Chapter 367 Oregon Laws 1999

Session Law

AN ACT

HB 2482

Relating to appeals; amending ORS 19.005, 19.240, 19.245, 19.250, 19.260, 19.300, 19.310, 19.320, 19.325, 19.335, 19.345, 19.370, 19.380, 19.385, 19.450, 21.605 and 21.607.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 19.245 is amended to read:

19.245. [Any party to a judgment or decree, other than a judgment or decree given by confession or for want of an answer, may appeal therefrom. The plaintiff may appeal from a judgment or decree given by confession or for want of an answer where such judgment or decree is not in accordance with the relief demanded in the complaint. The party appealing is known as the appellant, and the adverse party as the respondent; but the title of the action or suit is not changed in consequence of the appeals.]

(1) Except as provided in subsection (2) of this section, any party to a judgment may appeal from the judgment.

(2) A party to a judgment given by confession or for want of an answer may not appeal from the judgment except as follows:

(a) A plaintiff, third party plaintiff or a party who pleaded a cross-claim or counterclaim may appeal from the judgment if the judgment is not in accord with the relief demanded in the complaint.

(b) A defendant may appeal from the judgment if the trial court has entered a default judgment against the defendant as a sanction or has denied a motion to set aside a default order or judgment.

(c) A defendant may appeal from the judgment if it is void.

SECTION 2. ORS 19.240 is amended to read:

19.240. (1) An appeal to the Court of Appeals shall be taken in the manner prescribed in this chapter.

(2) The appeal shall be taken by causing a notice of appeal, in the form prescribed by ORS 19.250, to be served:

(a) On all parties who have appeared in the action, suit or proceeding;

(b) On the [clerk of the trial court] trial court administrator; and

(c) On the trial court transcript coordinator if a transcript is designated in connection with the appeal.

(3) The original of the notice with proof of service indorsed thereon or affixed thereto shall be filed with the Court of Appeals.

SECTION 3. ORS 19.250 is amended to read:

19.250. (1) The notice of appeal shall contain the following:

(a) The title of the cause. The party appealing a judgment shall be designated the appellant and the adverse party the respondent, but the title of the action or proceeding is not otherwise changed by reason of the appeal.

(b) The names of the parties and their attorneys.

(c) A notice to all parties or their attorneys as have appeared in the action or proceedings that an appeal is taken from the judgment or some specified part thereof and designating who are the adverse parties to the appeal.

(d) A designation of those portions of the proceedings and exhibits to be included in the record in addition to the trial court file. The appellant may amend the designation of record at any time after filing the notice of appeal until 35 days after the transcript is filed by filing and serving in the same manner as a notice of appeal a notice of amended designation of record. The amended notice shall clearly indicate those portions of the proceedings and exhibits being added to or deleted from the original designation of record. The designation may not be later amended by the appellant unless the appellate court so orders.

(e) A plain and concise statement of the points on which the appellant intends to rely. On appeal, the appellant may rely on no other points than those set forth in such statement. If the appellant has designated for inclusion in the record all the testimony and all the instructions given and requested, no statement of points is necessary. Not later than the 15th day following the filing of the transcript, the appellant may serve and file an amended statement of points. Except by approval of the court, the appellant may then rely on no other points than those set forth in such amended statement.

(f) The signature of the appellant or attorney for the appellant.

(2) Within 14 days after the filing of the notice of appeal or notice of amended designation of record any other party may serve and file a designation of additional parts of the proceedings and exhibits to be included in the record. Such designation shall be served and filed as provided for the serving and filing of a notice of appeal under ORS 19.240 and 19.260. If such party also appeals, the designation shall be included in the notice of appeal of the party and shall not be served and filed separately.

(3) The reporter shall prepare a transcript of such parts of the proceedings as are designated pursuant to subsection (1)(d) of this section and subsection (2) of this section.

SECTION 4. ORS 21.605 is amended to read:

21.605. (1)(a) The Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals, a judge of a circuit or county court, the judge of the Oregon Tax Court or a justice of the peace may waive in whole or in part, defer in whole or in part, or both, all fees and court costs payable by a party to a particular civil action or proceeding in the court of the justice or judge, upon application by the party, if the justice or judge finds that the party is [then] unable to pay all or any part of the fees and costs.

(b) No fee shall be required for filing an application under paragraph (a) of this subsection.

(c) In the judgment or other final written disposition of the action or proceeding the court shall note the dollar amount of the fees and costs not waived and then unpaid, and that amount shall be a judgment in favor of the public body to which the fees and costs are owed. Failure of the court to perform the duty imposed by this paragraph does not otherwise affect the validity of the judgment or other final written disposition.

(d) The judgment or other final written disposition of the action or proceeding may also contain an order for the payment of the amount of the fees and costs not waived and then unpaid not later than a date certain or on the happening of one or more events. A default in payment by the person so ordered to pay shall subject the person to a contempt proceeding.

(e) A judgment or other final written disposition rendered under this subsection may be filed, entered and docketed as a judgment in any county in this state.

(2) If fees and court costs payable by a party to a civil action or proceeding have been waived or deferred under subsection (1) of this section, that party shall not be required to pay any fees or costs so waived or deferred except as provided in subsection (1) of this section, and any pleading, petition, application, request, motion, claim, demand, exception or other paper or appearance presented by that party for filing or acceptance in the action or proceeding shall be filed or accepted without the payment of any such fees or costs.

[(3)(a) If fees and court costs payable by a party to a civil action or proceeding have been waived or deferred under subsection (1) of this section, the Chief Justice in an appeal to the Supreme Court pursuant to the original appellate jurisdiction of the court, the Chief Judge in an appeal to the Court of Appeals or a judge of a circuit court in an appeal to the circuit court may order that the expense of preparing the record and transcript on appeal be waived in whole or in part, deferred in whole or in part, or both. That expense, to the extent waived or deferred, shall be paid by the State Court Administrator out of funds appropriated for the purpose.]

[(b) If costs on appeal are awarded to a party who has obtained a waiver or deferral under paragraph (a) of this subsection, any portion of the costs awarded for the expense of preparing the record and transcript on appeal shall be ordered paid to the State Court Administrator to the extent of the expense waived or deferred and actually paid by the administrator.]

(3)(a) In a civil action or proceeding, the court to which an appeal is taken may waive in whole or in part, defer in whole or in part, or partially waive and partially defer the expense of preparing a transcript on appeal, if:

(A) The party requesting the transcript is unable to pay the expense of preparing the transcript; and

(B) The party requesting the transcript makes a prima facie showing that the transcript is necessary to prosecute the appeal and would reveal reversible error in the action or proceeding.

(b) In any civil action or proceeding in which the court waives or defers any part of the expense of preparing a transcript on appeal, the court shall authorize preparation of only so much of the transcript as is necessary to prosecute the appeal.

(c) To the extent that the court waives or defers any part of the expense of preparing a transcript on appeal, the State Court Administrator shall pay the expense out of funds appropriated for that purpose.

(d) If the court defers payment of any part of the expense of preparing a transcript, and any part of the deferred expense remains unpaid at the conclusion of the appeal, the court may enter judgment against the party for the unpaid amounts in the manner provided by subsection (1) of this section.

(e) If costs on appeal are awarded to a party who has obtained a waiver or deferral under this subsection, any portion of the costs awarded for the expense of preparing the transcript on appeal shall be ordered paid to the State Court Administrator to the extent that the waived or deferred expense was paid by the State Court Administrator.

(4) In any case in which fees and court costs have been waived or deferred under this section, a judgment or other final written disposition shall be rendered as in other cases, but the state shall not be liable for the payment of any fees or costs awarded against a party whose fees or costs have been waived or deferred.

(5) In the exercise of the authority granted by ORS 1.002, the Chief Justice of the Supreme Court may provide by rule standards and practices for waiver or deferral of fees, court costs and expense under this section.

SECTION 5. ORS 19.005 is amended to read:

19.005. As used in this chapter:

[(1) "Clerk" means the trial court administrator under ORS 8.185 for the county in which the judgment or appealable order is filed and entered, or either.]

[(2)] (1) "Exhibits" means exhibits offered and received or rejected in the trial court.

[(3)] (2) "Judgment" means judgment, decree or appealable order, as provided in ORS 19.205.

[(4)] (3) "Notice of appeal" includes a notice of cross-appeal.

[(5)] (4) "Record" or "record of the case" means the trial court file and any transcript, narrative statement and exhibits.

[(6)] (5) "Supersedeas undertaking" means an undertaking on appeal that secures performance of a judgment being appealed and operates to stay enforcement of the judgment pending appeal.

[(7)] (6) "Transcript" means the transcript of the court reporter's report as provided in ORS 8.340, 8.350 and 8.360 and any transcript of an audio record prepared under ORS 19.370.

[(8)] (7) "Trial court file" means all the original papers filed in the trial court whether before or after judgment, including but not limited to the summons and proof of service thereof, pleadings, motions, affidavits, depositions, stipulations, orders, jury instructions, the judgment, the notice of appeal and the undertaking on appeal.

[(9)] (8) "Undertaking for costs" means an undertaking on appeal that secures payment of costs and disbursements that may be awarded against an appellant on appeal, and any amounts that may be awarded to the respondent under the provisions of ORS 19.445.

[(10)] (9) "Undertaking on appeal" means a promise secured by sureties or by money, bond or any other security described in ORS 22.020. "Undertaking on appeal" includes undertakings for costs and supersedeas undertakings.

SECTION 6. ORS 19.260 is amended to read:

19.260. (1) Filing a notice of appeal in the Court of Appeals or the Supreme Court may be accomplished by mail. The date of filing such notice shall be the date of mailing, provided it is mailed by registered or certified mail and the party filing the notice has proof from the post office of such mailing date. Proof of mailing shall be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken. If the notice is received by the court on or before the date by which such notice is required to be filed, the party filing the notice is not required to file proof of mailing.

(2) Service of notice of appeal on a party, transcript coordinator or the [clerk of the] trial court administrator, or service of a petition for judicial review on a party or administrative agency may be accomplished by first class, registered or certified mail. The date of serving such notice shall be the date of mailing. Proof of mailing shall be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken.

(3) Except as otherwise provided by law, the provisions of subsections (1) and (2) of this section are applicable to petitions for judicial review, cross petitions for judicial review and petitions under the original jurisdiction of the Supreme Court or Court of Appeals.

SECTION 7. ORS 19.300 is amended to read:

19.300. (1) An appellant must serve and file an undertaking for costs within 14 days after the filing of a notice of appeal. Unless the undertaking is waived, reduced or limited under ORS 19.310, an undertaking for costs must be in the amount of $500.

(2) A supersedeas undertaking may be served and filed by an appellant at any time while a case is pending on appeal.

(3) The original of an undertaking on appeal, with proof of service, must be filed with the trial court [clerk] administrator. A copy of the undertaking must be served on each adverse party on appeal in the manner prescribed by ORCP 9B.

SECTION 8. ORS 19.310 is amended to read:

19.310. (1) By written stipulation of the parties, an undertaking on appeal may be waived, reduced or limited. The stipulation must be filed with the trial court [clerk] administrator within 14 days after the filing of the notice of appeal. Unless disapproved or modified by the trial court, the stipulation has the effect specified by the terms of the stipulation.

(2) The trial court may waive, reduce or limit an undertaking on appeal upon a showing of good cause, including indigence, and on such terms as are just and equitable.

SECTION 9. ORS 19.320 is amended to read:

19.320. (1) If a letter of credit issued under ORS 19.315 contains an expiration date, the letter of credit must also state an automatic renewal period and contain a statement that the issuing bank will automatically renew the letter of credit on the expiration date and at the end of each automatic renewal period thereafter unless the bank has elected not to renew the letter in the manner provided by subsection (2) of this section.

(2) A bank that issues a letter of credit may elect not to renew a letter of credit by giving written notice to the following persons:

(a) To the party that files the letter of credit, at the address stated in the letter of credit, or, if the attorney for the party is named in the letter of credit, to the attorney at the address stated in the letter of credit.

(b) To the beneficiary, at the address stated in the letter of credit, or, if the attorney for the beneficiary is named in the letter, to the attorney at the address stated in the letter of credit.

(3) Notice of nonrenewal under subsection (2) of this section must be given by certified mail. The notice must be mailed at least 60 days before the expiration date reflected on the letter of credit or 60 days before the end of any subsequent automatic renewal period.

(4) If an issuing bank has given notice of nonrenewal under the provisions of this section, the bank must pay to the trial court administrator [or trial court clerk] who is holding the letter of credit the amount stated in the letter of credit as the limit of the bank's liability unless the beneficiary gives written notice to the bank that the letter of credit has been released. A beneficiary shall promptly notify the issuing bank in writing if the court has entered an order releasing the letter of credit.

(5) Any amount paid by an issuing bank to a trial court administrator [or trial court clerk] under subsection (4) of this section shall be treated as a deposit of money under ORS 22.020. Any amount that is not paid out to the beneficiary pursuant to the appellate judgment shall be refunded to the bank making the deposit.

SECTION 10. ORS 19.325 is amended to read:

19.325. (1) If an appellate judgment entitles a beneficiary to payment from the issuing bank of a letter of credit, the appellate judgment must direct the trial court administrator [or trial court clerk] to release the letter of credit to the beneficiary. Upon issuance of the appellate judgment, the beneficiary may enforce the letter of credit by submitting a draft to the issuing bank in accordance with the terms of the letter of credit. The amount of the draft must include all amounts determined necessary to cover the interest that will accrue until the date that disbursement will be made to the beneficiary.

(2) Except as provided in this section, a draft submitted by a beneficiary under this section need not be in any particular form. The draft must be dated, must be for a specific sum of money and must contain the following language:

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Pay to the order of the undersigned beneficiary the amount of this draft. The undersigned beneficiary hereby certifies that there is now an appellate judgment in this case pursuant to which the amount of the draft stated above is now due and owing to the beneficiary from the party on whose behalf the letter of credit was issued.

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(3) In addition to the requirements of subsection (2) of this section, the following items must be attached to a draft submitted by a beneficiary under this section:

(a) The original letter of credit under which the draft is drawn.

(b) A copy of the appellate judgment certified by the State Court Administrator that shows the amount that the beneficiary is entitled to recover under the letter of credit.

(4) If the issuing bank of a letter of credit does not honor a letter of credit, on motion of the beneficiary the trial court shall enter judgment against the issuing bank unless the bank establishes that the bank is not required under the law to honor the letter of credit.

SECTION 11. ORS 19.335 is amended to read:

19.335. (1) If a judgment is for the recovery of money, a supersedeas undertaking acts to stay the judgment if the undertaking provides that the appellant will pay the judgment to the extent that the judgment is affirmed on appeal.

(2) If a judgment requires the transfer or delivery of possession of real property, a supersedeas undertaking acts to stay the judgment if the undertaking provides that the appellant will not commit waste or allow waste to be committed on the real property while the appellant possesses the property, and the appellant will pay the value of the use and occupation of the property for the period of possession if the judgment is affirmed. The value of the use and occupation during the period of possession must be stated in the undertaking.

(3)(a) If a judgment requires the transfer or delivery of possession of personal property, a supersedeas undertaking acts to stay the judgment if the undertaking provides that the appellant will obey the judgment of the appellate court, and that if the appellant does not obey the judgment, the appellant will pay an amount determined by the trial court and stated in the undertaking.

(b) If a judgment requires the transfer or delivery of possession of personal property, the judgment is stayed without the filing of a supersedeas undertaking if the appellant transfers or delivers the personal property to the court or places the property in the custody of an officer or receiver appointed by the trial court.

(4) If a judgment requires the foreclosure of a mortgage, lien or other encumbrance, and also requires payment of the debt secured by the mortgage, lien or other encumbrance, a supersedeas undertaking acts to stay that portion of the judgment that requires payment of the debt if the undertaking provides that the appellant will pay any portion of the judgment remaining unsatisfied after the sale of the property subject to the mortgage, lien or other encumbrance. The amount of the undertaking must be stated in the undertaking. The requirements of this subsection are in addition to any provisions in a supersedeas undertaking that may be required under subsection (2) or (3) of this section to stay delivery or transfer of property.

(5) If a judgment requires the execution of a conveyance or other instrument, the judgment is stayed without the filing of a supersedeas undertaking if the appellant executes the instrument and deposits the instrument with the trial court [clerk] administrator. Unless otherwise directed by the appellate court, the instrument must be held by the trial court [clerk] administrator until issuance of the appellate judgment terminating the appeal.

SECTION 12. ORS 19.345 is amended to read:

19.345. If the judgment or decree has been given in an action or suit upon a contract, notwithstanding an appeal and supersedeas undertaking, the respondent may proceed to enforce such judgment or decree, if within 10 days from the time the appeal is perfected the respondent files with the [clerk] trial court administrator an undertaking to the effect that if the judgment or decree is reversed or modified the respondent will make such restitution as the appellate court may direct. Such undertaking may be excepted to by the appellant in like manner and with like effect as the undertaking of an appellant, and the sureties therein shall have the same qualifications.

SECTION 13. ORS 19.370 is amended to read:

19.370. (1) If a transcript is prepared from audio records by a person other than the reporter, then the reporter shall certify the audio records and the transcript shall be certified by the person preparing it. In all other cases the transcript shall be certified by the reporter or the trial judge. The transcript shall be filed by the reporter with the [clerk] trial court administrator within 30 days after the filing of the notice of appeal or within 30 days after the entry of an order granting a transcript under ORS 138.500 (3). The reporter shall give immediate notice in writing to the parties that the transcript has been filed. Except as provided in subsection (2) of this section the reporter shall serve the respondent with a copy of the transcript and shall, at the time of filing the original transcript, file proof of such service with the trial court administrator, and with the clerk of the court to which the appeal is made.

(2) If there are two or more parties in addition to the appellant who have appeared in the trial court and who are represented by different attorneys, the reporter shall at the time of filing the original transcript deposit a copy thereof with the [clerk] trial court administrator for use by all such other parties. The reporter shall serve notice of such deposit upon all such parties and file proof of such service with the trial court administrator and with the clerk of the court to which the appeal is made.

(3) Within 15 days after the transcript is filed, any party may move the trial court for an order to correct any errors appearing in the transcript or, where the interests of justice require, to have additional parts of the proceedings included in the transcript. A copy of any such motion shall be filed with the court to which the appeal is made. The trial court shall direct the making of such corrections and the adding of such matter as may be appropriate and shall fix the time within which such corrections or additions shall be made.

(4) Upon the denial of a motion to correct or add to the transcript, or upon the making of such corrections or additions as may be ordered, whichever last occurs, the trial court shall enter an order settling the transcript and send copies thereof to each of the parties or their attorneys and to the State Court Administrator. In the absence of a motion to correct or add to the transcript, the transcript shall be deemed automatically settled 15 days after it is filed.

SECTION 14. ORS 19.380 is amended to read:

19.380. In lieu of or in addition to a transcript, the parties may prepare an agreed narrative statement of the proceedings below or parts thereof. The narrative statement shall be signed by the parties or their attorneys and shall be filed with the [clerk] trial court administrator within 30 days after the filing of the notice of appeal. When such a statement is filed, the appellant shall promptly notify the State Court Administrator, at Salem.

SECTION 15. ORS 19.385 is amended to read:

19.385. Where the trial proceedings are recorded on audio records, the court to which the appeal is made may waive transcription and provide for hearing of the appeal on the basis of the audio records alone under such rules as the court may prescribe. The reporter shall certify and file the audio recordings with the [clerk] trial court administrator immediately upon receiving notice that the appeal is to be heard on the basis of the recordings alone.

SECTION 16. ORS 19.450 is amended to read:

19.450. (1) As used in this section:

(a) "Decision" means a memorandum opinion, an opinion indicating the author or an order denying or dismissing an appeal issued by the Court of Appeals or the Supreme Court. The decision shall state the court's disposition of the judgment being appealed, and may provide for final disposition of the cause. The decision shall designate the prevailing party or parties, state whether a party or parties will be allowed costs and disbursements, and if so, by whom the costs and disbursements will be paid.

(b) "Appellate judgment" means the decision of the Court of Appeals or Supreme Court, or such portion of the decision as may be specified by the rule of the Supreme Court, together with an award of attorney fees or allowance of costs and disbursements, if any.

(2) As to appeals from circuit and tax court, the appellate judgment is effective when a copy of the appellate judgment is entered in the court's register and mailed by the State Court Administrator to the court from which the appeal was taken. When the State Court Administrator mails a copy of the appellate judgment to the court from which the appeal was taken, the administrator also shall mail a copy to the parties to the appeal.

(3) If a new trial is ordered, upon the receipt of the appellate judgment by the [clerk of] trial court administrator for the court below, the [clerk] trial court administrator shall enter the appellate court's decision in the register of the court below and thereafter the cause shall be deemed pending for trial in such court, according to the directions of the court which rendered the decision. If a new trial is not ordered, upon the receipt of the appellate judgment by the [clerk] trial court administrator, a judgment shall be entered in the register and docketed according to the directions of the court which rendered the decision, in like manner and with like effect as if the same was given in the court below.

(4) A party entitled to enforce an undertaking may obtain judgment against a surety by filing a request with the State Court Administrator and serving a copy of the request on the other parties and the surety. The request must identify the surety against whom judgment is to be entered and the amount of the judgment sought to be imposed against the surety. Unless otherwise directed by the appellate court, upon receiving the request the State Court Administrator shall include in the appellate judgment a money judgment against the surety in the amount specified.

(5) If the appellate judgment terminating an appeal contains a money judgment against a surety for an undertaking, the trial court [clerk] administrator shall enter and docket the judgment against the surety in like manner and with like effect as if the judgment was given in the court below.

(6) Except as provided in ORS 18.350, an appeal shall not discharge the lien of a judgment and unless the same is reversed, the lien thereof shall be merged and continue in the affirmed or modified judgment given on appeal, from the time of the entry and docketing of the same in the court below. The lien of any judgment created by recording a certified copy of the judgment or a lien record abstract shall continue as a lien in the same manner as the original judgment lien as provided in this subsection.

SECTION 17. ORS 21.607 is amended to read:

21.607. (1) Notwithstanding ORS 82.010, judgments resulting from the deferral of fees and court costs under the provisions of ORS 21.605 bear no interest.

(2) If a judge of a circuit or county court defers payment of any fees or court costs under the provisions of ORS 21.605, and the amount of those deferred fees or court costs is subsequently paid in full, the trial court administrator for the court shall note upon the judgment docket that the deferred fees and costs have been paid in full. Notation on the judgment docket that deferred fees and costs have been paid in full constitutes a satisfaction of the judgment for those fees and costs.

(3) If the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals or the judge of the Oregon Tax Court defers payment of any fees or court costs under the provisions of ORS 21.605, including deferral of the cost of preparing the [record and] transcript on appeal, and the amount of those deferred fees or court costs is subsequently paid in full, the State Court Administrator shall note upon the register of the court that the deferred fees and costs have been paid in full. Notation on the register that deferred fees and costs have been paid in full constitutes a satisfaction of the judgment for those fees and costs.

(4) Upon notation on the judgment docket or register that deferred fees and costs have been paid in full, a certified copy of the notation may be filed with any circuit court or County Clerk Lien Record in which the judgment was filed under the provisions of ORS 21.605. Upon filing of the certified copy, the trial court administrator for the court, or the county clerk if the judgment was filed in the County Clerk Lien Record, shall cause the certified copy to be docketed in the judgment docket of the court or recorded in the County Clerk Lien Record.

(5) Judgments resulting from the deferral of fees and court costs under the provisions of ORS 21.605 may not be compromised, settled or adjusted by a trial court administrator or the State Court Administrator.

Approved by the Governor June 28, 1999

Filed in the office of Secretary of State June 29, 1999

Effective date October 23, 1999

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