Baugh v. Bryant Ltd. Partnerships I Through XV

• Decision Date: 19 December 1990
• Citation: 104 Or.App. 665,803 P.2d 742
• Parties: Robert H. BAUGH, Nick N. Westlund, William P. Dorsey and Jean Patterson as Executrix of the Estate of Harlan W. Patterson, individually, Appellants--Cross-Respondents, and Does One through Thirty, inclusive, Appellants, v. BRYANT LIMITED PARTNERSHIPS I THROUGH XV, David L. Bryant, Hillshire Trusts I through XV and Does One through Forty-Five, Respondents--Cross-Appellants, and Pacific Northwest Trust Co., Respondent. 86-1-357; CA A48114.
• Court: Oregon Court of Appeals

Page 742

803 P.2d 742

104 Or.App. 665

Robert H. BAUGH, Nick N. Westlund, William P. Dorsey and Jean Patterson as Executrix of the Estate of Harlan W. Patterson, individually Appellants--Cross-Respondents and Does One through Thirty, inclusive, Appellants, v. BRYANT LIMITED PARTNERSHIPS I THROUGH XV, David L. Bryant Hillshire Trusts I through XV and Does One through Forty-Five, Respondents--Cross-Appellants and Pacific Northwest Trust Co., Respondent.

86-1-357; CA A48114.

Court of Appeals of Oregon, In Banc.

Dec. 19, 1990.

John C. Caldwell, and Hibbard, Caldwell, Bowerman & Schultz, Oregon City, for petition.

David C. Force, and Vick & Gutzler, Salem, appeared contra.

JOSEPH, Chief Judge.

Plaintiffs Baugh, Westlund, Dorsey and Patterson petition for reconsideration of an order dismissing their appeal for failure to file a timely notice of appeal from an amended judgment entered pursuant to ORS 19.033(4).

We determined that the original appeal and cross-appeal in this case were defective, because the judgment from which the appeal was taken did not dispose of certain counterclaims asserted by defendants in their answer to plaintiffs' complaint. 98 Or.App. 419, 779 P.2d 1071 (1989). Instead of dismissing the appeal for lack of a final judgment, we gave the trial court leave to enter an appealable judgment, pursuant to ORS 19.033(4). ¹ We also said:

"The case will be held in abeyance until the entry of an appealable judgment and until the parties thereafter file amended notices of appeal and cross-appeal. If they do not do so within 45 days of the entry of an appealable judgment, we will dismiss the appeal or cross-appeal for want of prosecution." 98 Or.App. at 426, 779 P.2d 1071.

In due course, the trial court entered an amended ORCP 67 B judgment. Plaintiffs then filed an amended notice of appeal, and defendants filed an amended notice of cross-appeal. The notices were filed more than 30 days but within 45 days after entry of the amended judgment. We dismissed the appeal and cross-appeal on the ground that the notices were filed untimely. ² Plaintiffs petition for review of that decision.

In the petition, which we treat as a petition for reconsideration, ORAP 9.15(1), plaintiffs contend that ORS 19.033(4) does not require the filing of a notice of appeal after entry of a judgment under it and that, therefore, this court cannot dismiss an appeal for lack of jurisdiction when a party fails to file a notice after entry of the amended judgment. They also contend that, because the order (quoted above) gave them 45 days in which to file an amended notice of appeal, their appeal should not be dismissed, because they filed their amended notice of appeal within that time. Last, plaintiffs contend that the amended judgment and amended notice of appeal should relate back to the time of the original judgment and notice of appeal.

Plaintiffs misconstrue the nature of the authority given by ORS 19.033(4). Subject to exceptions not relevant here, ORS 19.010 means that an appeal can be taken only from a final judgment.

" * * * ORS 19.010(2)(e) * * * [is] not ambiguous and * * * under [its] provisions this court has no appellate jurisdiction [if] the trial court made no adjudication of the judgment's finality for appellate purposes." Industrial Leasing Corp. v. Van Dyke, 285 Or. 375, 381, 591 P.2d 352 (1979). (Emphasis supplied.) ³

ORS 19.033(1) provides that, when a notice of appeal is filed, the appellate court has "jurisdiction of the cause." A dilemma arises when a notice of appeal is filed from a nonfinal judgment. Historically, an attempt to appeal from a nonfinal judgment could result only in an order of dismissal for want of jurisdiction. See, e.g., Oregonians Against Trapping v. Martin, 72 Or.App. 210, 695 P.2d 932 (1985), and cases cited in note 3, supra. ORS 19.033(4) was enacted to avoid the need to dismiss a premature appeal in order to give the trial court the power to enter an appealable judgment, authority that the trial court lost under ORS 19.033(1) by the mere fact that a notice of appeal had been filed. However, ORS 19.033(4) does not create jurisdiction in the appellate court to decide the merits of an appeal. It only confers authority on this court to give the trial court authority to enter an appealable judgment. If a trial court never enters a judgment pursuant to leave under ORS 19.033(4), this court would have to dismiss the original appeal for lack of jurisdiction, because no final judgment had ever existed from which an appeal could be taken.

In Honeyman v. Clostermann, 90 Or.App. 615, 753 P.2d 1384 (1988), the defendants appealed from a judgment disposing of the plaintiffs' claims against them. The judgment did not dispose of the plaintiffs' claims against another defendant, Spassov. We determined that, in fact, the trial court had ruled on all claims, including those against Spassov, and that the judgment being appealed failed to reflect the full disposition of the case. Accordingly, we gave the trial court leave under ORS 19.033(4) to enter a "corrected judgment." Our order required the filing of an amended notice of appeal within 14 days after entry of that judgment. After a number of extensions of time, we fixed June 27, 1986, as the date that an amended notice of appeal would be due. The trial court entered the corrected judgment on May 29, 1986. The Clostermanns and Spassov filed separate notices of appeal from that judgment on July 1, 1986. We determined that Spassov's notice of appeal was untimely and that, therefore, this court lacked jurisdiction over his appeal. Honeyman v. Clostermann, 90 Or.App. at 619 n. 4, 753 P.2d 1384. However, we also concluded that the appeal could go forward as to the Clostermanns, because their original notice of appeal was filed timely with respect to the part of the judgment that affected them and conferred jurisdiction on this court:

"We conclude, first, that failure to file a notice of appeal within 30 days after entry of the corrected judgment does not deprive [this court] of jurisdiction. We obtained jurisdiction when defendants [Clostermann] timely appealed from the first judgment. Our remand to the trial court with leave to enter a corrected judgment pursuant to ORS 19.033(4) did not affect our jurisdiction. See Murray Well-Drilling v. Deisch, 75 Or.App. 1, 9, 704 P.2d 1159 (1985), rev. den 300 Or. 546 (1986) [which was decided before the enactment of ORS 19.033(4) ]." 90 Or.App. at 619, 753 P.2d 1384.

The petition for reconsideration has caused us to reassess that holding, and we now overrule it. In Ellis v. Roberts, 302 Or. 6, 725 P.2d 886 (1986), the Supreme Court was confronted with a notice of appeal filed after the judgment disposing of the case had been signed but before it had been entered in the register. The court noted the anomalous situation that a prematurely filed notice of appeal creates: It deprives the trial court of jurisdiction to proceed, yet it does not confer jurisdiction on the appellate court to decide the appeal. ⁴ In that case, as in the case at bar and in Honeyman v. Clostermann, supra, leave was given under ORS 19.033(4) for entry of judgment. Unlike in the case at bar, and unlike in Honeyman, the appellants in Ellis timely filed a notice of appeal after entry of the new judgment. That is a critical difference, because the act of giving leave under ORS 19.033(4) does not have any effect on the jurisdiction of the appellate court if jurisdiction to decide the case did not previously exist; it merely obviates the necessity of a dismissal in order to get the case back to the trial court. Jurisdiction can be obtained with respect to a judgment entered pursuant to ORS 19.033(4) only in the same way that it can be obtained with respect to any other judgment: by the timely filing of a notice of appeal from a final judgment. ⁵ See Industrial Leasing Corp. v. Van Dyke, supra.

Since ORS 19.033(4) was enacted, orders giving leave for entry of a judgment have stated a time by which an amended notice of appeal is to be filed. ⁶ The purpose of doing that does not reflect a jurisdictional concern. It is a case management tool. Initially, the period of time allowed was short, as reflected in the Honeyman order that required the filing of an amended notice of appeal within 14 days. That short a period resulted in parties having to move for extensions of time to file the amended notice of appeal. Honeyman is also an example of that. The more recent practice has been to state a period of 45 days from the date of the order giving leave under ORS 19.033(4). However, regardless of the amount of time specified, failure to file an amended notice of appeal within the prescribed number of days will result in this court's dismissing the appeal for lack of prosecution, pursuant to ORS 19.033(3); it has no bearing on a party's need to comply with the statutory period for filing a notice of appeal under ORS 19.023.

The order in this case said that the parties would have 45 days from the date of entry of the amended judgment to file amended notices and cross-notices of appeal, rather than 45 days from the date of the order. The phraseology apparently led appellants to assume that a notice of appeal would not need to be filed within the 30-day period in ORS 19.023. The order also said that failure to file the notice or cross-notice of appeal within the 45-day period would result in a dismissal for lack of prosecution. Even though the order said that the parties would have 45 days after entry of a new judgment to file their respective notices (and even though Honeyman v. Clostermann, supra, permitted the filing of an amended notice of appeal more than 30 days after the entry of a judgment under ORS 19.033(4)), this court has no authority to waive a jurisdictional requirement. ORS 19.033(2). Therefore, we allow the petition for reconsideration but affirm the order of dismissal.

Petition for reconsideration allowed;...