ORCP 64

NOTES OF DECISIONS

Motion for new trial serves essentially same functions as motion for reconsideration traditionally has served; with abolition of procedural distinction between law and equity there is no reason why motion for new trial is not available in equity. Schmidling v. Dove, 65 Or App 1, 670 P2d 166 (1983)

Where trial court failed to rule on motion for new trial within 55 days after entry of dissolution judgment, it could not take additional evidence on value of stock. Bradshaw and Bradshaw, 102 Or App 436, 794 P2d 825 (1990)

LAW REVIEW CITATIONS: 78 OLR 587 (1999)

ORCP 64A

See annotations under ORS 17.605 in permanent edition.

ORCP 64B

See also annotations under ORS 17.610 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 17.610)

Motions by aggrieved party for new trial must be based upon error of law properly excepted to at trial. Maulding v. Clackamas County, 278 Or 359, 563 P2d 731 (1979)

In general

If any ground set forth in motion for new trial is tenable, on appeal court must sustain order for new trial, but if no ground can be sustained, judgment must be reinstated. Landolt v. The Flame, Inc., 261 Or 243, 492 P2d 785 (1972)

Trial court may properly order new trial only where there is basis for finding of substantial prejudice. Williams v. Laurence-David, Inc., 271 Or 712, 534 P2d 173 (1975)

Incompetence of trial counsel was not issue which could properly be raised in motion for new trial arising from conviction of driving under influence of intoxicants. State v. McGhee, 31 Or App 1089, 572 P2d 333 (1977)

This section does not apply to suits in equity. Lane County Escrow Service, Inc. v. Smith, Coe, 277 Or 273, 560 P2d 608 (1977)

Where jury returned general verdict for defendant and there was sufficient evidence to support verdict, there were no grounds for new trial. Republic Albany Corp. v. Grice, 99 Or App 317, 781 P2d 1249 (1989)

Where plaintiffs did not seek to admit evidence concerning circumstances of filing of complaints, it was error to grant new trial based on court disallowing plaintiffs to present such evidence. McWilliams v. Szymanski, 101 Or App 617, 792 P2d 457 (1990), Sup Ct review denied

Where trial court grants motion for new trial, appellate court first determines whether trial court committed error of law and then, if so, whether trial court abused discretion in determining error was prejudicial. Gragg v. Hutchinson, 217 Or App 342, 176 P3d 407 (2007), Sup Ct review denied

Irregularity in proceedings

Where bailiff made improper remarks concerning sentencing habits of trial judge and knowledge of criminal element of society which were motivated by prejudice against defendant and were in violation of bailiff’s oath, remarks were assumed, even without proof, to be causally related to mistrial declared on basis of inability of jury to reach verdict. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

Court may not consider juror testimony or affidavits to determine existence of noncriminal irregularity in proceedings or whether verdict was against law. State v. Woodman, 195 Or App 385, 97 P3d 1263 (2004), aff’d 341 Or 105, 138 P3d 1 (2006)

Juror affidavit is not admissible to establish mental processes of jury in reaching verdict, including juror confusion during deliberations. State v. Woodman, 341 Or 105, 138 P3d 1 (2006)

Misconduct of jury or prevailing party

Motion for new trial should have been granted where evidence in possession of prosecutor would reasonably have been anticipated to enable production of evidence of substantial significance for defense. State v. Williams, 11 Or App 255, 500 P2d 722 (1972)

Prosecutor’s flagrant, unnecessary and twice reiterated effort to capitalize on co-indictee’s assertion of his Fifth Amendment privilege, with one such effort just after court had sustained objection to similar question, constituted “prosecutorial misconduct” and grounds to reverse for new trial. State v. Shaw, 20 Or App 587, 532 P2d 1143 (1975)

Trial court did not abuse discretion in denying motion for new trial where moving party delayed in informing court of irregularity and where record failed to show actual misconduct. Moore v. Adams, 273 Or 576, 542 P2d 490 (1975)

Misconduct of single juror could not have materially affected defendant’s rights where verdict was eleven to one. State v. Barker, 26 Or App 297, 552 P2d 565 (1976)

Statements that juror was biased towards defendant, that verdict would ruin defendant’s reputation and allegation by juror that defendant had saved life of juror’s niece were insufficient to merit new trial. Ertsgaard v. Beard, 310 Or 486, 800 P2d 759 (1990)

Juror misconduct used to attack verdict must be misconduct extrinsic to communication between jurors during deliberative process, or misconduct based on fraud, bribery, forcible coercion or other obstruction of justice. State v. Jones, 126 Or App 224, 868 P2d 18 (1994), Sup Ct review denied

Accident or surprise

Absence of defense witness did not warrant new trial where defendant could not assure court that witness would be produced, when defense counsel, after prior continuance granted for this reason, made no effort to subpoena witness even though counsel knew where to find witness. State v. Scott, 12 Or App 79, 504 P2d 1053 (1973), Sup Ct review denied

Newly discovered evidence

In applying requirements for allowance of new trial, it seems most reasonable to consider them as only three separate requirements. State v. Clayton, 11 Or App 534, 504 P2d 139 (1972)

Newly discovered evidence of undercover agent’s mistaken identification of defendant from photographs of another person warrants granting of new trial. State v. Clayton, 11 Or App 534, 504 P2d 139 (1972)

Due diligence was not shown when defendant failed to discover circumstances of unrecorded land sale contract, which contract was found by plaintiff. State ex rel State Hwy. Comm. v. Waldbauer, 15 Or App 431, 516 P2d 97 (1973), Sup Ct review denied

On petition for new trial, it is not sufficient for granting of petition that testimony might be changed, if there is no showing that outcome of trial will change. Shifton v. N. Clackamas Sch. Dist. 12, 18 Or App 90, 523 P2d 1296 (1974)

Settlement agreement between plaintiff and defendant was subject to pretrial discovery and was not newly discovered evidence which could not have been discovered earlier by exercise of due diligence. Grillo v. Burke’s Paint Co., 275 Or 421, 551 P2d 449 (1976)

Defendant convicted of robbery in first degree was entitled to new trial where, after trial, witness was located whose testimony was in direct conflict with eyewitness identification of defendant. State v. Kilpatrick, 35 Or App 749, 582 P2d 480 (1978)

Denial of motion for new trial following prosecution and conviction for sexual abuse was proper where new evidence was unlikely to change result of trial. State v. Quiring, 41 Or App 767, 598 P2d 1294 (1979), Sup Ct review denied

Where evidence would not have changed result at trial, could have been discovered at trial with due diligence, was impeaching and facts alleged in supporting affidavit were disputed and rebutted by defendant, new trial was not required. Pietila v. Eagles, 46 Or App 591, 612 P2d 742 (1980), Sup Ct review denied

Where trial court found that there was little likelihood that outcome of trial would have changed if witness would have testified, that prospective testimony was not credible and whereabouts of witness could have been discovered before defense presented its case in chief through exercise of due diligence, court did not abuse its discretion in denying motion for new trial. State v. Disorbo, 54 Or App 877, 636 P2d 986 (1981)

Trial court did not abuse its discretion in denying motion for new trial where alleged new evidence could have been discovered before summary judgment hearing. Bugge v. Far West Federal Bank, 100 Or App 133, 785 P2d 1058 (1990), Sup Ct review denied

Requirements for allowing new trial apply to evidence discovered during trial. State v. Arnold, 320 Or 111, 879 P2d 1272 (1994)

Evidence justifying new trial must: 1) be evidence that will probably change outcome upon new trial; 2) not have been discoverable with reasonable diligence before or during trial; 3) not have been available with reasonable diligence for use during trial; 4) be material to issue; 5) not be merely cumulative; and 6) not be merely impeaching or contradicting of earlier testimony. State v. Arnold, 320 Or 111, 879 P2d 1272 (1994)

“Newly discovered evidence” must be of facts in existence at time of trial. McCathern v. Toyota Motor Corp., 160 Or App 201, 985 P2d 804 (1999), aff’d 332 Or 59, 23 P3d 320 (2001)

In determining whether newly discovered evidence “will probably” change result, standard emphasizes mere probability rather than heightened measure of certainty. State v. Acree, 205 Or App 328, 134 P3d 1069 (2006)

Insufficiency of evidence

Notwithstanding lack of express language, timely motion for dismissal or directed verdict is required as prerequisite to appeal asserting insufficiency of evidence. Edward D. Jones and Co. v. Mishler, 161 Or App 544, 983 P2d 1086 (1999)

Error in law

Denial of a motion for a new trial based upon alleged error committed at the time of trial, of which the appellant had knowledge at the time, may not be assigned as error on appeal. Fain v. Hughes, 262 Or 137, 497 P2d 198 (1972); State v. Anderson, 10 Or App 34, 497 P2d 1218 (1972), Sup Ct review denied, app. dis., 410 US 920, 35 L Ed 2d 582, 93 S Ct 1362

Motions by aggrieved party for new trial must be based upon error of law properly excepted to at trial. Maulding v. Clackamas County, 278 Or 359, 563 P2d 731 (1979)

Trial court did not err in allowing motion for new trial based on denial of opportunity to cross-examine defendant’s expert witness where expert witness was qualified to express opinion on subject matter, plaintiff preserved objection and trial court found error to be prejudicial. Schacher v. Dunne, 109 Or App 607, 820 P2d 865 (1991), Sup Ct review denied

To make proper objection or exception to error of law in instructing jury, aggrieved party must take steps that at least would be sufficient under ORCP 59H to preserve error for review if trial court overrules objection or exception. Bennett v. Farmers Insurance Co., 332 Or 138, 26 P3d 785 (2001)

COMPLETED CITATIONS (for ORS 17.610 in permanent edition): State v. Tucker, 5 Or App 283, 483 P2d 825 (1971), Sup Ct review denied

LAW REVIEW CITATIONS

Under former similar statute (ORS 17.610)

55 OLR 363-366 (1976)

In general

78 OLR 587 (1999)

ORCP 64C

See annotations under ORS 17.435 in permanent edition.

ORCP 64D

See also annotations under ORS 17.620 in permanent edition.

NOTES OF DECISIONS

Trial court receiving affidavits of jurors regarding purported misconduct of fellow juror during deliberation was appropriate. Ertsgaard v. Beard, 310 Or 486, 800 P2d 759 (1990)

ORCP 64E

See annotations under ORS 17.725 in permanent edition.

ORCP 64F

See also annotations under ORS 17.610 and 17.615 in permanent edition.

NOTES OF DECISIONS

Under former similar statute (ORS 17.610)

Motions by aggrieved party for new trial must be based upon error of law properly excepted to at trial. Maulding v. Clackamas County, 278 Or 359, 563 P2d 731 (1979)

Under former similar statute (ORS 17.615)

This section applies to summary judgments, and thus circuit court had no authority to set aside summary judgment on basis of motion filed more than ten days after filing of judgment. State ex rel State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or 179, 590 P2d 231 (1979)

Grant of additional time for filing motion must be made prior to expiration of 10-day filing period. State ex rel State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or 179, 590 P2d 231 (1979)

Trial court lacked authority to enter judgment n.o.v. for defendant 55 days after entry of judgment for plaintiff. McCarty v. State, 45 Or App 21, 607 P2d 219 (1980), Sup Ct review denied

In general

Motion to reconsider is functional equivalent of motion for new trial despite precise wording of this Rule that judgment be previously entered. Renfroe v. State of Oregon, 90 Or App 446, 752 P2d 1245 (1988); Casey-Jones Well Drilling v. Slayden and Holm, 99 Or App 511, 783 P2d 28 (1989)

Motion for new trial is determined upon entry in trial court register of written order disposing of motion and in absence of written order entered in register within 55 days of entry of judgment, motion for new trial is deemed denied and notice of appeal must be filed within 30 days thereafter. Conley and Conley, 97 Or App 134, 776 P2d 860 (1989); Ryerse v. Haddock, 185 Or App 679, 60 P3d 1107 (2003), aff’d 337 Or 273, 95 P3d 1120 (2004)

Where parties jointly agreed to new trial, trial court had authority to grant joint motion of parties to vacate original judgment and grant new trial even though judgment was vacated more than 55 days after its entry. Guenther v. Martinez, 98 Or App 735, 780 P2d 799 (1989)

In absence of action before 11:59:59 p.m. of 55th day, motion will be “deemed denied” after 11:59:59 of 55th day, that is, 56th day. Propp v. Long, 313 Or 218, 831 P2d 685 (1992)

Filing of appeal tolls 55-day period because trial court is divested of authority to act on motion while appeal is pending. Johnstone and Johnstone, 152 Or App 801, 955 P2d 762 (1998); Welker v. Teacher Standards and Practices Commission, 332 Or 306, 27 P3d 1038 (2001)

Filing of motion for new trial prior to entry of judgment meets requirement that motion be filed “not later than” 10 days after entry of judgment. Way v. Prosch, 163 Or App 437, 988 P2d 422 (1999)

Agreement to reschedule hearing on motion for new trial does not, by itself, waive 55-day time limit for ruling on motion. White v. Lei, 196 Or App 243, 101 P3d 368 (2004), Sup Ct review denied

Timely filing of opinion letter that accompanies and references court order does not constitute timely filing of order. McCollum v. Kmart Corporation, 347 Or 707, 226 P3d 703 (2010)

Motion for new trial includes motion to reconsider. Association of Unit Owners of Timbercrest Condominiums v. Warren, 242 Or App 425, 256 P3d 146 (2011)

Written statement of reasons or other explanation in support of timely ruling made in open court is optional and may therefore be signed, filed and entered after expiration of deadline for ruling. Strawn v. Farmers Insurance Co., 350 Or 336, ___ P3d ___ (2011)

COMPLETED CITATIONS (for ORS 17.615 in permanent edition): Portland v. Olson, 4 Or App 633, 481 P2d 641 (1971), Sup Ct review denied; State v. Penland, 6 Or App 255, 486 P2d 1314 (1971), Sup Ct review denied

ORCP 64G

See also annotations under ORS 17.630 in permanent edition.

NOTES OF DECISIONS

Oral statement from bench, even if setting forth grounds on which order would be based, does not constitute order or judgment until it appears in written order or judgment. State ex rel Schrunk v. Johnson, 97 Or App 420, 776 P2d 863 (1989), Sup Ct review denied

Trial court did not abuse its discretion in granting new trial on its own initiative in negligence action in which jury awarded all economic damages claimed, but no noneconomic damages. Dutra v. Tree Line Transportation, 112 Or App 330, 831 P2d 691 (1992)