We write to address this issue of appellate procedure: When a party has filed a motion for new trial and a notice of appeal is filed before the motion for new trial is decided, must the appellant file a new notice of appeal after the motion for new trial is decided? We conclude that no new notice of appeal is required. Accordingly, we grant respondent’s motion for determination of jurisdiction, determine that the court has jurisdiction of this appeal, and direct that the appeal proceed.
The essential procedural events are these: The trial court resolved plaintiffs claims by granting defendant’s motion for summary judgment. Defendant tendered a form of general judgment memorializing that decision, the trial court signed the judgment on June 22,2010. On June 24, before the judgment was entered in the trial court register, plaintiff filed its “motion to reconsider the court’s ruling on defendant Warren’s motion for summary judgment; alternative motion to clarify ruling” (motion to reconsider). On July 8, the trial court clerk entered the judgment in the register. On July 21, plaintiff filed a notice of appeal from the judgment. On September 15, the trial court entered an order denying the motion to reconsider. 1 Plaintiff did not thereafter file a new notice of appeal.
In October, defendant Warren filed a motion to determine jurisdiction, 2 contending that plaintiffs motion filed in the trial court in substance was a motion for new trial and that plaintiffs notice of appeal filed while that motion was pending was premature and, therefore, ineffective. Because plaintiff failed to file a notice of appeal within 30 days after the motion was resolved, defendant argued, this court lacked jurisdiction of the appeal. The Appellate Commissioner denied the motion on the ground that *428 defendant’s argument depended on determining that the motion to reconsider was a motion for a new trial and, because defendant had failed to provide the court with a copy of that motion, the court was unable to determine whether it lacked jurisdiction for the reason asserted by defendant. Defendant thereafter renewed his motion for determination of jurisdiction, and provided a copy of the motion to reconsider.
WHETHER THE MOTION TO RECONSIDER WAS A MOTION FOR NEW TRIAL
Defendant’s assertion that this court lacks jurisdiction to decide plaintiffs appeal depends in part on whether plaintiffs motion to reconsider was a motion for new trial. 3 Plaintiff contends that its motion to reconsider was not, because (1) the motion was filed before, not after, entry of judgment; (2) the motion did not seek relief cognizable under ORCP 64; (3) the motion was not labeled as a motion for new trial; and (4) defendant contended in the trial court that the motion was not a motion for new trial, and the trial court did not treat it as a motion for new trial.
ORCP 64 F(l) requires only that a motion for new trial be filed “not later than 10 days after entry of the judgment” and such a motion is timely notwithstanding that it is filed before entry of judgment.
Highway Commission v. Fisch-Or,
Further, the character of a motion is not determined by its caption, but by its substance.
State v. Barone,
ORCP 64 A defines a new trial as “a re-examination of an issue of fact in the same court after judgment.” The possible grounds for seeking a new trial, in cases decided by either a jury or the court, are found at ORCP 64 B and include “[insufficiency of the evidence to justify the verdict or other decision * * *,” ORCP 64 B(5), and an “[e]rror in law occurring at the trial and objected to or excepted to by the party making the application,” ORCP 64 B(6). Plaintiffs motion in the trial court argued, within the meaning of ORCP 64 B(5), that the court erred in granting summary judgment because there was a material issue of fact, namely, whether the plaintiff was formed before individual unit owners signed unit agreements and thereby waived their right to bring claims. To that extent, plaintiff invited the trial court to reexamine the facts of the case. Plaintiff also argued, within the meaning of ORCP 64 B(6), that the trial court erred in concluding that it was possible for the individual unit owners to waive the rights of the plaintiff in an action against the developer in derogation of a particular statute, and that the unit owners had waived those rights. Therefore, we conclude that the motion to reconsider, in substance, was a motion for new trial.
It makes no difference, as plaintiff argues, that defendant asserted to the trial court that the motion to reconsider was not a motion for new trial. Whether this court has
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jurisdiction of plaintiffs appeal depends, in part, on whether plaintiffs motion in substance was a motion for new trial, and a party can neither stipulate to, nor waive, jurisdiction.
Daly and Daly,
For the foregoing reasons, we conclude that plaintiffs motion to reconsider was a motion for new trial within the meaning of ORCP 64 F(2) and ORS 19.270(l)(d) (relating to whether the trial court retains jurisdiction notwithstanding filing of notice of appeal to decide motion for new trial), and ORS 19.255(2)(a) (relating to when notice of appeal must be filed if a motion for new trial is timely filed). 5
WHETHER APPELLANT MUST TIMELY FILE NEW NOTICE OF APPEAL TO PERFECT THE APPEAL
As noted above, plaintiff filed a notice of appeal within 30 days of the date of entry of the judgment, but while plaintiffs timely filed motion for new trial was pending. The filing of the motion for new trial caused the notice of appeal to be premature because, under ORS 19.255(2), when a timely motion for new trial is filed, the commencement of the appeal period does not begin to run until disposition of the motion for new trial.
Welker,
Further, in
Welker,
in the course of dismissing the appeal, the court noted that, because of the prematurely filed notice of appeal, the trial court was deprived of jurisdiction to
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decide the motion for new trial and there could be no resolution of the motion until the trial court regained jurisdiction.
6
Welker,
However, in House Bill 2368 (2007), the legislature amended ORS 19.270(1) to add to the list of actions that a trial court may exercise during the pendency of an appeal the jurisdiction to “[decide] a motion for new trial under ORCP 64.” Or Laws 2007, ch 66, § 1. For that reason, unlike the situations that obtained in Johnson and Welker, here, the motion for new trial could be decided by the trial court during the pendency of the appeal and without the need to dismiss the appeal. 7 Consistently with ORS 19.270(1) in its current form, we did not dismiss this appeal, but, rather, awaited the trial court’s disposition of the motion for new trial.
That the motion for new trial was decided after plaintiffs notice of appeal from the judgment was filed does not resolve the question of whether, after the motion was *432 decided, plaintiff was required to file a new notice of appeal. There are two indicia that the answer is yes. First, ORS 19.255(2) contemplates the filing of a notice of appeal: “If a motion for a new trial is filed and served within the time allowed by ORCP 64, * * * a notice of appeal must be served and filed” within the time specified in ORS 19.255(2)(a) or (b). (Emphasis added.) Second, when HB 2368 was before the 2007 legislature, the following exchange took place between the chair of the House Judiciary Committee and a witness testifying in support of HB 2368:
“[Witness]: Under current law, when a motion for a new trial or a motion for a judgment [notwithstanding the verdict] is timely filed, that renders the judgment non-final until the motion is disposed of, so in many of these cases we’ll probably have to dismiss the appeal anyway. But at least while we’re in the process of doing that, the 55-day period will continue to run, and we won’t have this stopping and starting, which has just caused so much confusion amongst people who don’t have lawyers and even amongst many lawyers [who] don’t really understand how this stop and start thing works.
“MacPherson: So, is the effect to sort of start over the 30 days, so if somebody files a notice of appeal with the Court of Appeals, but then after that a JNOV motion is made, that means that until that motion is decided, the time for the appeal doesn’t start to run? I understand the effect of the bill is to give the trial court jurisdiction to hear the motion, their jurisdiction hasn’t been taken away by the fact that the notice of appeal was filed, but it sounds like what the consequences of filing that motion is that that the appellate court can’t proceed with the appeal and that the time for filing a notice of appeal from the original trial court judgment doesn’t start to run until the motion is disposed of.
“[Witness]: That is correct, Mr. Chair.”
(Audio Recording, House Committee on Judiciary, HB 2368, Feb 6, 2007, at 25:49, http://www.leg.state.or.us/listen (accessed Apr 14, 2011).
To the extent that the witness assumed that, when a premature notice of appeal had been filed, the appellant must file a new notice of appeal after the motion for new trial
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has been resolved, he was mistaken because he failed to take into account two Supreme Court decisions. In
Gillespie v. Kononen,
On review, the Supreme Court reversed. The Supreme Court treated the trial court’s order denying the tenant’s motion to enter a judgment as a prejudgment order that prevented entry of judgment under
former
ORS 19.010(2)(a).
8
Gillespie,
The second case is
Baugh v. Bryant Ltd. Partnerships,
On review, the Supreme Court reversed, holding that the filing of a new notice of appeal after entry of the judgment was not jurisdictionally required.
Baugh,
“[Plossesses and retains jurisdiction over an appeal if: (1) a notice of appeal from a non-appealable order or purported judgment is timely served and filed; (2) the Court of Appeals gives the trial court leave to enter an appealable judgment pursuant to ORS 19.033(4); and (3) the trial court refuses to enter an appealable judgment in a circumstance that amounts to an order preventing a judgment.”
Baugh,
This case is like Gillespie and Baugh in that the notice of appeal was filed prematurely under circumstances within ORS 19.270(4). This case is unlike those cases, however, in that this court had no need to grant the trial court leave to enter the judgment, because, under ORCP 64 F(2) and ORS 19.270(1)(d), the trial court retained jurisdiction to decide the motion for new trial, and the time to file a notice of appeal from the judgment commenced without this court granting the trial court leave under ORS 19.270(4). The question becomes, what effect, if any, does not granting the trial court leave under ORS 19.270(4) have on whether an appellant is required to file a new notice of appeal after the motion for new trial was decided?
In summarizing the holding of
Gillespie,
the court in
Baugh
suggested that the act of the Court of Appeals granting the trial court leave to enter an appealable judgment pursuant to
former
ORS 19.033(4) was an essential element of this court possessing and retaining jurisdiction.
Baugh,
Welker
provides some guidance in that respect. In that case, the motion for new trial was filed the day after entry of judgment, followed by the filing of a notice of appeal within 30 days of the date of entry of judgment and before the trial court disposed of the motion for new trial.
Welker, read in connection with Gillespie and Baugh, supports the proposition that this court has jurisdiction to decide the merits of an appeal from a trial court decision without first requiring the filing of a new notice of appeal, 11 if: (1) when the initial notice of appeal was filed, the trial court intended to enter an appealable judgment, but (2) the notice of appeal was premature, i.e., when the initial notice of appeal was filed, the judgment was defective in form, the filing of the notice of appeal deprived the trial court of jurisdiction under ORS 19.270(1) to enter the judgment, the trial *437 court had not yet entered a judgment, or a party had timely filed a motion for new trial and the motion had not yet been disposed of under ORCP 64 F(2). 12
When plaintiff filed its initial notice of appeal in this case, the trial court, with jurisdiction to do so, not only intended to enter, but actually had entered, a judgment that conclusively disposed of all claims, and the notice of appeal was premature solely because of the pendency of a timely filed motion for new trial. The motion was deemed denied during the pendency of the appeal; therefore, as was the situation in Gillespie and Baugh, this court retained jurisdiction to decide the appeal without the filing of a new notice of appeal.
Motion for determination of jurisdiction granted; the court determines that it has jurisdiction of the appeal; appeal to proceed.
Notes
If, as we conclude, the substance of the motion was a motion for new trial, under ORCP 64 F(l), the motion had already been denied on September 2.
See Propp v. Long,
See ORAP 7.05(1)(c) (at any time during appeal, party by motion may raise issue of appellate jurisdiction).
Then Chief Justice Peterson warned that “[¡lawyers filing motions to reconsider * * * might better denominate such a motion as a ‘motion asking for trouble[.]’ ”
Carter v. U. S. National Bank,
ORCP 64 C provides:
“In an action tried without a jury, a former judgment may be set aside and a new trial granted on motion of the party aggrieved on any grounds set forth in section B of this rule where applicable. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.”
Hereinafter, plaintiffs motion to reconsider will be referred to as “motion for new trial.”
As the court explained in
Baugh v. Bryant Limited Partnerships,
“[b]efore the enactment of ORS 19.033(4) in 1985, there was no way that the Court of Appeals could keep a case pending on the appellate level if that court determined that the ‘judgment’ appealed from did not comply with a variety of requirements. The court could only dismiss the appeal.”
(Citations omitted.)
Because the trial court mistakenly determined that the motion to reconsider was not a motion for new trial, the trial court also mistakenly denied the motion on the ground that it lacked jurisdiction to rule on the merits of the motion. Plaintiff suggests that, if we determine that the motion in substance was a motion for new trial and thus the trial court had jurisdiction to rule on its merits, we should remand the case to the trial court for a ruling on the merits. We decline the invitation because, as we noted above,
ORS 19.010 was recodified in 1997 as ORS 19.205; former ORS 19.010(2)(a) is now ORS 19.205(2).
Because the 2003 amendments to ORS 18.005 define a “judgment” as the “concluding decision” in an action, we refer to a “conclusive” judgment rather than a “final” judgment, when the judgment disposes of all claims in an action. ORS 18.005(8).
ORS 19.033 was renumbered as ORS 19.270 in 1997; former ORS 19.033(4) is now ORS 19.270(4):
“Notwithstanding the filing of a notice of appeal, the trial court has jurisdiction, with leave of the appellate court, to enter an appealable judgment if the appellate court determines that:
“(a) At the time of the filing of the notice of appeal the trial court intended to enter an appealable judgment; and
“(b) The judgment from which the appeal is taken is defective in form or was entered at a time when the trial court did not have jurisdiction of the cause under subsection (1) of this section, or the trial court had not yet entered an appealable judgment.”
In this opinion, we refer to former ORS 19.033(4) when we are discussing cases decided when that was the extant version, and to ORS 19.270(4) when we are discussing the same provisions after recodification as ORS 19.270(4).
The Supreme Court held in
Baugh,
The purposes of ORS 19.270(4), as recited in
Baugh,