Association of Unit Owners of Timbercrest Condominiums v. Warren
256 P.3d 146
Or. Ct. App.2011Background
- Trial court granted summary judgment for Warren; a general judgment was signed June 22, 2010.
- Plaintiff filed a motion to reconsider the ruling (alternative to clarify) on June 24, 2010, before judgment was entered in the trial court register.
- Judgment was entered in the register on July 8, 2010; plaintiff filed a notice of appeal on July 21, 2010.
- Trial court denied the motion to reconsider on September 15, 2010; plaintiff did not file a new notice of appeal thereafter.
- Warren moved to determine appellate jurisdiction, arguing the premature appeal void; the appellate commission denied, then revisited with a copy of the motion to reconsider.
- Issue before the court: whether a motion for reconsideration can be treated as a motion for a new trial and whether a new notice of appeal is required after such a motion is decided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the motion to reconsider a motion for new trial | Motion to reconsider not a new trial due to timing and labeling | Motion to reconsider serves same function as a motion for new trial and grounds show re-examination of facts or law | Yes; the motion was a motion for new trial |
| Must appellant file a new notice of appeal after a motion for new trial is decided | No new notice required due to pendency and retention of jurisdiction | Yes, a new notice is necessary after disposition of the motion for new trial | No new notice required; court retains jurisdiction and appeal may proceed |
Key Cases Cited
- Gillespie v. Kononen, 310 Or. 272 (1990) (appealability of orders and entry of judgments; framework for when leave to enter appealable judgment is required)
- Baugh v. Bryant Ltd. Partnerships, 312 Or. 635 (1992) (new-notice requirement discussed; retained jurisdiction without new notice under former regime)
- Welker v. TSPC, 332 Or. 306 (2001) (premature notices during pendency and judicial interpretation of ORS 19.270 and ORS 19.255)
- Johnson v. Assured Employment, 277 Or. 11 (1977) (premature appeal generally ineffective without new notice after impediment removed)
- Propp v. Long, 313 Or. 218 (1992) (motion for new trial deemed denied if not ruled upon timely; time implications)
- Way v. Prosch, 163 Or.App. 437 (1999) (timing of appeals when motion for new trial filed prior to judgment)
- Highway Comm'n v. Fisch-Or, 241 Or. 412 (1965) (timeliness of motion for new trial filed before judgment)
- Carter v. U.S. National Bank, 304 Or. 538 (1987) (treating motions for reconsideration and their labeling; cautions against 'motion asking for trouble')
- State v. Barone, 329 Or. 210 (1999) (substance governs motion type, not caption)