Follansbee v. Ooi

No. 694 October 2, 2024 305

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Julia FOLLANSBEE

and Ronald Braatz, husband and wife;

Mike Schrader and Diane Schrader, husband and wife;

Gary Bell, individually;

Scott Goodrich and Lee Goodrich, husband and wife;

Susan Inman, individually; Mike Crabtree, individually;

Alec Hamilton, individually;

David and Christy DeCourcey, husband and wife;

and John and Connie Thomas, husband and wife,

Plaintiffs-Respondents

Cross-Appellants,

v.

James OOI,

individually,

Defendant-Appellant

Cross-Respondent,

and

Gretchen MILLER,

individually and managing member of M & B Family

Farms, LLC, an Oregon Limited Liability Company;

M & B FAMILY FARMS, LLC; Deschutes County;

and H & H HOLDINGS, INC.,

dba Compass NW Construction,

Defendants

Cross-Respondents,

and

Linda WALLACE,

individually et al.,

Defendants.

Deschutes County Circuit Court

20CV40559; A181885

Raymond D. Crutchley, Judge.

On respondent’s M & B Family Farms-Miller’s motion for

reconsideration filed December 11, 2023, and respondent’s

306 Follansbee v. Ooi

OOI Joinder to M & B Family Farms motion filed December

15, 2023; and appellant’s response filed December 18, 2023.

Eileen I. McKillop and Hawkins Parnell & Young, LLP

for motion.

Janis White and Fidelity National Law Group for joinder.

William H. Sherlock for response.

Before Egan, Presiding Judge, and Pagán, Judge.

PAGÁN, J.

Reconsideration allowed; prior order adhered to.

Cite as 335 Or App 305 (2024) 307

PAGÁN, J.

The question before us, on a motion to reconsider an

order of the Appellate Commissioner, is whether ORS 19.270

requires dismissal of an appeal in its entirety when service

of a notice of appeal is defective as to less-than-all parties

required to be served with the notice of appeal. On recon-

sideration, we adhere to the Appellate Commissioner’s prior

order dismissing the appeal as to the unserved party only.

See ORAP 7.55 (providing for reconsideration of a decision of

the Appellate Commissioner).1

Our analysis in reaching the appropriate outcome

in the case is dependent on the following, tiered conclusions.

First, a party identified as adverse in the notice of appeal

must be properly served with the notice of appeal in order for

us to have jurisdiction over that party. Second, when service

is not made on all parties identified in the notice of appeal

as adverse, dismissal of the entire appeal may be warranted

based on the potential prejudice to the court or the parties.

The prejudice to be analyzed is twofold: the procedural prej-

udice (the potential unfairness from the lack of timely notice)

and the substantive prejudice (the potential unfairness if the

appeal proceeds as to less-than-all interested parties).

Under the facts of this case, we first conclude that

the Appellate Commissioner was correct in determining that

the attempted service of the notice of appeal was defective

as to one of the parties identified as adverse in the notice of

appeal and that, therefore, the court lacks jurisdiction as

to that party. And second, we conclude that the potential

prejudices—both procedural and substantive prejudice—

do not warrant dismissal of the appeal in its entirety. As

might be inferred, this matter involves complex cross suits

and motions among several parties. We will first discuss the

somewhat complex procedural background and then begin

the analysis as noted above.

Background

In the underlying case, plaintiffs brought a property

dispute case against, among others, James Ooi, Gretchen

1

As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge

panel.

308 Follansbee v. Ooi

Miller, and M&B Family Farms, LLC (together, defendants).

Ooi is the owner of a piece of real property that is a subject

of the underlying dispute. That property is leased by M&B

(of which Miller is the sole member) and is M&B’s identified

principal place of business. The trial court entered a lim-

ited judgment that contained a multitude of rulings—some

favorable to plaintiffs and some favorable to defendants. Ooi

initiated this appeal from that limited judgment. Soon after,

plaintiffs filed their own notice of appeal from that same

limited judgment; this is the notice of appeal at issue here.2

Plaintiffs’ notice of appeal contains a list of “parties to this

appeal” and, under the heading “[r]espondents,” identifies,

among others: Ooi, Miller, and M&B. A certificate of ser-

vice is attached to the notice of appeal, which asserts that

service was made on defendants through specific attorneys

and lists the physical addresses at which the attorneys were

served.

Undisputedly, service of the notice of appeal is a juris-

dictional requirement. ORS 19.270(1) provides that “[t]he

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) provides, in

relevant part:

“The following requirements of ORS 19.240, 19.250

and 19.255 are jurisdictional and may not be waived or

extended:

“(a) Service of the notice of appeal on all parties iden-

tified in the notice of appeal as adverse parties or, if the

notice of appeal does not identify adverse parties, on all

parties who have appeared in the action, suit or proceed-

ing, as provided in ORS 19.240(2)(a), within the time limits

prescribed by ORS 19.255.”

See ORS 19.240(2) (stating that the appeal “shall be taken

by causing a notice of appeal” be served on, among others,

“all parties who have appeared in the action, suit or pro-

ceeding”); see also Banerjee and Fiorillo, 310 Or App 446,

453, 485 P3d 920, rev den, 368 Or 787 (2021) (“[I]t is well

2

For ease of reference, we refer to plaintiffs’ notice of cross-appeal as a

“notice of appeal.” The fact that this case involves a notice of cross-appeal, rather

than a notice of appeal, does not change the substance of our analysis. See ORS

19.005(3) (“ ‘Notice of appeal’ includes a notice of cross-appeal.”).

Cite as 335 Or App 305 (2024) 309

established that improper service deprives us of jurisdiction

to hear an appeal.”).3

After plaintiffs filed their notice of appeal, in which

they named defendants as adverse parties to the appeal,

defendants moved to dismiss the appeal on the ground of

improper service. In their motion to dismiss, which was

considered and decided by the Appellate Commissioner,

defendants argued that Miller and M&B were not properly

served with the notice and that, therefore, the appeal must

be dismissed in its entirety. Defendants based their argu-

ment on the following logic: Because service is a jurisdic-

tional requirement, under ORS 19.270, a service defective

as to any party identified as adverse in the notice of appeal

deprived the court of jurisdiction over the entire appeal. In

opposition, plaintiffs argued that all parties had been prop-

erly served and, thus, that dismissal of any party they had

named as a respondent was inappropriate. In the alterna-

tive—in the event that the court deemed service improper

as to some, but not all parties—plaintiffs argued that the

appeal should proceed as to the properly served parties. In

an order of partial dismissal, the Appellate Commissioner

concluded that Miller had been properly served with the

notice of appeal, but that M&B had not. The Commissioner

rejected defendants’ argument that the appeal must be dis-

missed entirely based on this deficient service and, instead,

ordered the appeal be dismissed as to M&B only.

Now, defendants move for reconsideration, re-as-

serting that the jurisdictional requirement of service in

ORS 19.270 requires us to dismiss plaintiffs’ appeal entirely

based on plaintiffs’ failure to serve M&B, a party identi-

fied as adverse in the notice of appeal. Plaintiffs respond in

opposition.

Analysis: Proper Service and Jurisdiction

Before turning to these arguments, we first address

whether M&B was ever properly served with the notice of

3

Plaintiffs made one attempt to file the notice of appeal within the statutory

time limit. See ORS 19.255(3) (“Any other party who has appeared in the action,

suit or proceeding, desiring to appeal against the appellant or any other party to

the action, suit or proceeding, may serve and file notice of appeal within 10 days

after the expiration of the time” in which the appellant had to file their original

notice of appeal.).

310 Follansbee v. Ooi

appeal.4 We agree with the Appellate Commissioner that it

was not and that, therefore, we lack jurisdiction as to it.

Along with the jurisdictional requirement of ser-

vice of the notice of appeal generally, it is a jurisdictional

requirement that service be made on a represented party’s

attorney. ORS 19.500 (despite exceptions not relevant here,

“when any provision of this chapter requires that a docu-

ment be served and filed, the document shall be served in

the manner provided in ORCP 9 B * * * and who are not

represented by the same counsel as the party serving the

document”); ORCP 9 B (requiring service on a represented

party’s attorney); J. A. H. v. Heikkila, 355 Or 753, 754, 758,

333 P3d 275 (2014) (actual notice of the appeal by a party

does not satisfy the jurisdictional requirement in ORCP 9 B

that the notice of appeal be served on a represented party’s

attorney).

Here, the notice of appeal lists three attorneys as

representing Miller and one attorney as representing M&B.

The only attorney listed for M&B is Eileen McKillop, who

is also listed as one of the three attorneys for Miller. On

reconsideration, it is undisputed that Miller was properly

served with the notice of appeal through one of her other

her attorneys listed on the notice (not through McKillop).

It is also undisputed that the notice of appeal certified that

service was made on an incorrect address for McKillop and

that, therefore, service was never effectuated on McKillop.

In response in opposition to defendants’ original

motion to dismiss, plaintiffs argued that despite their fail-

ure to serve McKillop, they had effectuated service on M&B

because “M&B received timely service through Miller * * *

as its registered agent (and sole member).” The Appellate

Commissioner rejected that argument, concluding that

“[a]lthough Miller, as a party, was served through service

on her attorney, that service does not extend to M&B.”

According to the Commissioner, “to properly serve M&B,

service was required to be made on McKillop. That did not

happen; the notice of appeal was not sent to McKillop’s last

4

We address this argument because, in their response to the motion for

reconsideration, plaintiffs assert that they “do not intend to waive arguments

that M&B was timely served with [the] notice of cross-appeal * * *.”

Cite as 335 Or App 305 (2024) 311

known address.” The Commissioner dismissed the appeal as

to M&B based on that conclusion.

We agree with the Appellate Commissioner that

because service of the notice of appeal was defective as to

McKillop—M&B’s only counsel of record—plaintiffs failed

to serve the notice of appeal on M&B. Thus, even though

M&B was named in the notice of appeal as an adverse party,

it was not timely served with the notice. Because M&B is

“entitled to the concurrence of both adequate and timely

notice,” Jeffries v. Mills, 165 Or App 103, 113, 995 P2d 1180

(2000) (emphasis in original), the court lacks jurisdiction

over the appeal as to M&B.

Analysis: Scope of Jurisdiction

Having established that the court lacks jurisdiction

as to M&B, the remaining question is whether, based on the

improper service of M&B, the court lacks jurisdiction over

the appeal entirely, necessitating dismissal of the appeal. As

explained below, we conclude that the court lacks jurisdic-

tion only as to M&B and, therefore, adheres to the Appellate

Commissioner’s order dismissing plaintiffs’ appeal as to

M&B only.

In their motion for reconsideration, defendants

argue that the Appellate Commissioner erred in declin-

ing to dismiss the appeal in its entirety because under

ORS 19.270, “[i]t was incumbent on [plaintiffs] to properly

serve all adverse parties identified in the notice of appeal,

and failure to service one adverse party with the notice of

appeal deprives the court of jurisdiction and the appeal

fails.” Plaintiffs request that we adhere to the Appellate

Commissioner’s prior order of partial dismissal and “allow

the appeal to proceed to the merits against the parties other

than M&B.”5 Plaintiffs concede that timely service of a notice

5

We are not persuaded by plaintiffs’ request that we deny reconsideration

based on the lack of a statement of conferral in the motion for reconsideration.

See ORAP 7.05(1)(d) (other than an exception not relevant here, “before filing a

motion, the moving party must make a good faith effort to confer with the other

part[ies]” and “state the position(s) in the motion”); ORAP 6.25(5) (“A motion

for reconsideration is subject to ORAP 7.05 regarding motions in general.”). As

this court has made clear, the statement of conferral “allows the court either to

act immediately (if the moving party reports that defendant’s counsel does not

intend to file a response) or to wait until defendant’s counsel files a response to

312 Follansbee v. Ooi

of appeal is jurisdiction under ORS 19.270. However, plain-

tiffs argue that the service requirement in ORS 19.270(2) “is

jurisdictional in the sense that failing to perfect an appeal

as to one party deprives the court of jurisdiction over chal-

lenges to the portions of the judgment that dispose of the

claims for or against that party.” (Emphases in original.)

In support of their argument that ORS 19.270

requires dismissal of an entire appeal, defendants cite to

a host of cases. According to defendants, the cases support

their argument because they show the Oregon appellate

courts “grant[ ] a motion to dismiss an appeal against all of

the respondents when one of the respondents was not served

with * * * a copy of the notice of appeal.” See, e.g., Parson v.

Ranes, 148 Or 197, 35 P2d 986 (1934); Johnson v. Shasta

View L. Co., 129 Or 469, 278 P 588 (1929); Adams et al. v.

Kennard et al., 122 Or 84, 227 Or 84 (1924); First Nat. Bank v.

Halliday, 98 Or 649, 193 P 1029 (1920); Temminck v. Doering,

97 Or 145, 191 P 348 (1920); In re Waters of Chewaucan River,

89 Or 659, 663, 171 P 402 (1918); Thomas v. Thruston, 87 Or

650, 171 P 404 (1918); D’Arcy v. Sanford, 81 Or 323, 159 P

567 (1916). Further, defendants cite to a Minnesota appel-

late court case, Banal-Shepherd v. Shepherd, 829 NW2d

426, 427 (Minn Ct App 2013), in support of their contention

that “[o]ther courts around the country that have addressed

this same issue have ruled that the failure to serve all

adverse parties with the notice of appeal deprives the court

of appeals of jurisdiction and have dismissed the appeal as

to all respondents.”

We agree with plaintiffs that a closer examination

of the cases betrays a more nuanced analysis. Defendants,

in arguing that the failure to serve a party named in the

notice of appeal requires dismissal of the appeal entirely,

rely exclusively on cases decided in the context of a service

statute that required service on all adverse parties that had

the motion.” State v. Ibarra, 293 Or App 268, 270, 427 P3d 1127, rev den, 364 Or

207 (2018). Here, we took no action on the motion for reconsideration until after

the response in opposition to the motion was filed.

We are also unpersuaded by plaintiffs’ argument that M&B, “having

been dismissed a party to the appeal, * * * has no standing to complain about the

scope of the decision.” Under ORAP 6.25, a dismissed party has the ability to seek

reconsideration of an order dismissing it.

Cite as 335 Or App 305 (2024) 313

appeared in the underlying proceeding. See, e.g., The Codes

and General Laws of Oregon, title IV, ch VI, § 527 (Hill 1887)

(requiring “a notice to be served on the adverse party”); ORS

19.023(2) (1959) (requiring service of a notice of appeal “on

such adverse party or parties as have appeared” below).6

Our interpretation of the current version of the ser-

vice statute, as compared to our earlier case law, diverts

based on intervening amendment to the statutory text.

While the initial version of Oregon’s service statute was

in effect, in determining whether a party met the defini-

tion of “adverse” in the precursor to ORS 19.270, the court

scrutinized the potential prejudice that would result if the

appeal were to proceed without the unserved party. See,

e.g., Morey, Administratrix v. Redifer et al, 204 Or 194, 195,

264 P2d 418 (1953) (“An adverse party within the mean-

ing of the statute is a party whose interest in relation to

the judgment is in conflict with the modification or rever-

sal sought by the appeal.”); Lillienthal & Co. v. Caravita, 15

Or 339, 341, 15 P 280 (1887) (concluding that the defendant

was not “adverse” because “the only relief which is sought by

this appeal, can be granted without in any manner affecting

the interests of the defendant not served”). During the time

the service statute required service on all adverse parties,

if the court determined any improperly or unserved party

qualified as “adverse” to the appeal, it would dismiss the

appeal in its entirety. See, e.g., Hunter v. Allen, 174 Or 261,

286, 148 P2d 936 (1944) (“This view of the circumstances

impels us to the conclusion that [the unserved party] was a

necessary adverse party and that service of notice of appeal

upon her was essential to the jurisdiction of this court.”);

Lidfors v. Pflaum, 115 Or 142, 144, 205 P 277 (1922) (“The

litigants agree to the principle that this court has no juris-

diction to revise the judgment of a circuit court unless the

notice of appeal is served upon all the adverse parties.”); In

6

This initial version of the service statute was amended in 1973 to elimi-

nate any requirement of adversity and, instead, required service on all parties

that had appeared below. Or Laws 1973, ch 207, §3 (requiring service of a notice

of appeal “on all parties as have appeared” in the underlying proceeding). This

version was in effect until the statute was updated to its current form in 1985.

See Or Laws 1985, ch 734, § 5. However, the version of the service statute in effect

between 1973 to 1985 is not discussed by the parties and, in any event, does not

change our analysis.

314 Follansbee v. Ooi

re Chewaucan River, 89 Or at 667 (asserting that, when the

case was decided in 1918, it had been “long established” that

“to give it jurisdiction to act, the notice of appeal must be

served upon every adverse party”). Thus, prejudice was a

necessary component to the court interpreting the jurisdic-

tional bar created by the early version of the service statute,

which required service on all adverse parties.

On the other hand, during this period, if the court

determined that an unserved or improperly served party

was not “adverse” to the appeal, the court could dismiss the

case as to that party only. See Morey, Administratrix, 204

Or at 196 (concluding the parties moving for dismissal were

not “adverse” at all because they were “neither necessary

nor proper parties to this appeal” and, thus, granting the

motions to dismiss the appeal as to them only).

As to the Minnesota case to which defendants cite

for support, Banal-Shepherd, this case too relies on a ser-

vice statute remarkably similar to Oregon’s original ser-

vice statute. The Minnesota court made clear that service

on all adverse parties is a jurisdictional requirement under

Minnesota’s service statute and, pursuant to that reading of

the statute, the court underwent an analysis to determine

whether an unserved party qualifies as “adverse” to the

appeal at all. Banal-Shepherd, 829 NW2d at 428 (“Timely

service of the notice of appeal on each adverse party is a

jurisdictional requirement.”); id. (“An ‘adverse’ party is a

party who would be prejudiced by a reversal or modifica-

tion of an order, award, or judgment.”). The Minnesota court

determined that the unserved party was “adverse” to the

appeal and, based on that conclusion, dismissed the appeal

entirely. Id.

The initial version of Oregon’s service statute is in

contrast with the current version of the statute, adopted in

1985. Or Laws 1985, ch 734, § 5. In its current form, the

statute only requires service on those parties that are “iden-

tified” as adverse in the notice of appeal or, in the alter-

native, “if the notice of appeal does not identify adverse

parties, on all parties who appeared in the action, suit or

proceeding.” ORS 19.270(2); see Riddle v. Eugene Lodge

No. 357, 95 Or App 206, 210-11, 768 P2d 917 (1989) (“The

Cite as 335 Or App 305 (2024) 315

[service] statute was amended in 1985 to provide for service

only on named adverse parties in order to end the practice

of dismissing timely appeals because of a failure to serve

parties who had been dismissed earlier in an action and who

had no active interest in the litigation.”); Maduff Mortgage

Corp. v. Deloitte Haskins & Sells, 83 Or App 15, 21, 730 P2d

558 (1986), rev den, 303 Or 74 (1987) (The 1985 amendment

changed the service statute “to provide that, when a notice

of appeal designates adverse parties, the failure timely to

serve notice of appeal on other parties who appeared in the

action is not a jurisdictional defect.”); Rhodes, 302 Or at 249

(“The 1985 amendment was meant to alleviate the harsh

consequences that often occurred when an otherwise timely

notice of appeal was found to be defective because one of

multiple parties—usually, one that had been removed from

the case at the pleading stage—had not been served.”).

Thus, under ORS 19.270, a party seeking dismissal

of an entire appeal based on inadequate service on less-

than-all parties on which service was required must estab-

lish that, under the circumstances of the case, prejudice is

likely to arise to such a degree so as to warrant dismissal

of the entire appeal. Our case law establishes two types

of prejudice analyses for such a determination. The first

analysis focuses on procedural prejudice; that is, the poten-

tial procedural unfairness that might arise from the failure

for a party or the court to receive timely notice of the appeal.

The second analysis focuses on substantive prejudice; that

is, the magnitude of the unserved party’s rights affected by

the appeal proceeding on its merits. Applying both analyses

to the present facts, it is clear that the potential prejudices

are insufficient to warrant dismissal of the entire appeal.

Analysis: Procedural Prejudice

One case in particular, Jeffries, 165 Or App 103,

compels a procedural prejudice analysis (i.e., whether prej-

udice will result to the parties or the court from the service

deficiency itself) to cases involving service on less-than-all

parties required to be served with the notice of appeal. In

Jeffries, the service deficiency at issue was inverse to the

one at issue in this case: the party dismissed by the Jeffries

court was served with the notice of appeal, but never named

316 Follansbee v. Ooi

as an adverse party, id. at 109, while, here, M&B was named

as adverse party and never served with the notice of appeal.

The question before the Jeffries court was “whether the

failure to designate” the party who had been served with

the notice “as adverse” in the notice of appeal “was jurisdic-

tional.” Id. (Emphasis in original.) In determining that the

proper disposition was dismissal of the judgment entered

in favor of the undesignated party only, the court reasoned

that the party “could reasonably conclude from the designa-

tion that he was not a party to the appeal,” which was the

case because “despite being served, the party receiving the

notice of appeal is not reasonably on notice that his or her

rights in the judgment may be affected by the appeal.” Id. at

113 (emphasis added).

Here, as the Appellate Commissioner concluded

when applying the Jeffries procedural analysis in the under-

lying order, we similarly conclude that dismissal of the

appeal its entirety is not warranted. Defendants argue that

the Commissioner erred in relying on Jeffries for support in

the order of partial dismissal and attempt to distinguish

the case, arguing that the difference of the nature of the

service deficiency—i.e., that M&B was named in the notice

of appeal but was not timely served with it—warrants dis-

missal of plaintiffs’ appeal in its entirety. We are not per-

suaded. Here, in analyzing the prejudice that might result

from the service deficiency itself, we conclude that this is an

insufficient basis to dismiss the entire appeal. The deficien-

cies in the notice in Jeffries deprived the other parties and

the court from receiving timely notice that the undesignated

party’s right may be affected by the appeal. The Jeffries

court concluded that, based on the failure to receive timely

notice regarding the intent to bring the appeal against the

undesignated party, the proper disposition was dismissal of

the undesignated party only, not dismissal of the appeal in

its entirety.

In this case, the chance of procedural prejudice

resulting to the named respondents or the court is even

less likely than the identified risk of procedural prejudice

in Jeffries. That is because in this case, despite the service

deficiency (the failure to serve M&B after it was named in

Cite as 335 Or App 305 (2024) 317

the notice of appeal), the other named respondents and the

court were reasonably on notice that M&B’s rights in the

limited judgment might be affected by the appeal. The filing

of the notice of appeal (not service of it) put the other par-

ties and the court on notice of the intended adverse parties

to the cross-appeal and neither of the other parties to the

appeal nor the court are prejudiced by the naming of the

unserved party, M&B, in that notice.

Analysis: Substantive Prejudice

Because we conclude that the potential procedural

prejudice from the service deficiency in this case does not

warrant dismissal of the entire appeal, we next turn to

the substantive prejudice analysis. While our court has

not explicitly addressed whether a substantive prejudice

analysis applies in this circumstance, our jurisprudence

strongly suggests it does. Cf. Zacker v. North Tillamook

County Hospital Dist., 312 Or 330, 335, 822 P2d 1143 (1991)

(The 1985 amendment, eliminated the need to serve all par-

ties who appeared below, “on the rationale that the failure to

serve an uninterested party should not deprive the appellate

court of jurisdiction.” (Emphasis added.)); Maduff Mortgage

Corp., 83 Or App at 21 (stating that “the purpose” of the 1985

amendment to the service statute, “was to eliminate as a

jurisdictional requirement timely service of notice of appeal

on parties who no longer had an active interest in the litiga-

tion” (emphasis added)). Consistent with the court’s history

of inquiring into the opportunity of a party who appeared

below to have a fulsome appearance on appeal, we hold that

a substantive prejudice analysis is warranted when deter-

mining whether to allow an appeal to proceed without an

unserved, but named, party.7

7

This conclusion is supported by the testimony in support of the 1985

amendment to the service statute, House Bill (HB) 2205 (1985), which updated

the service statute to its current form. The Oregon Judicial Department (OJD)

proposed HB 2205 and Jim Nass, Legal Counsel to the Supreme Court and the

Court of Appeals at the time, testified in support of the bill at the House Judiciary

Subcommittee, stating that “if someone who should have been served with the

copy of the notice is not served with the copy of the notice, moves to dismiss the

appeal as to him or her or it, the court—assuming the party can show preju-

dice—could but would not have to—dismiss the appeal.” Tape Recording, House

Judiciary Subcommittee, HB 2205, Mar 26, 1985, Tapes 291 and 293 (testimony

of OJD representative Jim Nass). Further, Nass explained, “the case could pro-

ceed with that party not being a party to the appeal, which would mean the court

318 Follansbee v. Ooi

Applying the substantive prejudice analysis to this

case, as explained further below, we conclude that the mag-

nitude of M&B’s rights affected by a reversal or modification

of the limited judgment from which the appeal does not war-

rant dismissal of the appeal in its entirety.

The limited judgment—which is the subject of both

defendants’ appeal and plaintiffs’ cross-appeal—dismissed

certain plaintiffs for lack of standing and dismissed with

prejudice specific property claims brought by the remain-

ing plaintiffs against defendants. The limited judgment also

denied plaintiffs’ request for attorney fees and stated that

“[d]efendants Ooi, Miller and M&B are entitled to reason-

able attorneys’ fees and costs under ORS 30.938 * * *.”8

According to plaintiffs, “[a]llowing the appeal to go

forward as to the dismissal of the claims against Miller and

Ooi only, will not prejudice M&B’s rights” because M&B “has

no legal interest in any of the real property at issue here” as

the lessee of Ooi’s property. On the other hand, defendants

argue that M&B will be prejudiced by the appeal proceed-

ing without it, they state that “M&B clearly has legal rights

that will be affected by Plaintiffs’ cross-appeal” and that

“[plaintiffs’] cross-appeal is of the Limited Judgment, which

dismissed all of [plaintiffs’] claims against Ooi, M&B, and

Miller[.]” We disagree with defendants position.

In this case, without proper service of plaintiffs’

notice of appeal, M&B never became a party to the appeal.

could not affect any interest of that party, but if the prejudice were of such a mag-

nitude, the court would have the power to dismiss the entire appeal.” Id.

8

We note that the limited judgment did not provide for the amount of fees

to be awarded to defendants and, thus, the trial court entered a subsequent,

supplemental judgment setting the amount of attorney fees and costs. Plaintiffs

proceeded to file an amended notice of cross-appeal from the supplemental judg-

ment. See ORS 20.220 (2) (“If an appeal is taken from a judgment under ORS

19.205 before the trial court enters a judgment [awarding attorney fees or costs

and disbursement], any necessary modification of the appeal shall be pursuant

to rules of the appellate court.”); ORAP 2.20(2)(a) (“If the trial court enters a

supplemental judgment awarding attorney fees or costs and disbursements * * *

after the notice of appeal has been filed, and if the appellant intends to challenge

the supplemental judgment on appeal, the appellant, within 30 days after entry

of the supplemental judgment, shall serve and file an amended notice of appeal

from the supplemental judgment.”). Plaintiffs’ amended notice of appeal from the

supplemental judgment names Ooi, Miller, and M&B as adverse parties and cer-

tifies service on them. That notice of appeal is not at issue in defendants’ motion

for reconsideration and is, therefore, not addressed by this opinion.

Cite as 335 Or App 305 (2024) 319

Once the statutory time limit ran in which plaintiffs had

to file a notice of cross-appeal, under ORS 19.255(3), the

rulings in the limited judgment that are the subject of the

appeal became final as to M&B. See, e.g., Adams et al. v.

Kennard et al., 122 Or 84, 96, 227 P 738 (1924) (concluding

that a judgment dismissing the suit as to the defendants

that was never appealed within the jurisdictional time

limit, the judgment was “final” as to them and, “[b]eing

thus final, it constitutes a bar in favor of [defendants] and

against plaintiff as to any further litigation of the issues

involved in this suit”). Therefore, this court lacks jurisdic-

tion to review the trial court’s rulings that dismiss plain-

tiffs’ property claims against M&B. As a bar to further liti-

gation of these issues against M&B, no prejudice will result

to M&B as being excluded from challenging these rulings.

Because these rulings are divisible from the other rulings

contained in the limited judgment and because defendants

do not assert that prejudice will result to any served party,

we conclude that a decision by this court reversing the rul-

ings over which it has jurisdiction—the rulings contained in

the limited judgment as to defendants other than M&B—is

slight (if not altogether inconsequential) to M&B’s rights.

Therefore, dismissal of plaintiffs’ entire appeal is

not appropriate under either prejudice analysis; the poten-

tial prejudice to any party or the court is not of such a

magnitude to warrant dismissal of plaintiffs’ appeal in its

entirety.

Reconsideration allowed; prior order adhered to.