Zacker v. NORTH TILLAMOOK CTY. HOSP. D.

822 P.2d 1143, 312 Or. 330
CourtOregon Supreme Court
DecidedDecember 12, 1991
DocketCC 89-2043 CA A66514 SC S37789
StatusPublished

This text of 822 P.2d 1143 (Zacker v. NORTH TILLAMOOK CTY. HOSP. D.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zacker v. NORTH TILLAMOOK CTY. HOSP. D., 822 P.2d 1143, 312 Or. 330 (Or. 1991).

Opinion

822 P.2d 1143 (1991)
312 Or. 330

Beverly ZACKER, Petitioner On Review,
v.
NORTH TILLAMOOK COUNTY HOSPITAL DISTRICT, Defendant, and Stephen Vanderwaal, Respondent On Review.

CC 89-2043; CA A66514; SC S37789.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 8, 1991.
Reassigned August 14, 1991.
Decided December 12, 1991.

Kathryn H. Clarke, Portland, argued the cause and filed the petition for petitioner on review.

Robert D. Durham, of Bennett & Durham, Portland, argued the cause and filed the response to the petition for respondent on review.

PETERSON, Justice.

The plaintiff filed a notice of appeal from an order granting the defendant's motion to dismiss the complaint. A judgment of dismissal was entered by the trial court on the same day as its dismissal order, but the judgment was not attached to the notice of appeal and no reference to it was made therein. On the defendant's motion, the Court of Appeals dismissed the appeal. Its order states:

"On or about June 13, 1990, the trial court entered an order granting defendant Vanderwaal's motion to dismiss. On the same date, the trial court entered a judgment of dismissal. Plaintiff's notice of appeal purports to appeal only from the order of dismissal in that the text of the notice refers only to the order of dismissal and does not refer to any judgment, and only a copy of the order of dismissal is attached to the notice of appeal. An appeal may not be taken from an order of dismissal. City of Portland v. Carriage Inn, 296 Or 191, 673 P.2d 531 (1983)."

We affirm.

The case turns on two statutes, ORS 19.033(2) and 19.029(1)(c). ORS 19.033(2) provides:

"The following requirements of ORS 19.023, 19.026 and 19.029 are jurisdictional and may not be waived or extended:
"(a) Service of the notice of appeal on all parties identified in the notice of appeal as adverse parties or, if the notice of appeal does not identify adverse parties, on all parties who have appeared in the action, suit or proceeding, as provided in ORS 19.023(2)(a), within the time limits prescribed by ORS 19.026.
"(b) Filing of the original of the notice of appeal with the Court of Appeals as provided in ORS 19.023(3), within the time limits prescribed by ORS 19.026."

ORS 19.029(1) provides in part:

"The notice of appeal shall contain the following:
"(a) The title of the cause.
"(b) The names of the parties and their attorneys.
"(c) A notice to all parties or their attorneys as have appeared in the action or proceedings that an appeal is taken from the judgment or some specified *1144 part thereof and designating who are the adverse parties to the appeal."

Two prior decisions of this court are relevant to the issue here before us.

In Stahl v. Krasowski, 281 Or. 33, 573 P.2d 309 (1978), the defendant appealed from an order denying the defendant's motion for judgment notwithstanding the verdict. The notice of appeal stated that "`an appeal is taken * * * from the Order Denying Motion for Judgment Notwithstanding Verdict entered herein on September 15, 1977.'" 281 Or. at 35, 573 P.2d 309. A copy of the order was attached to the notice of appeal. At that time, ORS 19.029(1) (1977) was virtually identical to current ORS 19.029. ORS 19.033(2) (1977) then provided:

"The serving and filing of the notice of appeal as provided by ORS 19.023 to 19.029 is jurisdictional and may not be waived or extended."

The court first noted that "from time immemorial * * * an order denying a motion for a judgment notwithstanding the verdict is not an appealable order." Stahl v. Krasowski, supra, 281 Or. at 36, 573 P.2d 309. The court then addressed the appellant's contention that "mistakes in the contents of a notice of appeal are not jurisdictional," id., and held that the reference requirement of ORS 19.029(1)(c) — that a notice of appeal contain "[a] notice to all parties or their attorneys * * * that an appeal is taken from the judgment or some specified part thereof" — was jurisdictional because of the express wording of ORS 19.033(2). The court stated:

"If anything within the notice of appeal is jurisdictional, and it is apparent from the inclusion of ORS 19.029 within the jurisdictional limitations of ORS 19.033(2) and from the report of the interim committee that some part of the contents of the notice was intended to be, it must be a description of what action of the trial court is appealed from, because, other than the title of the case, that is the most important thing which the notice contains.
"It is our conclusion that it was the intention of both the interim committee and the legislature to treat the designation of that which is appealed from as `jurisdictional.'" Id. at 39, 573 P.2d 309.

In City of Portland v. Carriage Inn, 296 Or. 191, 673 P.2d 531 (1983), this court noted the significance of the distinction between a judgment and an order of dismissal. In that case, the Court of Appeals had dismissed an appeal from a judgment dated September 9, 1982, because the plaintiff could have appealed from a prior order of dismissal entered June 4, 1982. This court reversed the Court of Appeals, saying:

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Related

Stahl v. Krasowski
573 P.2d 309 (Oregon Supreme Court, 1978)
Bauman v. Gittelsohn
678 P.2d 1226 (Oregon Supreme Court, 1984)
McQuary v. Bel Air Convalescent Home, Inc.
678 P.2d 1222 (Oregon Supreme Court, 1984)
City of Portland v. Carriage Inn
673 P.2d 531 (Oregon Supreme Court, 1983)
Jacobson v. Mountain Park Home Owners Ass'n
670 P.2d 633 (Court of Appeals of Oregon, 1983)
Zacker v. North Tillamook County Hospital District
822 P.2d 1143 (Oregon Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
822 P.2d 1143, 312 Or. 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zacker-v-north-tillamook-cty-hosp-d-or-1991.