§ 40.5 Motion for New Trial

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 40.5 MOTION FOR NEW TRIAL

A party may either move for a new trial only or move for a new trial as an alternative to a motion for a judgment n.o.v. See Form 40-5 (motion for a new trial), Form 40-4 (motion for a judgment n.o.v. and alternative motion for a new trial). However, if a party moves for a judgment n.o.v. but does not move for a new trial in the alternative, the opportunity to move for a new trial is lost at least on those grounds asserted for the motion for a judgment n.o.v. ORCP 63 C. See Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, Inc., 325 Or 46, 48, 932 P2d 1141 (1997) ("ORCP 63 C bars a party from obtaining a new trial on appeal, if that new trial is based on errors that the party asserted as grounds for a judgment notwithstanding the verdict. . . in the trial court, but the party failed in the trial court to move in the alternative for a new trial on the basis of those same errors"). Furthermore, by failing to join an alternative motion for a new trial with the motion for a judgment n.o.v., a party loses the opportunity to base an appeal on any of the grounds asserted in the motion for a judgment n.o.v.

CAVEAT: As the court advised in an earlier decision involving the Goodyear Tire & Rubber Co. case, a party should combine a motion for a new trial with its motion for a judgment n.o.v. when it "either is uncertain of its entitlement to a clear win, or asserts legal errors that, even if well taken, would justify only a new trial, rather than a judgment in its favor." Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, Inc., 322 Or 406, 412, 908 P2d 300 (1995), modified on recons, 325 Or 46, 48, 932 P2d 1141 (1997). If, on the other hand, a party does not want to undergo the costs of a new trial, even if the court were to grant it, then the appropriate strategy, as the court in the Goodyear case stated, is to file only a motion for a judgment n.o.v. Goodyear Tire & Rubber Co., 322 Or at 412.

§ 40.5-1 Time

As with a motion for a judgment n.o.v. (see § 40.4-2), a motion for a new trial must be made within 10 days after the judgment has been entered. ORCP 64 F(1). The opposing party then has 10 days to file a response. ORCP 64 F(1). The court may alter these time periods.

The motion must be heard and determined within 55 days from the time that the judgment was entered. ORCP 64 F(1). If it is not heard and determined within that period, it is conclusively deemed denied and "the trial court lacks jurisdiction to enter any order on the motion." Strawn v. Farmers Ins. Co., 350 Or 336, 367, 258 P3d 1199, adh'd to on recons, 350 Or 521, 256 P3d 100 (2011), cert den, 565 US 1177 (2012).

CAVEAT: For purposes of ORCP 64 F, a motion for a new trial is "determined" at the time the court's order is entered in the court register, not when it is signed or filed. Ryerse v. Haddock, 185 Or App 679, 683-85, 60 P3d 1107 (2003), aff'd, 337 Or 273, 95 P3d 1120 (2004). Thus, if the court signs and files an order granting a motion for a new trial before the 55th day, but the order is not entered in the court register until after the 55th day, the motion is still conclusively deemed denied on day 55 under ORCP 64 F.

§ 40.5-2 Grounds

§ 40.5-2(a) Jury Trials

ORCP 64 B specifies the following six grounds that may justify granting a new trial in an action tried to a jury:

(1) ORCP 64 B(1): "Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such [moving] party was prevented from having [a] fair trial."

"Irregularity" requires deviation from an established rule or a usual practice or method. McCollum v. Kmart Corp., 228 Or App 101, 113, 207 P3d 1200 (2009), vac'd on other grounds, 347 Or 707, 226 P3d 703 (2010); Siberman-Doney v. Gargan, 256 Or App 263, 270-72, 303 P3d 333 (2013) ("a trial court's arguably questionable ruling does not render proceedings that are proper procedurally 'irregular' for purposes of ORCP 64").

In Gross v. Hackers, 168 Or App 529, 536-37, 4 P3d 1281 (2000), rev den, 332 Or 239 (2001), the court found that an expert witness's failure to bring correspondence in his file to trial in response to the plaintiff's subpoena was not an irregularity that justified a new trial, because the trial court could have concluded that the evidence would not have changed the outcome of the trial and did not prejudice the plaintiff. In Leland Props. v. Burton Eng'g & Survey, 152 Or App 557, 562, 954 P2d 851, rev den, 327 Or 620 (1998), the court held that a trial court's inadvertent failure to record the jury instructions according to that usual practice was not such an irregularity that justified a new trial.

(2) ORCP 64 B(2): "Misconduct of the jury or prevailing party."

Only cases involving egregious juror misconduct may warrant a new trial under this rule. See Ertsgaard v. Beard, 310 Or 486, 497, 800 P2d 759 (1990) ("Only the clearest kinds of juror misconduct can trigger the trial court's right to exercise its discretion and order a new trial."); State v. Jones, 126 Or App 224, 227, 860 P2d 18, rev den, ...