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Otnes v. PCC Structurals, Inc.

Court of Appeals of Oregon

September 11, 2019

Katrina OTNES, Plaintiff-Appellant,
v.
PCC STRUCTURALS, INC., an Oregon corporation, Defendant-Respondent.

          Multnomah County Circuit Court 16CV32466 John A. Wittmayer, Judge.

         On appellant's petition for reconsideration fled August 9, 2018, and respondent's response to appellant's petition for reconsideration fled August 16, 2018.

          Quinn E. Kuranz, for petition.

          Crystal S. Chase, Karen O'Connor, Melissa Healty, and Stoel Rives LLP, for response.

          Before DeVore, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         Case Summary:

         Plaintiff seeks reconsideration of an order of the Appellate Commissioner dismissing her appeal for lack of jurisdiction. Plaintiff had appealed from a general judgment dismissing her tort claims after the trial court rejected her motion for a new trial. Plaintiff had requested that the trial court accept that motion as fled on an earlier date, when she had attempted to fle the motion electronically without the required fling fee. Defendant moved to dismiss the appeal for lack of jurisdiction, contending that the notice of appeal was untimely because the new trial motion was untimely on the date it was fled successfully with the fling fee. The Appellate Commissioner agreed and entered an order dismissing the appeal. Plaintiff seeks reconsideration of that order, disputing the commissioner's construction of statutes and rules regarding fling. Held: The Court of Appeals allowed reconsideration and concluded that the motion and appeal were not fled within the time necessary to establish appellate jurisdiction because the trial court denied fling with a retroactive fling date. The trial court did not err in denying plaintiff's request for retroactive fling, given her failure to explain a reason for that request, as UTCR 21.080(5) requires.

         [299 Or.App. 297] DeVORE, P. J.

         Plaintiff seeks reconsideration of an order of the Appellate Commissioner dismissing her appeal for lack of jurisdiction. Plaintiff had appealed from a general judgment that dismissed her tort claims after the trial court rejected her motion for new trial and her request for the court to accept that motion as filed on the earlier date on which she had attempted to file the motion without a required filing fee. Defendant moved to dismiss the appeal for lack of jurisdiction, contending that the notice of appeal was untimely because the new trial motion was untimely. The Appellate Commissioner agreed and entered an order dismissing the appeal. In this petition for reconsideration, plaintiff disputes the commissioner's construction of statutes and rules on filing. We allow reconsideration and, for the different reason that plaintiff failed to explain the basis for her request to relate back, conclude that the motion and appeal were not filed within the time necessary to establish appellate jurisdiction. UTCR 21.080(5). Accordingly, this appeal is dismissed.

         Appellate jurisdiction turns on events after trial. Plaintiff had brought a number of employment-related claims against defendant. After a jury trial, the court entered a general judgment dismissing plaintiffs claims on January 19, 2018. Plaintiff was given 10 days, or such further time as the court might allow, within which to file a motion for new trial. ORCP 64 F(1). At 11:31 p.m. January 29, plaintiff submitted to the court for electronic filing a motion for new trial without a filing fee.

         Two statutes provide that a motion for new trial may be filed upon payment of a filing fee. ORS 21.100; ORS 21.200.[1] The next day, finding no fee with the submission, the clerk rejected the filing and notified plaintiff.

         [299 Or.App. 298] On the same day, January 30, 2018, plaintiff electronically resubmitted the new trial motion, this time accompanied by the filing fee. On that day, then eleven days after entry of judgment, plaintiff included a cover letter to the court. In its entirety, it read:

"The original submission date of Plaintiffs Motion for a New Trial under ORCP 64B and filing date for this filing was January 29, 2018. UTCR 21.080(5)(a)(i).
"The filing was rejected on January 30, 2018.
"The resubmission of this filing is made on January 30, 2018.
"The filing was rejected because of non-payment of the filing fee, which is now ...

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