DocketNumber： SC S31538
Citation Numbers： 720 P.2d 350, 301 Or. 79
Judges： Campbell, Lent, Carson
Filed Date： 5/20/1986
Status： Precedential
Modified Date： 11/13/2024
This is an original proceeding in mandamus. The relator was the plaintiff in a civil action in Multnomah County Circuit Court entitled Zidell v. Zidell, et al. The defendant in this proceeding was the trial judge in that action. This court granted an alternative writ of mandamus which required the defendant to show cause why he had not signed and directed entry of a final judgment as to all parties in the Multnomah County case. The defendant’s answer in effect alleged that a final judgment had previously been entered, and that in any event the relator is not entitled to relief by way of mandamus.
The chief issue is whether a document entitled “JUDGMENT” signed by the defendant trial judge on September 8,1982, in the Multnomah County action constitutes a final judgment.
On May 1, 1980, the original complaint was filed in the case of Zidell v. Zidell, et al. It named 14 defendants. The amended complaint and the second amended complaint included two additional defendants—Rodney Stevens and Lillie Kugel. On June 25, 1982, the trial judge (defendant herein) signed a document entitled “JUDGMENT AS TO DEFENDANTS STEVENS AND KUGEL.” The parties in the caption were designated as “ARNOLD H. ZIDELL, Plaintiff v. EMERY ZIDELL, et al., Defendants.” The full body of the document reads as follows:
“The motion for Summary Judgment of defendants Stevens and Kugel having been allowed,
IT IS ORDERED AND ADJUDGED that plaintiffs Complaint be, and the same is hereby dismissed with prejudice as*82 to defendants Rodney Stevens and Lillie Kugel, and that they shall have and recover their costs and disbursements incurred herein, taxed at $__”
Costs were later taxed at $55.
Between June 28, 1982, and August 9, 1982, the case was tried without a jury! At the conclusion of the trial the defendant herein, as trial judge, announced his oral decision including general findings and conclusions.
On September 8, 1982, the same trial judge signed a document entitled “JUDGMENT,” prepared by the plaintiffs attorneys. The 14 original defendants were listed in the caption. The first paragraph of the document named each of the original 14 defendants and their respective attorneys. The defendants, Stevens and Kugel, were not mentioned in either the caption or the body of the document. The final three paragraphs of the document were as follows:
“NOW, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that plaintiffs amended and second amended complaints and pretrial contentions, and any claim for relief contained therein are dismissed with prejudice and judgment is entered herein against the plaintiff and in favor of defendants with respect to said claim.
“IT IS FURTHER ORDERED that defendants’ several counterclaims, amended counterclaims and pretrial contentions and any claims for affirmative relief against plaintiff contained therein are dismissed with prejudice and judgment is entered herein against the defendants and in favor of the plaintiff with respect to each of said counterclaims and contentions.
“IT IS FURTHER ORDERED that no party recover their costs and disbursements incurred herein.”
On September 20,1982, the plaintiff filed a notice of appeal to the Court of Appeals:
“Plaintiff-Appellant hereby gives notice of appeal from that Judgment dated September 8, 1982, and entered in this case on September 15, 1982, by Judge Robert P. Jones in the Multnomah County Circuit Court dismissing with prejudice plaintiffs Amended, Second Amended and Supplemental Complaints, pretrial contentions and any claim for relief contained therein and entering judgment against plaintiff and in favor of defendants with respect to said claims.”
On May 11, 1984, the plaintiff filed in the Multnomah Circuit Court a “MOTION FOR CERTIFICATION PURSUANT TO ORCP 67B.” On May 25, 1984, the defendant trial judge, in an opinion letter, denied the motion. The letter in part stated: “The Judgment Order of September 15, 1982, disposed of every claim by every party.”
On December 17, 1984, the plaintiff, who is now the relator, associated the legal counsel currently representing him in this proceeding. On the same date, the plaintiff moved the circuit court “to enter a final judgment as to all defendants who have appeared in this case.” The motion was denied on February 15,1985.
On February 26, 1985, the plaintiff-relator filed the petition for an alternative writ of mandamus in this court. The petition recited the chronological history of Zidell v. Zidell, et al. and prayed for a writ commanding that Robert P. Jones, the defendant herein, vacate his order of February 15, 1985, and enter a final judgment as to all parties or show cause for
This brings us to the chief issue in this case: Was the document signed by the defendant trial judge on September 8, 1982, and entered on September 15, 1982, a final judgment within the meaning of ORCP 67A. and B. and ORCP 70A.?
ORCP 67 provides in part:
“A. Definitions. ‘Judgment’ as used in these rules is the final determination of the rights of the parties in an action; judgment includes a decree and a final judgment entered pursuant to section B. or G. of this rule. ‘Order’ as used in these rules is any other determination by a court or judge which is intermediate in nature.
“B. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all of the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
ORCP 70A. provides:
“Every judgment shall be in writing plainly labeled as a judgment and set forth in a separate document. A default or stipulated judgment may have appended or subjoined thereto such affidavits, certificates, motions, stipulations, and exhibits as may be necessary or proper in support of the entry thereof. No particular form of words is required, but every judgment shall specify clearly the party or parties in whose favor it is given and against whom it is given and the relief granted or other determination of the action. The judgment shall be signed by the court or judge rendering such judgment or, in the case of judgment entered pursuant to Rule 69 B.(l), by the clerk.”
The defendant trial judge takes the position that the
ORCP 67A. defines “judgment” as “the final determination of the rights of the parties in an action.” (Emphasis added.) An “order” is “any other determination by a court or judge which is intermediate in nature.” ORCP 70A. provides that “every judgment shall be in writing plainly labeled as a judgment and set forth in a separate document.” (Emphasis added.)
There is no dispute between the parties as to the “plain labeling” and “separate document” requirements. The plaintiff does not contend that the document signed by the defendant on September 8, 1982, fails to meet those requirements. The dispute is whether the September 8th document satisfies the final determination and the clear specification of the parties and the determination of the action requirements of the Rules of Civil Procedure.
The defendant’s first line of defense is that the September 8th document on its face, standing alone, makes a final determination of all claims of all parties and that it clearly specifies the determination of the action and the parties. He contends that any claims as to Stevens and Kugel were resolved when the summary judgment was granted on June 25,1982, and that the claims and counterclaims as to the original 14 defendants were resolved on the conclusion of the bench trial. He points to the following language of the September 8th document to show that there was a final determination as to all 16 defendants:
“NOW THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that plaintiffs amended and second amended complaints and pretrial contentions, and any claim for relief*86 contained therein are dismissed with prejudice and judgment is entered herein against the plaintiff and in favor of defendants with respect to each of said counterclaims and contentions.” (Emphasis from defendant’s brief in this court.)
“IT IS FURTHER ORDERED that defendants’ several counterclaims, amended counterclaims and pretrial contentions and any claims for affirmative relief contained therein are dismissed with prejudice and judgment is entered herein against the defendants and in favor of the plaintiff with respect to each of said counterclaims and contentions.” (Emphasis from defendant’s brief in this court.)
The defendant in this proceeding also claims that the document of September 8th satisfies the clear specifications requirement of ORCP 70A. He contends that the above quoted language refers to all claims for relief of all amended pleadings of the parties and “explicitly” states that the complaints and counterclaims were dismissed with prejudice and that “judgment is entered” against the plaintiff on his claims and against the defendants on the counterclaims.
The defendant’s second line of defense is that the document of September 8th when considered together with the document of June 25, 1982, entitled “JUDGMENT AS TO DEFENDANTS STEVENS AND KUGEL,” constitutes a final judgment.
The plaintiff-relator’s position is that a final judgment has not been entered in the Multnomah County case. He contends that the June 25, 1982, and September 8, 1982, documents, although denominated “Judgments,” are merely orders because each adjudicates rights of fewer than all of the parties and contains neither an express determination that there is no just reason for delay nor an express direction for the entry of a judgment in accordance with ORCP 67B. He points out that the June 25th document allowed a summary judgment as to only the defendants Stevens and Kugel, and that the September 8th document refers only to the original 14 defendants and does not mention either Stevens or Kugel in the caption or the body of the document. He argues that a final judgment should be a single document.
First, we measure the document of September 8th, standing alone, against the requirements of ORCP 70A. That rule in part provides: “No particular form of words is required,
The use of the word “plaintiff’ in the September 8th document causes no problem. There has always been only one plaintiff in the case. What does the term “defendants” in the same document mean? Does it refer to only the original 14 defendants who are named in the caption and the body of the same document? Does it include the additional defendants, Stevens and Kugel? Because of these obvious questions we hold that the term “defendants” in the September 8th document is ambiguous. In order for a reader to determine if the document refers to 14 or to 16 defendants an additional descriptive phrase is needed. The intent of the document would be clear if it described the defendants as “the above named defendants,” “the defendants named herein,” or “all defendants who have appeared.” The document does not “specify clearly the * * * parties in whose favor it is given” and therefore does not comply with one of the requirements for a judgment set out in ORCP 70A.
Next we consider the defendant trial judge’s position that the document of September 8th when considered together with the document of June 25th constituted a final judgment.
Our consideration of this part of the defendant’s position breaks down into four questions: (1) Should federal case law be used to interpret ORCP 67B.? (2) Has the Oregon Court of Appeals reached the same conclusion as the federal courts? (3) Does ORCP 67B. apply after all claims against all parties have been adjudicated? (4) Does ORCP 70A. require that every judgment be set forth in a single document?
Federal Case Law Used to Interpret ORCP 67B.
Although ORCP 70 is significantly different from its
A version which is substantially similar to FRCP 54(b) was adopted by the Oregon Legislature in 1977 as Section 5 of Chapter 208 Oregon Laws. It was codified as ORS 18.125(1).
We have been unable to find any legislative history which is relevant specifically to ORCP 67B. concerning the issues in this case. However, in 1977, HB 2252, which became ORS 18.125(1), was sponsored by the Procedure and Practice Committee of the Oregon State Bar. William C. Martin, the secretary of that committee, testified that the purpose of the bill was to permit appeals prior to the final determination of the entire proceedings in actions involving multiple parties and multiple claims. In his prepared remarks Secretary Martin said:
“Although Oregon has liberalized its joinder statutes, the Oregon Supreme Court has with a few minor exceptions consistently construed existing statutes to prevent an appeal prior to the completion of all proceedings in actions and suits involving multiple parties and multiple claims. This bill seeks to permit such appeals.
“Federal Rule 54(b) addresses itself to this problem and with a history of 63 years of interpretation of similar rules in the Federal Court, Rule 54(b) should be very helpful if Oregon desires to adopt a procedure permitting appeals prior to final determination of the entire proceeding.”
“I personally drafted this bill. One thing about using a model, which is in the Federal Rules, is that you have a long history of interpretation. You are not trying to develop some brand new language which may be interpreted differently than everyone proposed it to be.” Public Hearing April 28, 1977, Tape 33, Side Two.
ORCP 67B. was promulgated by the Council on Court Procedures in 1980 and submitted to the Legislative Assembly at the beginning of its 1981 session. The legislature proclaimed that it should become effective on January 1,1982, and repealed former ORS 18.125(1) effective the same date. ORS 1.725. Or Laws 1981, ch 898. Merrill, Oregon Rules of Civil Procedure: 1984 Handbook 156.
When the Council on Court Procedures promulgated ORCP 67B. with the blessing of the Oregon Legislature its reasons must have been the same as those of the legislature in 1977 when it adopted former ORS 18.125(1). One of those reasons was that FRCP 54(b) had a long history of interpretation which would be tailor-made to determine the meaning of the newly enacted ORCP 67B. This reason is stronger when applied to ORCP 67B. than when applied to former ORS 18.125(1). The former statute was only substantially similar to FRCP 54(b) while ORCP 67B. is identical to the federal rule. We hold that when ORCP 67B. was adopted it was intended that the Oregon courts should follow the existing federal case law in interpreting the rule.
On the books at the time former ORS 18.125(1) and ORCP 67B. were adopted was the Fifth Circuit Court of Appeals case, Jetco Electronic Industries, Inc. v. Gardiner, 473 F2d 1228 (5th Cir 1973). As far as we can determine it is the leading case on the issue that is presented in our case. It was a federal diversity suit in the Southern District of Texas in which the plaintiffs sued three defendants for damages in connection with the alleged wrongful publication of test results obtained from treasure hunting devices manufactured by the plaintiffs. On March 10, 1972, the trial court granted the motion of one defendant, Engineering Testing Laboratories, Inc., (ETL), to dismiss for failure to state a cause of action and for failure to comply with the Texas long arm
“Before reaching the merits of this controversy, we must decide whether the district court’s March 10, 1972, order dismissing appellants’ suit against ETL is appealable. With several exceptions not relevant here, this Court’s appellate jurisdiction extends only to final orders. 28 U.S.C. § 1291. In a multi-party lawsuit such as this one, an order is final only if it meets one or the other of two conditions: (1) it must adjudicate the claims or the rights and liabilities of all the parties, or (2) it must expressly determine that there is no just reason for delay and expressly direct the entry of judgment. Rule 54(b), F.R.Civ.P. The March order dismissing appellants’ suit against ETL meets neither of these conditions: It said nothing about appellants’ rights as against the other two defendants, Gardiner and Gardiner Electronics; and it contained nothing faintly resembling a Rule 54(b) certificate. That order is thus not a final judgment under Rule 54(b). Johnson v. Hendrickson, 5th Cir. 1972, 469 F.2d 694. Nor was the later order entering an agreed judgment disposing of appellants’ claim against Gardiner and Gardiner Electronics a final judgment under Rule 54(b)—it contained no certificate, and it did not adjudicate appellants’ rights as against ETL. Nevertheless, these two orders, considered together, terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders. Mindful of the Supreme Court’s command that practical, not technical, considerations are to govern the application of principles of finality, Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we decline appellee’s invitation to exalt form over substance by dismissing this appeal. We hold that the March order dismissing appellants’ suit against ETL is, under the circumstances of this case, within our jurisdiction. Therefore, we turn to the merits.” (Emphasis in original.)
We have found cases that distinguish Jetco Electronic Industries, Inc. v. Gardiner, supra, but none which disagrees with it or attempts to criticize it. It has been specifically
In Ryan v. Occidental Petroleum Corp., 577 F2d 298, 301, (5th Cir 1978), the 5th Circuit distinguished that case from Jetco Electronic Industries, Inc. v. Gardiner, supra, in the following language:
“In the absence of a Rule 54(b) certification and entry of judgment, we may not entertain appeals from partial dispositions or orders unless they fall within certain limited exceptions to the usual finality rule. These exceptions, as set out in our recent opinion in Huckeby v. Frozen Food Express, 555 F.2d 542 (5th Cir. 1977), authorize appeals without Rule 54(b) certification only where (1) the order is made appealable by statute or is certified under 28 U.S.C. § 1292(b); (2) the rulings of the Supreme Court or of this court permit appeal of ‘an order, otherwise nonappealable, determining substantial rights of the parties which will be irreparably lost if review is delayed until final judgment,’ Huckeby, 555 F.2d at 549, quoting (emphasis added) United States v. Wood, 295 F.2d at 778; or (3) the rule of Jetco Electronics Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973), authorizes an appeal from a series of orders which, considered together, terminate the litigation ‘just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the*92 earlier____orders.’ See also Freeman v. Califano, 574 F.2d 264 (5th Cir. 1978).
* * * *
“Of crucial importance in Jeteo is the fact that successive orders in that case, taken together, effectively terminated the entire litigation. That is not the case here.” (Footnote omitted, emphasis in original.)
Mesa Petroleum Co. v. Coniglio, 629 F2d 1022, 1029 (5th Cir 1980), in footnote seven answered an issue similar to the one in our case.
“Actually, Mesa suggests that we lack jurisdiction over the entire appeal. Its reasoning is that the district court entered two orders, neither of which adjudicated all the claims of the parties, and neither of which was accompanied by Fed.R.Civ.P 54(b) certification. Of course, as a general rule, this court’s appellate jurisdiction extends only to final orders. 28 U.S.C.A. § 1291. However, since the October 13th and December 26th orders had the combined effect of terminating the litigation, we believe our jurisdiction is safely established by the rule enunciated in Jetco Electronics Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973).”
The Supreme Court of Hawaii in City and County of Honolulu v. Midkiff, 57 Hawaii 273, 554 P2d 233 (1976), made the following comments about its Rule 54(b):
“Rule 54(b) renders nonfinal and nonappealable an order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, in the absence of the trial court’s express determination that there is no just reason for delay and its express direction for the entry of judgment. Such an order remains nonfinal and nonappealable until the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. When, as in the present case, the trial court’s disposition of a case involving multiple claims or multiple parties is embodied in several orders, no one of which embraces the entire controversy but which collectively do so, it is a necessary inference from Rule 54(b) that the orders collectively constitute a final judgment and that entry of the last series of orders gives finality and appealability to all. Jetco Electronic Industries v. Gardiner, 473 F.2d 1228 (5th Cir. 1973).
Ujjc ‡ * ‡
“In the circumstances of this case no single order embraces all of the issues and parties, and the final judgment must be*93 viewed as a composite of the several orders which became final and appealable upon the entry of the judgment and order of condemnation on January 28,1976.”8
In addition to the above quoted cases see the following cases which follow or cite Jetco Electronic Industries, Inc. v. Gardiner, supra, with approval: Gillis v. U.S. Dept of H & H Services, 759 F2d 565, 569 (6th Cir 1985); Cape May Greene, Inc. v. Warren, 698 F2d 179, 185 (3rd Cir 1983); Martin v. Campbell, 692 F2d 112, 114 (11th Cir 1982), DeMello v. Woolsey Marine Industries, Inc., 677 F2d 1030, 1033 (5th Cir 1982); Pireno v. New York State Chiropractic Ass’n, 650 F2d 387, 389 n 4 (2d Cir 1981); Anderson v. Allstate Insurance Company, 630 F2d 677, 680 (9th Cir 1980), Tower v. Moss, 625 F2d 1161, 1164 (5th Cir 1980), Oswalt v. Scripto, Inc., 616 F2d 191, 194 (5th Cir 1980), Morton v. Chrysler Motors Corp., 353 So2d 505, 507 (Ala 1977); Fredricks v. Foltz, 221 Kan 28, 557 P2d 1252, 1256 (1976).
The Oregon Court of Appeals Has Reached the Same Result as the Federal Cases.
The Oregon Court of Appeals, without referring to any federal cases, has reached the same result as the Jetco Electronic Industries, Inc. v. Gardiner, supra, line of cases.
In Jones v. Tri-State Realty, 46 Or App 159, 161, 611 P2d 312 (1980), that court held:
“* * * There is no requirement, for appealability, that the several judgments respecting the various parties be summarized in a single judgment order. What is required is that the cause be determined as to all parties or that the requirements of ORS 18.125 be met as to a judgment for fewer than all the parties.”
In Barker v. Parker, 63 Or App 21, 23 n 1, 662 P2d 779, rev den 295 Or 617, 670 P2d 1033 (1983), the same court held:
<<* * * rp^g order from which plaintiff now appeals is the*94 order dismissing the counterclaim. That order does not in itself dispose of all issues in the case and does not affect plaintiff adversely. However, that order and the order allowing summary judgment against plaintiff on his foreclosure claim, when read together, adjudicate all issues in the case. We conclude that the order dismissing the counterclaim implicitly incorporates the other order that is a necessary component of the trial court’s final judgment.” (Emphasis in original).
See also Kerstad v. Warren, 73 Or App 387, 698 P2d 1033 (1985); Alair Aviation v. Campbell, 58 Or App 409, 411, 648 P2d 1339 (1982).
We approve of the Oregon Court of Appeals cases which hold that a final judgment need not be embodied in a single document.
ORCP 67B. Does Not Apply After All Claims Against All Parties Have Been Adjudicated.
When William C. Martin, the secretary to the Oregon State Bar committee which sponsored HB 2252 in 1977, appeared before the legislature he stated only that the proposed legislation would permit appeals “prior to the completion of all proceedings in actions and suits involving multiple claims and multiple parties.”
The federal cases have been more specific as to the purpose of FRCP 54(b). In Gaetano Marzotto & Figli, S.P.A. v. G.A. Vedovi & Co., 28 FRD. 320, 323 (1961), the court said:
“The primary purpose of the adoption of amended Rule 54 (b) was to make a reasonable accommodation between the ‘basic and the persisting policy against piecemeal appeals’ in the federal court system and ‘those problems of the timing of review which have been accentuated by the liberalized joinder of claims, counterclaims, cross-claims and third party claims in one law suit, as permitted and encouraged by the present Rules of Civil Procedure’. Panichella v. Pennsylvania R. R. Co., 3 Cir., 252 F.2d 452, 454.”
See also Makuc v. American Honda Motor Co., Inc., 692 F2d 172, 173, (1st Cir 1982); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F2d 360, 363 (3rd Cir 1975); In re Bromley-Heath Modernization Committee, 448 F2d 1271 (1st Cir 1971).
“In a multi-party lawsuit such as this one, an order is final only if it meets one or the other of two conditions: (1) it must adjudicate the claims or the rights and liabilities of all of the parties, or (2) it must expressly determine that there is no just reason for delay and expressly direct the entry of judgment. Rule 54(b), F.R.Civ.P.” 473 F2d at 1231. (The disjunctive “or” is emphasized in the original; other emphasis added.)
See also Oswalt v. Scripto, Inc., 616 F2d 191, 194 (5th Cir 1980), Huckeby v. Frozen Food Exp., 555 F2d 542, 545 (5th Cir 1977).
The Alabama Supreme Court in Morton v. Chrysler Motors Corp., supra, 353 So2d at 507 commented:
“As noted by the appellees, this result is in accord with several federal cases which have held that Rule 54(b) of the Federal Rules of Civil Procedure has no application to a judgment once all claims against all parties have been adjudicated. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973); Johnston v. Cartwright, 344 F.2d 773 (8th Cir. 1965); Marotta v. Milestone, 114 U.S.App.D.C. 237, 314 F2d 242 (1963); Lundgren v. Freeman, 292 F.2d 489 (9th Cir. 1961).”
We hold that the primary purpose of ORCP 67B. is to allow piecemeal appeals under certain express conditions when an action involves multiple parties or multiple claims.
When a judgment was entered for Stevens and Kugel on June 25th there was no express determination that there was no just reason for delay and no express determination for entry of judgment. The case was still pending against the other 14 defendants. At that point the relator could not have appealed; there was no final judgment. The judgment of June 25th was “subject to revision.” On September 8th, when the
ORCP 70A. Does Not Require That Every Judgment Be Set Forth in a Single Document
FRCP 58 provides: “Every judgment shall be set forth on a separate document.” ORCP 70A. provides: “Every judgment shall be * * * set forth in a separate document.”
The Oregon Council on Court Procedures, in its Staff Comment, states that ORCP 70A. follows the approach of FRCP 58 and “is designed to avoid any question whether a written opinion or order of a court is or is not a judgment.” Merrill, Oregon Rules of Civil Procedure: 1984 Handbook 166.
In State National Bank of El Paso v. United States, 488 F2d 890, 892 (5th Cir 1974) the court said:
“We have every reason to believe that a mechanical application of Rule 58 requires district judges to enter their judgments in one document and opinions in another. In its note following the proposed (1963) amendment to Rule 58 the Advisory Committee on Civil Rules described problems caused by parties’ inability to tell that a judgment has been entered and assessed the amendment’s contribution.
“The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum —which provides the basis for the entry of judgment. (Emphasis supplied.)
“Judicial Conference of the United States, Report of Proposed Amendments to Certain Rules of Civil Procedure for the United States District Courts, 31 F.R.D. 621, 650 (1962). Likewise Professor Moore interprets ‘separate document’ to mean ‘separate from an opinion or memorandum of*97 the court.’ 6A Moore’s Federal Practice [paragraph] 58.01 [1.—2] at 58-14. See 11 C. Wright and A. Miller, Federal Practice and Procedure § 2785 at 14.” (Emphasis added.)
It seems that it would have been a simple matter for the Oregon Council on Court Procedures or the Legislative Assembly to have made provision that every judgment be set forth in a single document if that was their desire. The first sentence of 70A. could have been changed to read: “Every judgment shall be * * * set forth in a separate single document.”
It is interesting to note that every case in the Jeteo Electronics line of cases “added,” “combined” or “construed together” two or more documents to make a final judgment. As far as we can tell in none of those cases did any party raise the single document issue. None of those cases mention a “super judgment.”
The relator argues that the final judgment should be a single document
By way of summary, we hold that two or more documents, when considered together, may constitute a final judgment if they adjudicate every claim presented and determine the rights and liabilities of each party. To reach this conclusion we have held that the federal case law which was in existence when ORCP 67B. was adopted should be used to interpret it. We have also held that ORCP 67B. does not apply after all claims against all parties have been determined, and that ORCP 70A. does not require that every judgment be set forth in a single document.
We agree with the following statement in Jetco Electronics Industries, Inc. v. Gardiner, supra: “Mindful of the Supreme Court’s command that practical, not technical, considerations are to govern the application of principles of finality, Gillespie v. United States Steel Corp., 379 US 148, 85 S Ct, 308, 13 LEd 2d 199 (1964), * * * we decline appellee’s invitation to exalt form over substance * * 473 F2d at 1231. In the same vein, ORCP 1B. provides: “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action.”
The alternative writ is dismissed.
The “Judgment” signed by the defendant trial judge on September 8, 1982, was subsequently entered in the judgment docket by the clerk on September 15, 1982. The entry of the “Judgment” is not at issue.
ORS 19.023(2) provides, in pertinent part:
“The appeal shall be taken by causing a notice of appeal, in the form prescribed by ORS 19.029, to be served:
“(a) On all parties who have appeared in the action, suit or proceeding * * (Emphasis supplied.)
In 1982 ORS 19.033(2) further provided:
“The serving and filing of the notice of appeal as provided in ORS 19.023, 19.026 19.029 is jurisdictional and may not be waived or extended.”
The term “judgment order” is a misnomer and should not be used. Gibson v. Benj. Franklin Fed. Savings and Loan, 294 Or 702, 711 n 3, 662 P2d 703 (1983).
See Gibson v. Benj. Franklin Fed. Savings and Loan, supra, 294 Or at 707.
For a table comparing the differences between FRCP 58 and ORCP 70 see Gibson v. Benj. Franklin Fed. Savings and Loan, supra, 294 Or at 707.
Former ORS 18.125(1) provided:
“When more than one demand for relief is presented in a suit or action, whether as multiple causes of suit or action, counterclaims, cross-claims, or third-party actions or suits, or when multiple parties are involved, the court may direct the entry of a final judgment or decree as to one or more but fewer than all of the causes of suit or action or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment or decree. In the absence of such determination and direction, any order or other form of decision, however designed, which adjudicates fewer than all the causes of suit or action or the rights and liabilities of fewer than all the parties shall not terminate the proceeding as to any of the causes of suit or action or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment or decree adjudicating all the causes of suit or action and the rights and liabilities of all the parties.”
We recognize that Jetco Electronic Industries, Inc. v. Gardiner, supra, can be distinguished from this case and from State ex rel Orbanco Real Estate Service Company v. Allen, 301 Or 104, 720 P2d 365 (1986), on the status of the respective cases at the time the appeals were filed. In Jeteo the appeal was taken by the plaintiff from an “order,” which did not contain a FRCP 54(b) certification, while the case was still pending in the trial court against two defendants. In this case and in Orbanco, the appeal was taken after the last document was filed and after the rights and liabilities of all the parties had been determined. We hold that the distinction is immaterial in the context of this case and Orbanco. The federal court in Jeteo held that “two orders, considered together, terminated” the litigation. The rule fits this case and Orbanco.
However, if in this case an appeal had been taken by the plaintiff from the June 25th document dismissing the complaint as to Stevens and Kugel without an ORCP 67B. certification then the posture of the case would be the same as Jeteo, but the defendant trial judge may not have had jurisdiction to enter the September 8th document dismissing the action as to the remaining 14 defendants. ORS 19.033.
City and County of Honolulu v. Midkiff, 57 Hawaii 273, 554 P2d 133 (1976), comes the closest to fitting the procedure in this case and Orbanco.
Gillis v. US Dept of H & H Services, 759 F2d 565, 569 (6th Cir 1985), states that every federal circuit that has had occasion to address the question in Jeteo has reached the same result.
In City and County of Honolulu v. Midkiff, supra, one of the statements in the Syllabus by the Court is as follows:
“Where disposition of a case involving multiple claims or multiple parties is embodied in several orders, no one of which embraces the entire controversy but which collectively do so, the date of entry of the last of the series of orders is the date of entry of final judgment for the purpose of determining the timeliness of an appeal. Rules 54(b) and 73(a). H.R.C.P.”
A recent Second Circuit case, Ellender v. Schweiker, 781 F2d 314, 318 (2nd Cir 1985), makes the following comment about FRCP Rule 54(b):
“The Rule has no application to an order that finally disposes of the last remaining issue in the case and that is expressly intended by the court to close the case. See 6 Moore's Federal Practice ¶ 54.27[3], at 334 (2d ed. 1985) (‘[T]he Rule does not contemplate a certificate when the district court had adjudicated all the claims....’) (emphasis in original); id. ¶ 54.34[1], at 522-23 (‘When the court has fully adjudicated all of the claims no certificate is necessary to make that adjudication final.’).”
To require that the final appealable judgment be a single document is the equivalent of adopting a “super judgment” rule—in other words, a rule that would require the last or final judgment to bring forward or recite all of the previous documents which purported to enter a judgment for less than all claims or parties in the action. We find nothing in the Rules of Civil Procedure that requires or contemplates such a “super judgment.” Jetco Electronic Industries, Inc. v. Gardiner, supra, answered the “super judgment” argument directly. “Nevertheless, these two orders, considered together, terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders.” 473 F2d at 1231.
However, in certain complicated cases the careful practitioner might be well advised to prepare for the trial court a detailed and comprehensive final judgment reciting the court’s prior disposition of claims and dismissal of parties to assure that each party and each claim is accounted for in some part of the action.
The lawyers for Stevens and Kugel filed affidavits stating that the clerk, in accordance with ORCP 70B.(1), had mailed them a notice of the “JUDGMENT” dated September 8, 1982, and entered on September 15,1982.