Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

J.A.H. v. Heikkila

Supreme Court of Oregon, En Banc

August 7, 2014

J.A.H., Respondent on Review,
v.
Shawn Dean HEIKKILA, Petitioner on Review

Argued and Submitted June 23, 2014

On review of an order of the Court of Appeals CC DR13040666; CA A154447. [*]

Jonah Morningstar, Morningstar Legal Arts, Ashland, argued the cause and filed the brief for petitioner on review.

Adam J. Brittle, Brittle & Brittle, P.C., Portland, argued the cause and filed the brief for respondent on review.

OPINION

[355 Or. 754] KISTLER, J.

ORCP 9 B requires a party filing a notice of appeal to serve a copy of the notice on a represented party's attorney. The question that this case presents is whether an appellant's failure to comply with that requirement is a jurisdictional defect. The Court of Appeals held that it is and dismissed this appeal. We allowed review to consider that issue and now affirm the Court of Appeals' order dismissing the appeal.

Before turning to the facts of this case, it is helpful to describe briefly the governing statutes. To confer jurisdiction on the Court of Appeals, an appellant must file the notice of appeal and serve it on the other parties to the action within 30 days after the judgment is entered in the register. See ORS 19.270(1) (providing that timely filing and service of the notice of appeal are jurisdictional); ORS 19.255 (specifying that an appellant must file and serve the notice of appeal within 30 days). Although ORS 19.270 provides that timely service of the notice of appeal is jurisdictional, it does not specify how the notice of appeal must be served. On that issue, ORS 19.500 provides:

" Except as otherwise provided in this chapter, when any provision of this chapter requires that a document be served and filed, the document shall be served in the manner provided in ORCP 9 B."

ORCP 9 B, in turn, provides that, when a party is represented by an attorney, " service shall be made upon the attorney unless otherwise ordered by the court." [1]

In this case, the trial court granted wife's petition for a restraining order against husband and entered that order in the trial court register on May 9, 2013. On June 10, [355 Or. 755] 2013, husband's attorney filed a notice of appeal and served a copy of that notice by

Page 276

mailing it to wife.[2] Husband's attorney did not serve a copy of the notice on wife's attorney, even though ORCP 9 B required him to do so and even though wife has been represented by the same attorney throughout this litigation. Eight days later, the Court of Appeals sent a " deficiency notice" to husband stating that the case caption in the notice of appeal was incorrect. The Court of Appeals sent a copy of the deficiency notice to wife, who emailed a picture of it to her attorney.

Shortly after wife's attorney learned that husband had filed a notice of appeal, wife moved to dismiss husband's appeal because the Court of Appeals lacked jurisdiction. Wife noted that husband had not served her attorney with a copy of the notice of appeal, as ORCP 9 B requires. Relying on McCall v. Kulongoski, 339 Or. 186, 118 P.3d 256 (2005), wife reasoned that ORCP 9 B defines the manner of service that, under ORS 19.270, is a necessary prerequisite for appellate jurisdiction. It followed, wife concluded, that husband's failure to serve the notice of appeal on her attorney in compliance with ORCP 9 B deprived the Court of Appeals of jurisdiction. The Appellate Commissioner agreed and dismissed husband's appeal. The Chief Judge of the Court of Appeals denied husband's motion for reconsideration, and we allowed husband's petition for review to consider whether his failure to comply with ORCP 9 B is a jurisdictional defect.[3]

On review, husband notes that the plain text of the jurisdictional statutes requires that an appellant serve a copy of the notice of appeal on the other " parties" to the case. See ORS 19.270(2); ORS 19.240. In husband's view, those statutes define what a party must do to confer jurisdiction on the Court of Appeals, and he complied with them. He timely served the only other " party" to the action--namely, his wife--with a copy of the notice of appeal. Husband does not dispute that he failed to comply with ORCP 9 B when he failed to serve wife's attorney. He reasons, however, that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.