dissenting.
In Carter v. U. S. National Bank, 304 Or 538, 747 P2d 980 (1987) — a case decided by this court less than six months ago — we established a clear and clean line for determining when a motion, however denominated, performed the office of a “motion for new trial” under ORCP 64 and extended the time in which an appeal could be filed under ORS 19.026(2). Today, a majority of this court departs from that precedent, erases the line, and leaves the Court of Appeals and trial courts once again lost in an ad hoc exercise without guidelines. There being no clearly articulated reason for the departure apart from the rather lame explanation that this case is different, I dissent.
The facts of the case, such as they are, are adequately stated by the majority and will not be repeated here. The issue is whether there can be an efficacious “motion for a new trial” in a writ of review proceeding. The majority holds that there may not be, because a writ of review proceeding does not involve a decision as to a fact, which the majority reads as indispensable to a proceeding having been a “trial” under ORCP 64 in the first instance. This is a textually incorrect reading of the rule.
A circuit court, in a writ of review proceeding, may review a variety of issues including the jurisdictional, procedural, legal and constitutional bases of the challenged decision. But it also may determine whether the decision is supported by substantial evidence. ORS 34.040. In passing on the substantiality of evidence, the circuit court takes no new evidence; it confines its review to the evidence in the record of the inferior tribunal. See, e.g., Brooks v. Dierker, 275 Or 619, 625, 552 P2d 533 (1976). But, as our recent decision in Carter v. U. S. National Bank, supra, demonstrated, the fact that a writ of review court does not take new evidence does not keep the proceeding from qualifying as a “trial.”
In Carter, the issue was whether a summary judgment was a “trial” for the purposes of ORCP 64A, which defines a “new trial” as a “reexamination of an issue of fact in the same court after judgment.” While recognizing that a court that *87awards summary judgment has not actually decided any issue of fact, this court nonetheless held that a summary judgment met the requirements of ORCP 64A. We explained:
“For the purposes of argument, we accept the conclusion of the Court of Appeals that the definition of a ‘new trial’ in ORCP 64A. suggests that a ‘trial’ must involve the examination of issues of fact. In that court’s view, the court in a summary judgment proceeding examines only issues of law. The court concluded that, with the repeal of former ORS 17.025, such an examination no longer qualifies as a ‘trial.’ Thus, an order setting aside a summary judgment does not permit a ‘new’ trial; it only means that the factual issues will be ‘tried’ for the first time.
“We disagree. Admittedly, a summary judgment proceeding does not decide contested facts; that is, the court does not at that time resolve conflicts in the evidence. The court does, however, ‘examine’ issues of fact, in that it examines the parties’ factual assertions to determine whether there is any material conflict in the evidence or, if there is not, whether a party is entitled to judgment as a matter of law. This court recognized as much in [State ex rel State Farm Mutual Auto Ins. Co. v.] Olsen, [285 Or 179, 500 P2d 231 (1979)] where we stated that a motion to set aside a judgment involves ‘a request to reexamine the factual assertions of the parties.’ 285 Or at 182-[8]3 (emphasis supplied). The Court of Appeals thus erred in holding that a summary judgment proceeding no longer qualifies as a ‘trial’ and that a motion to set aside a summary judgment no longer can be considered a motion for a new trial on that account. * * *”
Id. at 544. (Emphasis in original.)
The same reasoning applies to a writ of review proceeding. In summary judgment, the trial court hears no new evidence. Its review is confined to the pleadings, depositions, admissions and affidavits on file. ORCP 47C. In a writ of review proceeding, the trial court hears no new evidence. Its review is confined to the record made before the inferior tribunal. ORS 34.020, 34.040. In summary judgment, the trial court first reviews the record to determine if there are any contested issues of material fact. If not, the matter may be disposed of one way or the other as a matter of law. In a writ of review proceeding, the trial court first reviews the record to determine if issues of fact play a role in the decision below. If not, the matter may be disposed of one way or the other as a *88matter of law. In summary judgment, if there are material issues of fact, the matter may not be decided by awarding summary judgment — summary judgment must be denied as a matter of law. If there are no issues of material fact, the trial court reviews the established facts to determine if they permit the moving party to prevail as a matter of law. The trial court considers the evidence, but does not weigh it. In a writ of review proceeding, if facts play a role, the trial court reviews the findings of fact made by the inferior tribunal to determine if those findings are supported by substantial evidence. ORS 34.040(3). This test of substantial evidence is a legal test. The trial court considers the evidence, but does not weigh it. If the findings are supported by substantial evidence, the only further function of the trial court is to determine if the facts found legally justify the decision reached by the inferior tribunal. If they do, the inquiry is over.
The foregoing fully illustrates the parallel between these two procedures — while facts play a role in each, the trial court’s duty is not to find those facts, but to apply legal standards to facts derived from other sources. That being true, there is no justification for denying to the plaintiff here what was available to the party seeking reconsideration in Carter. The Court of Appeals erred in holding that a motion for a new trial was unavailable in writ of review proceedings. It follows that the court’s dismissal of the appeal in this case as not timely filed was also erroneous.
The majority never faces the analysis of Carter fairly. It appears to rely on the fact that Carter was a “normal civil action” while a writ of review “has some appellate features.” (306 Or at 85 n 8.) That is not especially correct descriptively and is irrelevant analytically. The rest of the majority’s discussion of this pivotal point deserves dissection:
1. “Facts are never decided in writ of review proceedings.” (306 Or at 85 n 8.) “Deciding” facts is not the standard. The question is whether an “issue of fact” is “examined.” ORCP 64A. Only by this transmogrification of “examine” into “decide” can the majority make things easy for itself. A writ of review court does “examine” issues of fact. It examines the facts found in the inferior tribunal to see if they support a legal conclusion. Similarly, a court on summary judgment does not “decide” facts, either. But it does do what *89ORCP 64A actually calls for — it examines them. It reviews the facts established by the parties in their pleadings, affidavits and admissions to determine the legal significance of those already-established facts. This is enough to constitute a “trial” for the purposes of ORCP 64A. Carter v. U. S. National Bank, supra, 304 Or at 544. The distinction suggested by the majority is a fiction.
2. “The whole purpose of a new trial is to submit the evidence to the trier of fact so that the trier of fact can make a decision based on a proper application of the law.” (306 Or at 85 n 8.) That may or may not be the purpose of a new trial, but it does not even speak to what we have in this case, which is a motion for a new trial. The office of that motion is simply to show the court that it has committed one or more legal errors — a function just as valuable to a conscientious writ of review court as to a circuit court engaged in any other litigation.
3. “There is no trier of fact in a writ of review proceeding and therefore no evidence can be submitted to the trier of fact.” (306 Or at 85 n 8.) There was no trier of fact on the summary judgment proceeding in Carter, either. But that was not pertinent there — and it is not here — because the examination of facts derived from other sources for their legal sufficiency is a trial under ORCP 64A, as Carter inescapably holds. 304 Or at 544. The majority refuses to recognize Carter’s holding and consistently misunderstands the thrust of ORCP 64A as this court has construed it.
4. “Without the possibility of submitting evidence to a trier of fact, there is no reason for a new trial and a motion for a new trial would necessarily be futile.” (306 Or at 85 n 8.) It would not, because all that is necessary to justify the motion is a desire to have the court “reexamine” an issue of fact. That is what the language of ORCP 64A says. The writ of review court has “examined” the issues of fact, as already demonstrated. There has been a “trial.” That is the pertinent inquiry. Carter v. U. S. National Bank, supra. Any issue about what may occur if the motion is considered and allowed is a purple flounder.
5. “We do not accept that a motion which of necessity is futile can properly exist and we therefore hold that there cannot be a motion for a new trial in a writ of review *90proceeding.” (306 Or at 85 n 8.) If the premises for this sentence were correct, perhaps the sentence would be correct as well. But, as I have demonstrated at some length, the premises are fallacious. So, therefore, is this sentence.
The motivation for the majority’s obstinate refusal to acknowledge the holding in Carter and follow it is difficult to fathom. In defense of the author of the majority opinion, it can at least be said that he did not participate in Carter. But the rest of the majority did participate in that very recent decision. Unless they are suffering from some undisclosed form of “buyer’s remorse” over Carter, their participation in this opinion is inexplicable. And, if they think Carter wrong, it should be remembered that there is another forum in which our reading of ORCP 64A can be adjusted.
Carter held that a circuit court case in which the judge examined facts derived from another source for their sufficiency under a legal standard was a “trial” for the purposes of the “reexamination of an issue of fact” language of ORCP 64A. The present majority opinion holds to the contrary, without any intervening change in the pertinent language of the rule. That is not the way this court should do business.
I dissent.
Carson and Jones, JJ., join in this dissenting opinion.