2007 Oregon Code - Chapter 19 :: Chapter 19 - Appeals
Chapter 19 — Appeals
2007 EDITION
APPEALS
PROCEDURE IN CIVIL PROCEEDINGS
GENERAL PROVISIONS
19.005Â Â Â Â Â Â Definitions
APPEALABLE JUDGMENTS
(Generally)
19.205Â Â Â Â Â Â Appealable
judgments and orders
(Class Actions)
19.215Â Â Â Â Â Â Determining
amount in controversy in class action for purposes of appeal
19.225Â Â Â Â Â Â Appealability
of certain orders in class actions
(Determining Whether Judgment Appealable)
19.235Â Â Â Â Â Â Jurisdiction
for determining whether decision is appealable
COMMENCING AN APPEAL
(Generally)
19.240Â Â Â Â Â Â How
appeal to Court of Appeals taken
19.245Â Â Â Â Â Â Who
may appeal; appeal of default judgments and judgments taken by confession;
appeal of stipulated judgments
(Notice of Appeal)
19.250Â Â Â Â Â Â Contents
of notice of appeal
19.255Â Â Â Â Â Â Time
for service and filing of notice of appeal
19.260Â Â Â Â Â Â Filing
by mail
19.265Â Â Â Â Â Â Payment
of filing fee
(Jurisdiction of Appellate Court and Trial
Court)
19.270Â Â Â Â Â Â Appellate
jurisdiction of Supreme Court and Court of Appeals; trial court jurisdiction to
enter appealable judgment
19.275Â Â Â Â Â Â Continuing
jurisdiction of trial court in certain domestic relations cases
UNDERTAKINGS ON APPEAL AND STAYS OF JUDGMENT
(Undertakings)
19.300Â Â Â Â Â Â Undertakings
on appeal generally; filing and service
19.305Â Â Â Â Â Â Qualifications
of sureties; objections
19.310Â Â Â Â Â Â Waiver,
reduction or limitation of undertaking
19.312Â Â Â Â Â Â Supersedeas
undertaking in certain actions against tobacco product manufacturer
(Letter of Credit in Support of Undertaking)
19.315Â Â Â Â Â Â Requirements
for use of letter of credit
19.320Â Â Â Â Â Â Expiration
and renewal of letter of credit
19.325Â Â Â Â Â Â Payment
on letter of credit
(Stays)
19.330Â Â Â Â Â Â Stays
generally
19.335Â Â Â Â Â Â Stay
by filing of supersedeas undertaking
19.340Â Â Â Â Â Â Waiver
of supersedeas undertaking; sale of perishables
19.345Â Â Â Â Â Â Enforcement
of judgment in contract action notwithstanding appeal
19.350Â Â Â Â Â Â Discretionary
stay by court
19.355Â Â Â Â Â Â Stay
of domestic relations judgment
(Appellate Review of Trial Court Orders Relating
to Undertakings and Stays)
19.360Â Â Â Â Â Â Appellate
review of trial court orders relating to undertakings and stays
RECORD ON APPEAL
19.365Â Â Â Â Â Â Preparation
and transmission of record generally
19.370Â Â Â Â Â Â Certification
of transcript; effect of referral to appellate mediation; correction of errors;
settlement order
19.375Â Â Â Â Â Â Cost
of transcript
19.380Â Â Â Â Â Â Agreed
narrative statement
19.385Â Â Â Â Â Â Audio
records
19.390Â Â Â Â Â Â Bill
of exceptions not required
19.395Â Â Â Â Â Â Time
extensions for preparation of record
HEARINGS ON APPEALS
19.400Â Â Â Â Â Â Where
appeals heard
DISPOSITION OF APPEALS
(Certification of Appeal to Supreme Court)
19.405Â Â Â Â Â Â Certification
of appeal to Supreme Court
(Stipulated Dismissals and Settlements)
19.410Â Â Â Â Â Â Stipulated
dismissals; settlement; effect of settlement on pending appeal
(Disposition on Merits)
19.415Â Â Â Â Â Â Scope
of appellate review
19.420Â Â Â Â Â Â Action
by appellate court on appeal; review of order granting new trial or judgment
notwithstanding verdict; reversal upon loss or destruction of reporterÂ’s notes
or audio records
19.425Â Â Â Â Â Â Review
of intermediate orders; directing restitution
19.430Â Â Â Â Â Â Review
of trial court order granting a new trial on courtÂ’s own initiative
19.435Â Â Â Â Â Â Memorandum
decisions
(Attorney Fees and Penalties)
19.440Â Â Â Â Â Â Award
of attorney fees authorized by statute
19.445Â Â Â Â Â Â Damages
upon affirmance of judgment
(Appellate Judgment)
19.450Â Â Â Â Â Â Appellate
judgment; when effective; effect of entry in trial court register; effect on
judgment lien
MISCELLANEOUS
19.500Â Â Â Â Â Â Service
of documents under provisions of chapter
19.510Â Â Â Â Â Â 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 reporterÂ’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]
    Â
     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 courtÂ’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 courtÂ’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 AppealsÂ’ 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 courtÂ’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) Except as otherwise provided by law,
the provisions of subsections (1) and (2) 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]
     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 partyÂ’s motion or on
the courtÂ’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
     (c) Stay enforcement of the appellate
judgment pending disposition of the matter by the Supreme Court of the
     (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]
     Note: Section 2, chapter 66, Oregon Laws 2007,
provides:
     Sec.
2. The amendments to ORS
19.270 by section 1 of this 2007 Act apply only to causes for which a notice of
appeal is filed on or after the effective date of this 2007 Act [January 1,
2008]. [2007 c.66 §2]
     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 courtÂ’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 9B. [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 bankÂ’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 bankÂ’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 courtÂ’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 courtÂ’s
final order relating to an undertaking on appeal, the trial courtÂ’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 courtÂ’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 courtÂ’s order. During the
14-day period after the entry of the trial courtÂ’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. 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]
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
     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
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) Upon an appeal from a judgment in an action at law, 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 from a judgment in an
equitable proceeding, the Court of Appeals shall try the cause anew upon the
record.
     (4) When the Court of Appeals has tried a
cause 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]
     19.420
Action by appellate court on appeal; review of order granting new trial or
judgment notwithstanding verdict; reversal upon loss or destruction of reporterÂ’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 reporterÂ’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 courtÂ’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. Any statute law of this state that authorizes or requires the award or
allowance of attorney fees to a party in a civil action or proceeding, but does
not expressly authorize or require that award or allowance on an appeal in the
action or proceeding and does not expressly prohibit that award or allowance on
an appeal, shall be construed as authorizing or requiring that award or
allowance on an appeal in the action or proceeding. [Formerly 19.220]
     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 courtÂ’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 courtÂ’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 courtÂ’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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