Chapter §6.26 ERROR MUST BE SEPARATELY ASSIGNED TO EACH CHALLENGED RULING

• Jurisdiction: Oregon

C. (§6.26) Error Must Be Separately Assigned to Each Challenged Ruling

Sometimes multiple erroneous rulings flow from the same fundamental error. Although the attorney is permitted to combine closely related rulings for argument purposes, each distinct, objectionable action of the trial court needs its own assignment of error. Mark v. State Dep't of Fish & Wildlife, 158 Or App 355, 359 n 3, 974 P2d 716 (1999). Failure to comply with this requirement can be fatal to the appeal.

The section of the brief concerning preservation of error and the accompanying argument address multiple rulings that involve different legal issues and different preservation concerns. Thus, we are unable to determine what rulings are being challenged in Farmers' fifth claim of error and whether the bases for those challenges were preserved below. Accordingly, to the extent that Farmers' assignment encompasses something other than the instructional error previously discussed, we also decline to reach those claims of error because they are not adequately framed under our rules of appellate procedure.

Strawn v. Farmers Ins. Co., 228 Or App 454, 475, 209 P3d 357 (2009). See also Olsen v. Deschutes County, 204 Or App 7, 30, 127 P3d 655 (2006) (Judge Edmonds in dissent emphasized that the defendant's choice to combine in a single assignment of error three rulings subject to different standards of review caused the majority to ignore the ruling on which Edmonds would have reversed).

Even when not fatal, failure to separately assign error to distinct erroneous rulings may earn the attorney unwanted public criticism. Rogers v. RGIS LLP, 229 Or App 580, 584 n 5, 213 P3d 583, modified and adhered to on recons., 232 Or App 433 (2009) ("[P]laintiff combined her arguments regarding the attorney fee award to defendant and the limitation of her attorney fee award in a single assignment of error. ORAP 5.45 requires that each issue be raised as a separate assignment of error and, although here we will consider both issues, we discourage that practice."); Landauer v. Landauer, 221 Or App 19, 23-24, 188 P3d 406 (2008) ("The grouping of a trial court's rulings under a single assignment of error hinders the evaluation of each individual ruling on its merits and is a practice that should not be followed.").

The following cases provide examples of lessons that other attorneys have learned the hard way.

(1) It is not enough to discuss the erroneous ruling in the argument if no error was assigned to the...