Opinion
TC 87-C-11261; CA A47282; SC S35399
On petition for review filed August 12, 1988
Remand case to trial court for disposition September 29, 1988
In Banc
On petition for review filed August 12, 1988.
Appeal from judgment of Marion County Circuit Court, Val D. Sloper, Judge. 92 Or. App. 96, 757 P.2d 877 (1988).
Raymond G. Stelljes, pro se, petitioner on review.
No appearance contra.
PER CURIAM
Petition for review allowed. The case is remanded to the Court of Appeals to vacate its decision in Stelljes v. Maass, 92 Or. App. 96, 757 P.2d 877 (1988), and to remand the case to the trial court for disposition of the proceeding pursuant to ORS 138.640.
We allowed review solely to remand this case to the Court of Appeals to vacate its decision in Stelljes v. Maass, 92 Or. App. 96, 757 P.2d 877 (1988), and to remand the case to the trial court for disposition pursuant to ORS 138.640.
The document from which appeal was attempted in this case was entitled "ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT." The operative part states:
"* * * The court finds there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. The court expressly directs that final judgment be entered with respect to defendant's [sic] claims.
"NOW, THEREFORE, IT IS HEREBY ORDERED that defendant's Motion for Summary Judgment against petitioner is allowed.
"IT IS FURTHER ORDERED AND DIRECTED that final judgment be entered in favor of defendant and against petitioner."
This is a post-conviction relief proceeding, and ORS 138.640 specifies how a trial court is to dispose of the proceeding:
"After deciding the issues raised in the proceeding, the court shall deny the petition or enter an order granting the appropriate relief. The court may also make orders as provided in ORS 138.520. The order making final disposition of the petition shall state clearly the grounds upon which the cause was determined, and whether a state or federal question, or both, was presented and decided. This order shall constitute a final judgment for purposes of appellate review and for purposes of res judicata."
The statute is clear that where the court grants relief to the petitioner, an "order" of the kind described constitutes a final judgment for the purposes of appeal. The statute is not clear concerning the mechanics of denying the petition, but it appears from the third sentence that an order will do.
The document from which appeal was attempted does not meet the requirements of ORS 138.640. The document is clearly an order granting a motion for summary judgment, but that order does not dispose of the case. The document contains a further order that a final judgment is to be entered, but the trial file does not contain any contemporaneous or subsequent document purporting to be that "final judgment."
Neither is there any further order or other document to "deny the petition," which is the manner to dispose of the proceeding where no relief is granted.
In summary, there is in the trial court file no order that meets the requirement of ORS 138.640, and there is no judgment that we could treat as such an order. There was no final disposition of the proceeding in the trial court and, therefore, no document from which an appeal could be taken.
The petition for review is allowed. The case is remanded to the Court of Appeals to vacate its decision in Stelljes v. Maass, 92 Or. App. 96, 757 P.2d 877 (1988), and to remand the case to the trial court for disposition of the proceeding pursuant to ORS 138.640.
MEMORANDUM OPINIONS, 306 Or. 659 (1988)
MEMORANDUM OPINIONS September 20, 1988 ( 760 P.2d 1338)
In the Matter of the Compensation of Cochran, Marion, Claimant. Cochran v. Brooking Office Supply et al (A42976)(S35023).
The petition for review is allowed. The order of the Court of Appeals allowing costs is reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
( 760 P.2d 1339)
In the Matter of the Compensation of Moore, Robert L., Claimant. Moore v. Georgia-Pacific Corporation (A43589)(S35214).
The petition for review is allowed. The order of the Court of Appeals allowing costs is reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
(761 P.2d 521)
In the Matter of the Compensation of Nicklin, Robert E., Claimant. Nicklin v. Lane Plywood, Inc., et al (A42558)(S35026).
The petition for review is allowed. The order of the Court of Appeals allowing costs is reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
In the Matter of the Compensation of Tattoo, Richard B., Claimant. Tattoo v. Leigh's Roof Service et al (A41912)(S35144).
The petition for review is allowed. The order of the Court of Appeals allowing costs is reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
(761 P.2d 522)
In the Matter of the Compensation of Chilla, Barbara T., Claimant. Chilla v. Coos Bay School District No. 9 et al (A43836)(S35243).
The petition for review is allowed. The order of the Court of Appeals allowing costs is reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
In the Matter of the Compensation of Hannah, Gerald W., Claimant. Hannah v. SAFECO Insurance et al (A43671)(S35233).
The petition for review is allowed. The order of the Court of Appeals allowing costs is reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
(761 P.2d 523)
In the Matter of the Compensation of DeSylvia, Thomas E., Claimant. DeSylvia v. Multnomah County School District #40 et al (A41813)(S35253).
The petition for review is allowed. The decision and order of the Court of Appeals allowing costs are reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
In the Matter of the Compensation of Jordon, Donald L., Claimant. Jordon v. Ronco Erectors et al (A44491)(S35234).
The petition for review is allowed. The order of the Court of Appeals allowing costs is reversed. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988).
( 761 P.2d 524)
Eugene Education Association v. Eugene School District 4J / Eugene School District 4J v. Eugene Education Association (A43726)(S35366).
The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is rema nded to the Court of Appeals with instructions to dismiss as moot.
September 29, 1988 (761 P.2d 926)
In the Matter of the Compensation of Hunter, Terry L, Claimant. Hunter v. Teledyne Wah Chang et al (A39205)(S35474).
The petition for review is allowed. Because the Court of Appeals decided this case after the effective date of the 1987 amendment to ORS 656.236 (2), that statute bars the cost award. Fromme v. Fred Meyer, Inc., 306 Or. 558, 761 P.2d 515 (1988). The order of the Court of Appeals allowing costs is reversed.