Appealable judgments and orders
Source:
Section 19.205 — Appealable judgments and orders, https://www.oregonlegislature.gov/bills_laws/ors/ors019.html.
Notes of Decisions
In general
An order denying a motion to dismiss is not final and does not fall within the provisions of this section. Green v. Lilly Enterprises, Inc., 273 Or 952, 544 P2d 169 (1975)
Court of Appeals lacked jurisdiction to review order sustaining demurrer to complaint. J. Gregcin, Inc. v. City of Dayton, 287 Or 709, 601 P2d 1254 (1979)
Where trial court issued order awarding partial summary judgment in favor of plaintiff on issue of liability but no judgment was entered after order, order was not final judgment within meaning of this section, and court had discretion to vacate it. Journeymen, Inc. v. Judson, 45 Or App 249, 608 P2d 563 (1980), Sup Ct review denied
Where court set aside verdict without entering judgment, order granting new trial was not appealable and lack of jurisdiction could not be cured by dating judgment nunc pro tuncas of date prior to notice of appeal. Mangus v. Progress Quarries, 290 Or 377, 622 P2d 319 (1981)
Order of circuit court providing that “Court is not required to answer questions of the nature asked by plaintiff in his Declaratory Judgment and will not answer said questions” is non-appealable and appeal was dismissed on court’s own motion for want of jurisdiction. Meyer v. Joseph, 295 Or 588, 668 P2d 1228 (1983)
Order granting defendants’ motion in its entirety and dismissing complaint without leave to replead was not final order within meaning of paragraph (2)(a) of this section; an “order” cannot take the place of a “judgment or decree.” City of Portland v. Carriage Inn, 296 Or 191, 673 P2d 531 (1983)
Order denying motion for relief from contempt order is functionally identical to motion to vacate an order and is not appealable. State ex rel Washington County v. Betschart, 72 Or App 692, 697 P2d 206 (1985)
Court order allowing execution on judgment was not a final order affecting substantial right; all rights had been finally adjudicated by dissolution decree under ORS 107.105. Foster and Foster, 74 Or App 282, 701 P2d 1053 (1985)
Neither “order” directing personal representative to pay previously allowed claim nor “judgment-order” denying objection to claim underlying first order was appealable in circumstances of this case. Goeddertz v. Parchen, 299 Or 277, 701 P2d 781 (1985)
Where trial judge entered one order declaring that decedent had died intestate and another order dismissing petition for reconsideration, appeal was premature because no judgment had been entered. Mitchell v. Estate of Mitchell, 84 Or App 58, 733 P2d 456 (1987)
Judgment dismissing action was appealable. Austin Mutual Ins. Co. v. Madril, 94 Or App 219, 764 P2d 1378 (1988)
Award of attorney fees is itself to be considered judgment and is thus appealable. Marquez v. Meyers, 96 Or App 214, 772 P2d 437 (1989)
Where defendant was not party to murder trial and thus could not have appealed any judgment entered therein and where mandamus would be impractical, defendant’s only opportunity to raise issue of validity of underlying order was by appealing judgments of contempt. State v. Nefstad, 99 Or App 12, 781 P2d 358 (1989), Sup Ct review denied
Order denying entry of arbitration decision and award and granting trial de novo is not appealable final order. Cessna v. Chu-R&T, Inc., 185 Or App 39, 57 P3d 936 (2002), Sup Ct review denied
Order denying post-judgment motion for DNA testing under ORS 138.690 is not civil in nature and, thus, is not appealable under this provision. State v. Johnson, 254 Or App 447, 295 P3d 677 (2013), Sup Ct review denied
Where case was presented three times to jury and each time resulted in mistrial and no judgment was reached, trial court has not “effectively determined” action to justify appeal under this section. Taylor v. Portland Adventist Medical Center, 269 Or App 151, 344 P3d 119 (2015), Sup Ct review denied
“A judgment or decree”
An order denying a motion to dismiss a petition is not a judgment or decree, and is not appealable. Children’s Serv. Div. v. Zach, 18 Or App 288, 525 P2d 185 (1974)
A mere order of default alone when no judgment has been entered does not dispose of the case with finality and is not appealable. Union Oil Co. of Calif. v. Linn-Benton Distrib. Co., 270 Or 588, 528 P2d 520 (1974)
Orders are not appealable until the controversy is completely and finally settled in the trial court; overruling Salem King’s Products Co. v. LaFollette, 100 Or 11, 196 P 416 (1921). Moran v. Lewis, 274 Or 631, 547 P2d 627 (1976)
Order of abatement of arbitration is not a judgment for purpose of appeal. Brodine v. Employment Exchange, Inc., 33 Or App 237, 576 P2d 384 (1978), Sup Ct review denied
Order signed by trial court stating that defendant’s motion for judgment notwithstanding verdict was allowed was not “judgment or decree” which could be reviewed on appeal. Ragnone v. Portland School Dist. No. 1J, 289 Or 339, 613 P2d 1052 (1980)
Entry of final judgment, without any express provision to contrary, terminates pendente lite restraining order by definition and thus lower court had no authority to compel husband to do anything after final judgment. Sletager and Sletager, 97 Or App 448, 776 P2d 584 (1989)
Trial court’s order denying motion to reconsider is not appealable. Douglas National Bank v. Becker, 102 Or App 143, 792 P2d 1246 (1990)
Trial court order denying motion for entry of judgment is judgment for purpose of being reviewed on appeal. Gillespie v. Kononen, 310 Or 272, 797 P2d 361 (1990)
Where document is titled as judgment, whether judgment is appealable is determined by substance of disposition in document, not by labeling employed by court. Galfano v. KTVL-TV, 196 Or App 425, 102 P3d 766 (2004)
“An order affecting a substantial right, and which in effect determines the action or suit”
Order sustaining demurrer to counterclaim is not appealable. Gen. Constr. Co. v. Fish Comm., 19 Or App 485, 528 P2d 122 (1974)
Order denying motion for intervention is not appealable. Gen. Constr. Co. v. Fish Comm., 19 Or App 485, 528 P2d 122 (1974)
Summary judgment for plaintiff on defendant’s counterclaim is not final, appealable order. Central Lincoln PUD v. Mountain Air Helicopters, 31 Or App 1315, 572 P2d 662 (1977)
An appellate court lacks jurisdiction over an appeal prematurely filed even though there has been a final order from which there could have been an appeal. Johnson v. Assured Employment, 277 Or 11, 558 P2d 228 (1977)
Order entered in dissolution proceeding declaring husband to be father of wife’s child did not “determine suit so as to prevent decree therein,” and order was not reviewable where decree of dissolution had not been entered. Williams and Williams, 37 Or App 169, 586 P2d 381 (1978)
Where plaintiff appealed partial summary judgment, dismissal of this appeal did not prevent further appeal where plaintiff had sought to file amended complaint after granting of summary judgment and before dismissal of appeal. Thunderbird Motel v. City of Portland, 40 Or App 697, 596 P2d 994 (1979), Sup Ct review denied
In contract action, order denying stay pending appraiser’s valuation precluded appraisal but not judicial action, and thus was not “judgment” subject to 30-day appeal limitation under [former] ORS 19.026. Budget Rent-A-Car v. Todd Investment Co., 43 Or App 519, 603 P2d 1199 (1979)
Decree was not final and appealable where, inter alia, it provided that trial court retained jurisdiction of matter until escrow was closed, plaintiff could apply to court for supplemental decree transferring deed if defendant failed to execute it or escrow instructions, and decision on award of attorney fees was reserved. David M. Scott Construction v. Farrell, 285 Or 563, 592 P2d 551 (1979)
Order allowing motion for summary judgment is not appealable. Cenci v. The Ellison Company, 289 Or 603, 617 P2d 254 (1980)
Order forfeiting motor vehicle following defendant’s conviction on charge of unlawful possession of controlled substance was final order affecting substantial right creating appellate jurisdiction. State v. Curran, 291 Or 119, 628 P2d 1198 (1981)
Although order requiring appellant to refund $100,000 paid himself as attorney’s fees to the conservator’s estate placed him in a difficult position, it does not decree a final distribution of the estate nor terminate the conservatorship and thus the order is not appealable. Harrington v. Thomas, 63 Or App 292, 663 P2d 1298 (1983), Sup Ct review denied
Since denial of motion to intervene practically determines action so as to prevent judgment on intervenor’s claim or defense, denial is immediately appealable. Samuels v. Hubbard, 71 Or App 481, 692 P2d 700 (1984), Sup Ct review denied
Statement of partial satisfaction of judgment by reason of Personal Injury Protection reimbursement payments is appealable as “final order affecting a substantial right”. Dougherty v. Gelco Express Corp., 79 Or App 490, 719 P2d 906 (1986)
No continuing triable controversy existed when there was final judgment where court dismissed first claim with prejudice and plaintiff voluntarily dismissed second claim, which arose out of same aggregate of operative facts. Woods v. First American Title Ins. Co., 104 Or App 100, 798 P2d 1121 (1990), Sup Ct review denied
Order dismissing complaint was not subject to appellate review because order permitted judgment rather than denied judgment. Kelley v. City of Gresham, 126 Or App 733, 870 P2d 845 (1994)
Order on motion to replace personal representative of estate is appealable. Amundson v. Brookshire, 133 Or App 450, 891 P2d 710 (1995)
Order denying fee waiver for indigent plaintiff is appealable. Stanwood v. Multnomah County, 135 Or App 58, 898 P2d 196 (1995)
Interlocutory orders or decrees
An order quashing service is not an appealable order. Vanecek v. Vanecek, 16 Or App 173, 517 P2d 1206 (1974)
An interlocutory partial summary judgment pursuant to ORCP 47C is not a final appealable judgment. Raykovich v. Wilkinson, 59 Or App 560, 651 P2d 747 (1982)
Order for new trial is not order preventing entry of judgment. Gentry v. Brian Clopton Excavating, Inc., 214 Or App 396, 164 P3d 1225 (2007)
Because order under ORS 109.324, that mother’s consent was not required for adoption of mother’s child by parents of child’s father, was interlocutory and did not itself effectuate termination of mother’s parental rights, court lacked jurisdiction under this section to hear mother’s appeal of order. A.M. v. N.E.D., 287 Or App 36, 400 P3d 1036 (2017)
Order made after judgment or decree
The receivership court’s entry approving the master’s recommendation concerning payment of claims is a “final order.” Dean v. Exotic Veneers, Inc., 271 Or 188, 531 P2d 266 (1975)
An order dismissing a third party complaint after summary judgment in favor of the third party defendant is not appealable prior to the termination of the main action. Lulay v. Earle, Wolfer, 278 Or 511, 564 P2d 1045 (1977)
Where there was dispute over carrying out property division decreed as part of dissolution of marriage, order for accounting was not appealable “final decree.” Linder and Linder, 44 Or App 153, 605 P2d 714 (1980)
Where, in original filiation proceedings, issue of support was continued, and order provided that in event no agreement on support was reached, hearing could be held upon motion of either party, order was not final and enforceable. State ex rel Adult and Family Services v. Copeland, 45 Or App 35, 607 P2d 222 (1980), Sup Ct review denied
Order denying motion to vacate appealable judgment, decree or order is not appealable unless motion is made on ground that judgment is void or that it was entered as result of mistake, inadvertence, surprise or excusable neglect. Fehrenbacher v. Fehrenbacher, 76 Or App 244, 708 P2d 1197 (1985)
Although arbitration award was not appealable, refusal of court to set aside judgment based on arbitration award was appealable post-judgment order. Green Seasons Turf v. Shiva’s Restaurant Corp., 125 Or App 227, 864 P2d 1345 (1993)
Where judgment was entered without trial being held, order setting aside judgment is not appealable as order granting new trial. Mann and Mann, 171 Or App 75, 15 P3d 42 (2000)
Order entered after judgment and affecting substantial right is appealable, whether or not it is final order. Bhattacharyya v. City of Tigard, 212 Or App 529, 159 P3d 320 (2007)
Amount in controversy
Petitioner’s challenge to constitutionality of small claims judgment was appealable, notwithstanding that claim in question was less than $250. Carden v. Johnson, 282 Or 169, 577 P2d 513 (1978)
Where plaintiff alleges sufficient amount in controversy to make action appealable, answer that asserts lesser amount in controversy is presumed denied by plaintiff and does not divest appellate court of jurisdiction. Beckett v. Olson, 75 Or App 610, 707 P2d 635 (1985)
Order granting motion to set aside summary judgment is an appealable judgment or decree and is equivalent to order granting “new trial” within statute allowing appeal from order setting aside judgment granting new trial. Carter v. U.S. National Bank, 304 Or 538, 747 P2d 980 (1987)
Order issued under ORS 151.487 for payment of appointed counsel costs is not “action” subject to requirement that amount in controversy be more than $250. State v. Shank, 206 Or App 280, 136 P3d 101 (2006)
Special statutory proceeding
Expunction of criminal record is special statutory proceeding permitting appeal by state. State v. Young, 24 Or App 5, 544 P2d 179 (1976), Sup Ct review denied
A probation revocation hearing is not a special statutory proceeding within the meaning of this section. State v. Baxley, 27 Or App 73, 555 P2d 782 (1976)
Neither this section nor [former] ORS 138.060 (3) grants the state the right to appeal a suppression order. State v. Baxley, 27 Or App 73, 555 P2d 782 (1976)
Order entered pursuant to [former] ORS 33.230 directing parties to proceed with arbitration is not one which determines the action or suit so as to prevent a judgment or decree, but is rather a procedure “ancillary” to special proceeding and appeal may only be taken after entry of judgment on arbitration award. Peter Kiewit v. Port of Portland, 291 Or 49, 628 P2d 720 (1981)
Proceeding must be separate from all other judicial proceedings to qualify as “special statutory proceeding.” State v. Threet, 294 Or 1, 653 P2d 960 (1982)
This section requires final and complete determination of matter in special proceeding before appeal is appropriate. Dept. of Rev. v. Universal Foods Corp., 311 Or 537, 815 P2d 1237 (1991)
Appeal of appointment of special conservator must be taken within 30 days of entry of order. Connell v. Franklin, 120 Or App 414, 852 P2d 924 (1993), aff’d as modified 123 Or App 68, 858 P2d 911 (1993), Sup Ct review denied
Court decision upholding Department of Justice investigative demand under Unlawful Trade Practices Act was appealable. Garganese v. Dept. of Justice, 318 Or 181, 864 P2d 364 (1993); Vendall Marketing Corp. v. Dept. of Justice, 318 Or 189, 863 P2d 1263 (1993)
Abuse Prevention Act proceeding is special statutory proceeding subject to de novo review. Strother and Strother, 130 Or App 624, 883 P2d 249 (1994), Sup Ct review denied
Post-trial order denying motion to seal defense expense records is appealable. State v. Cunningham, 161 Or App 345, 985 P2d 827 (1999)
Federal law based on congressional power to regulate interstate commerce cannot provide basis to appeal interlocutory order. Bush v. Paragon Property, Inc., 165 Or App 700, 997 P2d 882 (2000)
Special statutory proceeding is separate and distinct from other proceeding sharing same case name and number if each proceeding is functionally independent of other proceeding. State v. Branstetter, 332 Or 389, 29 P3d 1121 (2001)
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