J. A. H. v. Heikkila

No. 48 August 7, 2014 753
48A.Or v. Heikkila
355 H.
J.
2014 August 7, 2014
IN THE SUPREME COURT OF THE
STATE OF OREGON
J. A. H.,
Respondent on Review,
v.
Shawn Dean HEIKKILA,
Petitioner on Review.
(CC DR13040666; CA A154447; SC S061636)
En Banc
On review of an order of the Court of Appeals.*
Argued and submitted June 23, 2014.
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.
KISTLER, J.
The order of the Court of Appeals is affirmed.
The Clackamas County Circuit Court granted wife’s petition for a restrain-
ing order against husband. Husband appealed and served a copy of the notice
of appeal on his wife, but he did not serve a copy of the notice of appeal on his
wife’s attorney, as ORCP 9 B requires. The Court of Appeals dismissed husband’s
appeal for lack of jurisdiction. Held: Compliance with the manner of service spec-
ified in ORCP 9 B is mandatory requirement of appellate jurisdiction. Husband’s
failure to timely serve a copy of the notice of appeal on wife’s attorney, as ORCP 9
B requires, deprived the Court of Appeals of jurisdiction.
The order of the Court of Appeals is affirmed.
______________
*  Order of Dismissal issued by the Appellate Commissioner on July 15, 2013;
order denying reconsideration of order of dismissal issued by the Chief Judge on
August 6, 2013.
754 J. A. H. v. Heikkila
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 attor-
ney. 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 dis-
missing the appeal.
Before turning to the facts of this case, it is helpful
to describe briefly the governing statutes. To confer juris-
diction 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 (spec-
ifying 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 man-
ner provided in ORCP 9 B.”
ORCP 9 B, in turn, provides that, when a party is repre-
sented by an attorney, “service shall be made upon the attor-
ney 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,
1
ORCP 9 B provides, in part:
“Whenever under these rules service is required or permitted to be made
upon a party, and that party is represented by an attorney, the service shall
be made upon the attorney unless otherwise ordered by the court. Service
upon the attorney or upon a party shall be made by delivering a copy to
such attorney or party, by mailing it to such attorney’s or party’s last known
address or, if the party is represented by an attorney, by telephonic facsimile
communication device or e-mail as provided in sections F or G of this rule.
* * * Service by mail is complete upon mailing.”
Cite as 355 Or 753 (2014) 755
2013, husband’s attorney filed a notice of appeal and served
a copy of that notice by mailing it to wife.2 Husband’s attor-
ney 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 P3d 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 fail-
ure to serve the notice of appeal on her attorney in compli-
ance with ORCP 9 B deprived the Court of Appeals of juris-
diction. 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
2
The 30th day following entry of the trial court’s order granting the restrain-
ing order fell on a Saturday. Husband timely filed his notice of appeal the next
business day. See ORS 174.120(3).
3
The lawyer who currently represents husband on review is not the lawyer
who filed and served the notice of appeal.
756 J. A. H. v. Heikkila
that error is not jurisdictional and that statements to the
contrary in McCall were unnecessary to decide that case.
In considering husband’s argument, we start with
the text of ORS 19.270. ORS 19.270(1) provides that “the
Court of Appeals has jurisdiction of the cause when the
notice of appeal has been served and filed as provided in ORS
19.240, 19.250 and 19.255.” ORS 19.270(2) specifies that the
“following requirements of ORS 19.240, 19.250 and 19.255
are jurisdictional and may not be waived or extended.” One
of those requirements is that the notice of appeal be “served”
on either the “adverse parties” identified in the notice of
appeal or, if the notice does not identify which parties are
adverse, “all parties who have appeared in the action.” ORS
19.270(2)(a).
Husband’s interpretation of the text of ORS 19.270 is
plausible. Not only does ORS 19.270(2) not specify that com-
pliance with ORS 19.500 and ORCP 9 B is a jurisdictional
prerequisite, but it requires only that the notice of appeal
be served on the “parties” to the action. ORS 19.270(2) does
not require that the notice of appeal be served on the party’s
attorney as a prerequisite to obtaining jurisdiction.
Another interpretation is also permissible, however.
As this court recognized in McCall, ORS 19.270 requires
that the notice of appeal be timely served on either those
adverse parties identified in the notice of appeal or all the
parties who have appeared in the action. See 339 Or at 194.
Although ORS 19.270 makes clear that timely service is
jurisdictional, it does not specify how timely service must be
accomplished to confer jurisdiction on the Court of Appeals.
ORS 19.500 fills that gap. It provides that, when ORS chap-
ter 19 requires that a document be served and filed, “the
document shall be served in the manner provided in ORCP
9 B.”
We have consistently interpreted ORS 19.270 in
context; that is, we have consistently read ORS 19.270 and
ORS 19.500 together to determine who must be served and
how service must be accomplished for the Court of Appeals
to acquire jurisdiction. In McCall, for example, this court
held that the Court of Appeals lacked jurisdiction over the
defendant’s appeal because the defendant had not served the
Cite as 355 Or 753 (2014) 757
plaintiffs by mailing the notice of appeal to “the last known
address of [the] plaintiffs’ lawyers,” as ORCP 9 B required.
McCall, 339 Or at 195. In reaching that conclusion, the court
explained that ORS 19.270, ORS 19.240, and ORS 19.500
“illustrate that the legislature intended to premise appel-
late jurisdiction under ORS chapter 19 on proper service of
notice” and that ORS 19.500 specifies that the proper man-
ner of service is that set out in OCRP 9 B.4 Id.
This court returned to the issue one year later in
Gadda v. Gadda, 341 Or 1, 136 P3d 1099 (2006). In that
case, the court held that the Court of Appeals had jurisdic-
tion over the husband’s appeal because the husband had
caused the notice of appeal to be delivered to the wife’s attor-
ney, in accordance with ORCP 9 B. That holding rests on
the proposition that compliance (or noncompliance) with the
service requirements in ORCP 9 B is jurisdictional.
Most recently, in Ann Sacks Tile and Stone, Inc. v.
Dept. of Rev., 352 Or 380, 390, 287 P3d 1062 (2012), this
court held that a party’s failure to serve a notice of appeal
consistently with ORCP 9 B deprived the Court of Appeals
of jurisdiction. In so holding, the court specifically consid-
ered the issue that husband raises here. The court noted:
“Although ORS 19.270(2)(a) specifically makes the timeli-
ness of service jurisdictional, that statute does not cross
reference either ORS 19.260 or ORS 19.500, which govern
the manner of service. Therefore, the possibility exists that
the manner of service is not jurisdictional.”
Id. at 386 (emphasis omitted). Addressing that possibility,
this court rejected it. The court explained that “[t]his court’s
prior case law *  * leaves no doubt that appellate jurisdic-
*
tion requires service of a notice of appeal in a particular
manner.” Id. The court reasoned that, under cases such as
McCall and Wal-Mart Stores, Inc. v. City of Central Point,
341 Or 393, 144 P3d 914 (2006), the timeliness of service
4
Husband argues that McCall is distinguishable because the defendant
in that case served the plaintiff by mailing the notice of appeal to the wrong
address. The requirement, however, that the defendant in that case serve the
notice of appeal by mailing it to “the last known address of the plaintiffs’ lawyers”
came from ORCP 9 B. It was the defendant’s failure to comply with that aspect of
ORCP 9 B that led this court in McCall to hold that the Court of Appeals lacked
jurisdiction. See 339 Or at 195-96.
758 J. A. H. v. Heikkila
and the manner of service are inextricably intertwined. Ann
Sacks, 352 Or at 387. For a document to be timely served,
service must comply with ORCP 9 B. Id. at 387, 390.
Those cases control this one. ORCP 9 B specifies
how an appellant must serve a party when that party is rep-
resented. The appellant must serve the party’s attorney. In
this case, husband did not do so in a timely manner, and
that failure deprived the Court of Appeals of jurisdiction.
For us to hold otherwise, we would have to overrule our deci-
sions in McCall, Gadda, and Ann Sacks. Husband, however,
has presented no basis for our doing so. See Farmers Ins. Co.
v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (explaining the
bases for overruling precedents). We accordingly adhere to
our decisions in McCall, Gadda, and Ann Sacks. Under those
decisions, husband’s failure to serve the notice of appeal in
compliance with ORCP 9 B deprived the Court of Appeals of
jurisdiction.
The order of the Court of Appeals is affirmed.