City of Portland v. Carriage Inn
| Decision Date | 20 December 1983 |
| Citation | 296 Or. 191,673 P.2d 531 |
| Parties | CITY OF PORTLAND, A Municipal Corporation, Petitioner on Review, v. CARRIAGE INN, James W. Flad, John M. Molendyk, Gordon A. Caron, Learoi Shite, William M. Ofstad, Robert Petrix, Mary C. Bline, Paul Henry and Judy Alberton, Respondents on Review. TC A8006-03622; CA A25873; SCS S30093. |
| Court | Oregon Supreme Court |
Paul C. Elsner, Portland, submitted petition on behalf of petitioner for review and briefs in the Court of Appeals. With him on the briefs and petition was Christopher P. Thomas, City Atty., Portland.
Rex Armstrong, Portland, submitted briefs on behalf of respondents on review in the Court of Appeals. With him on the briefs were Leslie M. Roberts and Kell, Alterman & Runstein, Portland.
Petitioner seeks review of the dismissal of his appeal by the Court of Appeals, 64 Or.App. 751, 669 P.2d 1185, for lack of jurisdiction. The Court of Appeals dismissed plaintiff's appeal from a judgment dated September 9, 1982, as untimely because plaintiff could have appealed from an order entered on June 4, 1982, that dismissed the plaintiff's complaint without leave to replead.
The Court of Appeals quoted the dispositive portion of the circuit court's "Order":
"IT IS ORDERED that Defendants' motion is granted in its entirety, and the complaint is dismissed, without leave to replead." 1
The Court of Appeals then held that this order "was a final order within the meaning of ORS 19.010(2)(a)...." We disagree.
ORS 19.010 provides:
To be appealable under ORS 19.010(2)(a), an order must not only "determine the action or suit" but must "prevent a judgment or decree therein." If the quoted document in this case was only an "order," so as to fall under ORS 19.010(2)(a), it would lay the foundation for entry of a judgment 2 not prevent it. The June 4 "order" was appealable only if it was itself a "judgment or decree" appealable under ORS 19.010(1).
The circuit court may have intended the order to have that effect, because it disposed of the case except for taxation of costs, disbursements, and attorney fees, which does not delay entry of judgment. ORCP 70B(1). Nevertheless, an "order" cannot take the place of a "judgment or decree." ORCP 70A specifically prescribes: "Every judgment shall be in writing plainly labeled as a judgment and set forth in a separate document." Counsel contemplating an appeal must be able to rely on that document, properly labeled a "judgment," in determining the 30-day period within which to file notice of appeal under ORS 19.026(1).
The Court of Appeals therefore dismissed the appeal upon an erroneous premise. We allow the petition for review and remand the case to the Court of Appeals for...
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...issues remaining for determination in the trial court but the judgment did not state that finality. See, e.g., City of Portland v. Carriage Inn, 296 Or. 191, 673 P.2d 531 (1983). ORS 19.033(4) did not change the requirement of prior case law that a decision on the merits of a case depends o......
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...plaintiffs. Those rulings have not been reduced to judgment and are not appealable. ORS 19.205; ORCP 70 A; City of Portland v. Carriage Inn, 296 Or. 191, 194, 673 P.2d 531 (1983) ("order" not appealable); Ensley v. Fitzwater, 293 Or. 158, 160, 645 P.2d 1062 (1982).1 The remaining assignment......
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