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FILED: April 27, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

THE ASSOCIATION OF UNIT OWNERS OF TIMBERCREST CONDOMINIUMS,
an Oregon non-profit corporation,

Plaintiff-Appellant,

v.

GALE ALLEN WARREN,
dba Big Al's Construction,

Defendant-Respondent,

and

LIGHTHOUSE TWO, LLC,
a Washington limited liability company;
JOHN DOES 1-3;
and HARRY G. CRETIN, P.E.,
an Oregon corporation,

Defendants.

Washington County Circuit Court
C090892CV
A146137

Donald R. Letourneau, Judge.

On respondent's motion to determine jurisdiction filed December 14, 2010; and appellant's response to respondent's motion to determine jurisdiction filed December 28, 2010.

Thomas M. Christ and Cosgrave Vergeer Kester LLP for motion.

Ryan D. Harris and Vial Fotheringham LLP contra.

Before Wollheim, Presiding Judge, and Brewer, Chief Judge, and Schuman, Judge.

WOLLHEIM, P. J.

Motion for determination of jurisdiction granted; the court determines that it has jurisdiction of the appeal; appeal to proceed.

WOLLHEIM, P. J.

We write to address this issue of appellate procedure: When a party has filed a motion for new trial and a notice of appeal is filed before the motion for new trial is decided, must the appellant file a new notice of appeal after the motion for new trial is decided? We conclude that no new notice of appeal is required. Accordingly, we grant respondent's motion for determination of jurisdiction, determine that the court has jurisdiction of this appeal, and direct that the appeal proceed.

The essential procedural events are these: The trial court resolved plaintiff's claims by granting defendant's motion for summary judgment. Defendant tendered a form of general judgment memorializing that decision, the trial court signed the judgment on June 22, 2010. On June 24, before the judgment was entered in the trial court register, plaintiff filed its "motion to reconsider the court's ruling on defendant Warren's motion for summary judgment; alternative motion to clarify ruling" (motion to reconsider). On July 8, the trial court clerk entered the judgment in the register. On July 21, plaintiff filed a notice of appeal from the judgment. On September 15, the trial court entered an order denying the motion to reconsider.(1) Plaintiff did not thereafter file a new notice of appeal.

In October, defendant Warren filed a motion to determine jurisdiction,(2) contending that plaintiff's motion filed in the trial court in substance was a motion for new trial and that plaintiff's notice of appeal filed while that motion was pending was premature and, therefore, ineffective. Because plaintiff failed to file a notice of appeal within 30 days after the motion was resolved, defendant argued, this court lacked jurisdiction of the appeal. The Appellate Commissioner denied the motion on the ground that defendant's argument depended on determining that the motion to reconsider was a motion for a new trial and, because defendant had failed to provide the court with a copy of that motion, the court was unable to determine whether it lacked jurisdiction for the reason asserted by defendant. Defendant thereafter renewed his motion for determination of jurisdiction, and provided a copy of the motion to reconsider.

WHETHER THE MOTION TO RECONSIDER WAS A MOTION FOR NEW TRIAL

Defendant's assertion that this court lacks jurisdiction to decide plaintiff's appeal depends in part on whether plaintiff's motion to reconsider was a motion for new trial.(3) Plaintiff contends that its motion to reconsider was not, because (1) the motion was filed before, not after, entry of judgment; (2) the motion did not seek relief cognizable under ORCP 64; (3) the motion was not labeled as a motion for new trial; and (4) defendant contended in the trial court that the motion was not a motion for new trial, and the trial court did not treat it as a motion for new trial.

ORCP 64 F(1) requires only that a motion for new trial be filed "not later than 10 days after entry of the judgment" and such a motion is timely notwithstanding that it is filed before entry of judgment. Highway Commission v. Fisch-Or, 241 Or 412, 417-18, 399 P2d 1011, opinion modified, 406 P2d 539 (1965) (motion for new trial filed prior to entry of judgment timely); Way v. Prosch, 163 Or App 437, 442, 988 P2d 422 (1999) (same). Thus, it is of no consequence that plaintiff's motion was filed before entry of the judgment.

Further, the character of a motion is not determined by its caption, but by its substance. State v. Barone, 329 Or 210, 221, 986 P2d 5 (1999), cert den, 528 US 1135 (2000). A motion for reconsideration can serve the same function as a motion for new trial in cases tried to the court. Schmidling v. Dove, 65 Or App 1, 5-6, 670 P2d 166 (1983); ORCP 64 C.(4) More to the point here, a motion to reconsider a grant of summary judgment can be a motion for new trial, depending on the grounds stated in the motion, even if the motion does not identify itself as such or refer to ORCP 64. Carter v. U.S. National Bank, 304 Or 538, 544-45, 747 P2d 980 (1987); Welker v. TSPC, 332 Or 306, 312, 27 P3d 1038 (2001).

ORCP 64 A defines a new trial as "a re-examination of an issue of fact in the same court after judgment." The possible grounds for seeking a new trial, in cases decided by either a jury or the court, are found at ORCP 64 B and include "[i]nsufficiency of the evidence to justify the verdict or other decision * * *," ORCP 64 B(5), and an "[e]rror in law occurring at the trial and objected to or excepted to by the party making the application," ORCP 64 B(6). Plaintiff's motion in the trial court argued, within the meaning of ORCP 64 B(5), that the court erred in granting summary judgment because there was a material issue of fact, namely, whether the plaintiff was formed before individual unit owners signed unit agreements and thereby waived their right to bring claims. To that extent, plaintiff invited the trial court to re-examine the facts of the case. Plaintiff also argued, within the meaning of ORCP 64 B(6), that the trial court erred in concluding that it was possible for the individual unit owners to waive the rights of the plaintiff in an action against the developer in derogation of a particular statute, and that the unit owners had waived those rights. Therefore, we conclude that the motion to reconsider, in substance, was a motion for new trial.

It makes no difference, as plaintiff argues, that defendant asserted to the trial court that the motion to reconsider was not a motion for new trial. Whether this court has jurisdiction of plaintiff's appeal depends, in part, on whether plaintiff's motion in substance was a motion for new trial, and a party can neither stipulate to, nor waive, jurisdiction. Daly and Daly, 228 Or App 134, 139, 206 P3d 1189 (2009); State v. Young, 188 Or App 247, 251, 71 P3d 119, rev den, 336 Or 125 (2003). That principle, as applied here, means that neither party, by how the party chooses to label or treat a motion filed in the trial court, can either create or obviate this court's jurisdiction if the motion, in substance, was a motion for new trial. Likewise, that the trial court was unwilling to treat the motion as a motion for new trial is not determinative if, fairly viewed, the motion sought relief under ORCP 64.

For the foregoing reasons, we conclude that plaintiff's motion to reconsider was a motion for new trial within the meaning of ORCP 64 F(2) and ORS 19.270(1)(d) (relating to whether the trial court retains jurisdiction notwithstanding filing of notice of appeal to decide motion for new trial), and ORS 19.255(2)(a) (relating to when notice of appeal must be filed if a motion for new trial is timely filed).(5)

WHETHER APPELLANT MUST TIMELY FILE NEW NOTICE OF APPEAL TO PERFECT THE APPEAL

As noted above, plaintiff filed a notice of appeal within 30 days of the date of entry of the judgment, but while plaintiff's timely-filed motion for new trial was pending. The filing of the motion for new trial caused the notice of appeal to be premature because, under ORS 19.255(2), when a timely motion for new trial is filed, the commencement of the appeal period does not begin to run until disposition of the motion for new trial. Welker, 332 Or at 312-13 ("notice of appeal filed before the time to appeal begins to run is jurisdictionally defective"); Alternative Realty v. Michaels, 90 Or App 280, 286-87, 753 P2d 419 (1988) (same).

Further, in Welker, in the course of dismissing the appeal, the court noted that, because of the prematurely-filed notice of appeal, the trial court was deprived of jurisdiction to decide the motion for new trial and there could be no resolution of the motion until the trial court regained jurisdiction.(6) Welker, 332 Or at 313. That principle goes at least as far back as Johnson v. Assured Employment, 277 Or 11, 14, 558 P2d 1228 (1977) ("The great weight of authority of both old and recent cases is that a premature appeal will not * * * ripen and that if the party attempting to appeal does not file a new notice of appeal when the impediment to ripeness is removed, the appellate court lacks jurisdiction.")

However, in House Bill 2368 (2007), the legislature amended ORS 19.270(1) to add to the list of actions that a trial court may exercise during the pendency of an appeal the jurisdiction to "[decide] a motion for new trial under ORCP 64." Or Laws 2007, ch 66,