S055558, Opinion — State v. Ainsworth

524
Argued and submitted June 4, 2008, order of Court of Appeals reversed, and case
remanded to Court of Appeals for further proceedings July 23, 2009
STATE OF OREGON,
Petitioner,
v.
William AINSWORTH,
Respondent.
STATE OF OREGON,
Respondent on Review,
v.
Jan M. AINSWORTH,
nka Jan M. Conners,
Petitioner on Review.
(CC 90DM0110; CA A130354; SC S055558)
213 P3d 1225

Cite as 346 Or 524 	525
En Banc
On review from the Court of Appeals.*
Steven H. Gorham, Salem, argued the cause and filed the
brief for petitioner on review Jan M. Conners.
Erika L. Hadlock, Assistant Solicitor General, argued the
cause for respondent on review. With her on the brief were
Hardy Myers, Attorney General, and Mary H. Williams,
Solicitor General.
LINDER,J.
The order of the Court of Appeals is reversed, and the case
is remanded to the Court of Appeals for further proceedings.
Durham, J., specially concurred and filed an opinion, in
which De Muniz, C. J., and Gillette, J., joined.
* Appeal from order of dismissal dated November 15, 2007. Coos
County Circuit Court, Richard L. Barron, Judge.

526
LINDER,J.
This case arises from an attempt by petitioner on
review (mother) to appeal a trial court judgment finding her
in contempt of court for failure to pay child support. Mother
failed to timely appeal the original judgment finding her in
contempt. Mother thereafter moved for entry of an amended
judgment, relying on an affidavit from her attorney explain-
ing why he did not discover that the original judgment had
been entered until after the time to appeal had expired. The
trial court granted the motion, and mother, within 30 days of
the entry of the amended judgment, filed a notice of appeal.
Citing Far West Landscaping v. Modern Merchandising, 287
Or 653, 601 P2d 1237 (1979), the Court of Appeals concluded
that the trial court did not have authority to enter the
amended judgment and issued an order dismissing mother's
appeal for lack of jurisdiction.
We allowed mother's petition for review. On review,
the parties renew the arguments they made to the Court of
Appeals, which center on whether this court's holding in Far
West remains correct in light of subsequent changes to the
Oregon Rules of Civil Procedure (ORCPs). As we will explain,
those legislative changes do not provide a basis for departing
from the holding in Far West. However, as we also will
explain, we further conclude, for an alternative reason, that
the trial court had authority to amend its judgment under
the circumstances presented to it. We therefore reverse the
order of the Court of Appeals and remand to that court for
further proceedings.
The pertinent facts are procedural. Between 2002
and 2004, a series of administrative orders required mother
to pay varying amounts of child support to her former hus-
band. When mother failed to make some of the required pay-
ments, the state filed a motion seeking remedial contempt
sanctions for mother's nonpayment of support. 1 After an
extended hearing on the motion, the trial court found mother
1 The state, pursuant to the procedures contained in various provisions set out
in ORS chapter 25, commenced the contempt proceeding under ORS 33.055 to
enforce the child support award.

Cite as 346 Or 524 	527
in contempt, ordered mother to pay the monthly child sup-
port as scheduled, and further ordered mother to pay an addi-
tional 20 percent of the monthly support amount (specified as
$51 per month) to repay the arrearage that mother owed. On
August 25, 2005, the trial court signed a judgment memori-
alizing that decision. The judgment was entered in the reg-
ister on that same date.
Mother 	did 	not 	appeal 	that 	judgment 	within
30 days, as required by ORS 19.255(1). Nevertheless, a few
days after the time to appeal expired, mother's counsel in the
contempt proceeding filed a motion asking the trial court to
appoint appellate counsel for her. In support of that motion,
counsel attached his affidavit explaining why he did not
know, until after the time to appeal had expired, that the con-
tempt judgment had been prepared, signed, and entered. In
substance, trial counsel averred that:
• 	after the court announced its decision on August 19,
2005, the state was directed to prepare the judgment for
the trial court;
• 	counsel's office waited for its service copy of the judg-
ment, knowing that mother wanted to appeal;
• 	counsel's office never received a service copy of the judg-
ment that the state had prepared;
• 	mother called counsel on September 26, 2005, to ask
about the status of the appeal, which caused counsel to
consult 	the 	Oregon 	Judicial 	Information 	Network
(OJIN) about the status of the case;
• 	OJIN indicated that the judgment had been entered on
August 25, 2005;
• 	OJIN indicated that the clerk had sent copies of the judg-
ment to father, to the state, and to an attorney who pre-
viously had represented mother in connection with her
support obligation, but not to the attorney who repre-
sented mother in the contempt matter;
• 	OJIN did not reflect that mother's counsel was given a
copy of the judgment at the hearing on August 19, 2005,
and counsel in fact did not receive a copy of the judgment
at that hearing.

528 	State v. Ainsworth
The trial court granted the motion and appointed
appellate counsel for mother. Appellate counsel then filed a
further motion asking the trial court to enter an amended
contempt judgment based on "the notice irregularities that
took place in this matter." In support of that motion, appel-
late counsel relied on the affidavit that mother's trial counsel
previously had submitted to the trial court, with the aver-
ments described above. The state did not oppose mother's
motion; rather, as the state now describes it, the state "acqui-
esced" in entry of an amended judgment. No hearing was
held on the matter, and the trial court signed an amended
judgment on October 12, 2005, nunc pro tune August 25,
2005, which was identical in substance to the original judg-
ment. The amended judgment was entered in the register on
October 13, 2005, and mother filed a timely notice of appeal
from that judgment.
After mother filed her opening brief, the state moved
to dismiss the appeal for lack of jurisdiction. The state argued
that the trial court had amended the judgment solely to give
mother additional time to file her appeal, which the trial
court had no authority to do under this court's decision in Far
West. Mother, in response, urged that Far West was either
wrongly decided or not controlling. As noted, the Court of
Appeals agreed with the state and dismissed the appeal by
order; this court then allowed mother's petition for review.
On review, the parties' arguments largely reprise
those that they made to the Court of Appeals. Central to their
positions are their competing views of the continuing validity
of this court's decision in Far West, which addressed a trial
court's authority to vacate and reenter a judgment to revive
the party's right to appeal. We therefore begin our analysis
by examining that decision.
In Far West, after the plaintiff prevailed in an action
for the reasonable value of landscaping work, counsel for the
defendant contacted the trial court judge to ask if the judg-
ment had been signed. The trial judge told counsel that he
had not signed the judgment and further agreed not to do so
until a specified later date as an accommodation to the defen-
dant's counsel, who was to be out of town for a while and who
anticipated that her client would want to appeal. The trial

Cite as 346 Or 524 	529
judge, however, was mistaken about the status of the judg-
ment. In fact, the trial judge already had signed it. In addi-
tion, the clerk had entered the judgment in the register. The
court clerk, however, had not sent counsel a copy of the
signed judgment and notice of the date of its entry. Relying
on the trial judge's mistaken representation that he had not
signed the judgment, defense counsel did not personally
check the court register and therefore did not discover, until
after the time to appeal had expired, that the judgment had
been entered. On the defendant's motion, the trial court set
aside the judgment and entered a second identical judgment,
from which the defendant then attempted to appeal. The
plaintiff moved to dismiss the appeal on the ground that the
trial court had no authority to set aside the judgment and to
enter a second identical one, and that the appeal was there-
fore untimely. The Court of Appeals agreed and, by order,
dismissed the appeal. 287 Or at 655.
On review, this court affirmed. In doing so, this court
rejected three arguments that the defendant advanced in
support of the trial court's authority to vacate the original
judgment and to enter the subsequent identical one.
First, the court considered the trial court's authority
under former ORS 18.160 (1979), the predecessor to ORCP
71 B, to relieve a party from a judgment based on the party's
"mistake, inadvertence, surprise or excusable neglect." 2 The
court cited a settled line of prior cases, tracing back to the late
1800s and early 1900s, interpreting the substantially identi-
cal predecessor statute that had been in place since state-
hood. 3 In those prior cases, the losing party had failed to file a
2 In full,former ORS 18.160 (1979) provided:
"The court may, in its discretion, and upon such terms as may be just, at
any time within one year after notice thereof, relieve a party from a judgment,
decree, order or other proceeding taken against him through his mistake, inad·
vertence, surprise or excusable neglect."
That statute was repealed in 1981, see Or Laws 1981, ch 898, § 53, and, in the same
enactment, was replaced by ORCP 71, the pertinent parts of which we quote and
discuss in more detail later in this opinion, see Or Laws 1981, ch 898, § 1 (adopting
additional Oregon Rules of Civil Procedure, promulgated by the Council on Court
Procedures). For ease ofreference, throughout this opinion, we refer to the former
version of the statute simply as ORS 18.160.
The statute authorizing a trial court to give relief from judgment based on
"mistake, inadvertence, surprise or excusable neglect" was first codified in the

State v. Ainsworth
timely appeal after relying on a trial court's or clerk's incor-
rect advice that no judgment had been entered, rather than
checking the record personally. Western Land, etc. Co. v.
Humfeld, 118 Or 416, 419, 247 P 143 (1926); Haas v. Scott
et al., 115 Or 580, 585, 239 P 202 (1925); Tongue v. Brewster,
35 Or 228, 228-29, 58 P 38 (1899). In each case, this court
held that the statute did not authorize the trial court to
vacate a judgment and to enter a 	subsequent identical
judgment solely to give the party a new time period in which
to bring an appeal. Far West, 287 Or at 656-57 (discussing
Western Land, etc. Co., 118 Or at419-20;Haas, 115 Orat589;
Tongue, 35 Or at 229-30).
In Far West, quoting and paraphrasing key passages
from those prior cases, this court identified three independ-
ent, but related, rationales for that limitation on the trial
court's authority under ORS 18.160. 287 Or at 656-60. As the
court had explained in Tongue, by providing authority to
relieve a party from judgment, the statute was aimed at giv-
ing the moving party an opportunity to be "let in to defend
upon the merits," not an opportunity to pursue an appeal of a
properly entered judgment after the time for doing so had
expired. 35 Or at 229-30; accord Haas, 115 Or at 589. The
court in Tongue also concluded that, for a party to rely on the
mistaken advice of a trial judge or court clerk, when the party
"could easily have consulted the record, and ascertained
therefrom the true condition of the case," was not "excusable
neglect" or other justification under the statute for relieffrom
the original judgment. 35 Or at 229; accord Haas, 115 Or at
588-89. Finally, in Western Land, etc. Co., the court explicitly
reasoned that, to permit an original judgment to be vacated
and reentered solely so that an appeal could be pursued,
would be "tantamount to nullifying the statute fixing the
time in which appeals may be taken." 118 Or at 420. After
setting out those rationales from the prior cases, this court in
Far West added one more: that the judgment in Far West had
been signed and entered several days before the trial court
mistakenly advised the defendant to the contrary; thus, the
judgment was not taken "through" mistake or inadvertence,
Deady Code. General Laws of Oregon. Civ Code, ch I, title XII,§ 100, p 163 (Deady
1845-1864).

Cite as 346 Or 524 (2009) 	531
as the statute by its terms required, and instead was entered
before the mistake occurred. 287 Or at 657.
After concluding that ORS 18.160 did not authorize
the trial court's action, the court in Far West next considered
whether the trial court had inherent authority to enter the
subsequent judgment. The court recognized that, ordinarily,
a trial court has inherent authority within a reasonable time
to vacate a judgment and modify it to rectify its own mistake.
Id. at 658. Under the particular circumstances involved, how-
ever, the trial court's doing so had the effect of "lengthening
the statutory time for appeal" beyond the time prescribed by
former ORS 19.026 (1979). Id. The trial court's action thus
directly contradicted the statutory declaration informer ORS
19.033(2) (1979) that timely filing of an appeal "is jurisdic-
tional and may not be waived or extended." Id. at 658-59. By
way of a footnote, the court in Far West further observed that
the long-standing rule appeared to be that a trial court has no
authority, after expiration of the time for appeal, to enter the
same judgment a second time so that an appeal may be taken
therefrom. Id. at 659 n 1 (citing Clarkson v. Wong, 150 Or
406, 413, 42 P2d 763, 45 P2d 914 (1935)). The court therefore
held that a trial court has no inherent authority to set aside
one judgment and enter another when the court does so "for
the sole purpose of extending the time for appeal." Far West,
287 Or at 659 (emphasis in original).
Finally, 	the 	court 	in Far 	West 	considered 	and
rejected the defendant's reliance on the clerk's failure to mail
a copy of the judgment and notice of the date of entry, as sta-
tutorily required. 4 Again, the court relied on the unqualified
declaration in former ORS 19.033(2) (1979) that timely filing
'Former ORS 18.030 (1979) required the clerk, on the date that judgment is
entered, to "mail a copy of the judgment and notice of the date of entry of the judg-
ment to each party who is not in default for failure to appear." The clerk also was
required to "make a note in the docket of the mailing." Id. That statute was
repealed and replaced with former ORCP 70 B (1981), which required the clerk to
mail notice of entry of judgment to the parties and note that mailing in the register.
Or Laws 1981, ch 989, §§ 1, 53. Former ORCP 70 B (1981) did not, however, require
the clerk to send the parties copies of the judgment itself. ORCP 70 B since has
been repealed as well, and replaced by ORS 18.078. Or Laws 2003, ch 576, § 580.
That statute substitutes the term "court administrator" for "court clerk," but other-
wise retains the requirement for mailing notice of the entry of judgment to the par-
ties and for noting that mailing in the register.

532 	State v. Ainsworth
of a notice of appeal could not be waived or extended. Id. at
660. The court was unwilling to hold that "the legal effect of
the judgment, for purposes of appeal," could be "impaired by
the clerk's failure to comply with an administrative duty" in
the absence of an express statutory provision "clearly indi-
cat[ing]" that the legislature so intended. Id.
The issue framed by the parties in this case is
whether, since this court's decision in Far West, the legisla-
ture has changed the statutory scheme to provide a trial
court with the authority to amend a judgment under the par-
ticular circumstances involved in that case. In that regard,
mother points out that, after Far West was decided, the leg-
islature enacted ORCP 71. 5 In part, mother relies on ORCP
71 C, which provides:
"This rule does not limit the inherent power of a court to
modify a judgment within a reasonable time, or the power
of a court to entertain an independent action to relieve a
party from a judgment, or the power of a court to grant
relief to a defendant under Rule 7 D{6)(D, or the power of a
court to set aside a judgment for fraud upon the court."
Mother argues that, pursuant to that provision, the trial
court had inherent authority in this case to vacate the origi-
nal contempt judgment and to reenter it, as long as the court
did so within a reasonable time. 6
For two reasons, we disagree. First, the express
terms of ORCP 71 C refer to the trial court's inherent power
"to modify" a judgment. Here, the trial court did not modify
the terms of the judgment in any way-rather, it subse-
quently entered a judgment that was identical in substance
to the original one. Second, even if the trial court's reentry of
the identical judgment could qualify as a "modification" of the
judgment, ORCP 71 C is a reservation of inherent trial court
authority, not a source of inherent authority. That provision
5 See Or Laws 1981, ch 898, § 1 (adopting the Oregon Rules of Civil Procedure,
promulgated by the Council on Court Procedures).
6 Mother also argues that Far West was wrong in concluding that, when a clerk
has failed to provide the statutorily required notice of entry of judgment, a trial
court has no inherent authority to vacate a judgment and enter a subsequent iden-
tical one to preserve the losing party's right of appeal. See Far West, 287 Or at 658-
59. Mother urges us to overrule Far West in that respect. We decline to do so.

Cite as 346 Or 524 (2009) 	533
thus preserves whatever inherent authority a trial court had
before the enactment of ORCP 71 C, but it does not add to
that authority. Far West adhered to the rule that a trial court
has no inherent authority to vacate a properly entered judg-
ment and then reinstate the identical judgment, when the
sole purpose for doing so is to extend the statutorily fixed
time to appeal for a party who failed to check the record and
determine that judgment had been entered. ORCP 71 C does
not alter that holding.
Mother also relies on ORCP 71 B(l), which as rele-
vant to this case provides, in part:
"On motion and upon such terms as are just, the court may
relieve a party or such party's legal representative from a
judgment for the following reasons: (a) mistake, inadver-
tence, surprise, or excusable neglect[.]" 7
Mother argues that the clerk's failure to send her counsel the
statutorily required notice of entry of judgment is the kind of
mistake that the legislature intended to authorize a trial
court to remedy. Mother does not, however, point to anything
in the wording of ORCP 71 B to support her position. The
state, for its part, identifies several ways in which ORCP 71 B
differs textually from its predecessor, at least in some of its
terms. The state urges that, notwithstanding those differ-
ences, the statute is largely unchanged from ORS 18.160 and
that the holding in Far West remains sound. As we will
explain, we agree with the state.
A comparison of the text of ORS 18.160 with the text
of ORCP 71 B(l)(a) reveals one material way in which, as per-
tinent here, the statute has changed. 8 Under ORS 18.160, a
7 The rule continues by listing a range of other circumstances for which a trial
court is authorized to vacate a judgment, many of which were not encompassed in
predecessor statutes. None of those other circumstances, however, applies in this
case. We therefore address only ORCP 71 B(l)(a).
That is not to say that there are not other important differences between
ORCP 71 B and its predecessor. For example, ORCP 71 B(l) now permits a trial
court to relieve not only a party from a judgment, but also "such party's legal rep-
resentative." Also, in other paragraphs, the statute includes a much more exten-
sive list of grounds for relieving a party from judgment, such as newly discovered
evidence and fraud of an adverse party. ORCP 71 B(l)(b), (c). Those undoubtedly
are significant changes in the text of the statute; they just are not significant for
purposes of the issue in this case.

State v. Ainsworth
court could "relieve a party from a judgment* * *taken against
him through his mistake, inadvertence, surprise or inexcusable
neglect." (Emphases added.) ORCP 71 B, in contrast, permits a
trial court to relieve a party from judgment based on "mistake,
inadvertence, surprise, or excusable neglect," without regard to
who made the mistake (or other error) and without regard to
whether judgment was taken "through" that mistake (or other
error). Thus, to the extent that Far West relied on the timing of
the mistaken advice from the trial court and the clerk's failure
to send notice-i.e., that those events occurred after judgment
had been entered-ORCP 71 B(l)(a) by its terms does not fore-
close consideration of such a mistake.
But that was not the only underpinning of Far West
or the settled cases that Far West relied on. Insofar as the
other underpinnings are concerned, ORCP 71 B(l)(a) is
unchanged. In particular, ORCP 71 B(l) did not expand or
alter the available grounds for giving relief from a judgment
under paragraph (a). Those grounds continue to be "mistake,
inadvertence, surprise, or excusable neglect." Since at least
1899, this court has held that it is not excusable neglect, or
otherwise within those statutory grounds for relief, for a
party (or the party's attorney) to rely on advice that judgment
has not been entered, rather than check the record personally
at a time when doing so would reveal the true status of the
judgment. Tongue, 35 Or at 229. We would expect that, ifthe
legislature had intended to change the well-settled and long-
standing law on that point, the legislative history of ORCP 71
B(l)(a) likely would suggest as much. State v. Gaines, 346 Or
160, 171-72, 206P3d1042 (2009) (regardless of whether stat-
utory text is ambiguous, the court may consider pertinent
legislative history). It does not.9
" ORCP 71 was drafted by the Council on Court Procedures and adopted with-
out change by the legislature, In those circumstances, the intent of the Council
guides us in the interpretation of the rules of civil procedure. Waddill v, Anchor
Hocking, Inc,, 330 Or 376, 382 n 2, 8 P3d 200 (2000). ORCP 71 was one of many
rules promulgated by the Council during the 1979-81 biennium that were intended
to consolidate and codify in the Oregon Rules of Civil Procedure a host of statutory
civil procedure provisions that previously had been codified elsewhere.
The Council's comments pertaining to ORCP 71 span nine pages. See Oregon
Council on Court Procedures, 1 Oregon Rules of Civil Procedure and Amendments:
1979-1980 Biennium, 10115/79, Draft of Proposed Rules 67-74. Early in those com-
ments, the Council expressly noted that, in general, ORCP 71 "basically preserves"
the preexisting authority of trial courts to modify or vacate their judgments, noting

Cite as 346 Or 524
Finally, Far West also cited Western Land, etc. Co.,
118 Or at 420, for the rationale that it would be "amount to a
nullification of the statute fixing the time within which an
appeal could be taken" to permit an original judgment to be
vacated and reentered solely so that an otherwise untimely
appeal could be pursued. Far West, 287 Or at 657. The legis-
lature has not changed the statutory policies favoring the
finality of judgments or created an exception to those policies
that would apply here. Under ORS 19.255(1) (formerly ORS
19.026), a notice of appeal still must be filed within 30 days
after the judgment is entered in the register. Under ORS
19.270(2) (formerly ORS 19.033(2)), timely filing of the notice
of appeal remains jurisdictional and "may not be waived or
extended."
Indeed, related statutes enacted in 2003, after this
court decided Far West, emphasize the legal significance that
the legislature places on entry of the judgment in the register.
Under ORS 18.082(1)(d), entry of the judgment, not notice of
entry, "[a]cts as official notice of the court's decision[.]" Once
entered, the judgment "[m]ay be enforced in the manner pro-
vided by law[.]" ORS 18.082(1)(b). Also, once entered, the
judgment "[m]ay be appealed in the manner provided by
law[.]" ORS 18.082(1)(c). No similar legal significance attaches
to the clerk's notice of entry of the judgment. Finally, under
ORS 18.245(3), the clerk's failure to note in the register that
the judgment document was filed is ajurisdictional defect for
purposes of appeal; the clerk's failure to send the parties
notice of entry of judgment, however, is not. 10
that the "tension in this area is between a desire to achieve reasonable finality of
judgments and a desire to provide adequate remedies to correct injustice." Staff
Comments at 62. In the Council's view, the "existing range of available post judg-
ment remedies appears to be reasonably satisfactory and is retained." Id. After
that observation, the Council discussed ORCP 71 subsection by subsection, fre-
quently citing judicial decisions interpreting the various statutes that were
absorbed into ORCP 71, and noting whether ORCP 71 would adhere to or change
those precedents. Far West is not mentioned anywhere in the Council's comments;
neither was the well-settled principle that it reaffirmed. See Zacker v. North
Tillamook County Hospital Dist., 312 Or 330, 336, 822 P2d 1143 (1991) (court
would not imply legislative intent to overturn holding of particular case by amend-
ments to statute when legislative history lacked any reference to particular case
but did refer to other decisions of Supreme Court and Court of Appeals).
10 ORS 18.245 was enacted in 2005 and ordinarily would not have taken effect
in time to apply to the judgment in this case, which was entered in August 2005.
However, ORS 18.245 expressly applies to all judgments entered on or after
January 1, 2004. Or Laws 2005, ch 568, § 7.

536 	State v. Ainsworth
In short, nothing in the current statutory provisions
that apply to this case provides a basis to conclude that the
holding in Far West is no longer correct. The legal principle
for which that case stands is long-standing and has been
applied, both by this court and the Court of Appeals, in
numerous cases since Far West was decided.11 The legislature
is free to fashion a remedy for a party who misses the dead-
line for filing an appeal, in a situation where the clerk fails to
send that party notice of entry of judgment, and the party
fails personally to check the record to determine if judgment
had been entered. As yet, however, the legislature has not
done so. 12
We therefore adhere to the holding in Far West, 287
Or 653. In doing so, we emphasize that our holding is specific
to the factual circumstance that this case entails. Specifi-
cally, we address only the circumstance in which a party fails
to timely appeal a judgment--one that was neither entered
in error nor mistaken in its substance-because the party
relied on lack of notice or misadvice about entry of judgment,
instead of personally checking the record at a time when the
record would have revealed that judgment in fact had been
entered. 13 In that circumstance, a trial court is not authorized
ll Those cases include Young v. Peterson, 304 Or 421, 422, 746 P2d 217 (1987);
Farmers Ins. Group v. SAIF, 301Or612, 619, 724 P2d 799(1986); Columbia River
Television v. Multnomah Co., 299 Or 325, 329, 702 P2d 1065 (1985); U.S. National
Bank v. Heggemeier, 106 Or App 693, 697, 810 P2d 396 (1991); and Junction City
Water Control v. Elliott, 65 Or App 548, 552, 672 P2d 59 (1983).
The lack of any apparent legislative response to Far West stands in sharp
contrast to the other areas in which the legislature has made appellate require-
ments more lenient. See, e.g., ORS 138.071(5) (2007) (describing procedure and
requirements for obtaining delayed appeal outside the normal time limits in crim-
inal cases); ORS 138.650(2) (2007) (describing procedure and requirements
for obtaining delayed appeal outside the normal time limits for appeals in post-
conviction cases); and ORS 419A.200(5) (describing procedure and requirements
for obtaining delayed appeal outside the normal time limits for appeals in juvenile
cases). Indeed, ORS 138.071(5)(c) now includes a provision that, in a criminal case
only, allows for a delayed appeal up to 90 days after the "defendant receives notice
that the judgment has been entered." (Emphasis added.) No similar provision
exists for other categories of appeals.
The concurrence misperceives the scope of our holding. We do not decide
whether ORCP 7l BO) would authorize a trial court to grant relief from a judg-
ment if the trial court were to erroneously enter judgment-for example, if the trial
court or state mistakenly did so contrary to the trial court's express promise or rep-
resentation as to when judgment would be entered in the future. See 346 Or at 548-
49 (Durham, J., concurring). Those were not the facts presented in Far West and
they are not the facts before us in this case.

Cite as 346 Or 524 (2009) 	537
to vacate the original judgment and reenter an identical one
solely to trigger a new period in which the party may appeal
the judgment. ORCP 71 B(l)(a) contains no textual changes
that reflect a legislative determination to alter that long-
standing rule.
That conclusion does not end our analysis, however.
As we earlier described, in moving for an amended judgment
in the trial court, appellate counsel relied on the affidavit pre-
pared by mother's trial counsel, which explained why trial
counsel was not aware that the contempt judgment had been
entered until after the time to appeal had expired. One of the
reasons that trial counsel identified was the clerk's failure to
provide mother's attorney in the contempt case with notice
that the judgment had been entered. In the Court of Appeals,
the parties focused exclusively on that omission on the clerk's
part, and their arguments centered, as they have centered in
this court, on whether Far West required dismissal. We agree
with the Court of Appeals that, insofar as the trial court
based its amendment of the judgment on the clerk's failure to
send notice of entry of judgment to mother's counsel, the trial
court's action was unauthorized. 14
The affidavit prepared by mother's trial counsel,
however, was not limited to the clerk's omission. The affida-
vit also explained that the state was directed to prepare the
judgment, that counsel's office "waited for its service copy of
the judgment," knowing that mother wanted to appeal, and
that counsel's office never received a service copy of the judg-
ment. In addition, the affidavit represented that "the OJIN
entry does not show that a copy of the judgment was provided
to mother's counsel at the August 19, 2005, hearing'' and
counsel in fact did not receive a copy of the judgment at that
hearing.
Those averments establish a different and independ-
ent omission that mother appears to have relied on before the
trial court: that trial counsel was not given a service copy of
14 Mother makes various other arguments as to why Far West is wrongly
decided or why the trial court otherwise had authority to amend the judgment
based on the clerk's failure to send notice of entry of judgment to mother's counsel.
We conclude that none of those additional arguments has merit or requires
discussion.

538 	State v. Ainsworth
the proposed judgment prepared by the state, as required by
UTCR 5.lOO(l)(a). 15 The record provides no reason toques-
tion the accuracy of those averments. They are supported by
the judgment itself, which does not contain the certificate of
compliance that is required by UTCR 5.100(2). Also, nothing
in the trial court file indicates that the state served mother's
trial counsel with a copy of the proposed judgment or that
any alternatives to the requirement in UTCR 5.lOO(l)(a)
would apply. For its part, the state never has disputed those
averments by mother's trial counsel. To the contrary, the
state acquiesced in entry of an amended judgment, thus
waiving any factual disputes that it might otherwise have
raised. 16 Finally, in granting the motion, the trial court did
not suggest that it was limiting the grounds on which it did
so. Consequently, we presume that the trial court acted on all
grounds asserted in support of the motion, including the
state's failure to serve mother's counsel with a copy of the
proposed judgment, as UTCR 5.lOO(l)(a) required.17
1 " UTCR 5. lOO(l)(a) requires service of a proposed judgment on opposing coun-
sel not less than three days before submission to the court. Service on opposing
counsel is not required when the proposed judgment is accompanied with a stipu-
lation by opposing counsel that no objection exists to the form of the judgment,
UTCR 5.lOO(l)(b), or when the proposed judgment is mailed to an unrepresented
party at the party's last known address, UTCR 5.lOO(l)(c), or when the proposed
judgment is presented in open court with the parties present, UTCR 5. lOO(l)(d).
16 The state's acquiescence in entry of the amended judgment, contrary to
mother's position, does not "estop" the state from asserting a defect in the court's
jurisdiction over the appeal, because jurisdiction cannot be established by the
agreement or waiver of the parties. 1000 Friends of Oregon v. LCDC (Clatsop Co.),
301Or622, 632, 724 P2d 805 (1986). The state's acquiescence would, however, pre-
clude the state from now factually disputing the averments in the affidavit that
mother supplied in support of her motion to amend the judgment. The state raises
no such dispute, however. At most, the state acknowledges in a footnote that coun-
sel's averments suggest "that the prosecutor did not serve [mother's] trial lawyer
with a copy of the proposed judgment she submitted to the court." The state then
urges that mother has not argued "that the lack of service justified the trial court's
action in amending the judgment." The question before us, however, is jurisdic-
tional in nature. Just as we have an independent obligation to acknowledge a
defect in jurisdiction if our review reveals one, Lloyd v. Zollman, 285 Or 161, 163
n 1, 590 P2d 222 (1979), we also have an obligation to acknowledge the existence of
jurisdiction, if our review reveals a basis on which jurisdiction exists.
The trial court did not hold a hearing on the motion, presumably because the
state did not oppose it and, instead, "acquiesced" (to use the state's term) in entry
of an amended judgment. Under those circumstances, it is particularly appropriate
to resolve any doubts about the facts on which the court relied against a result that
would bar the appellant from an appeal, as this court has done in other cases. See,
e.g., David M. Scott Construction v. Farrell, 285 Or 563, 568, 592 P2d 551 (1979) (so

Cite as 346 Or 524 (2009) 	539
That additional ground for the trial court's ruling
distinguishes this case from Far West and brings it, instead,
within this court's holding in Stevenson v. U. S. National
Bank, 296 Or 495, 677 P2d 696 (1984). 18 In Stevenson, the
trial court had assured the plaintiffs' counsel that the court
would not sign a judgment before receiving additional argu-
ment from the plaintiffs and further reflecting on the appro-
priate resolution of the case. However, the trial court later
mistakenly signed a judgment without that additional argu-
ment, and the judgment was entered without notice of that
entry to counsel. This court confirmed that Far West's hold-
ing-i.e., that a trial court has no authority to vacate a judg-
ment and reenter it for the sole purpose of extending the time
for appeal-remained a proper statement of the law. Stevenson,
296 Or at 498. The court concluded, however, that Far West
did not control the different circumstance presented in
Stevenson:
"In Far West, the trial court had reached a final decision on
all issues and the judgment had been entered before any
mistake occurred. In the present case, the judgment was
entered before the trial court determined the motion to
reconsider and while the matter was still under advise-
ment. This is not a case in which the trial court came to a
holding). Accord Waybrant v. Bernstein, 294 Or 650, 653, 661 P2d 931 (1983);
Mullinax and Mullinax, 292 Or 416, 431, 639 P2d 628 (1982).
18 Contrary to the position that the concurrence takes, see 346 Or at 544-47
(Durham, J., concurring), our consideration of this alternative ground for the trial
court's decision does not render our discussion of the continuing validity of Far
West's holding dictum. The Far West issue was squarely in play throughout the pro-
ceedings in the trial court and in the Court of Appeals. It was, in fact, the only issue
addressed by the parties on appeal and resolved by the Court of Appeals, and it is
the only issue that, on review in this court, the parties have briefed and argued. See
Woodard v. Pacific F. & P. Co., 165 Or250, 256-57, 106P2d1043(1940) (endorsing
the rule that "where the court bases its decision on two or more distinct grounds,
each ground so specified is, as much as any of the others, one of the grounds, a rul-
ing upon questions involved in the case, and not 'mere dictum'"); Lovejoy v.
Portland, 95 Or 459, 472-73, 188 P 207 (1920) (where court in prior case rejected
proposition that a port was a municipality within the meaning of the constitution,
and then nevertheless analyzed a further constitutional issue assuming "for the
sake of the argument" that the port was such a municipality, the decision of the
first issue in the negative did not render the decision of the second one dictum);
Weinhard v. Commercial National Bank, 41 Or 359, 365, 68 P 806 (1902) (discus-
sion of issue in prior judicial decision was not obiter dictum where the issue was
directly involved in the case, argued by counsel, was not mere illustration of some
collateral question, and was instead the considered opinion of the court upon a lit-
igated point).

State v. Ainsworth
final decision and later set aside a judgment merely to
accommodate a party who missed the time for appeal."
Id. The court in Stevenson deemed it inconsequential that,
ultimately, the trial court in that case had entered a second
judgment that was substantially the same as the original. Id.
at 498, 498 n 3. Rather, the important distinction was that
the trial court had acted to cure a prejudgment procedural
irregularity, rather than solely to extend the time for appeal
for a party who failed to timely appeal the original judg-
ment.19 Id. at 498. In that respect, Stevenson is consistent
with the settled view that the legislative purpose of author-
izing a trial court to relieve a party from judgment was to per-
mit that party to have the benefit of the trial court's full con-
sideration of the case in those instances in which, due to
mistake, inadvertence, surprise, or excusable neglect, that
consideration was somehow cut short. See Tongue, 35 Or at
229-30 (statute exists to "let [a party] in to defend upon the
merits," not to permit an appeal after the time to appeal has
expired); Deering v. Quivey, 26 Or 556, 559, 38 P 710 (1895),
overruled on other grounds by Wershow v. McVeety Machinery,
263 Or 97, 500 P2d 696 (1972) (statute is designed to benefit
those who, for any of the identified reasons, did not get their
"day in court").
As in Stevenson, judgment in this case was entered
before mother received the full benefit of the procedures
available that might bear on what form the judgment would
19 The concurrence emphasizes that in Stevenson, the trial court had set aside
an existing judgment and issued a second identical judgment, and expresses con-
cern that our earlier discussion ofORCP 71 C appears to conflict with this court's
analysis in Stevenson. See 346 Or at 549-50 (Durham, J., concurring). With respect,
the concurrence misperceives our point. ORCP 71 C preserves whatever inherent
authority a trial court had before its enactment. As the court in Far West noted,
trial courts do not have inherent authority to set aside a properly entered judgment
and reenter an identical judgment solely for the purpose of extending the time for
appeal (i.e., when there is no mistake in the substance of the judgment and no unin-
tended or improper entry of judgment). But that was not the situation that existed
in Stevenson: there, the judgment itself was mistakenly entered at a time when the
trial court had not finally decided who should prevail. but instead was awaiting
further argument. The court in Stevenson was not wrong in holding that the trial
court's action was authorized by ORCP 71 C nor in noting that ORCP 71 B-which
does not require that a mistake be made by a party, as did ORS 18.160--also might
provide authority for the trial court's action.

Cite as 346 Or 524 (2009) 	541
take. The trial court entered judgment despite the state's fail-
ure to serve mother's trial counsel with a copy of the proposed
judgment. The trial court was entitled to consider entry of the
judgment to have been premature, in that entry circum-
vented a prejudgment procedure that would have permitted
mother to be heard on the form of the judgment. 20 In that
respect, the facts here are analogous to those inAmvesco, Inc.
v. Key Title Co., 69 Or App 740, 687 P2d 1121 (1984). There,
the Court of Appeals, relying on this court's decision in
Stevenson, held thatFar West did not apply to the trial court's
reentry of judgment where the trial court was correcting its
earlier mistake of making a premature award of attorney
fees before the time for filing objections under ORCP 68
C(4)(b) had expired. Id. at 744. We agree with the distinction
that the Court of Appeals relied on inAmvesco, Inc. The same
distinction applies here. Although the trial court lacked
authority to reenter judgment based on the clerk's failure to
give mother notice of entry of judgment, the same is not true
with respect to the additional ground advanced in mother's
motion-the state's failure to serve mother with the proposed
judgment, which in turn would have provided mother with a
procedural opportunity to object to the judgment before
entry. Those facts provided a basis on which the trial court
was authorized to exercise its discretion under ORCP 71
B(l)(a) to reenter the contempt judgment against mother.
On that ground for mother's motion, we conclude
that the trial court had authority to reenter the judgment.
When mother timely appealed that judgment, the Court of
20 This case illustrates why the opportunity to object to the form of the judg-
ment is a potentially significant procedure. As earlier described, among other
terms, the trial court ordered mother to pay an additional 20 percent of her
monthly child support obligation, specified as $51 per month, to repay the arrear-
age that mother owed. However, the trial court and the parties were aware that
mother had a pending modification proceeding in which she was seeking a reduc-
tion in her monthly child support obligation. Ultimately, about a month after judg-
ment was entered in this case, mother's monthly child support obligation was
reduced by more than $100 per month. Thus, 20 percent of the new obligation will
be less than $51. In the judgment that the state drafted for the trial court's signa-
ture, the arrearage amount was listed as both a sum certain ($51 per month) and a
percentage (20 percent of the monthly child support obligation), which conceivably
could {and will) conflict. Because the state did not serve the proposed judgment on
mother, mother could not, before entry of judgment, call the court's attention to the
fact that the modification proceeding had not been resolved and that the amount of
the final support obligation remained undetermined.

542 	State v. Ainsworth
Appeals acquired jurisdiction over the case. Consequently,
the Court of Appeals erred in dismissing the appeal.
The order of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
DURHAM, J., specially concurring.
I concur in the result reached by the majority but not
with its reasoning. As I explain below, the majority opinion
contains an elaborate dictum that plays no role in deciding
the issue before this court. I write separately to point out that
dictum.
The trial court entered its original judgment in this
proceeding on August 25, 2005. Mother filed no appeal from
that judgment. On September 28, 2005, mother filed a
motion for appointment of appellate counsel, which was
granted on September 30, 2005. On October 12, 2005, mother
filed a motion for entry of an amended judgment due to the
clerk's mistake in failing to mail the original judgment to
mother's lawyer in this contempt proceeding. The trial court,
with the state's acquiescence, entered an amended judgment
on October 13, 2005.
Mother appealed from the amended judgment on
November 4, 2005. However, the state moved to dismiss the
appeal, arguing that the August 25, 2005, judgment was the
only legally cognizable judgment, that mother had appealed
from that judgment beyond the statutory 30-day deadline,
and that the trial court had had no authority to enter a sec-
ond, identical judgment on October 13, 2005, simply to
restart the time limit for filing an appeal.
The Court of Appeals agreed that the entry of an
amended judgment might restart the 30-day deadline for an
appeal, but "only if the amended judgment materially altered
the rights or obligations of the party under the original judg-
ment or created a new right of appeal." The Court of Appeals
explained that, 	because the original judgment and the
amended judgment were "identical in content," the amended
judgment did not restart the deadline for filing an appeal. For
that proposition, the court relied on a single authority: Far
West Landscaping v. Modern Merchandising, 287 Or 653,

Cite as 346 Or 524 	543
601P2d1237 (1979). The court granted dismissal of mother's
appeal by order.
This case poses one issue on review: Did the trial
court have authority to enter an amended judgment? This
court stated the dispositive rule of law regarding that ques-
tion in the following passage of Stevenson u. U. S. National
Bank, 296 Or 495, 498, 677 P2d 696 (1984), in which this
court distinguished Far West and held that a trial court had
authority to set aside a judgment entered prematurely and
without notice to counsel, 	and later enter an identical
amended judgment to cure the court's error:
"In Far West, the trial court had reached a final decision on
all issues and the judgment had been entered before any
mistake occurred. In the present case, the judgment was
entered before the trial court determined the motion to
reconsider and while the matter was still under advise-
ment. This is not a case in which the trial court came to a
final decision and later set aside a judgment merely to
accommodate a party who missed the time for appeal.
There is nothing in the order or any part of the record avail-
able to us to indicate that the sole purpose for setting aside
the judgment was to extend the time for appeal, even
though this was a result. We hold that the trial court's
grant of the motion to set aside the judgment and issue
another was authorized by ORCP 71A. and 71C. and was
not an abuse of discretion." 1
(Emphasis in original; footnotes omitted.)
In applying that rule to the facts in this case, our
inquiry, simply stated, is whether the trial judge set aside the
1 ORCP 71 A provides:
"Clerical mistakes in judgments, orders, or other parts of the record and
errors therein arising from oversight or omission may be corrected by the court
at any time on its own motion or on the motion of any party and after such
notice to all parties who have appeared, if any, as the court orders. During the
pendency of an appeal, a judgment may be corrected as provided in subsection
(2) of section B of this rule."
ORCP 71 C provides:
"This rule does not limit the inherent power of a court to modify a judg-
ment within a reasonable time, or the power of a court to entertain an inde-
pendent action to relieve a party from a judgment, or the power of a court to
grant relief to a defendant under Rule 7 D(6)(f), or the power of a court to set
aside a judgment for fraud upon the court."

544 	State v. Ainsworth
original judgment for the sole purpose of extending the time
for an appeal, as discussed in Far West, or instead set aside
the original judgment to correct an absence of notice to coun-
sel regarding the entry of judgment, as discussed in Stevenson.
The majority decides-correctly, in my view-that the trial
court did have authority, under the Stevenson decision, to
enter an amended judgment. The majority points to the
state's violation of its duty under UTCR 5.100(1) to serve
mother's counsel with a copy of the proposed judgment and
states:
"That additional ground for the trial court's ruling dis-
tinguishes this case from Far West and brings it, instead,
within this court's holding in Stevenson***."
346 Or at 539. The majority also expressly approves the con-
clusion of the Court of Appeals in Amvesco, Inc. v. Key Title
Co., 69 Or App 740, 687 P2d 1121 (1984), thatFar West has
no application when a trial court reenters a judgment to cor-
rect an earlier premature award of attorney fees. The major-
ity states, "[t]he same distinction applies here." 346 Or at 541.
I concur that Stevenson controls the outcome here
and that, as the majority acknowledges, Far West is distin-
guishable from this case on review. A reader might assume
that, having identified the controlling authority in this case
as well as the distinguishable authority on which the Court of
Appeals erroneously relied, the majority simply would stop.
But the majority does not stop. Instead of citing Far
West and explaining why its holding does not control the dis-
tinguishable facts here, the majority embarks on a lengthy
discussion of why, in its view, certain alterations to ORCP 71
in 1981 did not modify the rule that Far West adopted (i.e.,
trial courts may not set aside and reenter a judgment for the
sole purpose of extending the time for appeal). The majority
attempts to justify that exercise by asserting that the parties
have invited this court to decide "whether this court's holding
in Far West remains correct in light of subsequent changes to
the Oregon Rules of Civil Procedure (ORCPs)." 346 Or at 526.
That simply ignores the issue that this case poses. As noted
above, the question on review concerns the trial court's
authority to enter an amended judgment under the facts
shown in the record. Stevenson supplies the complete answer

Cite as 346 Or 524 	545
to that question. There is no need in this circumstance to
decide whether later-enacted rules have altered the holding
in Far West, when that holding has no conceivable impact on
the decision of this case.
I am cognizant of the fact that each of the parties
cites Far West and that the state in particular urges the court
to announce that Far West remains good law despite later
amendments to the Oregon Rules of Civil Procedure. How-
ever, it is not at all unusual for parties to cite cases and other
authorities, or to present alternative arguments, to this court
that, after examination, turn out to have no effect on the dis-
position of the case. This court's usual response to that cir-
cumstance is either to distinguish the irrelevant authorities
and arguments, or to ignore them altogether, and move on.
That is what should happen here. That one party strongly
desires this court to confirm the continued vitality of a
30-year-old distinguishable case is no justification for this
court to do so.
"Dictum," an abbreviation for "obiter dictum," refers
to statements in a judicial decision that, even though rele-
vant, are not necessary or essential to the decision of the
court and have neither adjudicatory force nor precedential
effect. Black's Law Dictionary 1102 (8th ed 2004) (explaining
"obiter dictum," which in Latin means "something said in
passing''). Occasionally, it can be difficult to identify dictum
in a court's opinion, because nonessential legal analysis and
the 	assertions 	of immaterial 	legal 	propositions 	can 	be
shrouded by the certitude of the court's views. AB Justice
Cardozo once said, "[D]icta are not always ticketed as such,
and one does not recognize them always at a 	glance."
Benjamin N. Cardozo, The Nature of the Judicial Process 30
(Yale Univ Press, 1921). It is, however, essential to identify
dicta, when they arise, so that courts and litigants in future
disputes will not be misled about the precedential weight of
nonessential comments in a court's decisions.
My purpose in raising the problem of dictum in the
majority opinion is not necessarily to disagree with the
majority's statement of the specific holding in Far West, i.e., a
trial court cannot set aside a judgment for the sole purpose of
extending a party's time for filing an appeal. As noted, I also

State v.
agree that Far West does not affect our disposition in this
case. Rather, I point out that neither the majority's citation of
that distinguishable authority nor the parties' conflicting
(but ultimately immaterial) arguments about the vitality of
Far West after certain 1981 amendments to ORCP 71 has any
impact on the disposition in this case. Courts commonly iden-
tify dicta as statements and comments in an opinion that
concern some rule oflaw or legal proposition not necessarily
involved in or essential to the determination of the case at
hand. See, e.g., In re Tuttle, 291 F3d 1238, 1242 (10th Cir
2002) (so stating). The majority's comments about the mean-
ing and effect ofORCP 71 on the holding in Far West fail that
familiar test: The majority opinion could state the same hold-
ing and disposition that it now states without any citation to
or discussion of the impact ofORCP 71 on Far West. 2
The majority misses that point. For example, the
majority asserts that the continuing vitality of the Far West
holding was "squarely in play" in the lower courts and was
the "only issue" raised on appeal by the parties and resolved
by the Court of Appeals. 346 Or at 539 n 18. That demon-
strates only that the parties and the Court of Appeals have
discussed at length the continuing vitality of a case that does
not influence our disposition of this dispute. As the majority's
separate discussion of Stevenson demonstrates, a lengthy
" A recital of the majority's proffered legal conclusions in their logical order
demonstrates the nonessential nature of the majority's statements about the effect
of the 1981 amendments to ORCP 71 on Far West Landscaping v. Modem
Merchandising, 287 Or 653, 601P2d1237 (1979).
The majority determines, first, that the Court of Appeals erred in concluding
that the trial court had no authority to enter a second judgment. This court's
analysis in Stevenson confirms that the trial court's action was within that court's
legal authority. That conclusion requires reversal of the Court of Appeals decision.
Second, the majority concludes that this case is distinguishable from Far West.
The state's argument, that, under Far West, the trial court lacked authority to
enter a second judgment, is beside the point; this court's decision in Stevenson v.
U. S. National Bank, 296 Or 495, 677 P2d 696 (1984), as noted, contradicts the
state's position and confirms that the trial court's entry of a second judgment is
legally authorized.
Third, notwithstanding the two conclusions noted above, the majority goes on
to discuss at length the 1981 changes to ORCP 71 B and concludes that those
changes did not affect Far West. The majority fails to explain how that determina-
tion has, or could have, any legal consequence once the majority concludes that the
trial judge had authority under Stevenson to enter a second judgment.

Cite as 346 	547
review of the continuing vitality of Far West is not essential
to the court's decision.
At the heart of the courts' resistance to dictum is the
concern that legal error may attend nonessential legal con-
clusions in an opinion. I would postpone, for that reason, any
comment on the meaning and effect of the 1981 amendments
to ORCP 71 until those issues arise in a case that necessi-
tates their resolution. To explain that concern, I briefly
address the facts from Far West and the substance of the
1981 amendments to ORCP 71.
In Far West, mistakes by both the court clerk and the
trial judge misled the lawyer for the defendant to think that
the court had not signed or entered a judgment. The lawyer
relied on the judge's assurance that he would not sign ajudg-
ment until after a certain date so that the lawyer could
attend to a matter out of town and file an appeal upon her
return. In fact, the judge already had signed and filed the
judgment, the clerk had failed to mail a copy to counsel as a
statute required, and the time for filing a notice of appeal had
expired. The trial judge learned of the mistakes that had
occurred and entered a new judgment, and the lawyer
appealed from the new judgment.
The question on appeal in Far West was whether the
trial court had authority to enter the second judgment. The
majority referred to two possible sources of that authority.
The first was former ORS 18.160 (1979), repealed by Or Laws
1981, ch 898, § 53, which provided at that time:
"The court may, in its discretion, and upon such terms
as may be just, at any time within one year after notice
thereof, relieve a party from a judgment, decree, order or
other proceeding taken against him through his mistake,
inadvertence, surprise, or excusable neglect."
The court decided that the statute did not apply. Because the
judgment had been taken several days before the court's mis-
taken 	misrepresentations to 	counsel, 	it 	was 	not 	taken
through a mistake. Id. at 657.
It is worth noting that the majority opinion in Far
West misquoted former ORS 18.160 (1979); the majority
omitted the words "against him through his" in the statute,

548 	State v. Ainsworth
which is set out above in full. Those words were significant,
because they limited the court's statutory authority to set
aside a judgment to circumstances in which a mistake, even
of a party, had caused entry of a judgment against the party.
Clearly, the mistake in Far West was attributable to the trial
judge and the clerk, not to the lawyer or a party. For that sep-
arate reason as well, former ORS 18.160 (1979) afforded no
relief to the lawyer and her client.
The court in Far West also examined the inherent
authority of trial courts to vacate or amend their judgments,
and cited numerous cases that confirm that authority. The
majority nonetheless held that trial courts had no inherent
authority to vacate or amend a judgment if the sole purpose
for doing so is to extend the time for appeal. Id. at 658-59. 3
Effective in 1981, the legislature repealed former
ORS 18.160 (1979) and enacted ORCP 71. See Or Laws 1981,
ch 898, § 53. ORCP 71 B(l) provides, in part:
"On motion and upon such terms as are just, the court may
relieve a party or such party's legal representative from a
judgment for the following reasons: (a) mistake, inadver-
tence, surprise, or excusable neglect[.]"
As the majority correctly acknowledges, that wording intro-
duced a substantive change to what had been the wording
under former ORS 18.160 (1979). By deleting the words
"against him through his" from the former statute, the legis-
lature expanded trial court authority to address mistakes by
persons other than a party. Read logically, that rule at least
arguably would permit a trial judge to rectify mistakes by the
court staff or the trial court itself. Indeed, that wording of the
new rule appears to have been a direct response to the nar-
row view of trial court authority that led to the result in Far
West.
The majority chooses to reject the contention that
the modified wording of the new rule changed the analysis
'1 Chief Justice Denecke, joined by Justice Peterson, dissented. The dissenters
concluded that the majority had produced an outcome that was "manifestly unfair"
and an "inequitable result." Id. at 660, 661 (Denecke, C. J., dissenting).

Cite as 346 Or 524 (2009) 	549
that this court applied in Far West. The majority claims that
lawyers, for decades, have not been able to establish "excus-
able neglect" by relying on advice from court personnel about
whether the court has entered judgment; it counsels lawyers
to check the record themselves. But this issue concerns the
new description of the court's authority to relieve a party
from a judgment entered due to someone's mistake (includ-
ing the court's mistake), not excusable neglect. When read
according to its terms, the new rule appears to establish that
the trial court has the power to alleviate the effects of its own
mistakes, not only those of a party. If the rule were so read,
then, when the court carries out that judicial function pur-
suant to ORCP 71 B(l) and determines, for good cause, that a
mistake occurred in the entry of a judgment and requires the
vacation of that judgment to rectify the proven mistake, it
may be said that the decision to set aside the judgment is "for
the sole purpose" of extending the time for appeal. In short,
the legislature's amendment to the terms of ORCP 71 B(l)
arguably authorizes a court to act for a legitimate purpose--
correction of an erroneous entry of a judgment due to a mis-
take by the court or staff-that was not sanctioned when this
court decided Far West. But, whether the foregoing reading
(or some other) is correct, the majority errs in purporting to
give a contrary answer to that question now. 4
The majority states that the holding in Far West
remains in effect despite the legislature's enactment in 1981
of ORCP 71 C ("This rule does not limit the inherent power
of a court to modify a judgment within a reasonable time
* * *."). According to the majority, ORCP 71 C
"is a reservation of inherent trial court authority, not a
source of inherent authority. That provision thus preserves
whatever inherent authority a trial court had before the
4 The scope of a trial court's authority under ORCP 71 B to relieve a person
from a judgment for any cause, including mistake, ultimately is a matter of legis-
lative policy, as reflected in the Oregon Rules of Civil Procedure. In view of the
majority's dicta regarding the scope of that authority, the Council for Court
Procedures may wish to inquire whether it should amend any rule of civil proce-
dure to reflect accurately the intended legislative policy. See ORS 1. 735 (describing
authority of Council on Court Procedures to adopt amendments to, or to repeal, the
rules of civil procedure).

550 	State v. Ainsworth
enactment of ORCP 71 C, but it does not add to that
authority."
346 Or at 532-33 (emphasis in original).
That statement about the meaning of ORCP 71 C
may (or may not) be correct; but it clearly does not resolve
any issue about the trial court's authority under Stevenson to
enter a second judgment, although this court in Stevenson
expressly cited ORCP 71 Casa source of trial court authority
to set aside an existing judgment and to issue a second iden-
tical judgment. Stevenson, 296 Or at 498. Thus, whatever
else might be said about it, the majority's statement in
dictum that ORCP 71 C is not a "source" of trial court author-
ity appears to conflict with this court's analysis in Stevenson.
The specific difference that separates the majority
opinion and this concurrence can be stated succinctly. On the
one hand, the majority determines that, notwithstanding the
1981 amendments to ORCP 71 B(l), if a trial court inadver-
tently enters a judgment on a date that contradicts a promise
or representation to counsel by the trial court concerning
entry of the judgment and, as a result of counsel's reliance,
the appeal deadline expires, the trial court has no authority
under ORCP 71 B(l), and no inherent authority, to treat that
circumstance as a mistake and resolve the problem by enter-
ing a second judgment. That is the effect of the majority's
statement that it "adhere[s] to the holding in Far West, 287
Or 653." 346 Or at 536. I, on the other hand, am of the view
that the trial court may have that authority under ORCP
71 B(l). I would reserve that question for a case that raises it.
This is not that case.
For the reasons expressed above, I concur in the
result reached by the majority, but not in the majority's
reasoning.
De Muniz, C. J., and Gillette, J.,join in this specially
concurring opinion.