Shirley J. CARTER and Robert G. Carter, Respondents,
v.
United States NATIONAL BANK of Oregon, Appellant.
L85-0997; CA A39448.
Court of Appeals of Oregon.
Motion to Dismiss April 3, 1986. Submitted on Remand January 29, 1987. Decided February 11, 1987.*935 David Morrison, Roseburg, and Heiling & Morrison, Roseburg, for motion.
James N. Westwood and John F. Neupert, Portland, and Miller Nash, Wiener, Hager & Carlsen, Portland, appeared contra.
Before YOUNG, P.J., and JOSEPH, C.J., and WARREN, J.
On Respondents' Motion to Dismiss April 3, 1986.
WARREN, Judge.
This case was remanded to us, 302 Or. 37, 730 P.2d 37, for reconsideration in light of the Supreme Court's memorandum opinion in Employee Benefits Insurance v. Grill, 300 Or. 587, 715 P.2d 491 (1986), which relied on Cooley v. Roman, 286 Or. 807, 596 P.2d 565 (1979).[1]
In our former opinion, 81 Or. App. 11, 724 P.2d 346 (1986), we held that a trial court ruling granting a motion to reconsider a summary judgment was not an order granting a new trial. We so held because, under ORCP 64 A, adopted after the decision in Cooley v. Roman, a new trial is defined as a "reexamination of an issue of *936 fact in the same court after judgment" and an order granting a summary judgment is a determination that there is no issue of fact. Therefore, we concluded that an order setting aside a summary judgment is a determination only that there is an issue of fact which must be examined by a trier of fact for the first time.
In our opinion, we had distinguished Cooley v. Roman, because it was decided before the enactment of ORCP 64 A and relied on the definition of "trial" as including an examination of issues of law. See former ORS 17.025. We said:
"As we understand Cooley v. Roman, supra, and State Farm Mutual Auto. Ins. Co. v. Olsen, [285 Or. 179, 590 P.2d 231 (1979)] supra, the holding in those cases was based on the definition under former ORS 17.025 that a `trial' includes the judicial examination of issues of law. Under that definition, a summary judgment proceeding in which a court is asked to resolve only issues of law, is a `trial.' The situation changed with the repeal of former ORS 17.025 and the enactment of ORCP 64.
"Nothing in the ORCP defines `trial,' but ORCP 64A defines `new trial' as `a reexamination of an issue of fact in the same court after judgment.' * * * ORCP 64B provides, in part:
"`* * * A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party * * *'
"ORCP 64C provides that the grounds for a new trial in ORCP 64B apply in actions `tried without a jury.' * * * A summary judgment proceeding does not involve the examination of issues of fact; indeed, if an issue of material fact exists, summary judgment must be denied. An order reconsidering and vacating a summary judgment does not grant a `new trial;' rather, it allows the case to proceed to a trial at which issues of fact will be examined for the first time, not `reexamined.'" 81 Or. App. at 14, 724 P.2d 346. (Emphasis in original.)
Employee Benefits Insurance v. Grill does not require a different result. In Grill, a motion for summary judgment was allowed, and a motion to set the summary judgment aside was made under ORCP 71 B (relief from judgment based on mistake, inadvertance, excusable neglect or newly discovered evidence), not under ORCP 64 (new trial). The reason asserted for the motion was that there was new evidence "available only after the ruling on the motion for summary judgment." Employee Benefits Insurance v. Grill, 300 Or. at 589, 715 P.2d 491. The Supreme Court held that the motion qualified as one for a new trial. Newly discovered evidence is a ground both to set aside a judgment under ORCP 71 B and for a new trial under ORCP 64. We believe that the Supreme Court in Grill merely disregarded the erroneous citation of ORCP 71 B and considered the substance of the motion as properly cognizable under ORCP 64 as a new trial motion. Its opinion contains no analysis of the point we made in our former opinion.
As the Grill court pointed out, Cooley v. Roman, supra, did hold that a motion to set aside a summary judgment qualifies as a motion for a new trial under ORS 19.026(2). However, the analysis Judge Linde employed in Cooley depended upon the definition of "trial" contained in former ORS 17.025 as "the judicial examination of the issues between the parties whether they be of fact or law." After Cooley, the legislature adopted ORCP 64 A and defined a "new trial" as a reexamination of an issue of fact only. That definition applies, we believe, both to ORCP 64 B and ORCP 64 C. We continue to believe that a summary judgment determines only that there is no issue of fact to examine. See Forest Grove Brick v. Strickland, 277 Or. 81, 87, 559 P.2d 502 (1977); Hunt v. Anderson, 284 Or. 225, 227, 585 P.2d 1134 (1978). An order setting aside a summary judgment does not permit reexamination of an issue of fact, but permits *937 examination of an issue of fact for the first time. If we are correct in that conclusion, a motion setting aside a summary judgment is not an order for a new trial under ORS 19.026 in the light of ORCP 64.
The Supreme Court has not yet explained nor, so far as we can tell, even considered the effect, if any, on Cooley v. Roman, supra, of the definition of "new trial" under ORCP 64 A.
Appeal dismissed.
NOTES
[1] In Employee Benefits Insurance v. Grill, 300 Or. 587, 715 P.2d 491 (1986), the Supreme Court said:
"The claim for relief was for judgment of foreclosure of trust deeds. The trial court allowed plaintiff's motion for summary judgment and entered judgment accordingly. Defendants Grill moved to set aside the judgment, expressly basing the motion on ORCP 71B, while arguing that their motion was based on evidence available only after the ruling on the motion for summary judgment. The trial court denied the motion to set aside the judgement.
"Within 30 days of the entry of the order denying the motion to set aside the judgment but more than 30 days after judgment, defendants Grill appealed from the judgment and the order denying the motion to set aside the judgment. Plaintiff moved to dismiss the appeal from the judgment as being not timely. Defendants Grill opposed the motion, relying on Cooley v. Roman, 286 Or. 807, 810-11, 596 P.2d 565 (1979), and an argument that their motion to set aside the judgment, despite its text, was actually a motion for a new trial under ORCP 64. The Court of Appeals allowed the motion to dismiss the appeal from the judgment as being not timely and entered an order dismissing the appeal from the judgment.
"In Cooley v. Roman, supra, we held that a motion to set aside a summary judgment qualifies as a motion for a new trial within the meaning of ORS 19.026(2). The order of dismissal is reversed and the cause is remanded to the Court of Appeals."