993 ed)... Hon. Rick T. Haselton Roy Pulvers (2002 supp)... Jay W. Beattie Meagan A. Flynn W. Eugene Hallman 15 Appellate Settlement Conference Program (2002 rev)...jas. Jeffrey Adams Edward J. Harri Table of Forms Table of Statutes and Rules Table of Cases Subject Index 2002 Rev

3 4 I. FRANKLIN HUNSAKER III LISA ELAYNE LEAR CIVIL APPEALS SPECIAL CONSIDERATIONS I. ( 4.1) SCOPE OF CHAPTER II. APPEALABLE ORDERS AND JUDGMENTS A. ( 4.2) Statutory Provisions B. The Requirement of Finality 1. ( 4.3) Purpose 2. ( 4.4) Determination of Finality C. Lawsuits Involving MultipleClaims or MultipleParties 1. ORCP 67 B a. ( 4.5) Generally b. ( 4.6) Trial Court Discretion c. ( 4.7) Necessary Language d. ( 4.8) Effect of ORCP 67 B Judgment on Claims Resolved by that Judgment I. FRANKLIN HUNSAKER III, B.S., Brigham Young University (1964); J.D., Boalt Hall School of Law, University of California, Berkeley (1972); member of the Oregon State Bar since 1972; partner, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland. LISA ELAYNE LEAR, B.A., University of Colorado (1981); J.D., Northwestern School of Law, Lewis and Clark College (1985); member of the Oregon State Bar since 1985; associate, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland. The case citations in this chapter were checked for overrulings and reversals through the following Shepard s volume: Oregon Citations...Vol 85,N o 5 The citations to ORS were checked through

4 4-2 e. ( 4.9) Effect of ORCP 67 B Judgment on Remaining Claims 2. ( 4.10) MultipleJudgments 3. ( 4.11) Claims Disposed of Before or During Trial D. Effect of Posttrial Motions 1. ( 4.12) Generally 2. ( 4.13) The55-Day Rule 3. Appealability of Rulings on Motions for New Trial or for Judgment N.O.V. a. ( 4.14) Orders Denying Posttrial Motions b. ( 4.15) Orders Granting Motions for Judgment N.O.V. c. ( 4.16) Orders Granting Motions for New Trial d. ( 4.17) Alternative Motions for Judgment N.O.V. or for New Trial 4. ( 4.18) Motions for Reconsideration 5. ( 4.19) Motions Under ORCP 71 E. The Need for Subsequent Steps 1. ( 4.20) Generally 2. Costs and Disbursements a. ( 4.21) Generally b. ( 4.22) Appeal from Award of Costs and Disbursements 3. Attorney Fees a. ( 4.23) Generally b. ( 4.24) Appeal from Award of Attorney Fees 4. ( 4.25) Accounting 5. ( 4.26) Arbitration F. ( 4.27) Failure to Appeal from a Final Judgment G. Nonappealable Orders 1. ( 4.28) Examples of Nonappealable Orders 2. ( 4.29) Nonappealable Does Not Always Mean Nonreviewable H. Default Judgments 1. ( 4.30) Appealability of Judgment 2. ( 4.31) Appealability of Orders Setting Aside Default Judgments I. ( 4.32) Judgments by Confession or Stipulation

5 III. J. ( 4.33) Void Orders and Judgments K. Acceptance of Benefits 1. ( 4.34) Waiving theright to Appeal by Accepting Benefits 2. ( 4.35) Exceptions UNDERTAKINGS ON APPEAL A. ( 4.36) Generally 1. ( 4.37) Cost Bond 2. ( 4.38) Supersedeas Bond 3. ( 4.39) Letter of Credit B. Necessity of an Undertaking 1. ( 4.40) Perfecting the Appeal 2. ( 4.41) Staying Execution 3. ( 4.42) Stipulation to Dispense with Undertaking 4. ( 4.43) Risk to Respondent of Requiring an Undertaking 5. ( 4.44) Obtaining a Court-Ordered Waiver of Undertaking 6. ( 4.45) Public Bodies as Appellants C. TimeWithin Which to Fileand Serve 1. ( 4.46) Generally 2. ( 4.47) Effect of Filing a Premature Undertaking 3. Effect of Failure to Timely File an Undertaking a. ( 4.48) Cost Bond b. ( 4.49) Supersedeas Bond D. Form 1. ( 4.50) Cost Bond 2. ( 4.51) Supersedeas Bond 3. Alternative Forms of Undertakings a. ( 4.52) Generally b. ( 4.53) Letter of Credit c. ( 4.54) Others E. Amount of theundertaking 1. ( 4.55) Undertaking for Costs 2. ( 4.56) Supersedeas Undertaking F. Sureties 1. ( 4.57) Individual Sureties 4-3

6 IV. 2. ( 4.58) Corporate Sureties 3. ( 4.59) Liability of thesurety G. ( 4.60) Exceptions to Undertaking H. Effect of Filing Undertaking 1. ( 4.61) Generally 2. ( 4.62) Stay Obtained by Filing Cost Bond I. ( 4.63) Effect of Execution on Right to Cross-Appeal J. ( 4.64) Lawsuits Involving Contracts Enforcement of Judgment Notwithstanding the Filing of Undertaking STAYS A. ( 4.65) Stay of Execution Pending Resolution of Posttrial Motions B. ( 4.66) Stay of Execution Pending Filing of Notice of Appeal C. ( 4.67) Stay Unnecessary for Nonfinal Judgments V. CROSS-APPEALS A. Necessity 1. ( 4.68) Generally 2. ( 4.69) Issues that May Be Raised by a Cross- Assignment of Error B. ( 4.70) Timefor Filing C. Format 1. ( 4.71) Generally 2. ( 4.72) Designation of Adverse Parties 3. ( 4.73) Designation of Record D. ( 4.74) Undertakings FORMS 4-1 Stipulation Waiving Undertaking on Appeal 4-2 Undertaking on Appeal Civil Action Supersedeas Appeal Bond 4-3 Cost Bond on Appeal 4-4

7 Civil Appeals / 4.3 I. ( 4.1) SCOPE OF CHAPTER This chapter addresses special considerations for handling civil appeals in the Oregon state appellate courts. It covers questions involving whether an order or a judgment is appealable and how various procedural steps can affect the appealability of an order or a judgment. The chapter also addresses issues involved in filing undertakings, obtaining stays, and filing cross-appeals. II. APPEALABLE ORDERS AND JUDGMENTS A. ( 4.2) Statutory Provisions Before an appellate court can acquire jurisdiction over any portion of a civil case, there must be an appealable order or judgment. An appeal from a nonappealable order or judgment does not confer jurisdiction on the appellate court, and the appeal must be dismissed. Meyer v. Joseph, 295 Or 588, 590, 668 P2d 1228 (1983); Ragnone v. Portland School District No. 1J, 289 Or 339, 343, 613 P2d 1052 (1980); Industrial Leasing Corp. v. Van Dyke, 285 Or 375, 377, 591 P2d 352 (1979). Only a very few orders and not even all judgments are appealable. ORS identifies those judgments and orders that are appealable. Any final judgment is appealable. ORS (1). In addition, pursuant to ORS (2), the following orders are considered judgments for purposes of appeal and, therefore, also are appealable: (a) An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein. (b) An interlocutory decree in a suit for the partition of real property, defining the rights of the parties to the suit and directing sale or partition. (c) A final order affecting a substantial right, and made in a proceeding after judgment or decree. (d) An order setting aside a judgment and granting a new trial. (e) A final judgment or decree entered in accordance with ORCP 67 B. B. The Requirement of Finality 1. ( 4.3) Purpose To be appealable, a judgment must be final or the order appealed from must affect a substantial right that determines the action or proceeding so as to prevent a judgment. ORS (2)(a). That 4-5

8 4.4 / Civil Appeals requirement of finality is imposed to avoid piecemeal appeals. See Dlouhy v. Simpson Timber Co., 247 Or 571, , 431 P2d 846 (1967); see also David M. Scott Construction v. Farrell, 285 Or 563, , 592 P2d 551 (1979). 2. ( 4.4) Determination of Finality Generally, a judgment is final for purposes of appeal if: (1) The judgment finally determines the rights of the parties so that no further questions can arise except those necessary to be determined in carrying the judgment into effect. State ex rel Zidell v. Jones, 301 Or 79, 85, 720 P2d 350 (1986); Durkheimer Inv. Co. v. Zell, 161 Or 434, , 90 P2d 213 (1939); Winters v. Grimes, 124 Or 214, , 264 P 359 (1928); Mendenhall v. SAIF, 16 Or App 136, 138, 517 P2d 706 (1974); but see Multistate Tax Commission v. Dow Chemical Co., 295 Or 831, , 671 P2d 108 (1983); , infra. (2) The judgment is susceptible to immediate enforcement. Lyon v. Mazeris, 170 Or 222, , 132 P2d 982 (1943). Notethat, absent the language required by ORCP 67 B, a judgment that resolves fewer than all of the claims against all of the parties is not subject to execution and is subject to revision at any time before entry of a judgment adjudicating all of theclaims and therights and liabilities of all of theparties. ORCP 67 B; Gull Industries v. Mustang Gas and Oil Co., 73 Or App 557, 562, 699 P2d 1134, rev. denied, 299 Or 583 (1985); Kuvaas v. Cutrell, 50 Or App 529, 532, 623 P2d 1116 (1981) (construing former ORS , the predecessor to ORCP 67 B). See , infra. NOTE: An order refusing to enter a final judgment may be a final, appealableorder if all of theclaims and therights and liabilities of all of the parties have been resolved. Gillespie v. Kononen, 310 Or 272, 279, 797 P2d 361 (1990). C. Lawsuits Involving Multiple Claims or Multiple Parties 1. ORCP 67 B a. ( 4.5) Generally If a claim or all of the interests of at least one of the parties has been determined but other claims remain, a judgment resolving the matter that has been determined may be appealable if the trial court expressly finds that there is no just reason for delay and also expressly directs entry of a judgment as to that claim or party. ORCP 67 B. 4-6

9 Civil Appeals / 4.6 There are a number of decisions explaining the proper use of ORCP 67 B and when a judgment entered pursuant to ORCP 67 B is appealable. See, e.g., Lesch v. DeWitt, 317 Or 585, , 858 P2d 872 (1993); Dept. of Rev. v. Universal Foods Corp., 311 Or 537, 815 P2d 1237 (1991); State ex rel Orbanco Real Estate Serv. v. Allen, 301 Or 104, 720 P2d 365 (1986); State ex rel Zidell v. Jones, 301 Or 79, 720 P2d 350 (1986); May v. Josephine Memorial Hospital, 297 Or 525, 686 P2d 1015 (1984); Industrial Leasing Corp. v. Van Dyke, 285 Or 375, 591 P2d 352 (1979). A judgment that resolves fewer than all the claims against all of the parties is not a final judgment and is subject to revision at any time until a final judgment is entered. However, the judgment can be made final and appealable if it is entered in accordance with ORCP 67 B. ORS (2)(e). To constitute a final judgment under ORCP 67 B, the judgment must resolve at least one entire claim against one or more parties. The judgment cannot resolve only one of the issues or grounds asserted under oneclaim. Lesch v. DeWitt, supra; Dept. of Rev. v. Universal Foods Corp., supra, 311 Or at ; May v. Josephine Memorial Hospital, supra, 297 Or at ; Chelson v. Oregonian Publishing Co., 71 Or App 645, , 694 P2d 981 (1985). PRACTICE TIP: If there is any doubt about whether a judgment is appealable, a party s right to appeal should be preserved by filing a notice of appeal and then moving the appellate court for a determination as to appealability. The only risk is that the Court will determine that the notice of appeal is premature and will either remand under ORS (4) for entry of an appropriate judgment or dismiss the appeal and require the parties to return to the trial court to obtain an appealable judgment. However, if no notice of appeal is filed and if the judgment was in fact final, the right to appeal is lost and cannot be resurrected. Because the 30-day time limit is jurisdictional (ORS , ; see 4.2, supra; 4.27, infra), appellate courts cannot grant permission to file a late notice of appeal. b. ( 4.6) Trial Court Discretion The trial court has absolute discretion to determine whether there is any just reason for delay. The trial court s decision in that regard is not reviewable on appeal, even if there is nothing in the record to support the 4-7

10 4.7/ Civil Appeals trial court s determination. May v. Josephine Memorial Hospital, 297 Or 525, 531, 686 P2d 1015 (1984). c. ( 4.7) Necessary Language The trial court must expressly provide in the judgment that there is no just reason for delay. ORCP 67 B; May v. Josephine Memorial Hospital, 297 Or 525, 530, 686 P2d 1015 (1984); Industrial Leasing Corp. v. Van Dyke, 285 Or 375, , 591 P2d 352 (1979). The trial court also must expressly direct entry of the judgment. ORCP 67 B. If the trial court makes the necessary determination that there is no just reason for delay but does not include an express direction for entry of the judgment, the judgment is not final and is not appealable. Hale v. County of Multnomah, 298 Or 141, , 689 P2d 1290 (1984). The trial court can satisfy the express direction for entry requirement by stating in the judgment: IT IS ORDERED AND ADJUDGED THAT... Nelson v. Lane County, 79 Or App 753, , 720 P2d 1291 (1986), aff d, 304 Or 97 (1987). Languagein the recitals of a judgment discussing thedisposition of a claim is not sufficient. The claim must be resolved in the adjudicatory portion of thejudgment. Parnicky v. Williams, 302 Or 150, 151, 727 P2d 121 (1986); Maduff Mortgage Corp. v. Deloitte Haskins & Sells, 83 Or App 15, 21, 730 P2d 558 (1986), rev. denied, 303 Or 74 (1987); see 4.11, infra. 4-8