Baugh v. Bryant Limited Partnerships

PETERSON, J.,

dissenting.

Before there can be an appeal, there must be a judgment. Until the “appealable judgment” is entered, there is nothing before the appellate courts save for the shell of an appeal that can be perfected by doing what the Court of Appeals and ORS 19.033(4) require. The Court of Appeals majority opinion in Baugh v. Bryant Limited Partnerships, 104 Or App 665, 803 P2d 742 (1990), carefully and correctly discusses this issue. I agree with that opinion. Therefore, I would affirm the decision of the Court of Appeals.

I do not deny that (as stated in the majority opinion, 312 Or at 643) in Gillespie v. Kononen, 310 Or 272, 279 n 10, 797 P2d 361 (1990), this court stated that ORS 19.033(4) requires “[n]o additional notice of appeal.” There, the trial judge refused to do anything after the ORS 19.033(4) remand. Whether a second notice of appeal is required after entry of a final judgment under ORS 19.033(4) was neither raised nor argued in Gillespie. In the context of this case, the Gillespie footnote quoted on page 643 of the majority opinion should not be given any precedential value.