Filed: October 18, 2012
IN THE SUPREME COURT OF THE STATE OF OREGON
THE ASSOCIATION OF UNIT OWNERS
OF TIMBERCREST CONDOMINIUMS,
an Oregon non-profit corporation,
Respondent on Review,
v.
GALE ALLEN WARREN,
dba Big Al's Construction,
Petitioner on Review,
and
LIGHTHOUSE TWO, LLC,
a Washington limited liability company;
JOHN DOES 1-3;
and HARRY G. CRETIN, P.E.,
an Oregon corporation,
Defendants.
(CC C090892CV; CA A146137; SC S059482)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 10, 2012.
Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland, argued the cause and
filed the brief for petitioner on review.
Ryan D. Harris, Vial Fotheringham LLP, Portland, argued the cause and filed the
brief for respondent on review.
LANDAU, J.
The decision of the Court of Appeals is affirmed, and the case is remanded to the
Court of Appeals for further proceedings.
*Appeal from Washington County Circuit Court, Donald R. Letourneau, Judge.
242 Or App 425, 256 P3d 146 (2011).
1 LANDAU, J.
2 In this construction defect case, defendant moved for summary judgment,
3 and the trial court granted the motion. Plaintiff then filed a "motion for reconsideration"
4 of the summary judgment ruling. The court meanwhile entered judgment, and plaintiff
5 filed a notice of appeal. When the trial court later denied the motion for reconsideration,
6 plaintiff did not file a new notice of appeal. The question in this case is whether plaintiff
7 needed to do so. Defendant argues that, because a motion for reconsideration constitutes
8 a motion for new trial, its filing rendered plaintiff's earlier notice of appeal premature
9 and, in consequence, a nullity. Accordingly, defendant argues, this appeal must be
10 dismissed for want of jurisdiction. Plaintiff argues that the motion for reconsideration did
11 not constitute a motion for a new trial and thus had no effect on the filing of the notice of
12 appeal. The Court of Appeals concluded that, under this court's decision in Carter v. U.S.
13 National Bank, 304 Or 538, 747 P2d 980 (1987), a motion for reconsideration constitutes
14 a motion for a new trial. Nevertheless, the court held that the filing of the motion did not
15 have the effect of rendering the appeal a nullity. Assoc. Unit Owners of Timbercrest
16 Condo. v. Warren, 242 Or App 425, 427, 256 P3d 146 (2011). Consequently, the court
17 concluded that plaintiff was not required to file a new notice of appeal, and the court
18 possessed jurisdiction over the appeal.
19 We hold that Carter and earlier decisions declaring that a motion for
20 reconsideration of a summary judgment constitutes a motion for a new trial were
21 incorrectly decided. We therefore conclude that, in this case, plaintiff's filing of the
22 motion for reconsideration of the summary judgment did not render the filing of the
1
1 notice of appeal premature. Accordingly, we affirm the decision of the Court of Appeals,
2 albeit on different grounds.
3 The relevant facts are not in dispute. A group of developers converted an
4 apartment complex into condominium units. The developers hired defendant to do some
5 of the remodeling work. Plaintiff is an association of owners of the condominium units.
6 In February 2009, plaintiff brought an action against defendant and the developers,
7 alleging a variety of construction defect claims. After engaging in discovery for a little
8 over a year, defendant moved for summary judgment. The trial court held a hearing on
9 the matter on May 24, 2010. On June 23, the trial court filed an order granting
10 defendant's motion for summary judgment.
11 Two days later, on June 25, plaintiff filed a "MOTION TO RECONSIDER
12 THE COURT[']S RULING ON DEFENDANT WARREN'S MOTION FOR
13 SUMMARY JUDGMENT; ALTERNATIVE MOTION TO CLARIFY RULING."
14 Plaintiff argued that the court's decision was contrary to Oregon statutes and to decisions
15 of other Washington County Circuit Court judges who had previously ruled on the same
16 issues. At the very least, plaintiff argued, the form of the order was inadequate in that it
17 failed to state the grounds for the court's decision.
18 On July 2, 2010, the trial court sent a letter to the parties stating that, upon
19 reflection, it had "pulled the trigger too quickly" and had decided to hear additional
20 argument on the summary judgment motion. The court listed seven specific questions for
21 the parties to address in writing and scheduled oral argument on the reconsideration
22 motion for August 23.
2
1 In the meantime, however, defendant submitted a form of judgment to the
2 trial court. On July 8, the trial court entered a general judgment dismissing all claims
3 against defendant.
4 A week later, on July 15, defendant filed a response to the motion for
5 reconsideration. Before addressing the court's specific questions, defendant objected to
6 the filing of the motion, because "there is no such thing" as a motion for reconsideration.
7 Defendant observed that "[t]he rules do allow for post-judgment review of pre-judgment
8 rulings through a motion for a new trial[,]" but no such motion had been filed in this case.
9 On July 22, plaintiff filed a notice of appeal. The following week, plaintiff
10 filed a response to the trial court's questions concerning the motion for reconsideration.
11 Defendant filed a reply, again asserting that plaintiff's motion was ineffective. Defendant
12 suggested that, while it might be argued that the motion for reconsideration amounted to
13 a motion for a new trial, that argument would be unavailing, as plaintiff's motion did not
14 comply with the requirements of a motion for a new trial under ORCP 64. Defendant
15 also asserted that, because plaintiff had filed a notice of appeal, under ORS 19.270(1), the
16 trial court no longer possessed jurisdiction to decide the motion.
17 On August 23, 2010, the hearing on plaintiff's motion for reconsideration
18 occurred. At the hearing, the trial court expressed concern about the effect of the filing of
19 the notice of appeal:
20 "There was a motion for reconsideration, which we all know doesn't exist.
21 However, I thought at the time -- I had the power to set it on the docket,
22 basically have a rehearing on my -- ultimately on my request. I did not
23 realize I had already signed the judgment, which I feel bad about. But I
24 think, in fairness, what happened was I signed it one day, and by the time I
3
1 got around to addressing the merits of issues raised in the motion for
2 reconsideration, I had no recollection of it. So I thought I was on a clean
3 slate, but I really wasn't. If I had known I had signed the judgment, I never
4 would have authorized a motion [to] reconsider -- I never would have set it
5 on the docket, what we called a motion for reconsideration.
6 "It's true that could be treated as a motion for new trial. And as a
7 footnote, even though ORCP 64 says trial -- This is why trial courts don't
8 understand the appellate courts. So the appellate courts have ruled that
9 even though that's what the statute says, it applies to hearings as well. Well
10 then why don't they talk to the legislature and change the word trial to
11 hearing? But no. They just -- according to the CLE, Chapter 40.22, they
12 just said the Court of Appeals at least can treat a motion for reconsideration
13 as a motion for a new hearing. So I -- so theoretically, I had the power.
14 Yes, I understand why you appealed, because you would be losing your
15 right to appeal if I ruled against you today and you'd be out of luck. And so
16 I understand that.
17 "* * * * *
18 "So, you have a right to be heard on whether or not we should have a
19 hearing, but I'm hinting that I'm just going to give up and let the Court of
20 Appeals decide this[.]"
21 A discussion ensued about whether the motion for reconsideration could be considered a
22 motion for a new trial and what effect that might have on the filing of the notice of
23 appeal. The trial court commented that the problem was that plaintiff had not actually
24 filed a motion for a new trial:
25 "Well, but you never filed a motion to set aside for a new hearing,
26 you filed a motion for reconsideration. And so I'd have to call it something
27 different than what you called it, which I can, but I don't think I have to.
28 "* * * * *
29 "It appears to me the very -- the appeal is proper, and I could hear
30 this hearing on the merits today if I call a motion to reconsider a motion for
31 a new trial. But I decline to do that."
32 The court agreed with defendant that the motion for reconsideration would not be
4
1 considered a motion for a new trial, concluded that the filing of the notice of appeal
2 deprived it of jurisdiction to proceed, and denied the motion for reconsideration on that
3 ground. The court's order denying the motion was entered on September 15, 2010.
4 Three months passed. Then, on December 15, 2010, defendant filed a
5 motion to determine jurisdiction. Before the Court of Appeals, defendant argued that the
6 motion for reconsideration was, in effect, a motion for a new trial, which the trial court
7 did have jurisdiction to decide. Defendant argued that, under ORS 19.255(2), once a
8 motion for a new trial has been filed, the notice of appeal is due 30 days after the motion
9 is denied or deemed denied. That means, defendant argued, that plaintiff's notice of
10 appeal was filed prematurely, given that the trial court had not yet ruled on the motion
11 when the notice of appeal was filed. In the meantime, defendant argued, plaintiff failed
12 to file a new notice of appeal after the motion was denied. Accordingly, defendant
13 concluded, the appeal should be dismissed for want of a timely notice of appeal.
14 The Court of Appeals held that, under this court's decision in Carter,
15 defendant was correct that plaintiff's motion to reconsider amounted to a motion for new
16 trial. Assoc. Unit Owners of Timbercrest Condo., 242 Or App at 430. The court also
17 acknowledged that, under ORS 19.255(2), the fact that plaintiff filed the notice of appeal
18 while the motion for reconsideration was still pending caused the notice of appeal to be
19 premature. Id. But, the court noted, ORS 19.270(1) provides that, notwithstanding the
20 filing of a notice of appeal, a trial court retains jurisdiction to rule on a motion for new
21 trial filed under ORCP 64. Id. at 436. Under the circumstances, the court concluded that
22 there was no reason for plaintiff to file a new notice of appeal. Id.
5
1 On review, defendant contends that the Court of Appeals correctly held that
2 plaintiff's motion for reconsideration amounted to a motion for a new trial, but that the
3 court erred in holding that the prematurely filed notice of appeal was not a nullity.
4 According to defendant, although the legislature may have amended ORS 19.270(1) to
5 make clear that trial courts retain jurisdiction to decide motions for new trial, the
6 legislature did not amend ORS 19.255(2), which still sets the deadline for filing a notice
7 of appeal as 30 days from the date that the motion is denied; in this case, plaintiff did not
8 file a notice of appeal within that time.
9 In response, plaintiff contends that the Court of Appeals erred in holding
10 that the motion for reconsideration was a motion for a new trial. According to plaintiff,
11 the motion was not denominated a motion for a new trial, in substance it did not ask for a
12 new trial, and it did not conform to the requirements of the rules that apply to motions for
13 a new trial. Among other things, plaintiff notes, the motion was not filed within 10 days
14 after entry of judgment, as ORCP 64 provides. Because the motion for reconsideration
15 was not a motion for a new trial, plaintiff argues, its filing had no effect on the notice of
16 appeal that was filed later. In the alternative, plaintiff argues that, if this court concludes
17 that the motion for reconsideration did amount to a motion for a new trial, the Court of
18 Appeals correctly determined that, under ORS 19.270(1), no new notice of appeal was
19 required.
20 The arguments thus framed, we are presented with a series of questions.
21 First, we must determine whether plaintiff's motion for reconsideration amounted to a
22 motion for a new trial. If it did not, then the timing requirements of ORS 19.255(2) that
6
1 are triggered only upon the filing of a motion for a new trial do not apply, and plaintiff's
2 notice of appeal was timely. If it did, however, then we must turn to a second question,
3 namely, whether the filing of the motion for reconsideration rendered the later notice of
4 appeal premature. If it did not, then plaintiff's appeal was timely. But if it did, then we
5 must turn to a third question, that is, whether plaintiff was required to file a new notice of
6 appeal following the denial of the motion for reconsideration. Because we conclude that
7 plaintiff's motion for reconsideration did not amount to a motion for a new trial, that
8 determination is conclusive, and we need not address the second and third questions.
9 To establish appellate jurisdiction, a party must comply with several
10 statutory requirements, including the timely filing of a notice of appeal. ORS 19.270(2).
11 The timely filing of the notice of appeal may not be waived or extended. Id. Under ORS
12 19.255(1), subject to specified exceptions, a notice of appeal "must be served and filed
13 within 30 days after the judgment appealed from is entered in the register." One such
14 exception is set out in ORS 19.255(2)(a), which provides that,
15 "[i]f a motion for new trial is filed and served within the time
16 allowed by ORCP 64, * * * a notice of appeal must be served and filed
17 ***
18 "(a) [w]ithin 30 days after the order disposing of the motion is
19 entered in the register, or within 30 days after the motion is deemed
20 denied[.]"
21 ORCP 64 F(1), in turn, provides that a motion "to set aside a judgment and for a new trial
22 * * * shall be filed not later than 10 days after the entry of the judgment sought to be set
23 aside[.]"
24 The question before us is whether a motion for reconsideration of a
7
1 summary judgment constitutes a "motion for new trial" within the meaning of ORS
2 19.255(2) and ORCP 64. More precisely, the question is whether a summary judgment is
3 a "trial" within the meaning of those sources of law. That presents an issue of statutory
4 construction, governed by familiar principles that require us to examine the text of the
5 statute and related rules, legislative history, and relevant canons of statutory construction
6 to determine the meaning of the provision most likely intended by those who adopted it.
7 See State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) (setting out principles of statutory
8 construction); A. G. v. Guitron, 351 Or 465, 471, 268 P3d 589 (2011) (rules of civil
9 procedure are interpreted by means of "'the usual method of statutory interpretation'"
10 (quoting Pamplin v. Victoria, 319 Or 429, 433, 877 P2d 1196 (1994))). Included in our
11 analysis is an examination of any prior case law interpreting the provision or provisions
12 at issue. Halperin v. Pitts, 352 Or 482, ___, ___ P3d ___ (Oct 4, 2012) (slip op at 10).
13 ORS 19.255(2) does not define the term "new trial." It does, however,
14 expressly cross-reference ORCP 64, which includes a definition of the term. Under
15 ORCP 64 A, a new trial "is a re-examination of an issue of fact in the same court after
16 judgment." That wording was taken verbatim from former ORS 17.605 (repealed by Or
17 Laws 1979, ch 284, § 199), the statutory predecessor to what is now ORCP 64 A. That
18 definition of a "new trial," in turn, is based on former ORS 17.025 (repealed by Or Laws
19 1979, ch 284, § 199), which defined a "trial," in the first instance, to be "the judicial
20 examination of the issues between the parties, whether they be issues of law or of fact."
21 Whether a motion for reconsideration of a summary judgment amounts to a
22 motion for new trial under either ORCP 64 A or its predecessor statutes has been
8
1 addressed in four prior decisions of this court.
2 The first is State ex rel State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or
3 179, 590 P2d 231 (1979). In that case, a dispute over the terms of an insurance policy,
4 the trial court entered summary judgment for the insurer. Id. at 181. Thirteen days later,
5 the policyholder plaintiff filed a "motion to reconsider." Id. The insurer objected that,
6 under former ORS 17.615 (repealed by Or Laws 1979, ch 284, § 199), the statutory
7 predecessor to ORCP 64 F, the policyholder had only 10 days within which to file a
8 motion for a new trial. Id. The trial court overruled the objection and granted the motion
9 for reconsideration, ruling that a motion to reconsider a summary judgment is not a
10 motion for "new trial" that is subject to the statutory deadline. Id. The insurer petitioned
11 for a peremptory writ of mandamus, and this court issued the writ, holding that the
12 insurer was correct that a motion to reconsider a summary judgment constituted a motion
13 for a new trial. Id. at 182-83. The entirety of the court's analysis of the issue consisted of
14 a single sentence: "[W]e think that a motion to set aside a summary judgment sufficiently
15 involves a request to reexamine the factual assertions of the parties that it corresponds to
16 a motion for a new trial" under the statute. Id.
17 The second case is Cooley v. Roman, 286 Or 807, 596 P2d 565 (1979). In
18 Cooley, the trial court entered summary judgment for the defendant. Id. at 809. Ten days
19 later, the plaintiff filed a motion to reconsider and set aside the summary judgment. Id. at
20 810-11. The following month, the trial court denied the motion to reconsider. Id. at 811.
21 Three weeks after that, the plaintiff filed a notice of appeal. Id. at 810. Thus, the
22 plaintiff had filed the notice of appeal within 30 days of the denial of the motion to
9
1 reconsider, but more than 30 days from the entry of judgment. The court explained that
2 the timeliness of the filing of the notice of appeal depended on whether the motion to
3 reconsider the summary judgment was, in effect, a motion for a new trial. Id. at 811.
4 Citing Olsen, the court concluded that the motion to reconsider the summary judgment
5 constituted a motion for a new trial. Id. The court's analysis, once again, consisted of the
6 assertion that, because a "trial" is a judicial "examination" of issues, "summary judgment
7 is the result of such a judicial examination, leading the court to conclude that there is no
8 genuine issue as to any material fact and that the moving party is entitled to a judgment
9 as a matter of law. A motion to set aside a summary judgment," the court explained,
10 "calls upon the court to conduct a new trial in that sense." Id.
11 The next in the sequence is the court's three-paragraph memorandum
12 opinion in Employee Benefits Ins. v. Grill, 300 Or 587, 715 P2d 491 (1986). In that case,
13 the trial court entered summary judgment for the plaintiff. The defendant moved to set
14 aside the judgment. The trial court denied the motion. The defendant filed a notice of
15 appeal within 30 days of the denial of the motion to set aside the judgment, but more than
16 30 days from the entry of the judgment itself. The plaintiff moved to dismiss the appeal
17 as untimely. The Court of Appeals allowed the motion, and this court reversed. The
18 entirety of the court's explanation was that, "[i]n Cooley v. Roman * * * [this court] held
19 that a motion to set aside a summary judgment qualifies as a motion for a new trial[.]"
20 Id. at 589.
21 Finally, in Carter, the trial court entered summary judgment for the
22 defendant. 304 Or at 540. The plaintiffs then filed a motion to reconsider that decision.
10
1 Without responding to that motion, the trial court entered judgment for the defendant.
2 Thereafter, however, the court granted the motion to reconsider, vacated the judgment,
3 and denied the summary judgment motion. The defendant appealed. Id. The plaintiff
4 moved to dismiss the appeal for lack of jurisdiction, arguing that an order granting a
5 motion for reconsideration is not appealable. Carter v. U.S. National Bank, 81 Or App
6 11, 13, 724 P2d 346 (1986). The defendant invoked ORS 19.010(2)(d), which provides
7 that "[a]n order setting aside a judgment and granting a new trial" is appealable. 304 Or at
8 540. The question was thus whether a motion for reconsideration of a summary
9 judgment constitutes a motion for new trial.
10 The Court of Appeals answered the question in the negative. Carter, 81 Or
11 App at 15. The court first noted that this court's earlier decisions were distinguishable,
12 principally because they had been decided before the adoption of the Oregon Rules of
13 Civil Procedure. Id. at 14. Under the current rules, the court explained, "[a] summary
14 judgment proceeding does not involve the examination of issues of fact; indeed, if an
15 issue of material fact exists, summary judgment must be denied." Id. at 15 (emphasis in
16 original).
17 This court reversed. The court first explained that the adoption of ORCP
18 64 did not affect the validity of its earlier decisions, as the definition of "new trial" under
19 the rule was identical to the statutory predecessor in effect when those cases were
20 decided. Carter, 304 Or at 544. As for the merits of the lower court's reasoning on the
21 question whether a motion for reconsideration of a summary judgment amounts to a
22 motion for a new trial, this court's response, in its entirety, was as follows:
11
1 "Admittedly, a summary judgment proceeding does not decide contested
2 facts; that is, the court does not at that time resolve conflicts in the
3 evidence. The court does, however, 'examine' issues of fact, in that it
4 examines the parties' factual assertions to determine whether there is any
5 material conflict in the evidence or, if there is not, whether a party is
6 entitled to judgment as a matter of law."
7 Id. at 544 (emphases in original).
8 Thus, in none of the preceding cases did this court attempt to analyze the
9 intended meaning of ORS 19.255(2), ORCP 64 F, or any of the predecessor statutes
10 under the ordinary rules of construction that require an examination of the text in context,
11 legislative history, and relevant rules of interpretation. In this case, we do so. And our
12 analysis of the relevant provisions leads us to conclude that our prior cases erred in too
13 quickly concluding that a motion for reconsideration of a summary judgment amounts to
14 a motion for new trial.
15 First, we consider the text of the rule itself and the ordinary meaning of its
16 terms. As we have noted, ORCP 64 A defines a "new trial" as a "re-examination of an
17 issue of fact in the same court after judgment." If a "new" trial is a "re-examination" of
18 an issue of fact, it stands to reason that a trial is an examination of such an issue. The
19 question is thus whether a summary judgment is an "examination" of an issue of fact such
20 as to constitute a "trial" within the meaning of the rule.
21 An "examination" ordinarily refers to "the act or process of examining or
22 state of being examined." Webster's Third New Int'l Dictionary 790 (unabridged ed
23 2002). The verb "to examine," in turn, commonly means, among other things, "to test by
24 an appropriate method : INVESTIGATE * * * to seek to ascertain : attempt to determine
12
1 * * * to interrogate closely (as in a judicial proceeding.)" Id. A summary judgment does
2 not require the court to "examine" issues of fact in the sense that it requires the court to
3 investigate, seek to ascertain, or determine those facts. At the same time, at least in the
4 abstract, a summary judgment requires a court to "investigate" issues of fact in the sense
5 that it requires the court to test whether such issues exist.
6 We are not to determine the meaning of rules and statutes merely by
7 analyzing their meanings in the abstract, however. Lane County v. LCDC, 325 Or 569,
8 578, 942 P2d 278 (1997) ("[W]e do not look at one subsection of a statute in a vacuum;
9 rather, we construe each part together with the other parts in an attempt to produce a
10 harmonious whole."). In this case, the context strongly suggests that a summary
11 judgment is not the sort of "examination" of issues of fact that makes it a "trial." To the
12 contrary, the manner in which the word "trial" is used throughout the Oregon Rules of
13 Civil Procedure makes clear that the word is used to connote something distinct from
14 summary judgment.
15 The summary judgment rule itself provides examples. ORCP 47 C
16 provides that a summary judgment motion must be filed "at least 60 days before the date
17 set for trial." Obviously, the rule contemplates that summary judgment and trial are
18 separate and distinct events. The same rule goes on to state that "[t]he adverse party has
19 the burden of producing evidence on any issue raised in the motion as to which the
20 adverse party would have the burden of persuasion at trial." Again, it is clear from the
21 rule that a trial is something distinct from the summary judgment proceeding. In a
22 similar vein, ORCP 47 D provides that the adverse party to a motion for summary
13
1 judgment "must set forth specific facts showing that there is a genuine issue as to any
2 material fact for trial."
3 ORCP 51 C provides that "[t]he trial of all issues of fact shall be by jury
4 unless" the parties consent or the court finds that there is no statutory or constitutional
5 right to a jury. Once again, the rule treats a trial, which triggers a right to a jury, as
6 something different from a summary judgment, which by definition does not involve
7 juries.
8 ORCP 58 sets out the "[m]anner of proceedings on trial by the court,"
9 including a statement of the "issues to be tried," the introduction of evidence by the
10 plaintiff in a "case in chief," followed by the introduction of evidence by the defendant,
11 followed by the introduction of rebuttal evidence. The procedure obviously describes
12 something other than a summary judgment proceeding.
13 And ORCP 64 itself strongly suggests that a "trial" is something other than
14 a summary judgment. ORCP 64 B sets out various grounds for a new trial, most of
15 which do not apply to summary judgment proceedings, including "[i]rregularity in the
16 proceedings" that prevent a party from receiving a "fair trial," misconduct of the jury,
17 "[n]ewly discovered evidence" that neither party could have discovered and "produced at
18 trial," and insufficient evidence "to justify the verdict" or other decision.
19 The foregoing is consistent with the ordinary understanding of the nature
20 and purpose of summary judgment, which was designed as a mechanism by which the
21 parties achieve resolution of their dispute without trial. In fact, the very test for
22 determining whether to grant a motion for summary judgment is whether the record
14
1 presents "no triable issue of fact." See, e.g., Johnson v. Mult. Co. Dept. of Community
2 Justice, 344 Or 111, 118, 178 P3d 210 (2008) (summary judgment is proper only if the
3 record "presents no triable issue of fact"); Jones v. General Motors Corp., 325 Or 404,
4 413, 939 P2d 608 (1997) (test for summary judgment is the existence of a "triable issue").
5 It is also consistent with the evidence of the legislature's intentions in
6 adopting the summary judgment procedure. Oregon's summary judgment rule originally
7 was adopted by the legislature in 1975. Or Laws 1975, ch 106, § 1. The wording of the
8 original rule was proposed by the Oregon State Bar, based on the almost identically
9 worded Federal Rule of Civil Procedure 56. See generally Michael J. Martinis,
10 Comment, Summary Judgment Procedure in Oregon: The Impact of Oregon's Adoption
11 of Federal Rule 56, 13 Willamette LJ 73 (1976). The legislative history consists of the
12 testimony of representatives of the Bar before the House and Senate judiciary
13 committees. In hearings on the bill before the House Judiciary Committee, Donald
14 McEwen, representing the Bar, offered a prepared statement that explained that "[a]
15 motion for summary judgment is a procedure for obtaining judgment without a trial."
16 Testimony, House Judiciary Committee, HB 2230, Jan 30, 1975, Ex C (statement of
17 Donald McEwen) (emphasis added).
18 The Bar offered similar testimony to the Senate Judiciary Committee.
19 There, Laird Kirkpatrick, representing the Bar, offered the same prepared statement,
20 which explained summary judgment as a procedure for obtaining judgment "without a
21 trial." Testimony, Senate Judiciary Committee, HB 2230, Feb 24, 1975, Ex E (statement
22 of Laird Kirkpatrick). In his testimony before the committee he added that, under then-
15
1 current law, "frivolous claims that cannot be supported cannot really be challenged before
2 trial. The lack of merit of the claims cannot be brought out until the trial, which might
3 not occur for a year after the time of the commencement of the litigation." Testimony,
4 Senate Judiciary Committee, HB 2230, Feb 24, 1975, Minutes at 17 (statement of Laird
5 Kirkpatrick) (emphasis added). The proposed summary judgment rule, he explained,
6 provides that "the issues for which there is no genuine issue of fact * * * can be
7 eliminated prior to trial." Id. The legislature thus fairly clearly understood that the
8 summary judgment proceeding was something distinct from a "trial"; indeed, that
9 summary judgment was the process by which cases could be resolved "without a trial."
10 See Snider v. Production Chemical Manufacturing, Inc., 348 Or 257, 266-67, 230 P3d 1
11 (2010) (relying on statements of Bar representatives as to intended meaning of Bar-
12 proposed bill).
13 Likewise -- consistently with the interpretation of the federal rule on which
14 Oregon's summary judgment rule was based -- cases clearly draw a distinction between
15 summary judgments and trials. See Pamplin, 319 Or at 433 ("Because the Oregon rule is
16 almost identical to the federal one and was based on it, decisions of the Supreme Court of
17 the United States concerning [the federal rule] that predated the adoption of the Oregon
18 counterpart inform us as to the intent of the Oregon lawmakers."). The commentary on
19 the federal rule itself notes that the purpose of summary judgment "is to pierce the
20 pleadings and to assess the proof in order to see whether there is a genuine need for trial."
21 FRCP 56(e) advisory committee's note (1963). The federal cases similarly treat summary
22 judgment as a distinct procedure designed to avoid trial, not as a form of trial itself. See,
16
1 e.g., Fortner Enter., Inc. v. United States Steel Corp., 394 US 495, 498, 89 S Ct 1252, 22
2 L Ed 2d 495 (1969) ("Since we find no basis for sustaining this summary judgment, we
3 reverse and order that the case proceed to trial."); First Nat. Bank of Ariz. v. Cities
4 Service Co., 391 US 253, 289, 88 S Ct 1575, 20 L Ed 2d 569 (1968) ("It is true that the
5 issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to
6 trial is not required to be resolved conclusively in favor of the party asserting its
7 existence; rather, all that is required is that sufficient evidence supporting the claimed
8 factual dispute be shown to require a jury or judge to resolve the parties' differing
9 versions of the truth at trial."). See also Edward Brunet & Martin H. Redish, Summary
10 Judgment: Federal Law and Practice § 1.1 (3d ed 2006) (describing summary judgment
11 as a "procedural barrier to the holding of unnecessary trials").
12 In short, our examination of the text of ORS 19.255(2) and ORCP 64 A in
13 context along with legislative history leads us to conclude that a summary judgment is
14 not a "trial" and that, as a result, a motion for reconsideration of a summary judgment
15 does not constitute a motion for a new trial within the meaning of those laws. We
16 disavow Carter and the earlier cases that hold to the contrary.
17 In overruling those cases, we are mindful of the importance of stare decisis.
18 As we noted in Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011),
19 "[s]tability and predictability are important values in the law[.]" Because of the
20 importance of those values, we will not overrule prior decisions "simply because the
21 personal policy preferences of the members of the court may differ from those of our
22 predecessors who decided the earlier case." Id. (Internal quotation marks omitted.) At
17
1 the same time, this court has an obligation to reach what we regard as a correct
2 interpretation of statutes and rules. Indeed, we are so obliged whether or not the correct
3 interpretation has even been advanced by the parties. See Stull v. Hoke, 326 Or 72, 77,
4 948 P2d 722 (1997). Particularly when we "failed to apply our usual framework for
5 decision or adequately analyze the controlling issue," we must be open to reconsidering
6 earlier case law. Mowry, 350 Or at 698.
7 In this case, as we have noted, Carter and its predecessors gave, at best,
8 brief attention to the controlling issue. There was no attempt to apply the usual rules of
9 statutory construction or to assess thoroughly the interplay between the relevant rules and
10 statutes. Moreover, it is not clear to us that the court has consistently applied the
11 reasoning of Carter.
12 In that regard, we note that, in Alt v. City of Salem, 306 Or 80, 756 P2d 637
13 (1988), the court addressed the question whether a motion for a new trial filed under
14 ORCP 64 in a writ of review proceeding amounted to a motion for new trial that extended
15 the deadline for filing a notice of appeal under ORS 19.255(2). The court held that,
16 because a writ of review proceeding does not authorize the trial court to decide issues of
17 fact, no "trial" is involved. Id. at 85. Consequently, the court concluded, there can be no
18 motion for a new trial in such a proceeding, regardless of what the parties call the filing.
19 Id. The reasoning of that decision is rather difficult to reconcile with the reasoning of
20 Carter, in which the court rejected the argument that a summary judgment is not a "trial"
21 because the court is not authorized actually to decide issues of fact. In fact, the author of
22 the court's opinion in Carter dissented in Alt on precisely those grounds. Alt, 306 Or at
18
1 86 (Gillette, J., dissenting).
2 In light of our conclusion that a motion for reconsideration of a summary
3 judgment does not constitute a motion for a new trial within the meaning of ORS
4 19.255(2) and ORCP 64, the disposition of this dispute is straightforward. Because the
5 motion was not one for a new trial, the timing requirements of ORS 19.255(2) do not
6 come into play. The parties agree that the notice of appeal was otherwise timely filed.
7 We therefore conclude that the Court of Appeals correctly determined that it possessed
8 jurisdiction over the appeal, albeit for different reasons.
9 The decision of the Court of Appeals is affirmed, and the case is remanded
10 to the Court of Appeals for further proceedings.
19
Association of Unit Owners of Timbercrest Condominiums v. Warren
Combined Opinion