Lovelace v. Morrow

• Citation: 186 Or. App. 719,64 P.3d 1201
• Parties: Scott A. LOVELACE, Appellant, v. Mitch MORROW, Superintendent, Oregon State Correctional Institution, Respondent.
• Decision Date: 13 March 2003
• Court: Oregon Court of Appeals

64 P.3d 1201

186 Or. App. 719

Scott A. LOVELACE, Appellant, v. Mitch MORROW, Superintendent, Oregon State Correctional Institution, Respondent.

98C-21204; A106854.

Court of Appeals of Oregon.

Argued and Submitted April 8, 2002.

Decided March 13, 2003.

Harrison Latto argued the cause and filed the briefs for appellant.

Kelly Knivila, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

WOLLHEIM, J.

Plaintiff appeals the trial court's dismissal of his claim that he is entitled to habeas corpus relief. Defendant asserts that plaintiff's appeal is untimely and must be dismissed. As explained below, we agree with defendant that this appeal is untimely and dismiss the appeal.

The pertinent procedural facts are as follows. Plaintiff petitioned for a writ of habeas corpus and, in January 1999, the trial court issued the writ ordering defendant to file a return. Defendant filed a return asserting that plaintiff's confinement was lawful. Plaintiff filed a replication and later an amended replication that took the place of the petition and became the operative complaint. See generally Bedell v. Schiedler, 307 Or. 562, 566-67, 770 P.2d 909 (1989)

(explaining pleading sequence in habeas corpus proceedings). Defendant subsequently moved to dismiss the writ on the ground that plaintiff had failed to state or establish a claim for habeas corpus relief. See ORS 34.680(1) (after writ issues, defendant may move to dismiss the writ on the ground that the pleadings and any supporting evidence demonstrate that plaintiff has failed to state or establish a claim for habeas corpus relief); McClintock v. Schiedler, 123 Or.App. 334, 336, 859 P.2d 580 (1993) (motion to dismiss after issuance of writ is "the functional equivalent of a motion for summary judgment"). The trial court granted the motion.

On May 24, 1999, the trial court entered a judgment of dismissal with prejudice, stating that, "for the reasons set forth in Defendant's Motion to Dismiss the Writ of Habeas Corpus, the Court finds that Plaintiff's petition fails to state a claim for Habeas Corpus relief * * *."

That judgment ordered that the petition be dismissed with prejudice. Shortly thereafter, plaintiff moved to amend the judgment pursuant to ORCP 71 A, which permits courts to amend judgments to correct clerical mistakes, arguing that, instead of dismissing the "petition," the court should have dismissed the "replication." On June 25, 1999, the trial court entered the amended judgment, changing the references therein from "petition" to "replication."

On June 30, 1999, plaintiff filed a notice of appeal from the May 24, 1999, judgment. This court, by order, dismissed the appeal as untimely and denied plaintiff's motion to file a delayed appeal on the ground that there exists no statutory authority to allow the filing of a delayed appeal in a habeas corpus case. Thereafter, plaintiff filed a motion to reconsider the order of dismissal, bringing to this court's attention, for the first time, the amended judgment dismissing the replication that had been entered on June 25, 1999. Plaintiff argued that, although the notice of appeal was not filed within 30 days of the original judgment, it was nonetheless timely because it was filed within 30 days of the amended judgment. Defendant did not oppose plaintiff's motion for reconsideration. We granted reconsideration and reinstated the appeal in an order that stated:

"If a notice of appeal is filed within 30 days of the date of an appealable judgment, the appeal is considered timely, even if the notice references the wrong date and has attached to it the wrong document. Werline v. Webber, 54 Or.App. 415 (1981)[, rev. den., 292 Or. 450, 644 P.2d 1128 (1982) ]; Grant County Federal Credit Union v. Hatch, 98 Or.App. 1, 6, [777 P.2d 1388, rev. den., 308 Or. 592, 784 P.2d 1099] (1989). The notice of appeal was filed within 30 days of the only valid judgment in this case and the appeal may go forward from that judgment."¹

Plaintiff then briefed the merits of his appeal. Defendant, in his response brief, moved to dismiss the appeal. See generally ORAP 7.15(3) (motions to challenge court's jurisdiction may be resubmitted without leave of the court). Defendant argues that the amended judgment did not extend the time for filing a notice of appeal under the rule of law announced in Mullinax v. Mullinax, 292 Or. 416, 425-26, 639 P.2d 628 (1982):

"[W]hether the time for appeal should be measured from the original judgment or the amended judgment [depends] upon: (1) whether the amendment, in effect, either materially alters rights or obligations determined by the prior judgment or, (2) whether, because of the nature of the amendment, a right of appeal is created where one did not exist before. If the amendment is found to have either of these effects, the time for appeal is measured from the entry of the amended judgment. If, on the other hand, such effects do not result from the correction of the `clerical error,' the amendment does not extend the time allowed for appeal."

(Internal citations and footnote omitted.)

Plaintiff, in his reply brief, asserted that, under Mullinax, although the amended judgment did not create a right to appeal where one did not exist before, it did materially alter rights or obligations determined by the prior judgment. Most of plaintiff's arguments center on the fact that the original "petition" contained numerous matters not repeated in the amended replication. From that fact, plaintiff reasons that his rights are materially altered because, should he file future habeas corpus petitions, "claim preclusion" will be determined based on the operative pleading in the present proceeding.

At least two potential issues are presented here. (1) Was the original judgment an appealable judgment? If the original judgment was not appealable but the amended judgment was appealable, then a second question arises as to whether the notice of appeal sufficiently identified the appealable judgment, as was the case in Werline and Grant County Federal Credit Union. (2) If the original judgment was appealable, did the first amended judgment "materially alter[ ] rights and obligations determined by the prior judgment," Mullinax, 292 Or. at 425, 639 P.2d 628, such that the time of appeal should be measured from the amended judgment?

The starting point of our analysis is whether the original judgment was appealable. As noted, we implied in our previous order that it was not. However, rulings concerning our jurisdiction are always open to reconsideration. See generally North Pacific Ins. Co. v. Switzler, 143 Or.App. 223, 227 n. 2, 924 P.2d 839 (1996)

(court must always consider whether it has subject matter jurisdiction). Here, both parties assert (plaintiff explicitly and defendant implicitly) that the original judgment in this case was appealable. On reconsideration of our previous order, we agree with the parties that the trial court's original judgment was an appealable event.

It is undisputed that, in general, a trial court's judgment dismissing with prejudice a plaintiff's claims for habeas corpus relief is an appealable judgment. See ORS 34.710 (any party to a habeas corpus proceeding "may appeal from the judgment of the court refusing to allow such writ or any final judgment therein"). A court may dispose of a habeas corpus action in numerous ways. It may "deny" the petition as meritless pursuant to ORS 34.370(2)(b)(A) and enter a judgment "without prejudice" pursuant to ORS 34.370(3). It may, before the writ issues, "deny the petition" on the defendant's motion that the petition fails to state a claim for habeas corpus relief. ORS 34.680(1). It can also, as noted above, "dismiss the writ" after it has issued if the defendant so moves "on the ground that the pleadings, including the petition, the return, the replication, if any, and any supporting evidence, demonstrate that plaintiff has failed to state or establish a claim for habeas corpus relief." ORS 34.680(1). Of course, it may grant or deny the plaintiff the requested relief after a trial. ORS 34.700. Any such order may result in an appealable judgment.

The narrow question presented here is whether a trial court, in granting a motion to dismiss, is required to use certain language, e.g., "dismiss the writ," "deny the petition," "dismiss the petition," or "dismiss the replication," depending on the procedural posture of the case, in order to enter an appealable judgment. For the following reasons, we conclude that it is not, at least in circumstances such as these where the judgment indicates a clear intent to reject the plaintiff's claims and terminate the proceeding. As noted, the habeas corpus statutes make reference to denying "the petition" if the court disposes of the case before a writ has issued and to dismissing "the writ" if a defendant moves to dismiss after a writ has issued. ORS 34.370; ORS 34.680. The statutes do not specify any particular language to be used if the court enters judgment after conducting a hearing. See, e.g., ORS 34.695; ORS 34.700. If the court disposes of a case before hearing, it is logically consistent with general practice to deny or dismiss the petition (or replication if that is the operative pleading). The statutory reference to dismissal of "the writ" in ORS 34.680(1) is somewhat anomalous, given that the writ merely requires the defendant to file a return or, in some circumstances, to produce the plaintiff before the court. ORS 34.421. Nonetheless, the statutory context of ORS 34.680(1) makes it clear that dismissal of "the writ" results in the dismissal of the plaintiff's claim for habeas corpus relief.

Case law, however, reflects that there is no consistent practice as to when a trial court denying habeas corpus relief denies or...