Welker v. TEACHERS STANDARDS AND PRACTICES

• Decision Date: 19 July 2001
• Citation: 27 P.3d 1038,332 Or. 306
• Parties: Steven R. WELKER, by and through Leslie R. BRADBURY, Assignee, Respondent on Review, v. TEACHERS STANDARDS AND PRACTICES COMMISSION, Petitioner on Review.
• Court: Oregon Supreme Court

27 P.3d 1038

332 Or. 306

Steven R. WELKER, by and through Leslie R. BRADBURY, Assignee, Respondent on Review, v. TEACHERS STANDARDS AND PRACTICES COMMISSION, Petitioner on Review.

(CC 95C-12525; CA A93668; SC S45211)

Supreme Court of Oregon.

Argued and Submitted March 10, 1999.

Decided July 19, 2001.

Michael C. Livingston, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

James M. Brown, of Enfield Brown & Collins, Salem, argued the cause and filed the brief for respondent on review. With him on the briefs was Nicole M. Hendricks.

Harry Auerbach, Portland, Jane Ellen Stonecipher, Salem, and Cory Streisinger, Portland, filed the briefs for amici curiae League of Oregon Cities, Association of Oregon Counties, and Port of Portland.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.²

RIGGS, J.

We allowed review in this case to consider whether a contract provision that waives a statutory right to indemnity is void as against public policy. The Court of Appeals held that the provision at issue might be void for that reason (depending on the resolution of certain factual issues on remand). Welker v. TSPC, 152 Or.App. 190, 203, 953 P.2d 403 (1998). After briefing and oral argument, we noted a potential jurisdictional issue and requested that the parties answer several questions. After considering the record and the parties' arguments, we conclude that, in its present posture, appellate jurisdiction is lacking in this case. Accordingly, we dismiss the petition for review, vacate the decision of the Court of Appeals, and remand the case to the trial court for further proceedings.

Plaintiff filed a civil action against defendant. The parties filed cross-motions for summary judgment. The trial court entered an order and a separate judgment in favor of defendant. The court entered the judgment in the register on May 30, 1996.

On May 31, 1996, plaintiff filed a "Motion for Order Setting Aside Judgment and Reconsideration of Order Dismissing Third Amended Complaint." On June 7, 1996, still within the ten-day time limit for filing a motion for new trial under ORCP 64 F, plaintiff filed a "Supplemental Memorandum in Support of Motion for Order Setting Aside Judgment." In the supplemental memorandum, plaintiff stated that he relied on ORCP 64 C in support of his motion. The supplemental memorandum concluded, "[f]or purposes of clarification[,]" that "plaintiff moves for reconsideration or, in the alternative, for a new trial following that order awarding summary judgment to defendant."

The trial court did not enter an order on plaintiff's motion. On June 27, 1996, plaintiff filed his notice of appeal.

This case requires us first to consider whether plaintiff's motion was, in fact, a motion for a new trial and, if so, then to consider the effect that the motion has on plaintiff's appeal. ORCP 64 governs motions for new trial.³ ORCP 64 A defines a new trial as "a re-examination of an issue of fact in the same court after judgment." ORCP 64 B sets out the grounds for granting a new trial when the original trial was by jury. ORCP 64 C makes ORCP 64 B applicable, in certain circumstances, to trials without a jury. A motion for new trial generally must be filed within 10 days after the trial court entered the judgment. ORCP 64 F. If the trial court does not rule on the motion within 55 days from the date that the judgment was entered, then the motion is deemed to be denied. Id.

If a party files a motion for new trial, then the time to take an appeal from the original judgment does not begin to run until the trial court enters an order ruling on the motion or the motion is deemed denied. Former ORS 19.026(2) (1995), renumbered as ORS 19.255(2) (1997).⁴ An order granting a motion for new trial is deemed to be a judgment, former ORS 19.010(2)(d) (1995), renumbered as ORS 19.205(2)(d) (1997), and thus the parties have 30 days from the date the order granting a new trial was entered to file a notice of appeal, former ORS 19.026(1) (1995), renumbered as ORS 19.255(1) (1997).

The parties make three arguments as to why plaintiff's motion was not a motion for new trial, despite the fact that the supplemental memorandum expressly asserted that it was. First, both parties contend that the motion was not a motion for new trial because it addressed only issues of law. That argument is based on ORCP 64 A, which defines a new trial as "a re-examination of an issue of fact in the same court after judgment." That rule, however, defines only what a new trial is, not why a party would be entitled to one. The reasons why a party may be entitled to a new trial are set out in ORCP 64 B. They include issues of law. See ORCP 64 B(5) ("Insufficiency of the evidence to justify the verdict or other decision, or that it is against law." (Emphasis added.)); ORCP 64 B(6) ("Error in law occurring at the trial and objected to or excepted to by the party making the application.").

Second, defendant contends that plaintiff's motion was not a motion for new trial because it did not state plainly its grounds. Assuming arguendo that the motion was defective in that respect, such a defect would not make any difference. Former ORS 19.026(2) (1995) applies to a motion for new trial whether or not the motion has merit.

Third, defendant argues that the motion was not a motion for new trial because it was not captioned as such. See Alternative Realty v. Michaels, 90 Or.App. 280, 285, 753 P.2d 419 (1988) (stating such a requirement). Again, we cannot agree. Defendant identifies no statute or rule that requires a motion for new trial to use particular words in its caption. This court has held that a motion is controlled by its substance, not its caption. See, e.g., State v. Barone, 329 Or. 210, 221, 986 P.2d 5 (1999), cert. den. 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000) ("We address defendant's motion according to its substance, not its caption."). More specifically, this court has held that a motion was a motion for new trial although it was not denominated as such. See Carter v. U.S. National Bank, 304 Or 538, 546, 747 P.2d 980 (1987) (motion to reconsider grant of summary judgment was motion for new trial; therefore, order granting motion was appealable as order granting new trial); Cooley v. Roman, 286 Or. 807, 811, 596 P.2d 565 (1979) (motion to set aside summary judgment was motion for new trial). In sum, we conclude that plaintiff's motion was a motion for new trial.

As noted, former ORS 19.026(2) (1995) provides that, if a motion for new trial is filed, then the time to take an appeal from the original judgment does not begin to run until the trial court enters an order ruling on the motion or the motion is deemed denied. Plaintiff's motion for new trial in this case had not been denied by order or deemed denied by the passage of 55 days when plaintiff filed his notice of appeal. The trial court did not enter an order in the register ruling on the motion, as required by former ORS 19.026(2)(a) (1995). Neither was the motion deemed denied before the notice of appeal was filed, as required by former ORS 19.026(2)(b) (1995), as June 27, 1996, the date on which plaintiff filed his notice of appeal, was only 28 days after the court had entered judgment, well before the 55 day limit set out in ORCP 64 F. Because plaintiff's motion for new trial has not been resolved, plaintiff failed to comply with former ORS 19.026(2) (1995): He did not file the notice of appeal "within 30 days after" the motion for new trial was denied by order or deemed denied by the passage of 55 days. (Emphasis added.)

A notice of appeal filed before the time to appeal begins to run is jurisdictionally defective. See State ex rel. Juv. Dept. v. Dahl, 310 Or. 59, 791 P.2d 132 (1990) (vacating decision of Court of Appeals when notice of appeal was filed before entry of judgment in register); Ellis v. Roberts, 302 Or. 6, 8-9, 725 P.2d 886 (1986) (notice of appeal filed two days before judgment was entered was premature); Johnson v. Assured Employment, 277 Or. 11, 14, 558 P.2d 1228 (1977) ("The great weight of authority of both old and recent cases is that a premature appeal will not * * * ripen and that if the party attempting to appeal does not file a new notice of appeal when the impediment to ripeness is removed, the appellate court lacks jurisdiction."). Here, the time to file a notice of appeal had not yet begun to run, because the motion for new trial remained unresolved. Therefore, plaintiff's notice of appeal was ineffective to confer jurisdiction on the appellate court to decide the merits of the appeal.

The parties have asked this court to grant leave to the trial court under ORS 19.270(4) to enter an appealable judgment. ORS 19.270(4) provides:

"Notwithstanding the filing of a notice of appeal, the trial court shall have jurisdiction, with leave of the appellate court, to enter an appealable judgment if the appellate court determines that:

"(a) At the time of the filing of the notice of appeal the trial court intended to enter an appealable judgment; and

"(b) The judgment from which the appeal is taken is defective in form or was entered at a time when the trial court did not have jurisdiction of the cause under subsection (1) of this section, or the trial court had not yet entered an appealable judgment."

Under ORS 19.270(4)(a), the trial court must have intended to enter an appealable judgment at the time of the filing of the notice of appeal. The facts in this case satisfy paragraph (a) because, when plaintiff filed his notice of appeal on June 27, 1996, the trial court, on May 30, 1996, had entered a judgment that the court intended to be final and, therefore, appealable. The judgment and the rest of the trial court record give no indication that the judgment was merely...