Thompson v. Tlat, Inc.

134 P.3d 1099, 205 Or. App. 518, 2006 Ore. App. LEXIS 584

• Court: Court of Appeals of Oregon
• Decided: May 3, 2006
• Docket: CV-030241; A129320
• Status: Published

Opinions

WOLLHEIM, P. J.

Plaintiff moves for reconsideration of our order dismissing his appeal. Plaintiffs motion raises the issue of whether a judgment that is nonappealable — due to the filing of motions for a new trial and for a judgment notwithstanding the verdict (JNOV) — remains enforceable. We grant plaintiffs motion and reinstate plaintiffs appeal.

A more detailed than usual discussion of the procedural history of this case is necessary. Plaintiff prevailed at trial. On March 16, 2005, before judgment was entered, defendant filed motions for a new trial and for JNOV.¹ On March 30, 2005, the trial court entered a general judgment. On April 28,2005, the day before the hearing on the motions, defendant filed a notice of appeal from the general judgment. That appeal was assigned case number A128350. The trial court denied defendant’s motions by order entered on May 12,2005.

After judgment was entered, plaintiff delivered a writ of garnishment to defendant’s bank in an attempt to enforce the judgment. Defendant filed a challenge to the writ. The trial court sustained the challenge and ordered a return of the money. Plaintiffs appeal here is from that order and was assigned case number A129320.

On August 16,2005, we dismissed defendant’s appeal (A128350) because defendant had filed the motions for a new trial and for JNOV. Those motions rendered the judgment nonappealable until the trial court entered an order disposing of the motions, or the motions were deemed denied 55 days after the entry of judgment, neither of which had occurred before defendant filed its appeal. See, e.g., Welker v. TSPC, 332 Or 306, 312-13, 27 P3d 1038 (2001) (explaining effect of premature notice of appeal on appealability of judgment); Alternative Realty v. Michaels, 90 Or App 280,286-87, 753 P2d 419 (1988) (same). Although the trial court entered an order on May 12, 2005, purporting to deny defendant’s motions for a new trial and for JNOV, defendant’s April 28, 2005, notice of appeal had the effect of depriving the trial court of jurisdiction to enter that order. See, e.g., Welker, 332 Or at 314. Therefore, the trial court’s order denying defendant’s motions had no effect.²

We likewise dismissed plaintiff’s appeal (A129320) from the order sustaining the objection to the writ on the ground that the trial court lacked jurisdiction to enter that order. On reconsideration, plaintiff argues that, despite the nonappealability of the judgment due to defendant’s motions for a new trial and for JNOV, the judgment remained enforceable, and the trial court retained jurisdiction to enforce the judgment. We agree with plaintiff.

ORS 18.082(1) describes the effect of the entry of a judgment and provides:

“Upon entry of a judgment, the judgment:

“(a) Becomes the exclusive statement of the court’s decision in the case and governs the rights and obligations of the parties that are subject to the judgment;

“(b) May be enforced in the manner provided by law;

“(c) May be appealed in the manner provided by law;

“(d) Acts as official notice of the court’s decision; and

“(e) May be set aside or modified only by the court rendering the judgment or by another court or tribunal with the same or greater authority than the court rendering the judgment.”

(Emphasis added.) Our task involves a question of statutory interpretation, and therefore, we follow our familiar methodology, beginning with the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

Under ORS 18.082(1), the enforceability and appeal-ability of a judgment are addressed in separate subsections. Further supporting this dichotomy, ORS 19.270(l)(b) allows the trial court to retain jurisdiction to “[e]nforc[e] the judgment” even though jurisdiction lies with the appellate courts.³ In addition, ORCP 72 A provides that a judgment is subject to “[immediate execution,” unless the trial court “otherwise directs.”⁴ Neither ORCP 72 A nor any other statute discusses the effect that the filing of motions for a new trial or for JNOV have on the enforceability of a judgment.

In interpreting a statute, we are required to construe provisions on the same subject in harmony with each other. ORS 174.010; Kessler v. Board of Parole, 145 Or App 584, 589, 931 P2d 801 (1997), rev den, 329 Or 61 (1999). The aforementioned statutes, when read together, lead to the conclusion that the enforceability and appealability of a judgment are separate and distinct concepts. And because ORCP 72 provides that judgments are immediately executable, the filing of motions for a new trial and for JNOV have no effect on the enforceability of a judgment.⁵

Applying that reasoning to this case, defendant’s filing of its notice of appeal, although depriving the trial court of jurisdiction to enter an order on defendant’s motions, did not deprive the trial court of jurisdiction to enforce the judgment. Furthermore, defendant’s motions did not render the judgment unenforceable. Therefore, plaintiffs appeal should be reinstated.⁶

Motion for reconsideration granted; appeal in A129320 reinstated.

1 The motions for a new trial and for JNOV were timely filed, although they were filed before the entry of judgment. Way v. Prosch, 163 Or App 437, 442, 988 P2d 422 (1999) (a motion for new trial filed before entry of judgment nonetheless is timely).

2 Jurisdiction reverted to the trial court on August 16, 2005, when the appellate judgment issued terminating the appeal. ORS 19.270(6). The trial court did not reenter the order denying the motions for a new trial and for JNOV. Therefore, the motions eventually were deemed denied upon expiration of however many days of the 55-day period remained when defendant’s notice of appeal was filed. See, e.g., Welker, 332 Or at 314. Defendant did not appeal.

3 ORS 19.270(1) provides, in part:

“The Supreme Court or the Court of Appeals has jurisdiction of the cause when the notice of appeal has been served and filed * * *. The trial court * * * retains jurisdiction in the matter for the following purposes:

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“(b) Enforcing the judgment, subject to any stay of the judgment.” (Emphasis added.)

4 ORCP 72 A provides, in part:

“Execution or other proceeding to enforce a judgment may issue immediately upon the entry of the judgment, unless the court directing entry of the judgment, in its discretion and on such conditions for the security of the adverse party as are proper, otherwise directs. The court shall have authority to stay execution of a judgment temporarily until the filing of a notice of appeal and to stay execution of a judgment pending disposition of an appeal [.] ”

(Emphasis added.)

5 The legislature may not have intended for appealability and enforceability to be severable, and we recognize the potentially negative consequences that the dissent points out — that a judgment debtor is at the judgment creditor’s mercy if the trial court denies a stay. 205 Or App at 526 (Brewer, C. J., dissenting). A judgment debtor in that position would have no recourse to this court. Mindful of such potential consequences, we nevertheless are led to our conclusion by principles of statutory construction. Without further guidance from the legislature, we cannot hold otherwise.

6 Plaintiff spends much of his motion for reconsideration distinguishing Gull Industries v. Mustang Gas and Oil Co., 73 Or App 557, 699 P2d 1134, rev den, 299 Or 583 (1985), in which we held that a writ of garnishment could not issue because the judgment in that case was not final. The judgment in Gull Industries was not final because the trial court did not dispose of all the claims in that case. That problem is absent here.