S056441, Opinion — Interstate Roofing, Inc. v. Springville Corp.

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Argued and submitted April 15, decision of Court of Appeals affirmed in part
and reversed in part, and case remanded to Court of Appeals for further
proceedings October 1, 2009

INTERSTATE ROOFING, INC.,
Respondent on Review,
v.

SPRINGVILLE CORPORATION,
fka Springville Associates, Inc.,
Petitioner on Review,
and
M&T REAL ESTATE, INC.,
Defendant.

(CC C04-3118CV; CA A135686; SC S056441)
218 P3d 113

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CJS, Appeal and Error § 567.

En Banc
On review from the Court of Appeals .*

\* Appeal from Washington County Circuit Court, Suzanne Upton, Judge. 217
Or App 412, 177 P3d 1, modified on recons, 220 Or App 671, 188 P3d 359, modified
on recons, 224 Or App 94, 197 P3d 27 (2008).

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James N. Westwood, Stoel Rives, LLP, Portland, argued
the cause for petitioner on review. With him on the briefs was
Jeffrey M. Batchelor, Markowitz, Herbold, Glade & Mehlhaf,
PC.

Janet M. Schroer, Hoffman, Hart & Wagner, LLP,
Portland, argued the cause for respondent on review. With
her on the brief was Marjorie A. Speirs.

LINDER, J.

The decision of the Court of Appeals is affirmed in part
and reversed in part, and the case is remanded to the Court of
Appeals for further proceedings.

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# LINDER, J.

This case requires us to determine whether certain
formalities must be satisfied for a limited judgment to be
final and appealable. Specifically, the issues are: (1) whether
either a limited judgment document, or the record more gen-
erally, must reflect an express determination by the circuit
court that there is "no just reason for delay"; and (2) whether
a limited judgment document, to finally dispose of a claim,
must use words of "adjudication." The Court of Appeals con-
cluded that neither formality had to be satisfied for an appel-
late court to have jurisdiction over any claims that are, in
fact, conclusively decided by a limited judgment. Interstate
Roofing, Inc. v. Springville Corp., 217 Or App 412, 418-20,
177 P3d 1, modified on recons, 220 Or App 671, 188 P3d 359,
modified on recons, 224 Or App 94, 197 P3d 27 (2008). The
Court of Appeals then determined that the limited judgment
in this case conclusively resolved only two of the three claims
addressed in the document; the court therefore dismissed
plaintiff's appeal as to those resolved claims, because the
notice of appeal was untimely as to them. See 217 Or App at
419-20 (concluding that limited judgment resolved breach of
contract claim); 220 Or App at 678-80 (concluding that lim-
ited judgment also resolved lien foreclosure claim); id. at 675
n 2 (explaining why defendant could appeal claims not finally
resolved by limited judgment). On review, we affirm in part
and reverse in part.

The pertinent facts are largely procedural. In
September 2004, plaintiff filed a civil action against defen-
dant in circuit court. Plaintiff pleaded three claims for relief:
foreclosure of a construction lien, breach of contract, and
quantum meruit. Under its breach of contract claim, plaintiff
also sought attorney fees. In its answer, defendant asserted
counterclaims for breach of contract and for negligence.
Defendant also sought an award of attorney fees under the
terms of the contracts.

The case was bifurcated, with plaintiff's construction
lien claim and defendant's counterclaims for breach of con-
tract and negligence to be first tried to the court; any claims
not resolved at trial, together with the remaining claims,
would be later tried to a jury. Trial was held in July and

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August 2006. After trial, both parties, apparently under-
standing that the trial court intended to resolve some but not
all claims in the case, submitted proposed forms of limited
judgment. The trial court did not adopt either of the proposed
limited judgment documents; instead, the court entered its
own document titled "Limited Judgment and Money Award."
That document, which was entered on September 29, 2006,
provided, in part:

"Having heard the testimony of the witnesses, and hav-
ing reviewed their accompanying exhibits, and having
heard the statements of counsel, and then being fully
advised in the matter, the Court recited [its] ruling from the
bench, including some findings of fact. In addition to all
findings related on the record, the Court found, by a prepon-
derance of the evidence, that:

"1. Plaintiff's Construction Lien was overstated and
thus is invalid as a matter of law. As such, Defendant
Springville is the Prevailing Party on that claim and is enti-
tled to an Award of Attorney Fees and Costs to be deter-
mined by ORCP 68.

"2. As to Defendant Springville's Claim of Breach of
Contract, Defendant is entitled to a Judgment against
Plaintiff and a Money Award in the amount of $346,872.22.
Prevailing Party Status has not yet been determined on
this claim.

"3. The Court finds Defendant's Claims for
Negligence, including Negligence per se[,] are inapplicable
to the subject case. Specifically, the Court finds that, as a
matter of law, a remedy in Tort is not available.

"Notwithstanding the remaining issues and claims in
the case, the determination of prevailing party status, and
awards of Attorney's Fees and Costs, the Court does find it
in the interest of clarity and judicial economy to render said
Limited Judgment and hereby Orders the following Money
Award: [followed by a money award of $346,872.22].

"IT IS SO ORDERED."

Neither party appealed that document within 30
days after its entry.1 Defendant collected the amount

! A party wishing to appeal a limited judgment must appeal within 30 days
after its entry. ORS 19.205(1) specifically allows a limited judgment to be appealed.

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awarded on its breach-of-contract counterclaim ($346,872.22),
plus interest, and filed a satisfaction of the money award.
The trial court later (in April 2007) entered a supplemental
judgment awarding defendant attorney fees.

In November 2006, plaintiff moved to dismiss its
remaining claims for breach of contract and quantum meruit,
asserting that they were the only remaining unadjudicated
claims in the case. Defendant objected on the theory that it
was still entitled to a jury trial on its counterclaims. After a
hearing, the trial court, which determined that defendant's
counterclaims had been resolved by the limited judgment
and that only plaintiff's claims remained in the case, granted
plaintiff's motion to dismiss. On April 20, 2007, the trial court
entered a general judgment dismissing plaintiff's claims for
breach of contract and quantum meruit.

On May 16, 2007, within 30 days of entry of the gen-
eral judgment, defendant filed a notice of appeal. The notice
of appeal purported to appeal (among other things) the gen-
eral judgment entered on April 20, 2007, and the limited
judgment entered on September 29, 2006. Defendant
acknowledged in the notice of appeal that the Court of
Appeals' jurisdiction was in doubt.

Plaintiff moved to dismiss the appeal as to the lim-
ited judgment on the ground that the appeal was untimely in
that regard. Defendant countered with a motion to determine
jurisdiction, in which it argued that none of the three judg-
ments was final and appealable.2 As to the limited judgment,
defendant specifically contended that it was not final because
(1) the judgment itself contained no adjudicative wording,

Under ORS 19.255(1), the notice of appeal "must be served and filed within 30 days
after the judgment appealed from is entered in the register." Timely filing of an
appeal is jurisdictional. ORS 19.270(2)(b). A party who obtains a limited judgment
cannot wait until the remaining claims in the case are resolved by a general judg-
ment, because the limited judgment is not incorporated into the general judgment.
See ORS 18.082(2)(a) (general judgment incorporates any prior written decision
that "[i]s not a judgment").

2 Defendant has never disputed that, if the document that the trial court
entered as a "limited judgment" was final and appealable as to any of the claims in
the case, defendant's notice of appeal was untimely as to those claims. Defendant
has disputed only whether the limited judgment signed and entered by the trial
court in fact conclusively determined one or more claims.

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but, rather, it made only findings and announced a money
award; and (2) the trial court had not made an express judi-
cial determination of "no just reason for delay," which defen-
dant argued is required by ORCP 67 B.3

The Court of Appeals rejected both of defendant's
arguments as to the formalities that a trial court must satisfy
to render an appealable limited judgment. Interstate Roofing,
Inc., 217 Or App at 418-21 ("Interstate I"). In particular, the
court concluded that no statutory provision required a lim-
ited judgment to use the word "adjudged" or any variation of
it. Id. at 418. The court also concluded that a limited judg-
ment, pursuant to statutory provisions enacted in 2003, need
not reflect the determination that there is no just reason for
delay. Id. at 420 (citing ORS 18.052(1)).

The Court of Appeals then examined the limited
judgment entered in this case to determine whether it actu-
ally had conclusively decided any claims in the case, in which
event, defendant's appeal as to those claims would be
untimely. The court considered the wording of the limited
judgment-e.g., referring to legal conclusions as "findings"-
to be ambiguous, because it suggested the possibility that the
trial court was merely reciting prior determinations with
respect to all three claims mentioned in the limited judg-
ment. Id. at 418-19. Still, the Court of Appeals concluded that
the limited judgment finally resolved defendant's breach-of-
contract counterclaim, reasoning that the money award on
that claim demonstrated that the trial court intended the
limited judgment to conclusively decide it. Id. at 419-20. As to
that claim, the Court of Appeals concluded, the time to
appeal had begun to run when it was entered. Id. at 421.
Defendant had not filed a timely notice of appeal from the
limited judgment. Accordingly, the Court of Appeals dis-
missed the appeal as to the breach-of-contract counterclaim.
Id .; see also id. at 426 (noting that general judgment had

3 ORCP 67 B provides, in part:

"When more than one claim for relief is presented in an action, whether as
a claim, counterclaim, cross-claim, or third party claim, * * * the court may
render a limited judgment as to one or more but fewer than all of the claims or
parties. A judge may render a limited judgment under this section only if the
judge determines that there is no just reason for delay."

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effect of dismissing unresolved lien foreclosure claim and
negligence counterclaim).4

On plaintiff's petition, the Court of Appeals reconsid-
ered whether plaintiff's lien foreclosure claim and defen-
dant's negligence counterclaim also were conclusively
decided by the limited judgment. Interstate Roofing, Inc., 220
Or App 671, 188 P3d 359, modified on recons, 224 Or App 94,
197 P3d 27 (2008) ("Interstate II"). The court viewed the text
of the limited judgment document as ambiguous in that
regard. Interstate II, 220 Or App at 676. The court reasoned
that, on the one hand, the text declared the lien foreclosure
claim to be "invalid" and the negligence counterclaim to be
"inapplicable," which suggested legal determinations. Id. at
675. On the other hand, neither determination "[was] the
same as dismissing the claim or rendering judgment in favor
of the party against whom the claim was asserted." Id. at
675-76.

The Court of Appeals concluded that it could resolve
the ambiguity by considering the text of the limited judgment
document itself in the context of the appellate record more
generally. Id. at 676-77 (citing Bennett v. Bennett, 208 Or
524, 529, 302 P2d 1019 (1956)). That review led the Court of
Appeals to conclude that the trial court had intended the lim-
ited judgment to dispose of the lien foreclosure claim. Id. at
679-80 (among other things, limited judgment stated that
defendant was the prevailing party on lien foreclosure claim,
and transcript excerpts indicated trial court believed it had
resolved that claim). The Court of Appeals found nothing in
the record that similarly suggested that the trial court
intended conclusively to dispose of defendant's negligence
counterclaim. Id. at 680. Consequently, the court modified its
first decision and also dismissed the appeal as to the lien fore-
closure claim. See id. at 679-80 (determining that limited
judgment conclusively disposed of lien foreclosure claim).

On review, the parties renew the arguments that
they made to the Court of Appeals. Their arguments
particularly focus on whether, for a limited judgment to be

4 The Court of Appeals also concluded that the general judgment was appeal-
able and that the notice of appeal had been timely filed as to the claims that the
general judgment resolved. 217 Or App at 421-26.

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appealable, a trial court must make an express determina-
tion that there is no just reason for delay, and whether, to
conclusively decide a claim, a limited judgment must resolve
it using words of adjudication. Although they disagree on
those points, the parties agree that, in all events, an appel-
late court should not look beyond the limited judgment doc-
ument to determine which, if any, claims were resolved by
the limited judgment. And, finally, the parties disagree on
which claims, if any, were resolved by the limited judgment
entered in this case.

The starting point for our analysis is the statutory
scheme that governs entry of judgment and appellate court
jurisdiction.5 In 2003, the legislature comprehensively
revised the statutes governing judgments and many of the
provisions governing their appealability; many of those revi-
sions now are codified in ORS chapter 18. See Or Laws 2003,
ch 576 (enacting extensive statutory scheme regarding judg-
ments). Of importance to this case, that statutory scheme
now distinguishes-in a way that the former statutes did
not-between the trial court's subjective decision resolving a
claim and the way in which that decision must be reflected in
a judgment document. In particular, ORS chapter 18 defines
"judgment" as follows:

"'Judgment' means the concluding decision of a court on
one or more requests for relief in one or more actions, as
reflected in a judgment document."

ORS 18.005(8). "Judgment document," in turn, is also
expressly defined:

" 'Judgment document' means a writing in the form pro-
vided by ORS 18.038 that incorporates a court's judgment."

ORS 18.005(9).

· Defendant's starting point is different. Defendant begins with what it per-
ceives to be Oregon's historic "aversion to" and policies disfavoring interlocutory
appeals. The right to appeal, however, is wholly statutory. See, e.g., State v. K. P.,
324 Or 1, 4, 921 P2d 380 (1996) (right of appeal is conferred by statute; statutory
scheme is starting point in analyzing whether document is appealable). The appro-
priate policies for this court's consideration are those embodied in the controlling
statutes, however much they may favor or disfavor interlocutory appeals.

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The statutory definition of "judgment" thus broadly
consists of two distinct parts, one substantive and one formal.
Substantively, the trial court must make a "concluding deci-
sion * * * on one or more requests for relief." ORS 18.005(8).
Formally, the trial court must ensure that the concluding
decision is reflected in a judgment document-viz., a writing
that meets certain requirements of form. Id .; see ORS
18.005(9) (judgment document must incorporate judgment
and be in form prescribed by ORS 18.038); ORS 18.052(1) ("A
judge rendering a judgment shall file * * * a judgment docu-
ment that incorporates the judgment."). Generally, both the
substantive and formal requirements must be met.6 A pur-
ported judgment document must reflect the concluding deci-
sion of one or more claims, or it does not meet the statutory
definition of "judgment document." Similarly, a trial court's
concluding decision of a claim must be reflected in a judg-
ment document, or it is not a legally efficacious judgment.
Those distinctions are important for purposes of our analysis
in this case, and we will return to them later in this opinion.7

Under the 2003 judgments legislation, there are
three basic types of judgments: general judgments, limited
judgments, and supplemental judgments. See ORS 18.005(7)
(defining general judgment); ORS 18.005(13) (defining lim-
ited judgment); ORS 18.005(17) (defining supplemental judg-
ment). This case concerns a limited judgment, which, as rel-
evant here, is defined to mean "[a] judgment entered under
ORCP 67 B[.]" Since 2003 (and at all times relevant to the

6 There are two exceptions, both of which apply only to a general judgment. A
general judgment is deemed to address claims to which it does not expressly refer,
either by incorporating earlier written dispositions or by dismissing the unad-
dressed claims with prejudice. See ORS 18.082(2), (3) (so stating).

7 ORS 18.038 lists certain other requirements of form that a judgment docu-
ment must meet. See ORS 18.005(9) (definition of limited judgment incorporates
ORS 18.038 by reference). They include (with limited exceptions) that the docu-
ment must be titled as a judgment; it must be separate from any other document in
the action; and it must identify the court rendering the judgment, the case itself,
and the parties who prevailed and against whom judgment is given. See ORS
18.038(1), (3), and (4) (setting out those and other requirements of form). Also, spe-
cific types of judgments may be subject to their own formal requirements beyond
those listed in ORS 18.038. See, e.g., ORS 18.042 (listing requirements for judg-
ment in civil action that contains money award); ORS 18.048 (listing requirements
for judgment in criminal action that contains money award).

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entry of the limited judgment in this case), ORCP 67 B has
provided:

"When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third party claim, or when multiple parties are involved,
the court may render a limited judgment as to one or more
but fewer than all of the claims or parties. A judge may ren-
der a limited judgment under this section only if the judge
determines that there is no just reason for delay."

See Or Laws 2003, ch 576, § 90 (amending prior version of
ORCP 67 B). Parallel requirements are imposed by ORS
18.052, which was adopted in 2003 as part of the same act
that amended ORCP 67 B. That statute provides, in part:

"If the judgment is a limited judgment rendered under the
provisions of ORCP 67 B, the judge must determine that
there is no just reason for delay, but the judgment docu-
ment need not reflect that determination if the title of the
judgment document indicates that the judgment is a lim-
ited judgment."

ORS 18.052(1); see Or Laws 2003, ch 576, § 7 (enacting stat-
ute currently codified as ORS 18.052).

Defendant's first argument relies on the requirement
in ORCP 67 B and ORS 18.052(1) that the trial court judge,
as a predicate for rendering a limited judgment, must deter-
mine that there is "no just reason for delay." Defendant
acknowledges that, because the limited judgment at issue
here is titled "limited judgment," the finding of no just reason
for delay did not have to be recited in the judgment document
itself. See ORS 18.052(1) (expressly so providing). Neverthe-
less, defendant contends, the record must somewhere reflect
the trial court's express determination of no just reason for
delay. Defendant asserts that the trial court never made any
such determination on the record in this case; therefore,
according to defendant, the limited judgment was a legal
nullity.

Defendant is correct that both ORCP 67 B and ORS
18.052(1) require the trial court to determine that there is no
just reason for delay. Textually, however, both are silent on
whether the record must expressly reflect that determina-
tion. To determine whether those statutes impose such a

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requirement, we evaluate their text in context, and then, to
the extent we find it helpful, we consider the legislative his-
tory proffered by the parties. See State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009) (after considering text and con-
text, court considers any pertinent legislative history, giving
it appropriate weight). In this case, the context that we con-
sider along with text includes the law as it existed before the
2003 amendment to ORCP 67 B and enactment of ORS
18.052. See State ex rel Penn v. Norblad, 323 Or 464, 468 n 1,
918 P2d 426 (1996) (prior enacted versions of a statute are
part of context for purposes of statutory interpretation).

Before 2003, no statutory equivalent to ORS
18.052(1) existed. ORCP 67 B (2001), however, authorized a
trial court to enter a judgment resolving fewer than all claims
in an action. In its prior form, the rule provided that, when a
trial court directed entry of a final judgment as to fewer than
all claims or parties in an action, the trial court could do so
"only upon an express determination whether there is no
just reason for delay[.]"8 The settled understanding of that
requirement was that the express determination of no just
reason for delay had to be in the judgment document itself.9

8 ORCP 67 B (2001) provided:

"When more than one claim for relief is presented in an action, whether as
a claim, counterclaim, cross-claim, or third party claim, or when multiple par-
ties are involved, the court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an express determi-
nation that there is no just reason for delay and upon an express direction for
the entry of judgment. In the absence of such determination and direction, any
order or other form of decision, however designated, which adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties
shall not terminate the action as to any of the claims or parties, and the order
or other form of decision is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the
parties."

9 See, e.g., State ex rel Orbanco Real Estate Serv. v. Allen, 301 Or 104, 116, 720
P2d 365 (1986) (in multiple party case involving more than one claim for relief,
interim documents adjudicating some claims as to some parties did not contain
express ORCP 67 B determination that "there is no just reason for delay"; in com-
bination, however, those documents adjudicated all claims as to all parties and con-
stituted a final judgment in the case); Industrial Leasing Corp. v. Van Dyke, 285 Or
375, 378-79, 591 P2d 352 (1979) (interpreting nearly identical text in the predeces-
sor to ORCP 67 B (2001), former ORS 18.125 (1979); because judgments of invol-
untary nonsuit in favor of defendants did not contain an "express determination
that there is no just reason for delay," they were not final judgments as to any of the
claims or parties and appellate courts lacked jurisdiction over appeal).

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And, although the trial court was required to determine that
there was no just reason for delay using a nonexclusive list of
factors, the trial court was not required to explain its reasons
on the record and the determination itself was not subject to
appellate review. See May v. Josephine Memorial Hospital,
297 Or 525, 531-32, 686 P2d 1015 (1984) (identifying factors
and rejecting Court of Appeals' holding that appeal from lim-
ited judgment should be dismissed because trial court failed
to explain reasons for determining no just reason for delay).

Thus, the law before 2003 was that ORCP 67 B
(2001) required the trial court to make a determination of no
just reason for delay. The trial court was not required to
make that determination on the record or to explain the rea-
sons for its determination in the record, and the determina-
tion itself was not reviewable on appeal. Instead, the trial
court was required only to state summarily in the judgment
document that it had determined that there was no just rea-
son for delay.

The 2003 judgments legislation eliminated that one
requirement that the judgment document expressly state the
trial court's determination of no just reason for delay. And it
did so in two ways. First, the 2003 amendment to ORCP 67 B
specifically deleted the requirement of an "express determi-
nation" of no just reason for delay. Or Laws 2003, ch 576,
§ 90. Second, ORS 18.052(1), as enacted in 2003, affirma-
tively provided that a limited judgment document need not
reflect the trial court's determination of no just reason for
delay, as long as the document was titled as a limited judg-
ment. Id. § 7. The 2003 legislation thus unequivocally evi-
dences the legislature's intent to eliminate the one previously
existing requirement that the record-through the express
terms of the written judgment-reflect the determination of
no just reason for delay. It is implausible to infer that the leg-
islature deleted the requirement of an "express" determina-
tion of no just reason for delay in the judgment document,
intending, by the deletion alone, to require an express deter-
mination elsewhere in the record.

The legislative history confirms that the legislature
intended no such thing. The Oregon Law Commission sub-
mitted to the legislature a report that analyzed the provi-
sions of House Bill 2646, which became Oregon Laws 2003,

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chapter 576.10 Regarding what was later codified as ORS
18.052, the report explained how that statute would affect
ORCP 67 B's requirement of the "magic words" "no just rea-
son for delay":

"The most significant provision in this section is the last
sentence of subsection (1) [ORS 18.052(1)]. As can been
seen, this sentence eliminates the requirement of ORCP
67 B that 'magic words' appear in the judgment document
to acquire an appealable judgment. Instead, the judge is
charged with making the required determination (no just
reason for delay) and by the very act of signing a 'limited
judgment' attests to having made that determination."

Testimony, House Judiciary Committee, HB 2646, Mar 25,
2003, Ex C, at 13 (Judgments/Enforcement of Judgments:
Judgments Report (HB 2646)) (emphasis added) (hereafter
OLC Judgments Report). Thus, as the text of the 2003 legis-
lative changes itself indicates, the legislature in fact intended
(1) to dispense with the requirement of an express trial court
determination of no just reason for delay, and (2) to make the
trial court's signature sufficient to manifest that determina-
tion, as long as the signed document bears the title "limited
judgment." We therefore conclude that defendant's first
argument is not well taken.

We turn to defendant's second argument regarding
the formalities that a limited judgment must satisfy. Specifi-
cally, defendant argues that the limited judgment in this case
failed to resolve any claim with finality, because the limited
judgment document did not use the word "adjudged" (or some

10 HB 2646 was sponsored by Representatives Lane Shetterly and Max
Williams at the request of the Oregon Law Commission (OLC), which drafted the
bill. The OLC is a legislatively created body "established to conduct a continuous
substantive law revision program." ORS 173.315(1); see also ORS 173.315- 173.357
(enabling legislation for OLC). The OLC's Judgments Report was submitted as an
exhibit during the legislative hearings concerning HB 2646. Testimony, House
Judiciary Committee, HB 2646, Mar 25, 2003, Ex C (Judgments/Enforcement of
Judgments: Judgments Report (HB 2646)). In the absence of a contrary indication,
we assume that the legislature accepted the OLC's explanations for its drafting
choices, as we have done for other legislation that was accompanied by similar for-
mal drafters' reports. See, e.g., State v. Woodley, 306 Or 458, 462, 760 P2d 884
(1988) (unless contrary indication exists, court assumes that legislature accepted
explanations of Criminal Law Revision Commission for its drafting choices). The
OLC's Judgments Report thus provides us with an extensive record of the purposes
and intentions behind HB 2646.

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variant) in resolving any of the claims before the trial court.
Instead, this limited judgment used the words "[o]rders" and
"IT IS SO ORDERED[,]" which, defendant contends, is not
enough.11

The pertinent statutes, however, do not impose any
such formalistic requirement. The legislature has specified
that, to render a legally effective "judgment," the trial court
must arrive at a "concluding decision * * * on one or more
requests for relief[.]" ORS 18.005(8). The concluding decision
or decisions also must be "reflected" in a judgment document.
Id. Neither the definition of "judgment" (id.) nor "judgment
document" (ORS 18.005(9)) prescribes the words that must
be used to "reflect[ ]" the trial court's concluding decision or
decisions. Rather, the only "term of adjudication" that a judg-
ment document statutorily must contain is the title itself-
that is, the document must be titled as a judgment. See ORS
18.038(1) ("A judgment document must be plainly titled as a
judgment."); ORS 18.052(1) (unless document is exempt,
"judge shall ensure that the title of the judgment document
indicates whether the judgment is a limited judgment, gen-
eral judgment, or supplemental judgment"); ORS 18.245(1)
(jurisdictional requirements for appeal include that "[t]he
judgment document for the judgment must be plainly titled
as a judgment as required by ORS 18.038(1)"). Based on that
statutory scheme, we conclude that, as a matter of form, a
judgment document that contains the statutorily prescribed
title of "judgment" contains sufficient words of adjudication
to be appealable; the legislature did not impose a formal
requirement of additional, particular words of adjudication
elsewhere in the text of a judgment.

11 Factually, defendant's assertion is problematic. Although the limited judg-
ment's text does not use the word "adjudged," it does use the word "judgment." Spe-
cifically, regarding defendant's breach-of-contract counterclaim, the limited judg-
ment states that "Defendant is entitled to a Judgment against Plaintiff and a
Money Award in the amount of $346,872.22." (Emphasis added.) Even accepting
defendant's premise, the phrase "is entitled to a Judgment" surely would qualify as
words of adjudication.

Similarly, although the limited judgment also uses the word "[o]rders," it does
so to refer to the money award, which comes immediately after the declaration that
the written document is a limited judgment: "[T]he Court does find it in the inter-
est of clarity and judicial economy to render said Limited Judgment and hereby
Orders the following Money Award[.]" (Emphases added.) Considered as a whole,
that phrase, too, would seem to qualify as words of adjudication.

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In that regard, we emphasize that we are rejecting a
very narrow argument-viz., the contention that a limited
judgment, to be appealable, must contain in the body of
the document particular words of adjudication, such as
"adjudged." Although we reject that as a formal requirement
for a "judgment document," the fact remains that, substan-
tively, the judgment document must express a concluding
decision on one or more claims in a case. See ORS 18.005(8)
(definition of judgment specifically requires that it be "the
concluding decision of a court on one or more requests for
relief in one or more actions"). Words of adjudication
undoubtedly may assist in conveying that the trial court has
made a concluding decision on one or more of the claims
before the court, and thus rendered judgment as to the
decided claim or claims. But no statute prescribes the use of
such words as the only way to express a concluding decision
in a judgment document. If the terms used by a trial court
suffice to convey the court's concluding decision or decisions,
and if they are set forth in a document properly titled as a
judgment, the statutory requirement that a "judgment" be
reflected in a judgment document is satisfied.

The remaining issue, then, is whether the trial court
in this action rendered a "concluding decision" on one or more
of the claims and, if so, which ones. That issue subsumes one
further issue: What may an appellate court examine to make
that determination? Both plaintiff and defendant contend
that the Court of Appeals erred on reconsideration in
Interstate II, because it looked beyond the judgment docu-
ment and more broadly examined the record to determine
whether the foreclosure lien claim and the negligence coun-
terclaim had been conclusively decided by the limited judg-
ment. Although the Court of Appeals expressed misgivings, it
concluded that it was required to do so by this court's decision
in Bennett, 208 Or 524. Interstate II, 220 Or App at 676-77
(relying on Bennett); see Bennett, 208 Or at 528-32 (court
examined record on appeal to determine whether ambiguous
phrase in divorce decree was intended to award wife sum cer-
tain as alimony or as part of property division). As we will
explain, we agree with the parties (although for reasons that
differ in part from theirs) that the appellate courts may not
resort to the record to resolve the meaning or intent of ambig-
uous provisions of a limited judgment, at least for purposes of

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determining whether that judgment expresses a concluding
decision on the claims at issue.

As we earlier explained, the statutory definition of
judgment requires two basic components. Substantively, the
trial court must have made a concluding decision as to one or
more claims in the action; and formally, the trial court must
enter a judgment document that reflects the concluding deci-
sion. See ORS 18.005(8) (definition of judgment); see also
ORS 18.005(9) ("judgment document" must "incorporate[ ] a
court's judgment"). Complementing that formal component,
the trial court judge, by statute, is specifically directed to
ensure that her or his concluding decision is reflected in the
judgment document. See ORS 18.052(1) (judge rendering
judgment "shall file * * * a judgment document that incorpo-
rates the judgment").12 ORS 18.082 confirms the importance
of that requirement. That statute provides, in part:

"(1) 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[.]"

## (Emphasis added.)

Under those provisions, the judgment document, as
opposed to the record more generally, must manifest the trial
court's concluding decision on the claim or claims. The trial
court's subjective intent to decide a claim is not relevant if the
judgment document fails to expressly reflect that decision.
Consequently, if a judgment document does not unambigu-
ously manifest the concluding decision on a claim, an appel-
late court cannot address that defect by consulting the record
to determine what the trial court subjectively intended.13

12 Worth noting is that the distinction the legislature drew in that regard was
a particularly deliberate one. See OLC Judgments Report at 9 (judgment is now
"defined to have two distinct requirements. First a judgment has to be a 'conclud-
ing decision of a court on one or more claims in one or more actions.' Second, a 'judg-
ment' must be 'reflected in a judgment document.'"); id. at 10 (existing law fre-
quently confused judgment of court with document that reflected that judgment;
drafters' goal was to correct problem by carefully delineating between decision of
court in abstract and the writing that reflects that decision).

13 A judgment document's failure to unambiguously manifest a concluding
decision on a claim does not necessarily require automatic dismissal on appeal. As
we noted previously, there are two situations in which a general judgment is
deemed to have disposed of claims that it does not specifically address. See ORS

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Assuming that Bennett permitted appellate courts to exam-
ine the record to determine the finality or appealability of an
ambiguous judgment, it no longer reflects the correct state of
the law, given the 2003 amendments to the statutes govern-
ing judgments.14

We therefore turn to the three claims discussed in
the limited judgment. The Court of Appeals determined,
first, that the limited judgment did conclusively determine
the breach-of-contract counterclaim. Interstate I, 217 Or App
at 419-20. It did so, moreover, based on the terms of the judg-
ment document itself, rather than a review of the record more
generally. Defendant contends that the Court of Appeals
erred in that regard, because the limited judgment also
stated that prevailing party status had not yet been deter-
mined on that claim.

We do not agree with defendant. No statute or rule
requires a trial court to designate a prevailing party at the
time it enters a judgment. To the contrary, the statutory
scheme provides that attorney fees may be awarded by a sup-
plemental judgment, thus implicitly contemplating that a
prevailing party designation can be made after entry of a
limited or general judgment. See ORCP 68 C(5)(b) (attorney
fees may be awarded by supplemental judgment); ORS
18.005(17) ("'Supplemental judgment' means a judgment
that may be rendered after a general judgment pursuant to a
legal authority."); ORS 20.077 (establishing process to deter-
mine prevailing party for purpose of attorney fee award). In
this case, the limited judgment specifically stated that defen-
dant was entitled to judgment on the breach-of-contract
counterclaim, and it made a money award to defendant of a

18.082(2), (3) (identifying circumstances). In addition, the legislature has contem-
plated other solutions when a timely appealed judgment document contains an
ambiguity fatal to its appealability. See ORS 19.270(4) (appellate court may give
trial court leave to enter appealable judgment if trial court had intended to do so,
but judgment from which appeal has been taken is defective in form).

14 This court has never had occasion to determine whether its approach in
Bennett of examining the record on appeal would extend to a judgment that is
ambiguous for the purpose of determining its finality and appealability. The 2003
judgments legislation preempts any extension of Bennett to such a context. But
nothing in our opinion in this case should be understood to prevent appellate courts
from considering the record to resolve ambiguities in a judgment in other
circumstances.

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specified amount, which plainly reflected a final determina-
tion of the merits of that claim. The terms of the limited judg-
ment themselves suggest that the trial court merely reserved
the determination of prevailing party status and attorney
fees on that finally resolved claim: The limited judgment was
entered "[n]otwithstanding * * * the determination of pre-
vailing party status, and awards of Attorney's Fees and
Costs[.]"

Plaintiff, for its part, takes issue with the Court of
Appeals' conclusion that the limited judgment did not, by its
express terms, finally resolve the lien foreclosure claim or the
negligence counterclaim.15 We agree with plaintiff on both
points.

Regarding the lien foreclosure claim, the limited
judgment stated:

"Plaintiff's Construction Lien was overstated and thus is
invalid as a matter of law. As such, Defendant Springville is
the Prevailing Party on that claim and is entitled to an
Award of Attorney Fees and Costs to be determined by
ORCP 68."

As we have explained, a properly titled judgment need not
use particular words of adjudication in the text, as long as the
text expresses a concluding decision on the claim. The text of
the limited judgment here indicates that the trial court
resolved the lien foreclosure claim in defendant's favor. Spe-
cifically, the judgment document declares that the lien was
"invalid as a matter of law" and determines that the adverse
party is the prevailing party for purposes of an attorney fee
award. Although a limited judgment need not designate a
prevailing party (as we determined for the breach-of-contract
counterclaim), the actual designation of a prevailing party
does indicate that the court made a concluding decision of the
claim. See ORS 20.077(2) ("For the purposes of making an
award of attorney fees on a claim, the prevailing party is the
party who receives a favorable judgment * * * on the claim.").

15 To clarify, plaintiff's disagreement with the Court of Appeals' resolution of
the lien foreclosure claim is not with the court's conclusion, but rather with the
court's view that the limited judgment was ambiguous as to that claim and that the
ambiguity should be resolved by resort to the record.

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We therefore conclude that the limited judgment reflected a
concluding decision as to plaintiff's lien foreclosure claim.

Regarding the negligence counterclaim, the limited
judgment stated:

"The Court finds Defendant's Claims for Negligence,
including Negligence per se[,] are inapplicable to the subject
case. Specifically, the Court finds that, as a matter of law, a
remedy in Tort is not available."

Fairly read, that text represents a concluding decision on the
negligence counterclaim.

Three aspects of the text of the limited judgment
lead us to that conclusion. First, the express text addressing
that claim itself seems to foreclose any further consideration
of it by the trial court: "as a matter of law, a remedy in Tort is
not available."

Second, the negligence counterclaim is numbered
sequentially ("3.") after the first two claims that the limited
judgment decides. Then, immediately following the num-
bered declarations of the resolution of the three claims, the
document, in a new, unnumbered paragraph, declares: "Not-
withstanding the remaining issues and claims in the case,"
the court finds it appropriate to render a limited judgment.
That juxtaposition, too, reflects that, although there are
other remaining issues and claims in the case, the claims dis-
cussed in the previously enumerated paragraphs, including
the negligence counterclaim, are not among them.

Finally, and significantly, the document is titled
"limited judgment." Both legally and as a practical matter, it
is a document in which a trial court, by signing it, reflected its
intent to conclusively resolve some but not all of the claims in
a particular action. We believe that, in general, the signifi-
cance of signing such a document is not lost on trial court
judges. But that is especially so in a case such as this one,
where both parties submitted forms of "limited judgment" to
the trial court, and the trial court, rather than sign either
proposed judgment, took up the task itself and drafted its
own limited judgment. The document's distinctive title, when
combined with the express terms on which the negligence

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claim was disposed, followed by the reference to the "remain-
ing issues and claims in the case," leave us with no doubt that
the limited judgment document reflected the trial court's
"concluding decision" on the negligence counterclaim, as well
as the breach-of-contract counterclaim and the lien fore-
closure claim.16

Because the limited judgment finally resolved all
three of the claims that it addressed, and because defendant
did not timely appeal the limited judgment, the Court of
Appeals should have granted plaintiff's motion to dismiss the
appeal as to those claims. The Court of Appeals did dismiss
the appeal of the lien foreclosure claim and the breach-of-
contract counterclaim, and we affirm those parts of its deci-
sion. The Court of Appeals erred, however, when it concluded
that the limited judgment did not conclusively decide the
negligence claim. To that extent, we reverse its decision
denying plaintiff's motion to dismiss. We remand to the
Court of Appeals with instructions to dismiss the appeal from
the limited judgment and for further proceedings as to any
remaining claims properly before the court.17

In summary: For the reasons that we have
explained, neither ORCP 67 B nor ORS 18.052(1) requires
the record to reflect the trial court's determination that there
is no just reason for delay in rendering a limited judgment.
Also, a limited judgment is not rendered jurisdictionally
defective merely because the text omits the word "adjudged"
or other particular words of adjudication in resolving one or
more claims. In determining whether the trial court made a
concluding decision on one or more claims in an action, an

16 We acknowledge that the limited judgment precedes its discussion of the
three claims with confusing and inappropriate text-for example, describing con-
clusions of law as findings of fact. See Interstate I, 217 Or App at 418-19 (identifying
various problems). Yet when we consider the limited judgment as a whole-and in
light of its designation as a limited judgment-we cannot agree with the Court of
Appeals that the document leaves significant doubt that the trial court had ren-
dered a concluding decision on all three claims.

17 The Court of Appeals determined that the appeal could proceed from the
general judgment and the supplemental judgment, after giving the trial court leave
under ORS 19.270(4) to vacate and renter the supplemental judgment. Interstate I,
217 Or App at 427. Before this court, the parties have not raised any issue with
respect to that aspect of the Court of Appeals' disposition of the case.

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appellate court is limited to the terms of the limited judg-
ment document itself; it should not consult the record to
resolve uncertainty about the trial court's subjective intent
regarding the disposition of claims. Finally, the limited judg-
ment at issue in this case contained a concluding decision on
all three of the claims that it addressed.

The decision of the Court of Appeals is affirmed in
part and reversed in part, and the case is remanded to the
Court of Appeals for further proceedings.