May v. Josephine Memorial Hosp., Inc., s. TC

• Citation: 686 P.2d 1015,297 Or. 525
• Decision Date: 08 August 1984
• Docket Number: Nos. TC,s. TC
• Parties: Jack MAY, Petitioner on Review, v. JOSEPHINE MEMORIAL HOSPITAL, INC., David Oehling, P.C., Theodore Powell, Robert Hoellrich and Warren Kendall, Defendants, William Judy, Jon Gove, Kermit Ragain and Robin Ballantyne, Respondents on Review. 80-1585-L, CA A26292, SC S30105.
• Court: Supreme Court of Oregon

Page 1015

686 P.2d 1015

297 Or. 525

Jack MAY, Petitioner on Review, v. JOSEPHINE MEMORIAL HOSPITAL, INC., David Oehling, P.C., Theodore Powell, Robert Hoellrich and Warren

Kendall, Defendants,

William Judy, Jon Gove, Kermit Ragain and Robin Ballantyne,

Respondents on Review.

Nos. TC 80-1585-L, CA A26292, SC S30105.

Supreme Court of Oregon,

In Banc.

Argued and Submitted Jan. 26, 1984.

Decided Aug. 8, 1984.

Robert L. Cowling, Medford, argued the cause for petitioner on review. With him on the briefs were H. Scott Plouse, Patrick Ford, P.C. and Cowling & Heysell, Medford.

Thomas C. Howser, Ashland, argued the cause for respondents on review William Judy and Jon Gove. With him on the briefs were Judith H. Uherbelau and Cottle & Howser, P.C., Ashland.

Peter R. Chamberlain, Portland, argued the cause for respondents on review Kermit Ragain and Robin Ballantyne. With him on the brief was Bodyfelt, Mount, Stroup & Chamberlain, Portland.

CARSON, Justice.

The issue this case presents is whether an appeal can be dismissed because the trial court failed to articulate the reasons for its "express determination that there is no just reason for delay" when it directed entry of a judgment, pursuant to ORCP 67 B. ¹ We hold that ORCP 67 B does not require the trial court to state the reasons for its express determination that there is "no just reason for delay" in entering a judgment and further that this decision is not reviewable on direct appeal.

Plaintiff brought a medical malpractice action against defendant hospital and eight medical doctors alleging negligent care and consultation resulting in spinal cord injury and paraplegia. Four defendant doctors filed motions for summary judgment with supporting affidavits and excerpts from depositions taken in the case. At the hearing on their motions, plaintiff's attorney submitted an affidavit in opposition to defendants' motions for summary judgment, averring that an unidentified expert witness had been retained who would testify that the movants breached the applicable standard of care in providing radiology services. Plaintiff declined to disclose the identity of his expert witness, arguing that the summary judgment motions filed by defendants were being improperly used as discovery tools contrary to what was, at that time, a proposed amendment to ORCP 47. ² In his memorandum in opposition to defendants' motions for summary judgment, plaintiff stated that he was prepared to submit an affidavit from the qualified expert containing statements sufficient to establish a genuine issue of material fact. Apparently because no opposing affidavit creating an issue of fact was filed prior to the day of the hearing, as required by ORCP 47 C., ³ the trial court granted defendants' summary judgment motions and signed a "judgment order" ⁴ prepared by defendants stating in pertinent part: "The Court * * * expressly finds that there is no just reason for delay of entry of judgment and expressly directs entry of judgment in favor of defendants * * *."

Plaintiff appealed the judgment and the Court of Appeals dismissed the appeal on its own motion because the trial court failed to state reasons supporting its determination that there was "no just reason for delay" of entry of judgment and because such reasons were not "apparent on the record," relying on Portland Elec. & Plumb. v. Cooke, 51 Or.App. 555, 626 P.2d 397, rev. den. 291 Or. 117, 631 P.2d 341 (1981). The Court of Appeals announced that if reasons for the entry of a judgment were not expressly stated by the trial court, it would no longer conduct a thorough evaluation of the record to determine whether the reasons for that determination were "apparent." ⁵ May v. Josephine Memorial Hospital, 64 Or.App. 672, 675, 669 P.2d 824 (1983). We accepted review to clarify the trial court's duties with respect to ORCP 67 B. and to determine whether the trial court's determination that there is "no just reason for delay" of entry of judgment is reviewable. For the reasons discussed below, we reverse.

According to ORCP 47 G., ⁶ a summary judgment in an action involving multiple parties or multiple claims is not a final judgment unless it is entered in compliance with ORCP 67 B. ORCP 67 B. states that any order or other form of decision settling less than all the claims, or dismissing fewer than all the parties, in a multiple claim or multiple party action, is not a final judgment unless the trial court makes an express determination that there is no just reason for delay and expressly directs entry of judgment. Absent such a determination and direction, the order or decision does not terminate the action as to any of the claims or parties and it is subject to revision at any time before the entry of judgment determining all the claims and the rights and liabilities of all the parties.

In Industrial Leasing Corp. v. Van Dyke, 285 Or. 375, 591 P.2d 352 (1979), the only case wherein this court previously has construed ORCP 67 B. or its predecessor, former ORS 18.125(1), we held that the statutory language of ORS 18.125(1) was not ambiguous and that no appellate jurisdiction obtains unless the trial court makes the specific determination that a judgment which adjudicates less than the entire case justifies a separate appeal prior to the adjudication of the balance of the proceedings.

All that is required under ORCP 67 B. to obtain an appealable judgment rather than an intermediate order is for the trial court to take two separate steps. The trial court must make "an express determination that there is no just reason for delay" and it must make "an express direction for the entry of judgment." Before directing entry of judgment, the trial court must reach two conclusions: (1) that the case includes either multiple claims, multiple parties or both, and (2) that either one or more, but fewer than all, claims have been decided, or that all the rights and liabilities of at least one party have been completely adjudicated.

If the trial court's direction for entry of judgment is in error, i.e., if the order in a multiple claim or party action does not fully adjudicate a claim or all the interests of at least one party, then an appellate court should remand the case to the trial court with instructions to vacate the judgment, leaving in place the intermediate order that reflects the disposition of the prevailing party's motion. This order cannot be appealed until judgment is subsequently entered adjudicating the entire case. ⁷ ORCP 67 B. does not grant the trial court power to make orders appealable that are truly intermediate, merely by designating them as judgments. In other words, this rule gives no discretion to the trial court to treat as final that which is only a partial adjudication of the interests of a party or an adjudication of fewer than all the grounds alleged in support of a single claim. ORCP 67 B. was adopted in response to Oregon's liberalized joinder statutes which allow the liberal joinder of parties and claims. ⁸ The purpose of the rule is to make an immediate appeal available on a distinctly separate claim or as to fewer than all the parties, when it is necessary to avoid injustice. The rule is not intended to abandon the long-standing policy against piecemeal appeals.

In contrast to the trial court's direction for entry of judgment, which is reviewable as explained above, the trial court's express determination that there is "no just reason for delay" cannot be reviewed on direct appeal. We hold that ORCP 67 B. authorizes the trial court to decide when each adjudication of one or more of, but less than all, the claims or parties, in an action involving multiple claims or parties, is ready for appeal. The decision ⁹ is vested in the trial court because it is the court more likely to be familiar with the case and with the presence or absence of any justifiable reasons for delay.

The essential inquiry for the trial court under ORCP 67 B. is whether, after balancing the competing interests, an early judgment would avoid injustice to the parties and advance the interests of sound judicial administration. ¹⁰ We caution that a request for such a determination should be granted by the trial court only after careful consideration of the factors discussed below and not entered routinely or as a courtesy to counsel. Whether it will be granted depends upon the circumstances of each case.

In construing ORCP 67 B., we note that federal caselaw has not developed a precise test for determining when there is no just reason to delay the entry of judgment under the identical federal rule. ¹¹ See 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2659 and the cases cited therein. We, too, decline to enunciate a precise test, but the following factors, whenever relevant, should be considered: any prejudice, hardship or injustice caused to a party by postponing the appeal until complete adjudication of the other claims or interests of other parties; any prejudice...