Tavera v. Southland Corp.

72 P.3d 124, 188 Or. App. 484, 2003 Ore. App. LEXIS 863

• Court: Court of Appeals of Oregon
• Decided: July 2, 2003
• Docket: 98-2484-L-3; A112509
• Status: Published

Opinion

PER CURIAM

Plaintiff appeals from an order granting defendants’ motion for mistrial and ordering plaintiff, as a condition for continuing the case, to reimburse defendants’ costs and attorney fees. Plaintiff filed her notice of appeal before the court established a specific amount of those costs and attorney fees; the court took no further action after the appeal was filed. We hold that the order is not appealable and therefore dismiss the appeal.

An order granting a mistrial is generally not an appealable order. Heath v. Armore, 208 Or 533, 302 P2d 1017 (1956). Plaintiff argues, however, that the order is appealable under ORS 19.205(2)(a) because it affects a substantial right and “in effect determines the action * * * so as to prevent a judgment * * * therein.” The foundation of her position is that she is financially incapable of paying the required costs and attorney fees and the order therefore determines the action as to her. Assuming that financial inability may satisfy the requirements of ORS 19.205(2)(a), the difficulty is that the trial court has not decided the amount that plaintiff must pay. There is evidence in the record that plaintiff is a person of limited means, but without knowing the specific amount, we cannot determine her ability to comply with the court’s order and, thus, cannot say that it in effect prevents a judgment in the case.¹

Appeal dismissed.

1 Before argument, the Chief Judge denied defendants’ motion to dismiss the appeal on these grounds. Because the issue is jurisdictional, that action does not affect our ability to consider the question. ORAP 7.15(3).