Chapter 19 — Appeals
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
2011 EDITION
APPEALS
PROCEDURE IN CIVIL PROCEEDINGS
GENERAL PROVISIONS
19.005 Definitions
APPEALABLE JUDGMENTS
(Generally)
19.205 Appealable
judgments and orders
(Class Actions)
19.215 Determining
amount in controversy in class action for purposes of appeal
19.225 Appealability
of certain orders in class actions
(Determining Whether Judgment
Appealable)
19.235 Jurisdiction
for determining whether decision is appealable
COMMENCING AN APPEAL
(Generally)
19.240 How
appeal to Court of Appeals taken
19.245 Who
may appeal; appeal of default judgments and judgments taken by confession;
appeal of stipulated judgments
(Notice of Appeal)
19.250 Contents
of notice of appeal
19.255 Time
for service and filing of notice of appeal
19.260 Filing
by mail
19.265 Payment
of filing fee
(Jurisdiction of Appellate Court and
Trial Court)
19.270 Appellate
jurisdiction of Supreme Court and Court of Appeals; trial court jurisdiction to
enter appealable judgment
19.275 Continuing
jurisdiction of trial court in certain domestic relations cases
UNDERTAKINGS ON APPEAL AND STAYS OF
JUDGMENT
(Undertakings)
19.300 Undertakings
on appeal generally; filing and service
19.305 Qualifications
of sureties; objections
19.310 Waiver,
reduction or limitation of undertaking
19.312 Supersedeas
undertaking in certain actions against tobacco product manufacturer
(Letter of Credit in Support of
Undertaking)
19.315 Requirements
for use of letter of credit
19.320 Expiration
and renewal of letter of credit
19.325 Payment
on letter of credit
(Stays)
19.330 Stays
generally
19.335 Stay
by filing of supersedeas undertaking
19.340 Waiver
of supersedeas undertaking; sale of perishables
19.345 Enforcement
of judgment in contract action notwithstanding appeal
19.350 Discretionary
stay by court
19.355 Stay
of domestic relations judgment
(Appellate Review of Trial Court Orders Relating
to Undertakings and Stays)
19.360 Appellate
review of trial court orders relating to undertakings and stays
RECORD ON APPEAL
19.365 Preparation
and transmission of record generally
19.370 Certification
of transcript; effect of referral to appellate mediation; correction of errors;
settlement order
19.375 Cost
of transcript
19.380 Agreed
narrative statement
19.385 Audio
records
19.390 Bill
of exceptions not required
19.395 Time
extensions for preparation of record
HEARINGS ON APPEALS
19.400 Where
appeals heard
DISPOSITION OF APPEALS
(Certification of Appeal to Supreme
Court)
19.405 Certification
of appeal to Supreme Court
(Stipulated Dismissals and Settlements)
19.410 Stipulated
dismissals; settlement; effect of settlement on pending appeal
(Disposition on Merits)
19.415 Scope
of appellate review
19.420 Action
by appellate court on appeal; review of order granting new trial or judgment
notwithstanding verdict; reversal upon loss or destruction of reporter’s notes
or audio records
19.425 Review
of intermediate orders; directing restitution
19.430 Review
of trial court order granting a new trial on court’s own initiative
19.435 Memorandum
decisions
(Attorney Fees and Penalties)
19.440 Award
of attorney fees authorized by statute
19.445 Damages
upon affirmance of judgment
(Appellate Judgment)
19.450 Appellate
judgment; when effective; effect of entry in trial court register; effect on
judgment lien
MISCELLANEOUS
19.500 Service
of documents under provisions of chapter
19.510 Powers
of successor trial judge with respect to appeals
GENERAL PROVISIONS
19.005 Definitions.
As used in this chapter:
(1)
“Exhibits” means exhibits offered and received or rejected in the trial court.
(2)
“Judgment” means a judgment or appealable order, as provided in ORS 19.205.
(3)
“Notice of appeal” includes a notice of cross-appeal.
(4)
“Record” or “record of the case” means the trial court file and any transcript,
narrative statement and exhibits.
(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.
(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.
(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.
(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.
(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. [1959 c.558 §2; 1985 c.734
§2; 1997 c.71 §12; 1997 c.389 §23; 1997 c.801 §124; 1999 c.59 §9; 1999 c.367 §5;
2003 c.576 §280]
19.010
[Amended by 1973 c.197 §1; 1977 c.208 §4; 1979 c.562 §3; 1981 c.898 §18; 1997
c.389 §24; renumbered 19.205 in 1997]
19.013
[Formerly 13.410; renumbered 19.215 in 1997]
19.015
[Formerly 13.400; renumbered 19.225 in 1997]
19.020
[Renumbered 19.245 in 1997]
19.023
[Formerly 19.030; 1969 c.198 §37; 1973 c.207 §3; 1981 c.177 §1; 1997 c.389 §5;
renumbered 19.240 in 1997]
19.026 [1959
c.558 §4; 1973 c.207 §4; 1979 c.284 §55; 1987 c.852 §5; renumbered 19.255 in
1997]
19.028 [1979
c.297 §1; 1985 c.734 §3; 1987 c.852 §6; 1989 c.768 §12; 1997 c.389 §6;
renumbered 19.260 in 1997]
19.029 [1959
c.558 §5; 1971 c.565 §6; 1973 c.207 §5; 1983 c.621 §1; 1985 c.734 §4;
renumbered 19.250 in 1997]
19.030
[Amended by 1959 c.558 §3; renumbered 19.023]
19.033 [1959
c.558 §6; 1969 c.198 §38; 1971 c.565 §7; 1983 c.673 §22; 1983 c.740 §4; 1985
c.734 §5; 1989 c.195 §1; 1995 c.800 §11; 1997 c.71 §14; 1997 c.389 §20; 1997
c.801 §90; renumbered 19.270 in 1997]
19.034 [1987
c.712 §2; renumbered 19.235 in 1997]
19.035 [1959
c.558 §7; 1963 c.27 §1; 1969 c.198 §39; 1971 c.193 §19; 1983 c.774 §6;
renumbered 19.265 in 1997]
19.038 [1959
c.558 §8; 1981 c.483 §1; 1983 c.673 §23; 1985 c.734 §6; 1991 c.331 §3; 1995
c.79 §7; repealed by 1997 c.71 §20]
19.040
[Amended by 1977 c.416 §6; 1981 c.483 §2; 1985 c.734 §7; 1991 c.331 §4;
repealed by 1997 c.71 §20]
19.045 [1959
c.558 §9; 1977 c.416 §1; 1985 c.734 §8; repealed by 1997 c.71 §20]
19.050
[Amended by 1983 c.763 §60; 1987 c.852 §7; repealed by 1997 c.71 §20]
19.060
[Amended by 1997 c.71 §15; renumbered 19.345 in 1997]
19.065 [1959
c.558 §10; 1969 c.198 §40; 1997 c.389 §21; 1997 c.801 §124a; renumbered 19.365
in 1997]
19.069 [1971
c.565 §10; 1997 c.801 §125; renumbered 19.385 in 1997]
19.070
[Repealed by 1959 c.558 §51]
19.074 [1959
c.558 §11; 1969 c.198 §41; 1971 c.193 §20; 1971 c.565 §8; repealed by 1997
c.389 §22]
19.078 [1959
c.558 §12; 1971 c.193 §21; 1971 c.565 §11; 1981 c.51 §1; 1989 c.1053 §9; 1995
c.273 §7; 1997 c.801 §126; renumbered 19.370 in 1997]
19.080
[Amended by 1959 c.558 §18; renumbered 19.118]
19.084 [1959
c.558 §13; 1985 c.565 §2a; renumbered 19.375 in 1997]
19.088 [1959
c.558 §14; 1969 c.198 §42; 1971 c.193 §22; renumbered 19.380 in 1997]
19.090
[Repealed by 1959 c.558 §51]
19.094 [1959
c.558 §15; 1963 c.372 §1; 1969 c.198 §43; repealed by 1971 c.565 §12 (19.095
enacted in lieu of 19.094)]
19.095 [1971
c.565 §13 (19.095 enacted in lieu of 19.094); renumbered 19.395 in 1997]
19.098 [1959
c.558 §16; 1969 c.198 §44; 1971 c.193 §23; 1971 c.565 §14; repealed by 1997
c.389 §22]
19.100
[Repealed by 1959 c.558 §51]
19.104 [1959
c.558 §27; 1979 c.284 §56; 1997 c.389 §25; 1997 c.801 §128; renumbered 19.500
in 1997]
19.108 [1959
c.558 §20 (enacted in lieu of 19.110); 1969 c.198 §45; 1971 c.193 §24; 1985
c.734 §9; repealed by 1997 c.389 §22]
19.110
[Repealed by 1959 c.558 §19 (19.108 enacted in lieu of 19.110)]
19.111 [1985
c.734 §11; 1997 c.389 §19; 1997 c.801 §89; renumbered 19.410 in 1997]
19.114 [1959
c.558 §22; renumbered 19.390 in 1997]
19.118
[Formerly 19.080; 1969 c.198 §46; 1983 c.763 §7; renumbered 19.400 in 1997]
19.120
[Repealed by 1959 c.558 §51]
19.125 [1959
c.558 §21; 1965 c.177 §6; 1979 c.396 §1; renumbered 19.415 in 1997]
19.130
[Amended by 1955 c.497 §6; 1959 c.558 §24; 1969 c.198 §47; 1985 c.540 §45;
renumbered 19.420 in 1997]
19.140
[Renumbered 19.425 in 1997]
19.150
[Amended by 1959 c.33 §1; repealed by 1959 c.558 §25 (19.190 enacted in lieu of
19.150)]
19.160
[Renumbered 19.445 in 1997]
19.170 [1959
c.558 §17; renumbered 19.510 in 1997]
19.180 [1959
c.558 §23; 1969 c.198 §48; renumbered 19.435 in 1997]
19.190 [1959
c.558 §26 (enacted in lieu of 19.150); 1969 c.198 §49; 1981 c.178 §1; 1985
c.540 §27; 1985 c.734 §12; 1987 c.586 §11; 1997 c.71 §16; renumbered 19.450 in
1997]
19.200 [1979
c.284 §58; renumbered 19.430 in 1997]
APPEALABLE JUDGMENTS
(Generally)
19.205 Appealable judgments and orders.
(1) Unless otherwise provided by law, a limited judgment, general judgment or
supplemental judgment, as those terms are defined by ORS 18.005, may be
appealed as provided in this chapter. A judgment corrected under ORCP 71 may be
appealed only as provided in ORS 18.107 and 18.112.
(2)
An order in an action that affects a substantial right, and that effectively
determines the action so as to prevent a judgment in the action, may be
appealed in the same manner as provided in this chapter for judgments.
(3)
An order that is made in the action after a general judgment is entered and
that affects a substantial right, including an order granting a new trial, may
be appealed in the same manner as provided in this chapter for judgments.
(4)
No appeal to the Court of Appeals shall be taken or allowed in any action for
the recovery of money or damages only unless it appears from the pleadings that
the amount in controversy exceeds $250.
(5)
An appeal may be taken from the circuit court in any special statutory
proceeding under the same conditions, in the same manner and with like effect
as from a judgment or order entered in an action, unless appeal is expressly
prohibited by the law authorizing the special statutory proceeding.
(6)
Nothing in ORS chapter 18 affects the authority of an appellate court to
dismiss an appeal or to remand a proceeding to the trial court under ORS 19.270
(4) based on the appellate court’s determination that the appeal has not been
taken from an appealable judgment or order. [Formerly 19.010; 2003 c.576 §85]
19.210 [1981
c.550 §2; 1997 c.389 §3; renumbered 19.405 in 1997]
(Class Actions)
19.215 Determining amount in controversy
in class action for purposes of appeal. The aggregate
amount of the claims of all potential class members in a class action under
ORCP 32 shall determine whether the amount in controversy is sufficient to
satisfy the provisions of ORS 19.205 (4) for the purposes of any appeal to the
Court of Appeals. [Formerly 19.013; 2003 c.576 §573]
19.220 [1981
c.897 §107; renumbered 19.440 in 1997]
19.225 Appealability of certain orders in
class actions. When a circuit court judge, in making
in a class action under ORCP 32 an order not otherwise appealable, is of the
opinion that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the
litigation, the judge shall so state in writing in such order. The Court of
Appeals may thereupon, in its discretion, permit an appeal to be taken from
such order to the Court of Appeals if application is made to the court within
10 days after the entry of the order. Application for such an appeal shall not
stay proceedings in the circuit court unless the circuit court judge or the
Court of Appeals or a judge thereof shall so order. [Formerly 19.015]
19.230 [1987
c.793 §1; 1991 c.817 §17; 1995 c.595 §20; renumbered 34.102 in 1997]
(Determining Whether Judgment Appealable)
19.235 Jurisdiction for determining whether
decision is appealable. (1) Notwithstanding ORS 19.270,
if any party or the trial court on its own motion, on receiving actual notice
of the filing of the notice of appeal, raises the issue whether the decision
being appealed is appealable, the trial court shall have jurisdiction to make a
summary determination, with or without a hearing, whether the decision is
appealable. As used in this section, “decision” means any trial court ruling,
either oral or written.
(2)
If the trial court determines that the decision is not appealable, the trial
court, in its discretion, may proceed through entry of judgment or stay
proceedings pending an appellate court determination of the existence of an
appealable decision. The trial court may refer the question of the existence of
an appealable decision to the court to which the appeal is taken. Neither an
order by the trial court to proceed through entry of judgment, an order by the
trial court to stay proceedings pending an appellate court determination, nor a
trial court referral of the question of the existence of an appealable decision
to the appellate court is appealable. However, on motion of any party or on its
own motion the appellate court may stay proceedings in the trial court or stay
any order or judgment entered by the trial court pending a final determination
of appealability.
(3)
When a party by motion, the trial court by referral or the appellate court on
its own motion raises the issue whether the decision is appealable, the
appellate court may make a summary determination of the appealability of the
decision. A summary determination of the appealability of a decision under this
subsection is subject to review by the Supreme Court as provided in ORS 2.520 except
that the petition for review shall be served and filed within 14 days after the
date of the court’s determination. Either the Court of Appeals or the Supreme
Court may shorten the time period within which the petition for review shall be
filed. A petition for review of a determination under this subsection shall not
be treated as a request for reconsideration by the Court of Appeals. The
Supreme Court shall expedite its review of the Court of Appeals’ summary
determination under this subsection.
(4)(a)
The trial court’s authority to proceed with a case under subsection (2) of this
section shall end when the appellate court has made an express determination
that an appeal has been taken from an appealable order or judgment, all means
for obtaining review of that determination under subsection (3) of this section
have been exhausted, and the State Court Administrator at the direction of the
court has mailed copies of the final appellate court determination to the trial
court and the parties; otherwise, the trial court’s jurisdiction shall
continue.
(b)
No action by the trial court taken pursuant to subsections (1) and (2) of this
section, except for entry of judgment, shall be void solely because an
appellate court later determines that a notice of appeal was filed from an
appealable decision. [Formerly 19.034]
COMMENCING AN APPEAL
(Generally)
19.240 How appeal to Court of Appeals
taken. (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 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. [Formerly 19.023; 1999 c.367 §2]
19.245 Who may appeal; appeal of default
judgments and judgments taken by confession; appeal of stipulated judgments.
(1) Except as provided in subsections (2) and (3) 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.
(3)
A party to a stipulated judgment may appeal from the judgment only if:
(a)
The judgment specifically provides that the party has reserved the right to
appellate review of a ruling of the trial court in the cause; and
(b)
The appeal presents a justiciable controversy. [Formerly 19.020; 1999 c.367 §1;
2001 c.541 §1]
(Notice of Appeal)
19.250 Contents of notice of appeal.
(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. [Formerly 19.029; 1999 c.367 §3]
19.255 Time for service and filing of
notice of appeal. (1) Except as provided in subsections
(2) and (3) of this section, a notice of appeal must be served and filed within
30 days after the judgment appealed from is entered in the register.
(2)
If a motion for a new trial is filed and served within the time allowed by ORCP
64, or a motion for judgment notwithstanding the verdict is filed and served
within the time allowed by ORCP 63, a notice of appeal must be served and
filed:
(a)
Within 30 days after the order disposing of the motion is entered in the
register, or within 30 days after the motion is deemed denied under ORCP 63 D
or 64 F, whichever is first; or
(b)
Within the time allowed by subsection (1) of this section, if the period of
time provided for in subsection (1) of this section expires later than the
period of time provided for in paragraph (a) of this subsection.
(3)
Any other party who has appeared in the action, suit or proceeding, desiring to
appeal against the appellant or any other party to the action, suit or
proceeding, may serve and file notice of appeal within 10 days after the
expiration of the time allowed by subsections (1) and (2) of this section. Any
party not an appellant or respondent, but who becomes an adverse party to a
cross appeal, may cross appeal against any party to the appeal by a written
statement in the brief.
(4)
Except as otherwise ordered by the appellate court, when more than one notice
of appeal is filed, the date on which the last such notice was filed shall be
used in determining the time for preparation of the transcript, filing briefs and
other steps in connection with the appeal. [Formerly 19.026; 2003 c.281 §1]
19.260 Filing by mail.
(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 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)
Notwithstanding subsections (1) and (2) of this section, if the party filing a
notice of appeal is involuntarily confined in a state or local governmental
facility, the date of filing of a notice of appeal in the Court of Appeals or
the Supreme Court, and the date of service under subsection (2) of this
section, is the date on which the party delivers the original notice of appeal,
and the appropriate number of copies of the notice for service under subsection
(2) of this section, to the person or place designated by the facility for
handling outgoing mail.
(4)
Except as otherwise provided by law, the provisions 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. [Formerly 19.028; 1999 c.367 §6; 2011 c.310 §1]
19.265 Payment of filing fee.
At the time the notice of appeal is filed as provided in ORS 19.240, the
appellant shall deposit with the State Court Administrator the amount of the
appropriate filing fee. The timely deposit of such fee is not jurisdictional,
but omission to do so shall be cause for dismissal of the appeal, subject to
the provisions of ORS 19.270 (3). [Formerly 19.035]
(Jurisdiction of Appellate Court and
Trial Court)
19.270 Appellate jurisdiction of Supreme
Court and Court of Appeals; trial court jurisdiction to enter appealable
judgment. (1) The Supreme Court or the Court of
Appeals has jurisdiction of the cause when the notice of appeal has been served
and filed as provided in ORS 19.240, 19.250 and 19.255. The trial court may
exercise those powers in connection with the appeal as are conferred by law,
and retains jurisdiction in the matter for the following purposes:
(a)
Deciding requests for attorney fees, costs and disbursements or expenses
pursuant to ORCP 68 or other provision of law.
(b)
Enforcing the judgment, subject to any stay of the judgment.
(c)
Deciding a motion for judgment notwithstanding the verdict under ORCP 63.
(d)
Deciding a motion for new trial under ORCP 64.
(e)
Deciding a motion for relief from judgment under ORCP 71 B.
(2)
The following requirements of ORS 19.240, 19.250 and 19.255 are jurisdictional
and may not be waived or extended:
(a)
Service of the notice of appeal on all parties identified in the notice of
appeal as adverse parties or, if the notice of appeal does not identify adverse
parties, on all parties who have appeared in the action, suit or proceeding, as
provided in ORS 19.240 (2)(a), within the time limits prescribed by ORS 19.255.
(b)
Filing of the original of the notice of appeal with the Court of Appeals as
provided in ORS 19.240 (3), within the time limits prescribed by ORS 19.255.
(3)
After the Supreme Court or the Court of Appeals has acquired jurisdiction of
the cause, the omission of a party to perform any of the acts required in
connection with an appeal, or to perform such acts within the time required,
shall be cause for dismissal of the appeal. In the event of such omission, the
court, on motion of a party or on its own motion may dismiss the appeal. An
appeal dismissed on a party’s motion or on the court’s own motion may be
reinstated upon showing of good cause.
(4)
Notwithstanding the filing of a notice of appeal, the trial court has
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.
(5)
Notwithstanding the filing of a notice of appeal, the trial court has
jurisdiction:
(a)
To enter an order or supplemental judgment under ORCP 71 or ORS 19.275, 107.105
(4) or 107.452; and
(b)
To enter an order or supplemental judgment for the purpose of implementing a
settlement as allowed by ORS 19.410 (3).
(6)
Jurisdiction of the appellate court over a cause ends when a copy of the
appellate judgment is mailed by the State Court Administrator to the court from
which the appeal was taken pursuant to ORS 19.450, except that the appellate
court may:
(a)
Recall the appellate judgment as justice may require;
(b)
Stay enforcement of the appellate judgment to allow the filing of a petition
for writ of certiorari to the Supreme Court of the United States; and
(c)
Stay enforcement of the appellate judgment pending disposition of the matter by
the Supreme Court of the United States or for such other time as the Oregon
appellate court may deem appropriate.
(7)
If a limited or supplemental judgment is appealed, the jurisdiction of the
appellate court is limited to the matters decided by the limited or
supplemental judgment, and the trial court retains jurisdiction over all other
matters in the proceeding.
(8)
After jurisdiction of the appellate court ends, all orders which may be
necessary to carry the appellate judgment into effect shall be made by the
court from which the appeal was taken. [Formerly 19.033; 2003 c.576 §86; 2005
c.568 §25c; 2007 c.66 §1]
19.275 Continuing jurisdiction of trial
court in certain domestic relations cases. (1)
Any motion that requires a showing of a change of circumstances before the
court may modify a judgment, including a motion to reconsider the spousal or
child support provisions of a judgment pursuant to ORS 107.135, may be filed
with the trial court while an appeal from the judgment is pending before an
appellate court. The filing of a motion under this subsection does not affect
the right of the appellant to pursue the appeal of the judgment.
(2)
The trial court in its discretion may proceed to hear and decide a motion under
this section or may hold the motion in abeyance pending disposition of the
appeal.
(3)
Pursuant to the provisions of ORS 19.205, the court’s decision on a motion
under this section is a supplemental judgment. The appellate court in its
discretion may consolidate an appeal from a supplemental judgment under this
section with the pending appeal of the general judgment in the case, may direct
that both appeals be heard at the same time or may allow the appeals to proceed
independently. [1997 c.71 §11; 2003 c.576 §87; 2005 c.568 §26]
UNDERTAKINGS ON APPEAL AND STAYS OF
JUDGMENT
(Undertakings)
19.300 Undertakings on appeal generally;
filing and service. (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 administrator. A copy of the undertaking must be served on
each adverse party on appeal in the manner prescribed by ORCP 9 B. [1997 c.71 §2;
1999 c.367 §7]
19.305 Qualifications of sureties;
objections. (1) Undertakings on appeal are subject
to the provisions of ORS 22.020 to 22.070.
(2)
A surety for an undertaking on appeal must be qualified as provided in ORCP 82.
The amount of liability assumed by a surety or letter of credit issuer must be
stated in the undertaking. The liability of a surety or letter of credit issuer
is limited to the amount specified in the undertaking.
(3)
Objections to the sufficiency of an undertaking on appeal, including the
objections to the amount of the undertaking and to the sufficiency of the
security for the undertaking, must be filed in and determined by the trial
court in the manner provided by ORCP 82. Notwithstanding ORCP 82 F, objections
to the undertaking must be filed within 14 days after the date on which a copy
of the undertaking is served on the party who objects to the undertaking. [1997
c.71 §3]
19.310 Waiver, reduction or limitation of
undertaking. (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 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. [1997 c.71 §4; 1999 c.367 §8]
19.312 Supersedeas undertaking in certain
actions against tobacco product manufacturer. (1)
The provisions of this section apply only to civil actions against a tobacco
product manufacturer as defined in ORS 323.800, or against an affiliate or
successor of a tobacco product manufacturer, in which:
(a)
The tobacco product manufacturer is subject to the requirements of ORS 323.806;
and
(b)
The state is not a plaintiff.
(2)
In any civil action described in subsection (1) of this section, the
supersedeas undertaking required of the tobacco product manufacturer, or of an
affiliate or successor of the tobacco product manufacturer, as a condition of a
stay of judgment throughout all appeals or discretionary appellate review,
shall be established in the manner provided by the laws and court rules of this
state applicable to supersedeas undertakings, but the amount of the supersedeas
undertaking may not exceed $150 million.
(3)
If at any time after the posting of the supersedeas undertaking pursuant to the
provisions of this section the court determines that a tobacco product
manufacturer, affiliate or successor, outside of the ordinary course of its
business, is purposely dissipating or diverting assets for the purpose of
avoiding payment on final judgment in the action, the court may condition
continuance of the stay on an order requiring that the tobacco product
manufacturer, affiliate or successor post a supersedeas undertaking in an
amount up to the full amount of the judgment.
(4)
The provisions of this section apply to any supersedeas undertaking required
for a judgment entered by a court of this state and to any security required as
a condition of staying enforcement of a foreign judgment under the provisions
of ORS 24.135 (2). [2003 c.804 §87; 2005 c.22 §9]
(Letter of Credit in Support of
Undertaking)
19.315 Requirements for use of letter of
credit. (1) Except as provided in subsection
(4) of this section, an irrevocable letter of credit filed in support of an
undertaking on appeal must contain:
(a)
The name and address of the issuing bank, the date of issuance and the limit of
the bank’s liability under the letter of credit.
(b)
The name of the court that entered the judgment being appealed and the title
and file number of the case for which the judgment was entered.
(c)
The name and address of the party who is filing the undertaking or, if the
party is represented by an attorney, the name and address of the attorney.
(d)
The name and address of the beneficiary or, if the beneficiary is represented
by an attorney, the name and address of the attorney for the beneficiary.
(e)
A statement that the issuing bank will pay to the beneficiary, up to the limit
stated in the letter of credit, the amount of any drafts submitted to the
issuing bank under ORS 19.325.
(2)
An irrevocable letter of credit filed in support of an undertaking on appeal
may be issued only by an insured institution, as defined in ORS 706.008, that
has an office or other facility in this state or that has a registered agent in
this state.
(3)
A letter of credit under this section may contain an expiration date. Any
letter of credit containing an expiration date must comply with ORS 19.320.
(4)
A party filing a letter of credit in support of an undertaking on appeal and
the party for whose benefit an undertaking is filed may by agreement waive any
of the requirements of subsection (1) of this section. [1997 c.172 §2; 1999
c.59 §10]
19.320 Expiration and renewal of letter of
credit. (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 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 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. [1997
c.172 §3; 1999 c.367 §9]
19.325 Payment on letter of credit.
(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 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:
______________________________________________________________________________
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.
______________________________________________________________________________
(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. [1997 c.172 §4; 1999 c.367 §10]
(Stays)
19.330 Stays generally.
The filing of a notice of appeal does not automatically stay the judgment that
is the subject of the appeal. A party may seek to stay a judgment in the manner
provided by ORS 19.335, 19.340 or 19.350, or as provided by other law. [1997
c.71 §5]
19.335 Stay by filing of supersedeas
undertaking. (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 administrator. Unless otherwise directed by the appellate court, the
instrument must be held by the trial court administrator until issuance of the
appellate judgment terminating the appeal.
(6)
Except as provided in ORCP 72, a stay of judgment described in this section
takes effect only after the party has filed a notice of appeal and filed any
supersedeas undertaking required for the stay. [1997 c.71 §6; 1999 c.367 §11;
2007 c.547 §5]
19.340 Waiver of supersedeas undertaking;
sale of perishables. (1) The trial court, in its
discretion, may stay a judgment without requiring a supersedeas undertaking, or
reduce the amount of the supersedeas undertaking required of the appellant, if
the appellant is an executor, administrator, trustee or other person acting on
behalf of another.
(2)
If a judgment that has been stayed requires the sale of perishable property, or
if perishable property has been seized to satisfy or secure a judgment that has
been stayed, the trial court may order that perishable property be sold and the
proceeds of the sale deposited or invested until issuance of the appellate
judgment terminating the appeal. [1997 c.71 §7]
19.345 Enforcement of judgment in contract
action notwithstanding appeal. If the
judgment 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, if within 10 days from the time the appeal is perfected the
respondent files with the trial court administrator an undertaking to the
effect that if the judgment 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. [Formerly 19.060; 1999 c.367 §12; 2003 c.576 §281]
19.350 Discretionary stay by court.
(1) A party may seek a stay of judgment pending a decision on appeal in the
manner provided by this section only if the judgment may not be stayed under
the provisions of ORS 19.335 or 19.340, or under any other provision of law
specifying a procedure or grounds for staying the judgment. A stay of judgment
may not be granted under this section if any other provision of law specifies
that a stay may not be granted pending a decision on appeal.
(2)
Except as provided in subsection (5) of this section, a party seeking a stay
under the provisions of this section must first request a stay from the trial
court. The trial court may act on a request for a stay before or after a notice
of appeal is filed. The time for filing a notice of appeal is not tolled by the
making of a request for a stay under this section or by the trial court’s
action on the request.
(3)
The trial court shall consider the following factors in deciding whether to
grant a stay under this section, in addition to such other factors as the trial
court considers important:
(a)
The likelihood of the appellant prevailing on appeal.
(b)
Whether the appeal is taken in good faith and not for the purpose of delay.
(c)
Whether there is any support in fact or in law for the appeal.
(d)
The nature of the harm to the appellant, to other parties, to other persons and
to the public that will likely result from the grant or denial of a stay.
(4)
The trial court has discretion to impose reasonable conditions on the grant of
a stay under the provisions of this section. The court may require that a
supersedeas undertaking be filed in a specified amount as a condition of
granting a stay under the provisions of this section.
(5)
A party may request a stay pending appeal from the appellate court in the first
instance, and the appellate court may act on that request without requiring the
party to seek a stay from the trial court, if the party establishes that the
filing of a request for a stay with the trial court would be futile or that the
trial court is unable or unwilling to act on the request within a reasonable
time. In considering a request for a stay under this subsection, the appellate
court shall consider the factors set out in subsection (3) of this section in
addition to any other factors the court considers important. [1997 c.71 §8]
19.355 Stay of domestic relations
judgment. (1) The provisions of this chapter
relating to stays on appeal apply to a domestic relations judgment.
(2)
If an appellant seeks a stay of only specific provisions of a domestic
relations judgment, the motion seeking the stay must identify those provisions
of the judgment that are to be stayed. If the court allows a stay of only
certain provisions of the judgment, the order of the court must specifically
indicate those provisions. If a supersedeas undertaking is filed with the court
for the purpose of staying specific provisions of the judgment, the undertaking
must indicate the specific provisions of the judgment covered by the
undertaking. A stay of any specific provision of a domestic relations judgment
may be granted only if:
(a)
The specific provision is subject to stay under the provisions of this chapter;
and
(b)
All requirements of this chapter for a stay of the provision are satisfied.
(3)
For the purposes of this section, “domestic relations judgment” means a
judgment entered in proceedings under ORS chapter 107, 108 or 109. [1997 c.71 §10;
2003 c.576 §282]
(Appellate Review of Trial Court Orders
Relating to Undertakings and Stays)
19.360 Appellate review of trial court
orders relating to undertakings and stays. (1)
Any party aggrieved by the trial court’s final order relating to an undertaking
on appeal, the trial court’s grant or denial of a stay or the terms and
conditions imposed by the trial court on the granting of a stay may seek review
of the trial court’s decision by filing a motion in the appellate court to
which the appeal is made. The motion must be filed within 14 days after the
entry of the trial court’s order. During the 14-day period after the entry of
the trial court’s order, the judgment shall automatically be stayed unless the
trial court orders otherwise. The trial court may impose terms or conditions on
the stay or take such other action as may be necessary to prevent prejudice to
the parties.
(2)
The appellate court may review the decision of the trial court under the
provisions of this section at any time after the filing of the notice of
appeal. Notwithstanding ORS 19.415 (3), the appellate court shall review the
decision de novo upon the record.
(3)
On de novo review under subsection (2) of this section, the record shall be
restricted to the record made before the trial court unless:
(a)
There is additional relevant information relating to the period of time following
the decision of the trial court that the appellate court determines to be
important to review of the decision; or
(b)
The party submitting new information establishes that there was good cause for
not submitting the information to the trial court.
(4)
On review of a trial court’s decision relating to a request for a stay pending
appeal, an appellate court may remand the matter to the trial court for
reconsideration, may vacate a stay granted by the trial court, may grant a
stay, and may impose or modify terms and conditions on a stay. Upon receipt of
a request for a stay pending appeal made to the appellate court in the first
instance, the appellate court may remand the matter to the trial court for
consideration in the first instance, may grant or deny a stay, and may impose
terms and conditions on a stay issued by the appellate court. [1997 c.71 §9;
1999 c.294 §1; 2009 c.231 §4]
RECORD ON APPEAL
19.365 Preparation and transmission of
record generally. (1) The record of the case shall
be prepared and transmitted to the court to which the appeal is made in the
manner provided in this chapter.
(2)
The record on appeal shall consist of those parts of the trial court file,
exhibits and record of oral proceedings in the trial court that are designated
under ORS 19.250. The record of oral proceedings shall be the transcript
prepared under ORS 19.370, an agreed narrative statement prepared under ORS
19.380 or the audio record if the appellate court has waived preparation of a
transcript under ORS 19.385.
(3)
The trial court administrator shall, upon request of the State Court
Administrator, deliver the record of the case to the appellate court.
(4)
When it appears to the appellate court that the record on appeal is erroneous
or that the record does not contain material that should have been part of the
trial court file, and the erroneous or incomplete record substantially affects
the merits of the appeal, on motion of a party or on its own motion the court
may make such order to correct or supplement the record as may be just.
(5)
If the record on appeal is not sufficient to allow the appellate court to
review an assignment of error, the court may decline to review the assignment
of error and may dismiss the appeal if there are no other assignments of error
that may be reviewed.
(6)
Unless otherwise ordered by the appellate court, the State Court Administrator
shall return the trial court file and the exhibits to the trial court
administrator upon issuance of the appellate judgment disposing of the appeal. [Formerly
19.065]
19.370 Certification of transcript; effect
of referral to appellate mediation; correction of errors; settlement order.
(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.
(2)
Except as provided in subsection (3) of this section, the person preparing the
transcript shall file the transcript with the trial court administrator within
30 days after the filing of the notice of appeal. The person preparing the
transcript shall give immediate notice in writing to the parties that the
transcript has been filed. Except as provided in subsection (4) of this
section, the person preparing the transcript 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 State Court Administrator.
(3)
If an appeal is referred to mediation under the rules of the appellate
mediation program established by the Court of Appeals pursuant to ORS 2.560,
the transcript must be filed within 30 days after expiration of the period of
time specified in the rules during which the appeal is held in abeyance, or
within 30 days after the court directs that the appeal no longer be held in
abeyance, whichever occurs first.
(4)
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 person
preparing the transcript shall at the time of filing the original transcript
deposit a copy thereof with the trial court administrator for use by all such
other parties. The person preparing the transcript shall serve notice of such
deposit upon all such parties and file proof of such service with the trial
court administrator and with the State Court Administrator.
(5)
Except as provided in subsection (6) of this section, 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. If two or more persons are preparing parts of the transcript, the
motion must be filed within 15 days after the last part of the transcript is
filed. 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.
(6)
If an appeal is referred to mediation under the rules of the appellate
mediation program established by the Court of Appeals pursuant to ORS 2.560,
and the transcript is filed during any period of time specified in the rules
during which the appeal is held in abeyance, a motion under subsection (5) of
this section must be filed within 15 days after expiration of the period of
time the appeal is held in abeyance, or within 15 days after the court directs
that the appeal no longer be held in abeyance, whichever occurs first.
(7)
Upon the denial of a motion to correct or add to the transcript under
subsection (5) of this section, 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. [Formerly 19.078; 1999 c.367 §13;
2001 c.341 §1; 2001 c.962 §62]
19.375 Cost of transcript.
(1) Where more than one appeal is taken from the same judgment, only one
original transcript shall be filed.
(2)
The cost of preparing the transcript and copy shall be paid by the party
designating it to be made, except that where a party has designated additional
parts of the proceedings to be included in the transcript as provided in ORS
19.250 (2), the trial court on motion of such party may direct that the cost of
preparing all or part of the additional parts of the transcript be paid by the
appellant if it appears that such additional parts are necessary to the
determination of the appeal. The cost of preparing the original and copy of the
transcript shall be taxable as part of the costs on appeal. [Formerly 19.084]
19.380 Agreed narrative statement.
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 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. [Formerly 19.088; 1999 c.367 §14]
19.385 Audio records.
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 trial court administrator immediately upon receiving notice that the appeal
is to be heard on the basis of the recordings alone. [Formerly 19.069; 1999
c.367 §15]
19.390 Bill of exceptions not required.
A bill of exceptions is not required. For the purposes of section 3, Article
VII (Amended) of the Oregon Constitution, the transcript, as defined in ORS
19.005, is the bill of exceptions. [Formerly 19.114]
19.395 Time extensions for preparation of
record. Extensions of time for the performance
of any act in connection with the preparation of the record may be granted only
by the court to which the appeal is made and under such rules as that court may
prescribe. [Formerly 19.095]
HEARINGS ON APPEALS
19.400 Where appeals heard.
An appeal taken from any circuit court in any county lying east of the Cascade
Mountains, except Klamath and Lake, shall be heard at Pendleton, unless
otherwise ordered by the Court of Appeals if it has jurisdiction of the cause
or if the cause is before the Supreme Court unless otherwise stipulated between
the parties. All other appeals to the Supreme Court or to the Court of Appeals
shall be heard at Salem, unless other locations are designated under ORS 1.085
(2). [Formerly 19.118]
DISPOSITION OF APPEALS
(Certification of Appeal to Supreme
Court)
19.405 Certification of appeal to Supreme
Court. (1) When the Court of Appeals has
jurisdiction of an appeal, the court, through the Chief Judge and pursuant to
appellate rules, may certify the appeal to the Supreme Court in lieu of
disposition by the Court of Appeals. The Court of Appeals shall provide notice
of certification to the parties to the appeal.
(2)
The Supreme Court, by order entered within 20 days after the date of receiving
certification of an appeal from the Court of Appeals under subsection (1) of
this section, may accept or deny acceptance of the certified appeal. The
Supreme Court, by order entered within that 20-day period, may extend by not
more than 10 days the time for acceptance or denial of acceptance of the
certified appeal. If the Supreme Court accepts a certified appeal, the Court of
Appeals shall transmit the record of the case and the briefs of parties to the
Supreme Court, the Supreme Court shall have jurisdiction of the cause, and the
appeal shall be considered pending in the Supreme Court without additional
notice of appeal, filing fee, undertaking or, except as the Supreme Court may
require, briefs of parties. A certified appeal shall remain pending in the
Court of Appeals before the Supreme Court accepts or denies acceptance, and if
the Supreme Court denies acceptance or fails to accept or deny acceptance
within the time provided for in this subsection. The Supreme Court shall
provide notice of acceptance or denial of acceptance of certification to the
parties to the appeal. [Formerly 19.210]
(Stipulated Dismissals and Settlements)
19.410 Stipulated dismissals; settlement;
effect of settlement on pending appeal. (1) An
appellate court may dismiss an appeal at any time if the parties to the appeal
stipulate to the dismissal.
(2)
Dismissal of an appeal shall operate as an affirmance of the judgment being
appealed if the appellate court so directs in the order of dismissal.
(3)
If the parties to an appeal settle all or part of the matter on appeal, the
trial court has jurisdiction to enter any orders or judgments that may be
necessary to implement the settlement. If the settlement disposes of all issues
on appeal, the appellate court may dismiss the appeal. If the settlement
disposes of part of the issues on appeal, the appellate court may limit the
scope of the appeal to the issues not disposed of by the settlement. [Formerly
19.111]
(Disposition on Merits)
19.415 Scope of appellate review.
(1) Except as provided in this section, upon an appeal in an action or
proceeding, without regard to whether the action or proceeding was triable to
the court or a jury, the scope of review shall be as provided in section 3,
Article VII (Amended) of the Oregon Constitution.
(2)
No judgment shall be reversed or modified except for error substantially
affecting the rights of a party.
(3)
Upon an appeal in an equitable action or proceeding, review by the Court of Appeals
shall be as follows:
(a)
Upon an appeal from a judgment in a proceeding for the termination of parental
rights, the Court of Appeals shall try the cause anew upon the record; and
(b)
Upon an appeal in an equitable action or proceeding other than an appeal from a
judgment in a proceeding for the termination of parental rights, the Court of
Appeals, acting in its sole discretion, may try the cause anew upon the record
or make one or more factual findings anew upon the record.
(4)
When the Court of Appeals has tried a cause anew upon the record or has made
one or more factual findings anew upon the record, the Supreme Court may limit
its review of the decision of the Court of Appeals to questions of law. [Formerly
19.125; 2003 c.576 §88; 2005 c.568 §27; 2009 c.231 §2]
19.420 Action by appellate court on
appeal; review of order granting new trial or judgment notwithstanding verdict;
reversal upon loss or destruction of reporter’s notes or audio records.
(1) Upon an appeal, the court to which the appeal is made may affirm, reverse
or modify the judgment or part thereof appealed from as to any or all of the
parties joining in the appeal, and may include in such decision any or all of
the parties not joining in the appeal, except a codefendant of the appellant
against whom a several judgment might have been given in the court below; and
may, if necessary and proper, order a new trial.
(2)
Where in the trial court a motion for judgment notwithstanding the verdict and
a motion for a new trial were made in the alternative, and an appeal is taken
from a judgment notwithstanding the verdict or an order granting a new trial,
the court to which the appeal is made may consider the correctness of the
ruling of the trial court on either or both motions if such ruling is assigned
as erroneous in the brief of any party affected by the appeal, without the
necessity of a cross-appeal.
(3)
Whenever it appears that an appeal cannot be prosecuted, by reason of the loss
or destruction, through no fault of the appellant, of the reporter’s notes or
audio records, or of the exhibits or other matter necessary to the prosecution
of the appeal, the judgment appealed from may be reversed and a new trial
ordered as justice may require. [Formerly 19.130]
19.425 Review of intermediate orders;
directing restitution. Upon an appeal, the appellate
court may review any intermediate order involving the merits or necessarily
affecting the judgment appealed from; and when it reverses or modifies such
judgment, may direct complete restitution of all property and rights lost
thereby. [Formerly 19.140; 2003 c.576 §283]
19.430 Review of trial court order
granting a new trial on court’s own initiative.
If an appeal is taken from an order of the trial court granting a new trial on
its own initiative, the order shall be affirmed on appeal only on grounds set
forth in the order or because of reversible error affirmatively appearing in
the record. [Formerly 19.200]
19.435 Memorandum decisions.
The Supreme Court or the Court of Appeals may decide cases before it by means
of memorandum decisions and shall prepare full opinions only in such cases as
it deems proper. [Formerly 19.180]
(Attorney Fees and Penalties)
19.440 Award of attorney fees authorized
by statute. (1) If a statute of this state authorizes
or requires an award of attorney fees to a party to a proceeding, but does not
expressly authorize or require that award on appeal, judicial review or other
appellate review of the decision in the proceeding, and does not expressly
prohibit that award on an appeal, judicial review or other appellate review,
the statute shall be construed as authorizing or requiring the award of
attorney fees on appeal, judicial review or other appellate review of the
decision in the proceeding, including any denial of a petition for review by
the Supreme Court in the proceeding.
(2)
If a statute of this state authorizes or requires an award of attorney fees to
a party to a proceeding, but does not expressly authorize or require an award
of attorney fees in a mandamus proceeding arising out of the original
proceeding, the statute shall be construed as authorizing or requiring the
award of attorney fees in the mandamus proceeding.
(3)
The provisions of this section apply to statutes that authorize or require the
award of attorney fees in administrative proceedings in addition to statutes
that authorize or require the award of attorney fees in civil proceedings in
courts. [Formerly 19.220; 2011 c.513 §1]
Note:
Section 2, chapter 513, Oregon Laws 2011, provides:
Sec. 2. The
amendments to ORS 19.440 by section 1 of this 2011 Act apply only to judicial
review proceedings commenced on or after the effective date of this 2011 Act
[January 1, 2012]. [2011 c.513 §2]
19.445 Damages upon affirmance of
judgment. Whenever a judgment is affirmed on
appeal, and it is for recovery of money, or personal property or the value
thereof, the judgment shall be given for 10 percent of the amount thereof, for
damages for the delay, unless it appears evident to the appellate court that there
was probable cause for taking the appeal. [Formerly 19.160; 2003 c.576 §284]
(Appellate Judgment)
19.450 Appellate judgment; when effective;
effect of entry in trial court register; effect on judgment lien.
(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 courts, 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
trial court administrator for the court below, the 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 trial
court administrator, a judgment shall be entered in the register 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 judgment against the surety in the amount
specified.
(5)
If the appellate judgment terminating an appeal contains a judgment against a
surety for an undertaking, the trial court administrator shall enter 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 18.154, an appeal does not discharge the lien of a
judgment and unless the judgment is reversed, the lien of the judgment merges
with and continues in the affirmed or modified judgment given on appeal, from
the time of the entry of the judgment in the court below. The lien of any
judgment created by recording a certified copy of the judgment or a lien record
abstract continues in force in the same manner as the original judgment lien as
provided in this subsection. [Formerly 19.190; 1999 c.367 §16; 2003 c.576 §89]
MISCELLANEOUS
19.500 Service of documents under
provisions of chapter. Except as otherwise provided in
this chapter, when any provision of this chapter requires that a document be
served and filed, the document shall be served in the manner provided in ORCP 9
B on all other parties who have appeared in the action, suit or proceeding and
who are not represented by the same counsel as the party serving the document,
and shall be filed, with proof of service indorsed thereon, with the trial
court administrator. [Formerly 19.104; 2007 c.129 §10]
19.510 Powers of successor trial judge
with respect to appeals. In case of death, resignation,
expiration of the term of office or vacancy in office for any other cause of
the judge before whom the matter was tried, or in case illness or other cause
prevents the judge from performing the duties of judge, a successor in office
or any other judge assigned to perform the duties of the judge, may take any
action with respect to the appeal which the judge who tried it could take. [Formerly
19.170]
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