No. 48 August 7, 2014 753

48355 Or J. A. H. v. Heikkila 2014 August 7, 2014

IN THE SUPREME COURT OF THE

STATE OF OREGON

J. A. H.,

Respondent on Review,

v.

Shawn Dean HEIKKILA,

Petitioner on Review.

(CC DR13040666; CA A154447; SC S061636)

En Banc

On review of an order of the Court of Appeals.*

Argued and submitted June 23, 2014.

Jonah Morningstar, Morningstar Legal Arts, Ashland, 

argued the cause and filed the brief for petitioner on review.

Adam J. Brittle, Brittle & Brittle, P.C., Portland, argued 

the cause and filed the brief for respondent on review.

KISTLER, J.

The order of the Court of Appeals is affirmed.

The Clackamas County Circuit Court granted wife’s petition for a restraining order against husband. Husband appealed and served a copy of the notice 

of appeal on his wife, but he did not serve a copy of the notice of appeal on his 

wife’s attorney, as ORCP 9 B requires. The Court of Appeals dismissed husband’s 

appeal for lack of jurisdiction. Held: Compliance with the manner of service specified in ORCP 9 B is mandatory requirement of appellate jurisdiction. Husband’s 

failure to timely serve a copy of the notice of appeal on wife’s attorney, as ORCP 9 

B requires, deprived the Court of Appeals of jurisdiction.

The order of the Court of Appeals is affirmed.

______________

* Order of Dismissal issued by the Appellate Commissioner on July 15, 2013; 

order denying reconsideration of order of dismissal issued by the Chief Judge on 

August 6, 2013.
754 J. A. H. v. Heikkila

KISTLER, J.

ORCP 9 B requires a party filing a notice of appeal 

to serve a copy of the notice on a represented party’s attorney. The question that this case presents is whether an 

appellant’s failure to comply with that requirement is a 

jurisdictional defect. The Court of Appeals held that it is 

and dismissed this appeal. We allowed review to consider 

that issue and now affirm the Court of Appeals’ order dismissing the appeal.

Before turning to the facts of this case, it is helpful 

to describe briefly the governing statutes. To confer jurisdiction on the Court of Appeals, an appellant must file the 

notice of appeal and serve it on the other parties to the action 

within 30 days after the judgment is entered in the register. 

See ORS 19.270(1) (providing that timely filing and service 

of the notice of appeal are jurisdictional); ORS 19.255 (specifying that an appellant must file and serve the notice of 

appeal within 30 days). Although ORS 19.270 provides that 

timely service of the notice of appeal is jurisdictional, it does 

not specify how the notice of appeal must be served. On that 

issue, ORS 19.500 provides:

“Except as otherwise provided in this chapter, when any 

provision of this chapter requires that a document be 

served and filed, the document shall be served in the manner provided in ORCP 9 B.”

ORCP 9 B, in turn, provides that, when a party is represented by an attorney, “service shall be made upon the attorney unless otherwise ordered by the court.”1

In this case, the trial court granted wife’s petition 

for a restraining order against husband and entered that 

order in the trial court register on May 9, 2013. On June 10, 

1 ORCP 9 B provides, in part:

“Whenever under these rules service is required or permitted to be made 

upon a party, and that party is represented by an attorney, the service shall 

be made upon the attorney unless otherwise ordered by the court. Service 

upon the attorney or upon a party shall be made by delivering a copy to 

such attorney or party, by mailing it to such attorney’s or party’s last known 

address or, if the party is represented by an attorney, by telephonic facsimile 

communication device or e-mail as provided in sections F or G of this rule. 

*** Service by mail is complete upon mailing.”
Cite as 355 Or 753 (2014) 755

2013, husband’s attorney filed a notice of appeal and served 

a copy of that notice by mailing it to wife.2

 Husband’s attorney did not serve a copy of the notice on wife’s attorney, even 

though ORCP 9 B required him to do so and even though 

wife has been represented by the same attorney throughout 

this litigation. Eight days later, the Court of Appeals sent a 

“deficiency notice” to husband stating that the case caption 

in the notice of appeal was incorrect. The Court of Appeals 

sent a copy of the deficiency notice to wife, who emailed a 

picture of it to her attorney.

Shortly after wife’s attorney learned that husband 

had filed a notice of appeal, wife moved to dismiss husband’s 

appeal because the Court of Appeals lacked jurisdiction. Wife 

noted that husband had not served her attorney with a copy 

of the notice of appeal, as ORCP 9 B requires. Relying on 

McCall v. Kulongoski, 339 Or 186, 118 P3d 256 (2005), wife 

reasoned that ORCP 9 B defines the manner of service that, 

under ORS 19.270, is a necessary prerequisite for appellate 

jurisdiction. It followed, wife concluded, that husband’s failure to serve the notice of appeal on her attorney in compliance with ORCP 9 B deprived the Court of Appeals of jurisdiction. The Appellate Commissioner agreed and dismissed 

husband’s appeal. The Chief Judge of the Court of Appeals 

denied husband’s motion for reconsideration, and we allowed 

husband’s petition for review to consider whether his failure 

to comply with ORCP 9 B is a jurisdictional defect.3

On review, husband notes that the plain text of the 

jurisdictional statutes requires that an appellant serve a 

copy of the notice of appeal on the other “parties” to the case. 

See ORS 19.270(2); ORS 19.240. In husband’s view, those 

statutes define what a party must do to confer jurisdiction 

on the Court of Appeals, and he complied with them. He 

timely served the only other “party” to the action—namely, 

his wife—with a copy of the notice of appeal. Husband does 

not dispute that he failed to comply with ORCP 9 B when 

he failed to serve wife’s attorney. He reasons, however, that 

2 The 30th day following entry of the trial court’s order granting the restraining order fell on a Saturday. Husband timely filed his notice of appeal the next 

business day. See ORS 174.120(3).

3 The lawyer who currently represents husband on review is not the lawyer 

who filed and served the notice of appeal. 
756 J. A. H. v. Heikkila

that error is not jurisdictional and that statements to the 

contrary in McCall were unnecessary to decide that case.

In considering husband’s argument, we start with 

the text of ORS 19.270. ORS 19.270(1) provides that “the 

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) specifies that the 

“following requirements of ORS 19.240, 19.250 and 19.255 

are jurisdictional and may not be waived or extended.” One 

of those requirements is that the notice of appeal be “served” 

on either the “adverse parties” identified in the notice of 

appeal or, if the notice does not identify which parties are 

adverse, “all parties who have appeared in the action.” ORS 

19.270(2)(a).

Husband’s interpretation of the text of ORS 19.270 is 

plausible. Not only does ORS 19.270(2) not specify that compliance with ORS 19.500 and ORCP 9 B is a jurisdictional 

prerequisite, but it requires only that the notice of appeal 

be served on the “parties” to the action. ORS 19.270(2) does 

not require that the notice of appeal be served on the party’s 

attorney as a prerequisite to obtaining jurisdiction.

Another interpretation is also permissible, however. 

As this court recognized in McCall, ORS 19.270 requires 

that the notice of appeal be timely served on either those 

adverse parties identified in the notice of appeal or all the 

parties who have appeared in the action. See 339 Or at 194. 

Although ORS 19.270 makes clear that timely service is 

jurisdictional, it does not specify how timely service must be 

accomplished to confer jurisdiction on the Court of Appeals. 

ORS 19.500 fills that gap. It provides that, when ORS chapter 19 requires that a document be served and filed, “the 

document shall be served in the manner provided in ORCP 

9 B.”

We have consistently interpreted ORS 19.270 in 

context; that is, we have consistently read ORS 19.270 and 

ORS 19.500 together to determine who must be served and 

how service must be accomplished for the Court of Appeals 

to acquire jurisdiction. In McCall, for example, this court 

held that the Court of Appeals lacked jurisdiction over the 

defendant’s appeal because the defendant had not served the 
Cite as 355 Or 753 (2014) 757

plaintiffs by mailing the notice of appeal to “the last known 

address of [the] plaintiffs’ lawyers,” as ORCP 9 B required. 

McCall, 339 Or at 195. In reaching that conclusion, the court 

explained that ORS 19.270, ORS 19.240, and ORS 19.500 

“illustrate that the legislature intended to premise appellate jurisdiction under ORS chapter 19 on proper service of 

notice” and that ORS 19.500 specifies that the proper manner of service is that set out in OCRP 9 B.4 Id.

This court returned to the issue one year later in 

Gadda v. Gadda, 341 Or 1, 136 P3d 1099 (2006). In that 

case, the court held that the Court of Appeals had jurisdiction over the husband’s appeal because the husband had 

caused the notice of appeal to be delivered to the wife’s attorney, in accordance with ORCP 9 B. That holding rests on 

the proposition that compliance (or noncompliance) with the 

service requirements in ORCP 9 B is jurisdictional.

Most recently, in Ann Sacks Tile and Stone, Inc. v. 

Dept. of Rev., 352 Or 380, 390, 287 P3d 1062 (2012), this 

court held that a party’s failure to serve a notice of appeal 

consistently with ORCP 9 B deprived the Court of Appeals 

of jurisdiction. In so holding, the court specifically considered the issue that husband raises here. The court noted:

“Although ORS 19.270(2)(a) specifically makes the timeliness of service jurisdictional, that statute does not cross 

reference either ORS 19.260 or ORS 19.500, which govern 

the manner of service. Therefore, the possibility exists that 

the manner of service is not jurisdictional.”

Id. at 386 (emphasis omitted). Addressing that possibility, 

this court rejected it. The court explained that “[t]his court’s 

prior case law * ** leaves no doubt that appellate jurisdiction requires service of a notice of appeal in a particular 

manner.” Id. The court reasoned that, under cases such as 

McCall and Wal-Mart Stores, Inc. v. City of Central Point, 

341 Or 393, 144 P3d 914 (2006), the timeliness of service 

4 Husband argues that McCall is distinguishable because the defendant 

in that case served the plaintiff by mailing the notice of appeal to the wrong 

address. The requirement, however, that the defendant in that case serve the 

notice of appeal by mailing it to “the last known address of the plaintiffs’ lawyers” 

came from ORCP 9 B. It was the defendant’s failure to comply with that aspect of 

ORCP 9 B that led this court in McCall to hold that the Court of Appeals lacked 

jurisdiction. See 339 Or at 195-96.
758 J. A. H. v. Heikkila

and the manner of service are inextricably intertwined. Ann 

Sacks, 352 Or at 387. For a document to be timely served, 

service must comply with ORCP 9 B. Id. at 387, 390.

Those cases control this one. ORCP 9 B specifies 

how an appellant must serve a party when that party is represented. The appellant must serve the party’s attorney. In 

this case, husband did not do so in a timely manner, and 

that failure deprived the Court of Appeals of jurisdiction. 

For us to hold otherwise, we would have to overrule our decisions in McCall, Gadda, and Ann Sacks. Husband, however, 

has presented no basis for our doing so. See Farmers Ins. Co. 

v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (explaining the 

bases for overruling precedents). We accordingly adhere to 

our decisions in McCall, Gadda, and Ann Sacks. Under those 

decisions, husband’s failure to serve the notice of appeal in 

compliance with ORCP 9 B deprived the Court of Appeals of 

jurisdiction.

The order of the Court of Appeals is affirmed.