*1 Argued September and submitted reversed and remanded to Court December al, et CARTER Review, Respondents on UNITED STATES OREGON, NATIONAL BANK OF
Petitioner on Review. (TC L85-0997; A39448; S33802) CA SC Portland, Neupert, argued John F. the cause on behalf petitioner With petition review. him the were James Westwood, Miller, N. W. Nash, Michael Mosman and Wiener, Carlson, & Hager Portland. Morrison,
David Roseburg, the cause on behalf respondents on review. Peterson, Justice, Lent, Linde, Carson, Before Chief Gillette, Jones and Justices.
GILLETTE, J. opinion.
Peterson, J., and filed an concurred C.
GILLETTE, J. The issue in this case is whether an motion to set aside a summary decree. We hold that it is.
This is a civil
February
case. On
the trial
court entered an order
the motions of defendant U. S.
(Bank)
National Bank
judgment.
February
27, 1986, plaintiffs filed a motion to “reconsider” the order
granting summary judgment.
disputes
No one
timely.
motion was
responding
plaintiffs’ motion,
Without
however,
the trial court entered
for Bank on March
20, 1986,
1986. On March
granted plaintiffs’
court
3, 1986,
vacated the March
judgment and denied
Bank’s motions for
Bank
20, 1986,
March
order. The Court of Appeals dismissed the
appeal, holding that an order granting a motion to set aside a
appealable.
Carter v.
S.U. National
81 Or App
Bank sought review.
In a
memorandum
this court reversed the order of
dismissal and remanded the case to the Court of Appeals for
light
Grill,
reconsideration in
Ins. v.
*3
(1986).
587,
Bank,
Or
Bank that the trial court’s order of March 1986, was order a judgment aside “[a]n and, therefore, trial” was 19.010(2)(d).1 prior of our have treated a Several decisions summary judgment equivalent motion to set aside a as the of a However, motion for a those dealt new trial. none of decisions question resulting with the whether the order from the motion immediately appealable. was
The first of our decisions was State ex rel State Farm 1 provides: That statute “(2) purpose being appeal following be For the reviewed on the shall judgment
deemed a or decree:
<<* * *
[*]
[*]
“(d)
judgment
An
a new trial.”
Olsen,
The defendant certainly a it rendered mary judgment “judgment,” was was a trial ORS did not when apply without 17.615 disagreed, noting there has been no “trial.” court properly granted, motion for “[w]hen * * * determines, upon the case is at issue and the court depositions, answers and admis- ‘pleadings, interrogatories, to file, sions on with the affidavits’ that ‘there is no together ” * * *,’ issue as genuine material fact and concluded sufficiently “a motion to set request involves a to reexamine the factual assertions of parties that it to a for a new corresponds motion trial” 17.615. purposes Id. at 182-83. We therefore a held that a motion to set aside was not days entry it more after timely when was filed than 10 Id. Roman, (1979), In plaintiffs was notice was the issue entry of timely days when it was filed more than 30 after the days from but less than plaintiffs was motion to set 19.026(2) filing denied. ORS allows 30 a notice disposing of an order of a “motion for new Relying timely trial.” held that a court a motion a new trial to set aside *4 19.026(2). of ORS Id. at 811. meaning within Grill, supra, Ins. was another facts almost appeal involving procedural case of dismissed The there appellant identical those in the trial court as labelled post 7IB., motion to set aside a under ORCP actually was a motion for a trial under ORCP 64.2 If it was latter, timely. not, If was filed too late. The Court of appeal. dismissed notice of court, relying Cooley, reversed the order of dismissal of the Court of Appeals. case,
In this the Court of Appeals initially held that a equivalent motion to set aside a is not the of a motion for a new trial. The court concluded that Olsen and Cooley valid, they were no longer because were based on the (repealed by definition of a “trial” under ORS 17.025 199), provided: Or Laws ch which § judicial “A trial is the examination of the issues between parties, they be issues of law or of fact.” decided, After Olsen and were the legislature repealed 64A., adopted ORS 17.025 and which defines a “new trial” as a “reexamination of an issue of fact in the same court after judgment.” Court of reasoned that the legislature change intended to the definition of a “new trial.” It concluded that:
“* * * summary judgment proceeding A does not involve fact; indeed, the examination of issues of if an issue of mate- exists, summary judgment rial fact An must be denied. reconsidering vacating trial’; rather, proceed a ‘new it allows the case to to a provides, part: ORCP 71B. upon may party just, such “On motion and terms as are relieve a (a) party’s legal representative following
such mistake, reasons: (b) inadvertence, surprise, newly neglect; or excusable discovered evi- diligence have been in time dence which due could not discovered to move for * * new trial under Rule 64F. *.” provides, part: ORCP 64B. may granted “A new trial in an action be set aside by jury party aggrieved where there has been a trial on the motion of the party: following materially affecting rights causes the substantial of such
<<* * * jf: [*] “(4) evidence, Newly party making applica- discovered material for the tion, party diligence have discovered and which such could not reasonable produced at the trial.” jury, may granted provides a new trial ORCP 64C. a case tried without a grounds set out ORCP 64B. *5 the first fact will be examined at which issues of trial not ‘reexamined.’ sum- motions for granted defendants’ the trial court “Here as they entitled to
mary ruling that were judgment, court recon- law. On plaintiffs’ a matter of so that a of fact exist genuine issues sidered and found trial court decided permissible. The is not issues of fact proceed trial so that the should that the case examine That trial would developed and examined. could be therefore, ‘new time; it is not a fact for the first the issues of March 20 in 64A. The is defined trial’ as that term trial; sum- a motion for it denies order does mary judgment cannot
19.010(2)(d).” (emphasis original). at App our decision Appeals did not mention
The Court of which was decided Grill, supra, v. Ins. Employee Benefits above, relied but nonetheless changes discussed legislative petition for review petitioner’s We allowed light of Appeals of for consideration remanded to the Court Bank, Carter v. U. S. National Grill. its for- remand, Appeals adhered to the Court opinion, stating
mer
that:
v. Grill require a
“Employee
Insurance
Benefits
Grill,
summary judgment was
result. In
a motion for
different
allowed,
summary judgment aside was
set the
and a motion to
(relief
mis-
judgment based on
ORCP 71B
made under
newly
take,
neglect
discovered
[sic], excusable
inadvertance
(new trial).
evidence),
The reason
not under ORCP
there was new evidence
the motion was that
asserted for
only
ruling on the motion
after the
‘available
Grill,
v.
Insurance
300 Or at
judgment.’
qualified as one
Supreme
that the motion
The
Court held
589.
ground both to
Newly
is a
discovered
for a new trial.
evidence
for a new trial
judgment under ORCP 71B and
aside a
set
in Grill
Supreme
Court
64. We believe that
under ORCP
of ORCP 71B
merely disregarded the erroneous citation
properly cognizable
as
substance of the motion
considered the
no
opinion
Its
contains
trial motion.
under ORCP 64 as a new
opinion.”
analysis
point
we made
our
590.
App
at
supra,
Carter v. U. S. National
attempt
the Court of
to limit Grill is
The
expressly
unpersuasive.
we
relied on
In
proposition
“a
motion to set
qualifies
for a new trial.”
We ceeding is, facts; the court does contested that does not decide evidence. The court resolve conflicts in the not at that time it examines however, fact, issues does, “examine” of parties’ there is determine whether assertions to factual not, a or, if there is in the evidence material conflict party judgment of law. This court as a matter is entitled to recognized to that a motion where we stated as much request to reexamine “a a involves set aside (emphasis parties.” 182-3 285 Or at of the assertions factual holding supplied). summary judgment that a erred in of thus The Court longer qualifies proceeding as a “trial” no longer a no summary judgment a motion to set and that a account. We motion for new trial considered a can be that can advanced in favor arguments be turn to other by Appeals. made Court of of this case disposition case, summary judgment order granting In this vacat- thereon, preceded the order and the entered summary judgment. Orders denying and ing ordinarily appealable are summary judgment denying Erlandson, chapter 19. Smallwood v. (1978).3 rule, it be From well-settled can 576 P2d that, purpose judicial efficient administra- an tion, nothing more than a denial decision, no or when that denial interlocutory matter how interlocutory a denial if made in the To treat such as obtained. instance, fortuity it but is made first allowed, was first motion intervening timely for recon- was entered an filed, process had been could said to make the sideration everything the nature of the order itself irrelevant. however, simplistic. we here is not argument, is too What have merely denying summary judgment. an order It is also previously-entered judgment. anom- single A illustration demonstrates a true aly by acceptance plaintiffs argument. would be created permits judge ORCP 64G. a trial new trial on the own initiative time within 30 court’s There little absent can be doubt *7 judg- enter aside a judge setting could an order And, if pursuant the one case to ORCP ment like in this 64G. done, an equally can be little doubt that such this were there setting judg- as “an order appealable order would 19.010(2)(d). No a new trial” under ORS ment the rea- respect symmetry origin for can permit decent judgment—whether the order son for party judge’s of a or the own initiative—control of the order. appealability 3 Haynes, 714, 1168, 1, App also First Bank v. P2d See Interstate 73 Or 716 n 699 to, opinion 18, 704 (1985); Paul Ins. v. St. Fire & Marine App adhered 75 P2d Or 1165 Leasing (1983);
Speerstra,
v.
App 533, 536,
All-States
P2d
63 Or
666
255
Pacific
Jackson,
(1977); Hoy
736,
Corp.,
733,
Empire
v.
App
26 Or
Land
31
546 the Court
What had before it in this case was an order new trial. 19.010(2) (d).4 appealable. Such an order is The order of the Court of Appeals dismissing appeal is reversed. The case is remanded to the Court of Appeals for further proceedings.5
PETERSON, J., concurring. C.
I in separately concur the result but write to comment generally on motions to reconsider.
The so-called “motion for reconsideration”
appears
neither
in the
Rules of
Oregon
Civil Procedure nor in
Oregon
Lawyers filing
other
statute.
motions to reconsider
entry
of judgment might better denominate
such a
trouble,”
motion as a “motion
asking
questions
arise
concerning
filing
of such a motion extends the
time for
Of
effect
appeal.
judg-
what
order entered after
ment on such a motion?
Does
time for
run from
entry
55-day period
of the order? Does the
of ORCP 65F.
**(“*
apply?
the motion
set aside a
and for a
[to
by
shall be heard and determined
the court within
trial]
entry
judgment,
55
from the time of the
and not
thereafter, and if
so
heard and determined within said
denied.”)
the motion shall conclusively be deemed
Cf.
State ex rel State Farm Mutual Auto Insurance
v.Co.
179, 182-83,
P2d 231
590
Use of such motions
creates
uncertainty
discouraged.
should be
disposition
unnecessary
Our
of the case on this basis makes it
to address Bank’s
19.010(2)(c).
argument
appealable
alternative
That
makes
a “final
section
affecting
right,
proceeding
order
a substantial
and made
or decree.”
emphasize
opinion
“appealable.” We
We
that this
addresses what orders are
do
questions
recurring
not answer the
and unresolved
about when an
Olsen, Cooley
appealed.
question
particular
must be
and Grill answer that
in a
context.
See,
Salem,
problem
spectrum.
e.g.,
City
App
Alt v.
occurs
a broader
(1987)
(effect
(petition
pending)