S057609, Opinion — McCollum v. Kmart Corporation

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On petition for review filed July 20, 2009,* petition for review allowed; decision of
Court of Appeals vacated; circuit court order granting plaintiff's motion for new
trial vacated, with instructions to reinstate judgment February 19, 2010
Ruth McCOLLUM,
Petitioner on Review,
U.
KMART CORPORATION,
a Michigan Corporation doing business in Oregon,
Respondent on Review.
(CC0506-06750; CA A134457; SC S057609)
226 P3d 703

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CJS, New Trial § 280.

# En Banc

Kathryn H. Clarke, Portland, filed the briefs for petitioner
on review. With her on the briefs was Dylan R. Lawrence,
Sam Hochberg & Associates.

Michael T. Garone, Heidi L. Mandt, and Amanda T.
Gamblin, Schwabe, Williamson & Wyatt, PC, Portland, filed
the response and supplemental briefs for respondent on
review.

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LINDER, J.

The petition for review is allowed. The decision of the
Court of Appeals is vacated. The circuit court order granting
plaintiff's motion for new trial is vacated, with instructions to
reinstate the judgment.

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This is a personal injury case in which defendant
appealed an order granting plaintiff a new trial. The Court of
Appeals determined that the trial court's stated grounds for
ordering a new trial, as well as certain alternative grounds
urged by plaintiff to support the order, were not adequate
bases for that relief. McCollum v. Kmart Corporation, 228 Or
App 101, 207 P3d 1200 (2009) (McCollum II). The Court of
Appeals therefore reversed the trial court's order and
remanded with instructions to reinstate the judgment for
defendant. Id. at 123.

Plaintiff has filed a petition for review of the Court of
Appeals decision, arguing that the Court of Appeals decision
should be reversed and the case should be remanded to the
trial court for a new trial. As part of our consideration of
plaintiff's petition, it is necessary to determine whether the
trial court timely ordered a new trial; if it did not, the merits
of that order were not properly before the Court of Appeals
and would not properly be before this court. As we shall
explain, we conclude that the trial court's order was not
timely. We therefore allow the petition for review, vacate the
Court of Appeals decision, vacate the order granting a new
trial, and remand the case to the trial court with instructions
to reinstate the judgment.

The pertinent facts are procedural. Plaintiff's per-
sonal injury action against defendant was tried to a jury,
which returned a verdict for defendant. On October 13, 2006,
the trial court entered judgment for defendant, after which
plaintiff timely moved for a new trial. On November 17, 2006,
the court held a hearing on the motion. At the conclusion of
the hearing, the court took the matter under advisement. On
December 4, 2006, the trial court signed and filed an order
granting plaintiff's motion for new trial. On that same date,
the trial court also signed and filed a letter opinion addressed
to counsel for the parties in which the court explained the
basis for its decision. On the second and last page of the letter
opinion, the letter stated: "Enclosed is a conformed copy of
the Court's Order Allowing New Trial." The letter also had
the notation "enclosure" in a footer on the last page.

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The trial court administrator entered the letter opin-
ion into the registry (OJIN1) on December 6, 2006, which was
54 days after the entry of judgment. Significantly, the trial
court administrator did not enter the order granting the new
trial on that same date. Instead, that order was entered on
December 11, 2006, which was 59 days after entry of that
judgment. On January 5, 2007, defendant filed a notice of
appeal from the order granting a new trial. Plaintiff neither
appealed nor cross-appealed.

Approximately one month later, the Court of
Appeals dismissed the appeal and issued an appellate judg-
ment. In the order of dismissal, the court noted that the
motion for new trial was deemed denied as a matter of law on
December 8, 2006 (which was three days before the order
granting the new trial was entered in the register).2 Conse-
quently, the Court of Appeals vacated the order allowing a
new trial and dismissed the appeal. Plaintiff filed a petition
for reconsideration. The Court of Appeals granted the peti-
tion and, in a written decision, concluded that the order
granting a new trial was timely entered-that is, within
55 days of the date of judgment-because the trial court's let-
ter opinion "effectively incorporated the order" and therefore
"itself constituted an order granting the motion for a new
trial." McCollum v. Kmart Corp., 214 Or App 367, 370, 165
P3d 372 (2007) (McCollum I).

Following that threshold decision, the parties fully
briefed and argued the case. As noted, on the merits, the
Court of Appeals concluded that the trial court had lacked
adequate grounds to grant a new trial, and that the order
therefore should be reversed and remanded and the

1 "OJIN" refers to the Oregon Judicial Information Network, which serves as
the official register for the courts. See ORS 7.010 (records of circuit and appellate
courts to include register); ORS 7.020 (register to reflect, among other information,
date of filing and entry of any order); ORS 7.095 (Chief Justice authorized to keep
records through use of electronic data processing equipment).

2 As we later discuss, under ORCP 64 F(1), a motion for new trial is conclu-
sively deemed denied if not "heard and determined" within 55 days of the date of
judgment. The denial therefore occurs on the fifty-sixth day, which the Court of
Appeals correctly calculated to be December 8, 2006, in this case. See Propp v.
Long, 313 Or 218, 226, 831 P2d 685 (1992) (motion for new trial is deemed denied
on the fifty-sixth day following entry of judgment, if not effectively resolved by
order before that date).

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judgment reinstated. McCollum II, 228 Or App at 123. Plain-
tiff petitioned for review. As part of our consideration of that
petition, we sent a letter to the parties inviting them to
submit further briefing on whether the trial court had
timely granted plaintiff's motion for a new trial. We now con-
clude that that issue is dispositive of the case. We therefore
turn to it.

The principles that bear on the timeliness of the trial
court's order in this case are well-settled. A party's right to
seek a new trial following entry of judgment is created and
controlled by statute. Nendel v. Meyers, 162 Or 661, 663, 94
P2d 680 (1939) (litigant's right to move for a new trial arises
only by statute; legislature may prescribe procedure for hear-
ing and determination of such motions). Although variously
codified, the pertinent statute has remained unchanged for
at least 85 years.3 It is now codified in ORCP 64 F(1), which
provides, in part:

"The motion [for new trial] shall be heard and determined
by the court within 55 days from the time of the entry of the
judgment, and not thereafter, and if not so heard and deter-
mined within said time, the motion shall conclusively be
deemed denied."

The requirements of the statute are mandatory: If a trial
court fails to "hear and determine[ ]" the motion within the
55-day period, any subsequent order granting the motion is
"null and void." Nendel, 162 Or at 663. Instead, the motion is
"conclusively deemed to have been denied." Id. After that
time, the trial court has "no jurisdiction over the matter." Id .;
see also Clark v. Auto Wholesale Co. Inc., 237 Or 446, 449, 391
P2d 754 (1964) (untimely motion under the statute is "void");
Ernst v. Logan Oldsmobile Co., 208 Or 449, 451, 302 P2d 220
(1956) (trial court loses jurisdiction once motion is conclu-
sively deemed denied).

3 In one of the earliest reported cases discussing a statutory predecessor to
ORCP 64 F, this court traced what remains essentially the current form of the stat-
ute to "Section 2-803, Oregon Code 1930, as amended by chapter 233, Laws of
Oregon for 1933 (§ 2-803, Oregon Code Supplement 1935)." Nendel, 162 Or at 663
(citing and quoting statute). As set out in Nendel, that predecessor statute was sub-
stantively identical to the pertinent text of ORCP 64 F.

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Over the years, frequent issues have arisen over
what it means for a motion for new trial to be "determined."
Consistently, this court has held that a trial court "deter-
mines" a motion for new trial when the trial court makes an
"effective order" resolving it. See Ryerse v. Haddock, 337 Or
273, 279, 95 P3d 1120 (2004) (so holding, and discussing prior
cases so holding). To determine when an order is "effective,"
the court has looked to ORS 3.070. Until amended in 1991,
that statute provided that orders, if not signed in open court,
"shall become effective from the date of filing." ORS 3.070
(1989); see Ryerse, 337 Or at 280 (quoting statute). As
amended in 1991, however, and as the statute continues to
provide, orders, if not signed in open court, "shall become
effective from date of entry in the register." ORS 3.070
(1991).4 Thus, since 1991, the legislative policy has been that,
for an order not signed in open court, it is not enough for the
trial court to file such an order with the clerk with the intent
that it be effective; instead, the order must be formally
entered into the register of the court.5

In Ryerse, this court examined at length the effect of
that amendment on ORCP 64 F. This court concluded, based
on the text of ORS 3.070, that the legislature clearly intended
to make "entry in the register," not "filing," the effective date
for orders not signed in open court. 337 Or at 281. The court
further concluded that the legislature amended ORS 3.070
"with knowledge of the implications that a change to that
statute would have on the operation of ORCP 64." Id. at 280-
81. Consequently, this court held in Ryerse that an order
granting a new trial, to be effective, must be entered in the
register within the 55-day period specified within ORCP 64;

4 The pre-1991 version of ORS 3.070 was consistent with the general rule that
this court followed-that is, that filing was a sufficient act to make an order effec-
tive, unless a statute specified that entry in the register was required. See, e.g.,
Robinson v. Phegley, 93 Or 299, 301, 177 P 942 (1919) (so observing). The 1991
amendments to ORS 3.070 essentially changed the general rule for orders not
signed in open court.

5 Older cases sometimes used the terms "filing" and "entry" inexactly and
interchangeably. See Charco, Inc. v. Cohn, 242 Or 566, 569-70, 411 P2d 264 (1966)
(discussing inexact use of the terms and resulting confusion). In more recent cases,
we have attempted to use them with greater care and precision, and we do so here:
"filing" occurs when a document has been given to a clerk with the intention that it
be filed; "entry" refers to formal recording of a document into the court's register.
See Ryerse, 337 Or at 276-77 (so explaining and using those terms).

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otherwise, it is "deemed denied by operation of law." Id. at
281.

The other issue that has arisen with some frequency
is what form of document will constitute an "order." More
specifically, the question has been whether a memorandum
(or letter) opinion constitutes an order. This court's answer
has been: it does not. Ernst, 208 Or at 451. In Ernst, we rea-
soned that, in general, an opinion (written or oral) is not the
equivalent of an order. Id. (citing cases). Moreover, an appeal
can be taken only from a "final appealable order," not from an
"opinion." Id.

Those settled principles resolve this case. Here, the
trial court's letter opinion, although filed with the clerk and
entered in the register within the 55-day period, was not an
"order." It thus was not "determined" within the meaning of
ORCP 64 F(1). And, although the trial court had signed and
filed the requisite written order within the 55-day period,
that order was not entered in the register within 55 days.
Instead, it was entered into the register 59 days after entry of
judgment, on December 11, 2006. By then, plaintiff's motion
for new trial had been conclusively denied as a matter of law.
The trial court had no power to alter that disposition of the
motion.

In reaching a contrary conclusion, the Court of
Appeals recognized the basic principles we have outlined. See
McCollum I, 214 Or App at 369-70 (citing authorities). The
Court of Appeals nevertheless concluded that the letter opin-
ion in this case was exceptional, and constituted an order.
The court reasoned:

"In this case, the trial court included a copy of its writ-
ten order with the letter opinion that it sent to the parties
and filed with the clerk. The letter opinion expressly
referred to the order. By that reference, the letter opinion
effectively incorporated the order and, thus, itself consti-
tuted an order granting the motion for a new trial. The let-
ter was entered in the register on December 6, 2006. Con-
sequently, entry of the letter opinion was sufficient to
determine the motion within 55 days as required by ORCP
64 F."

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Id. at 370 (footnote omitted). We disagree, both factually and
legally, with that conclusion.

Factually, the letter opinion did not "incorporate"
the order or otherwise purport to be the order. To the con-
trary, the letter opinion expressly declared that enclosed
with it was a document entitled "Court's Order Allowing New
Trial." It thus referenced a separate and independent docu-
ment that constituted the trial court's order. That is exactly
what the case law for many years has suggested must occur:
a letter or memorandum opinion that is made effective by a
signed and filed (pre-1991) or entered (post-1991) order.
The form of this letter opinion and the separate order that
apparently accompanied it seem, if anything, distinctly
unexceptional.6

Neither is the letter opinion legally exceptional in its
form. Legally, a letter opinion itself does not become effective
until it is reduced to an order. This court so held in Beardsley
v. Hill, 219 Or 440, 442, 348 P2d 58 (1959), despite the fact
that the letter opinion in that case concluded by stating: "The
verdict and judgment rendered are hereby set aside, and
plaintiff's motion for a new trial is granted." That wording
was far more "order-like" than anything in the letter opinion
in this case, but this court was unwilling to dispense with the
requirement of an actual order. The court explained why a
memorandum or letter opinion is not an order:

"The cases cited hold, and we consider it to be an important
rule of orderly practice, that a memorandum opinion of the
trial court does not become effective until it is reduced to a
proper order, judgment or decree and entered in the records
of the case in the office of the clerk. Anything less than a
rigid adherence to such a rule gives rise to uncertainty; it
would then be impossible to determine what is an order and

6 The record is silent as to when the parties received the letter opinion and
whether the separate order actually accompanied it. In the physical trial court file,
the letter opinion was placed in the file, without the order. That is, the order was
not physically attached to the letter opinion, nor does it appear in the file immedi-
ately before or after the letter opinion. Instead, a lengthy document is interposed
between the letter opinion and the order. It, too, bears a file date of December 4,
2006, but was not entered until December 11, 2006. The order granting a new trial
is the next document in the file, and was entered, as we have noted, on December 11,
2006. Per its placement in the court's physical file, then, the order comes later than
the letter opinion and is separated from the letter opinion by a number of pages.

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what a mere opinion and upon what date did it become
effective."

Id.7

The requirement of an actual order is not just a mat-
ter of certainty and sound practice. As Ernst recognized,
finalizing the resolution of a motion granting a new trial with
an order also comports with the statutory requirement that
an appeal be from an order granting a new trial, not some
less formal and less final determination in the movant's
favor. See Ernst, 208 Or at 451 (appeal must be taken from
final order, not from an opinion). The statutes, in those
respects, are unchanged in their essential terms: ORS
19.205(3) authorizes an appeal from "an order granting a
new trial," and ORS 19.255(2)(a) requires the appeal to be
filed within 30 days after an "order" disposing of a motion for
new trial is "entered in the register."

For those reasons, we disagree with the Court of
Appeals that the letter opinion was an order. It was, instead,
a letter opinion. To be sure, it was accompanied by and pre-
pared in tandem with a signed order. But that fact reinforces
our conclusion that the two were not one and the same; they
were, instead, two distinct and different documents-a letter
opinion explaining the court's decision and an order granting
plaintiff a new trial.

Plaintiff makes two alternative arguments in sup-
port of the Court of Appeals' disposition. First, plaintiff urges
that this court's decision in Ryerse was flawed and that this

7 The legislature has added certainty to the process by requiring, through the
1991 amendment to ORS 3.070, that an order not signed in open court be entered
in the register to become effective. Entering an order in the register, unlike merely
tendering it to the clerk, provides public notice of the court's disposition and makes
that disposition a matter of record. This case illustrates the importance of an entry
of the order in the register. Here, the letter opinion was entered in the register as
"Letter from Jud[g]e Richard C Baldwin re [plaintiff's] motion for new trial." The
trial court administrator did not regard the letter as an order, and the entry for the
letter made no notation as to whether or how the motion for new trial was resolved.
The entry for the order, on the other hand, expressly declares that it is an "Order"
and follows that with "[plaintiff's] motion for new trial GRANTED." Thus, a person
or party examining the register would be unable to determine, from the entry
regarding the letter, anything about the resolution of the motion. The entry of the
order, however, provides clear and unequivocal information about when and how
the motion was resolved.

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court should take a more flexible approach, one that would
have the effectiveness of an order turn on the intent and con-
duct of the judge, not on a clerk's performance of the minis-
terial act of entry into the register. This court in Ryerse con-
sidered many of the same arguments, both legal and
practical, that plaintiff makes here. Plaintiff has not demon-
strated to us that our decision in Ryerse was in error, and we
do not believe that it was. Beyond that, if the legisla-
ture determines that the practical and policy points that
plaintiff makes are well taken, it may change the statutes
accordingly.

Second, plaintiff proposes that the appropriate rem-
edy here should be to permit the trial court to make a nunc
pro tunc order, apparently one that would make the order
effective as of the date of entry of the letter opinion. We need
not explore the parameters of a court's general authority to
render orders and other documents nunc pro tunc.8 For our
purposes here, it suffices to point out that the terms of ORCP
64 F(1) foreclose plaintiff's argument. The rule declares that
a motion for new trial "shall be heard and determined by the
court within 55 days from the time of the entry of the judg-
ment" and then, as if to emphasize the point again, the rule
adds "and not thereafter[.]" If the trial court fails to deter-
mine the motion as the rule requires-viz., by entering an
order in the register within the prescribed time-a legal con-
sequence flows from that failure: the motion is conclusively
deemed denied. The trial court is thereafter "deprived of
power to act by operation of ORCP 64 F." Propp v. Long, 313
Or 218, 226, 831 P2d 685 (1992). Thus, a nunc pro tunc order
that would purport to enter an order in the register, when it
in fact was not so entered, cannot alter the legal consequence
that attaches to that omission. To conclude otherwise would
defeat the essential terms of the statute.

The Court of Appeals therefore erred in concluding
that the motion for new trial was determined, within the

8 Literally translated, the phrase "nunc pro tunc" means "now for then."
Black's Law Dictionary 1174 (9th ed 2009). This court has described the function of
a nunc pro tunc order as "to supply an omission in the record of action actually
taken but omitted from the record." Gillespie v. Kononen, 310 Or 272, 276 n 7, 797
P2d 361 (1990).

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meaning of ORCP 64 F(1), when the trial court's letter opin-
ion was entered in the register. Because the trial court's
order granting the new trial was entered in the register
beyond the 55-day period that the rule allows, the trial court
did not timely determine the motion, and the motion there-
fore was conclusively denied by operation of law. We cannot,
and the Court of Appeals could not, reach the merits of the
trial court's order granting plaintiff a new trial.9

The petition for review is allowed. The decision of
the Court of Appeals is vacated. The circuit court order grant-
ing plaintiff's motion for new trial is vacated, with instruc-
tions to reinstate the judgment.

9 In its initial order, the Court of Appeals both vacated the order granting a
new trial and dismissed the appeal. However, the notice of appeal was filed timely,
and the Court of Appeals at the least had jurisdiction to determine whether the
trial court timely heard and determined the motion for new trial. Because the
motion was deemed denied as a matter of law, the proper remedy was to vacate the
trial court's order, not also to dismiss the appeal.