Alt v. City of Salem , 306 Or. 80 ( 1988 )

CAMPBELL, J.

The issue that we decide is whether a writing labeled “MOTION FOR NEW TRIAL (ORCP Rule 64Q” filed in a writ of review proceeding was in fact a motion for a new trial which extended the deadline for filing a notice of appeal. The Court of Appeals held that the writing in question was not a motion for a new trial and dismissed the appeal for lack of a timely notice of appeal. Alt v. City of Salem, 86 Or App 627, 740 P2d 216 (1987). The decision of the Court of Appeals is affirmed.

Plaintiff was employed by the City of Salem. His employment was terminated for cause and plaintiff appealed the termination to the City of Salem Civil Service Commission. The commission affirmed the decision to terminate plaintiffs employment. Plaintiff then petitioned the Circuit Court for Marion County for a writ of review. The writ issued, the record of the commission proceedings was submitted with the return of the writ and a non-evidentiary hearing was held. The circuit court affirmed the decision of the commission.

Judgment for defendant was entered on August 21, 1985.¹ Plaintiff filed a writing entitled “MOTION FOR NEW TRIAL (ORCP Rule 64C)” (the motion) on August 20,1985. The motion was denied in an order entered October 3, 1985. Plaintiff filed a notice of appeal on October 2,1985.²

In most cases, a notice of appeal in a civil case must be filed within 30 days of the entry of judgment in the register. ORS 19.026(1). However, if a motion for a new trial is filed, the notice of appeal must be filed within 30 days after the date that the order disposing of the motion is entered in the register or is deemed denied. ORS 19.026(2). The notice of appeal was filed before the entry of the order disposing of the motion and more than 30 days after the entry of the judgment.

The Court of Appeals held that the motion was not a motion for a new trial and dismissed the appeal for lack of timely filing of the notice of appeal. Without a timely notice of appeal, appellate courts have no jurisdiction to decide the merits of a case. ORS 19.033 (2) (b).

Denominating a writing a motion for a new trial does not make the writing a motion for a new trial. In Carter v. U.S. National Bank, 304 Or 538, 747 P2d 980 (1987), this court held that a document entitled “Motion for Reconsideration” was in fact a motion for a new trial. A document not entitled “motion for a new trial” may therefore be a motion for a new trial. Conversely, a document entitled “motion for a new trial” is not necessarily such a motion.

ORCP 1A makes the rules of civil procedure applicable to “all civil actions and special proceedings whether cognizable as cases at law, in equity, or of statutory origin except where a different procedure is specified by statute or rule.” A writ of review proceeding is a special proceeding of statutory origin. State v. Threet, 294 Or 1, 4-5, 653 P2d 960 (1982). Therefore, the rules of civil procedure apply to writ of review proceedings to the extent that a different procedure is not specified in the writ of review statutes, ORS 34.010 to 34.100, and to the extent that the rules are applicable to the proceeding.³

The writ of review statutes do not provide any procedure for motions, and motions for a new trial were not made in common-law writ of certiorari proceedings.⁴ Therefore, if there is any authority for a motion for new trial in a writ of review proceeding, it must be found in the rules of civil procedure.

ORCP 64 provides in part:

“A. A new trial is a reexamination of an issue of fact in the same court after judgment.

“B. A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:

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“B.(5) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.

“C. In an action tried without a jury, a former judgment may be set aside and a new trial granted on motion of the party aggrieved on any grounds set forth in section B. of this rule where applicable. * * *”⁵

What must therefore be determined is whether there is any possibility of a “reexamination of an issue of fact” in a writ of review proceeding. A circuit court, in a writ of review proceeding, may review the jurisdictional, procedural, legal and constitutional bases of the challenged decision. It may also determine whether the decision is supported by substantial evidence. ORS 34.040. In making these determinations, the reviewing court reviews the record and does not take new evidence. Brooks v. Dierker, 275 Or 619, 625, 552 P2d 533 (1976); Wing v. City of Eugene, 249 Or 367, 371, 437 P2d 836 (1968). Therefore, as stated in Silva v. State, 243 Or 187, 189, 412 P2d 375 (1966): “On a Writ of Review, the court will not pass upon questions of fact.”

Despite decisions by the Court of Appeals allowing limited evidence taking by courts in writ of review proceedings,⁶ the rule that a court in a writ of review proceeding cannot go outside the record to obtain evidence is a good one. Under certain circumstances a record may be supplemented⁷ or, if a record is inadequate, the reviewing court may remand for further proceedings, but the reviewing court should not allow new evidence or hold evidentiary hearings. The only possible justification for the continued existence of writs of review is that the procedure is fast and simple. Allowing evidence outside the record would change the nature of the proceeding and expand the scope of a writ of review beyond the statutory authorization.

A determination of the sufficiency of the evidence is not an examination of an issue of fact, it is a determination of a question of law. Kirkpatrick v. Peet, 247 Or 204, 211, 428 P2d 405 (1967). The reviewing court does not decide what the facts are, but merely decides the legal question whether the evidence is sufficient to support the decision. It therefore follows that there can be no reexamination of an issue of fact and consequently there can be no new trial in a writ of review proceeding.⁸ Without the possibility of a new trial, a motion for new trial cannot properly exist and ORCP 64 is not applicable in writ of review proceedings. The motion was not a motion for a new trial and did not'extend the time for filing a notice of appeal.

In simple terms, our conclusion is that there is no trial in a writ of review proceeding and there cannot be a “new trial” in writ of review proceedings.⁹ The writing filed was either a nullity or a motion for relief from judgment (ORCP 71). It did not create a new deadline for filing the notice of appeal and the notice of appeal filed more than 30 days after entry of judgment was untimely.¹⁰

The order of the Court of Appeals dismissing the appeal for lack of jurisdiction is affirmed.

1 The judgment was entitled “JUDGMENT ORDER.” This term is improper. ORCP 70A. See May v. Josephine Memorial Hospital, 297 Or 525, 528 n 8, 686 P2d 1015 (1984). This court takes judicial notice of the date of entry of the judgment, which is a matter of public record. The judgment attached to the notice of appeal contained no clear indication of date of entry in the register as required by ORAP 2.05(14).

2 These dates are correct. See supra note 1. The notice of appeal was filed after the order denying a motion for a new trial was signed but before it was entered. Similarly, the judgment had not been entered when the motion for a new trial was filed.

3 See Merrill, Oregon Rules of Civil Procedure Background and Application ORCP 1, in 1980 Oregon Civil Procedure Rules 221-22 (Oregon Law Institute 1979). It is clear that many, if not most, of the rules of civil procedure are inapplicable in writ of review proceedings which use different pleadings and limited in-court procedures.

4 The writ of review is the statutory equivalent of the writ of certiorari. ORS 34.010.

5 Although ORCP 64B(5) does purport to allow the granting of a motion for a new trial for insufficiency of the evidence or a verdict against the law, this subsection is severely limited in some cases by Article VII (Amended), section 3, of the Oregon Constitution.

6 Henthorn v. Grand Prairie School Dist., 44 Or App 215, 605 P2d 734 (1980); Bienz v. City of Dayton, 29 Or App 761, 566 P2d 904, rev den 280 Or 171 (1977); Duddles v. City Council of West Linn, 21 Or App 310, 535 P2d 583 (1975).

7 A plaintiff may attempt to supplement the record by affidavit attached to the petition. The defendant or opposing party may seek to supplement the record by attachments to the return. If any supplement is controverted, the reviewing court cannot decide the facts, but can only remand for a factual determination.

8 The issue in this case is different from the issue in Carter v. U.S. National Bank, 304 Or 538, 747 P2d 980 (1987). In Carter the issue was whether there could be a motion for a new trial at a certain stage of a normal civil action. In the present case, the issue is whether there can be a new trial at any stage of a writ of review proceeding. A writ of review, while not an appeal, has some appellate features. Facts are never decided in writ of review proceedings. The whole purpose of a new trial is to submit the evidence to the trier of fact so that the trier of fact can make a decision based on a proper application of the law. There is no trier of fact in a writ of review proceeding and therefore no evidence can be submitted to the trier of fact. Without the possibility of submitting evidence to a trier of fact, there is no reason for a new trial, and a motion for a new trial would necessarily be futile. We do not accept that a motion which of necessity is futile can properly exist and we therefore hold that there cannot be a motion for a new trial in a writ of review proceeding. The motion was either void, a motion for reconsideration or a motion for relief from the judgment.

9 “Again application [of the rules of civil procedure] is in many cases limited by the nature of the proceeding; e.g., the writ of review would not involve application of various elements of the ORCP covering trial procedures.” Merrill, supra note 3, at 222.

10 We further note that even if the motion were a motion for a new trial, the notice of appeal was entered one day before the entry of the order denying the motion. The filing of the notice of appeal deprived the trial court of jurisdiction to enter the order. Ellis v. Roberts, 302 Or 6, 9, 725 P2d 886 (1986). However, given the decision in this case, the entry or lack of entry of the order is irrelevant to appellate jurisdiction under these facts.