§ 5.11 Motions Filed In the Trial Court Affecting Or In Connection With An Appeal

JurisdictionUnited States

§ 5.11 MOTIONS FILED IN THE TRIAL COURT AFFECTING OR IN CONNECTION WITH AN APPEAL

This part of the chapter identifies certain motions filed in the trial court that may affect the timing of an appeal, the jurisdiction of the appellate court, and the progress of an appeal. See § 5.11-1(a) to § 5.11-1(c). This part also discusses certain motions filed in the trial court in connection with an appeal or judicial review. See § 5.11-2(a) to § 5.11-2(f). Lastly, this part addresses appellate court review of trial court orders arising from motions filed in the trial court affecting or in connection with an appeal. See § 5.11-3.

§ 5.11-1 Trial Court Motions That May Affect Timing, Jurisdiction, and Progress of an Appeal

§ 5.11-1(a) Motion for Judgment Notwithstanding the Verdict and Motion for New Trial

Complexities and nuances in procedure arise from the interplay between an appeal on the one hand and, on the other hand, a motion for judgment notwithstanding the verdict ("motion jnov") under ORCP 63 and a motion for new trial under ORCP 64. Those rules contemplate that, generally, a motion jnov or for new trial will be filed after entry of the judgment, which is, of course, when notice of appeal might be filed. Further, those rules impose a time limitation on when such a motion must be filed, and also provide that if the motion is not decided within a particular time, the motion is deemed denied. See ORCP 63 D, ORCP 64 F. The appellate courts have held that a timely filed motion jnov or for new trial renders the judgment nonconclusive and nonappealable until the motion is disposed of. Welker ex rel. Bradbury v. Teachers Standards & Practices Comm'n, 332 Or 306, 312-13, 27 P3d 1038 (2001); see ORS 19.255(2) (when timely motion jnov or for new trial is filed, appeal period begins to run when motion is disposed of). Thus, it is important for the lawyer to be aware of the time limits for filing and disposing of motions jnov and for new trial.

In the trial court, following trial of a cause, a party may file a motion jnov under ORCP 63 or, in the alternative, for a new trial under ORCP 64. Such motion or motions must be filed "not later than 10 days after the entry of the judgment sought to be set aside, or such further time as the [trial] court may allow." ORCP 63 D(1), ORCP 64 F(1). "Not later than" has been construed to allow a motion jnov or for new trial to be filed before entry of judgment, at least when the opposing party does not object. Way v. Prosch, 163 Or App 437, 442, 988 P2d 422 (1999). If a trial court grants additional time to file a motion jnov or for new trial, it must do so before expiration of the 10-day period following entry of judgment. State ex rel. State Farm Mut. Auto. Ins. Co. v. Olsen, 285 Or 179, 181, 590 P2d 231 (1979), overruled on other grounds by Ass'n of Unit Owners of Timbercrest Condominiums v. Warren, 352 Or 583, 591-92, 598, 288 P3d 958 (2012).

NOTE: If a party has filed notice of appeal in a case, a party filing a motion jnov or for new trial must serve a copy of the motion on the appellate court. ORCP 63 D(2), ORCP 64 F(2).

A motion jnov or for new trial is considered disposed of by an order entered in the trial court register within 55 days of the date of entry of judgment, Ryerse v. Haddock, 337 Or 273, 281, 95 P3d 1120 (2004); by oral ruling and signed order in open court, Strawn v. Farmers Ins. Co. of Oregon, 350 Or 336, 367, 258 P3d 1199, adh'd to on recons, 350 Or 521, 256 P3d 100 (2011), cert den, 132 S Ct 1142 (2012); or by operation of law on the 56th day after entry of judgment, Propp v. Long, 313 Or 218, 226, 831 P2d 685 (1992). See ORCP 63 D(1), ORCP 64 F(1).

NOTE: If a motion jnov or for new trial is decided by trial-court order, the party that filed the motion must provide the appellate court with a copy of the order within seven days after entry of it. ORCP 63 D(2), ORCP 64
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