Appeals

ORS 19.415
Scope of appellate review


(1)

Except as provided in this section, upon an appeal in an action or proceeding, without regard to whether the action or proceeding was triable to the court or a jury, the scope of review shall be as provided in section 3, Article VII (Amended) of the Oregon Constitution.

(2)

No judgment shall be reversed or modified except for error substantially affecting the rights of a party.

(3)

Upon an appeal in an equitable action or proceeding, review by the Court of Appeals shall be as follows:

(a)

Upon an appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals shall try the cause anew upon the record; and

(b)

Upon an appeal in an equitable action or proceeding other than an appeal from a judgment in a proceeding for the termination of parental rights, the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record.

(4)

When the Court of Appeals has tried a cause anew upon the record or has made one or more factual findings anew upon the record, the Supreme Court may limit its review of the decision of the Court of Appeals to questions of law. [Formerly 19.125; 2003 c.576 §88; 2005 c.568 §27; 2009 c.231 §2]

(formerly 19.125)

Notes of Decisions

Judgment will not be reversed where omission in pleading is attacked for first time on appeal and omission could have been supplied by amendment and omission did not cause surprise or prejudice. Fulton Ins. Co. v. White Motor Corp., 261 Or 206, 493 P2d 138 (1972)

Waste of judicial time is a sufficiently important factor to require a plaintiff seeking a reversal to demonstrate not only error, but prejudicial error. Fassett v. Santiam Loggers, Inc., 267 Or 505, 517 P2d 1059 (1973)

When the case is tried anew, the determination of the trial judge is afforded weight. Jewell v. Kroo, 268 Or 103, 517 P2d 657, 518 P2d 1305 (1973); Westenskow and Westenskow, 18 Or App 438, 525 P2d 1057 (1974)

Action for a declaratory judgment that the city had improperly terminated a franchise was equitable in nature, and the court's review was de novo. Rose City Transit Co. v. City of Portland, 18 Or App 369, 525 P2d 325 (1974), aff'd as modified 271 Or 588, 533 P2d 339 (1975)

In an appeal from a portion of a decree in an equity case, appellant is required to provide the appellate court with a complete transcript of the testimony and evidence below. Moore v. Brown, Burke, 19 Or App 199, 527 P2d 132 (1974)

To sustain judgment based upon trial court's findings, it must appear that findings support judgment on all material issues. Briscoe v. Pittman, 268 Or 604, 522 P2d 886 (1974)

Although appeals from suit in equity are heard de novo, reviewing court accords great weight to findings of fact by trial judge, when evidence is conflicting. Haines Commercial Equip. Co. v. Butler, 268 Or 660, 522 P2d 472 (1974)

In case tried by court, sitting without jury, it is assumed that trial judge disregarded inadmissible evidence as basis for his findings. Haines Commercial Equip. Co. v. Butler, 268 Or 660, 522 P2d 472 (1974)

In case tried before court upon waiver of jury in an action at law, findings of the court have effect of jury verdict, and they cannot be set aside if supported by substantial evidence. Schlatter v. Willson, 270 Or 685, 528 P2d 349 (1974)

Giving abstract jury instruction which creates erroneous impression of the law is reversible error. Fickert v. Gallagher, 274 Or 139, 544 P2d 1032 (1976)

Deference to be given trial court finding of fact and selection of equitable remedy depends on relative importance of observing manner and demeanor as determined by issue in dispute. McCoy and McCoy, 28 Or App 919, 562 P2d 207 (1977)

Foreclosure of possessory lien on truck was suit in equity, and thus upon appeal was to be tried anew upon record under this section. United Engine Parts v. Ried, 283 Or 421, 584 P2d 275 (1978)

For purposes of collateral estoppel, affirmance without opinion by Court of Appeals means that any special or necessary findings made by trial court in that case remain in effect. Children's Services Div. v. Cash, 43 Or App 117, 602 P2d 326 (1979)

De novo review does not consist of review for abuse of discretion, but for reasoned preference of sufficient degree to justify disturbing lower court decree. Haguewood and Haguewood, 292 Or 197, 638 P2d 1135 (1981)

Court of Appeals did not err in refusing to review de novotrial court's finding that plaintiff had not proven estoppel since equitable defense does not operate to convert legal action into equitable for purposes of this section. Ben Rybke Co. v. Royal Globe Ins. Co., 293 Or 513, 651 P2d 138 (1982)

[Former] ORS 19.125 gives Supreme Court option, when allowing petition, to limit review to questions of law. Willbanks v. Goodwin, 300 Or 181, 709 P2d 213 (1985)

Refusal of proper request for oral argument was error not sufficiently prejudicial to require reversal. Zehr v. Haugen, 318 Or 647, 871 P2d 1006 (1994)

Whether erroneous discovery ruling substantially affects rights of party depends on availability of essentially equivalent information from other sources. Baker v. English, 324 Or 585, 932 P2d 57 (1997)

Denial of right to counsel may not be presumed to be harmless error based on speculation regarding outcome had counsel been provided. Hunt v. Weiss, 169 Or App 317, 8 P3d 990 (2000)

Where appellate court cannot determine whether judgment or general verdict was based on valid or invalid specification, court may not reverse or modify judgment. Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 61 P3d 928 (2003)

Unless appellate court exercises its discretion to review de novo, standard of review of trial court's best interests determination on motion to modify parenting plan is for abuse of discretion. Sjomeling v. Lasser, 251 Or App 172, 285 P3d 1116 (2012), Sup Ct review denied

Law Review Citations

9 WLJ 369 (1973)

Chapter 19

Notes of Decisions

This chapter does not apply to workers' compensation proceedings since it governs appellate review of lower court decisions and not decisions of administrative tribunals. SAIF v. Maddox, 60 Or App 507, 655 P2d 214 (1982), aff'd 295 Or 448, 667 P2d 529 (1983)


Source

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Jun. 26, 2021