# Follansbee v. Ooi

> Court of Appeals of Oregon · October 2, 2024 · 335 Or. App. 305

URL: https://www.frixlaw.com/law-library/cases/10595410

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** October 2, 2024
- **Citations:** 335 Or. App. 305; 558 P.3d 422
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10595410. Public record. Not legal advice.