There are a number of procedural twists and turns to follow, so please read the entire case:
McCollum V. Kmart (SC S057609) (En Banc), filed February 19, 2010:
Excerpts: “This is a personal injury case in which defendant appealed an order granting plaintiff a new trial. The Court of Appeals determined that the trial court's stated grounds for ordering a new trial, as well as certain alternative grounds urged by plaintiff to support the order, were not adequate bases for that relief. McCollum v. Kmart Corporation, 228 Or App 101, 207 P3d 1200 (2009) (McCollum II). The Court of Appeals therefore reversed the trial court's order and remanded with instructions to reinstate the judgment for defendant. Id. at 123....
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On December 4, 2006, the trial court signed and filed an order granting plaintiff's motion for new trial. On that same date, the trial court also signed and filed a letter opinion addressed to counsel for the parties in which the court explained the basis for its decision. On the second and last page of the letter opinion, the letter stated: "Enclosed is a conformed copy of the Court's Order Allowing New Trial." The letter also had the notation "enclosure" in a footer on the last page.
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The other issue that has arisen with some frequency is what form of document will constitute an "order." More specifically, the question has been whether a memorandum (or letter) opinion constitutes an order. This court's answer has been: it does not. Ernst, 208 Or at 451. In Ernst, we reasoned that, in general, an opinion (written or oral) is not the equivalent of an order. Id. (citing cases). Moreover, an appeal can be taken only from a "final appealable order," not from an "opinion." Id.
Those settled principles resolve this case. Here, the trial court's letter opinion, although filed with the clerk and entered in the register within the 55-day period, was not an "order." It thus was not "determined" within the meaning of ORCP 64 F(1). And, although the trial court had signed and filed the requisite written order within the 55-day period, that order was not entered in the register within 55 days. Instead, it was entered into the register 59 days after entry of judgment, on December 11, 2006. By then, plaintiff's motion for new trial had been conclusively denied as a matter of law. The trial court had no power to alter that disposition of the motion....
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For those reasons, we disagree with the Court of Appeals that the letter opinion was an order. It was, instead, a letter opinion. To be sure, it was accompanied by and prepared in tandem with a signed order. But that fact reinforces our conclusion that the two were not one and the same; they were, instead, two distinct and different documents -- a letter opinion explaining the court's decision and an order granting plaintiff a new trial...." (Read full case)
