
FILED: December 19, 2002
IN THE SUPREME COURT OF THE STATE OF OREGON
LINCOLN LOAN COMPANY, 
an Oregon corporation,
		Appellant,
	v.
THE CITY OF PORTLAND,
GRETCHEN KAFOURY, DAVID SWEET,
and MITCHELL McKEE,
	Respondents.
(CC 9403-02151; CA A115965; SC S49667)
	On certification from the Court of Appeals.*
	Argued and submitted November 6, 2002.
	Ridgway K. Foley, Jr., Greene & Markley, P.C., Portland,
argued the cause and filed the briefs for appellant.  With him on
the reply brief was Cecily A. Becker.
	Harry Auerbach, Senior Deputy City Attorney, Portland,
argued the cause and filed the brief for respondents.
	Mary H. Williams, Solicitor General, Salem, filed a brief on
behalf of amicus curiae State of Oregon.  With her on the brief
was Hardy Myers, Attorney General.
	Thomas M. Christ, Cosgrave Vergeer Kester LLP, Portland,
filed briefs on behalf of amici curiae GTECH Corporation and Mark
Tipperman.
	Steve E. Benson, Portland, filed a brief on behalf of amici
curiae Don McIntire and Fred Hall.
	Before Carson, Chief Justice, and Gillette, Durham, Leeson,
and Riggs Justices.** 
	LEESON, J.
	The order of the circuit court is affirmed.
	*Appeal from Multnomah County Circuit Court, Marshall L. Amiton, Judge. 158 Or App 574, 976 P2d 60 (1999).
	**De Muniz and Balmer, JJ., did not participate in the
consideration or decision of this case.
		LEESON, J.
		This is a certified appeal from the Court of Appeals. 
See ORS 19.405 (describing process for certification of appeal to
this court).  Plaintiff Lincoln Loan Company assigns error to the
trial court's denial of its motion under ORCP 71 B to set aside
the appellate judgment that the Court of Appeals issued in
Lincoln Loan Co. v. City of Portland, 158 Or App 574, 976 P2d 60
(1999).  Plaintiff argues that the appellate judgment is void
because the Court of Appeals is not a "constitutionally
authorized" court.  The trial court denied plaintiff's motion. 
For the reasons explained below, we affirm.
		Plaintiff owns properties in the City of Portland. 
Plaintiff brought an action against the city that included, among
others, a claim under 42 USC section 1983 seeking damages and
other relief because the city had included plaintiff on a list
publicizing property owners' code violations and targeted
plaintiff's properties for inspections.  A jury found that the
city had violated plaintiff's substantive due process and equal
protection rights, and awarded plaintiff $2,750,000 in general
damages on its section 1983 claim.  Both parties appealed, and
the Court of Appeals reversed in part.  158 Or App 574.  This
court denied plaintiff's petition for review.  330 Or 138, 6 P3d
1098 (2000).  In due course, the State Court Administrator issued
the appellate judgment conveying the Court of Appeals' decision
to the trial court, and the trial court administrator entered the
appellate judgment in the register, as provided in ORS 19.450. 
Plaintiff then filed a petition for a writ of certiorari.  The
United States Supreme Court denied the petition.  531 US 1013
(2000).
 	Thereafter, plaintiff filed a motion under ORCP 71
B(1)(d) (1) in the trial court action "for an order setting aside
the Appellate Judgment issued by the Court of Appeals and
reinstating the Circuit Court judgment * * * in its entirety[.]" 
Plaintiff argued that the "judgment of the Court of Appeals is
void as it was issued from a court which was not lawfully
created, does not lawfully exist, and possesses no lawful
jurisdiction over any appeal from the judgment of the Circuit
Court * * *."  Plaintiff argued that Article VII (Amended), the
constitutional amendment on which the legislature relied when it
created the Court of Appeals, was adopted in violation of Article
XVII, section 1, of the Oregon Constitution.  See Armatta v.
Kitzhaber, 327 Or 250, 256-77, 959 P2d 49 (1998) (discussing
separate-vote requirement of Article XVII, section 1).  The trial
court denied plaintiff's motion.  Plaintiff appealed, the Court
of Appeals certified the appeal, and this court accepted the
certification.
		The threshold and dispositive question is whether ORCP
71 B authorizes a circuit court to set aside an appellate
judgment on the ground that the appellate judgment is void. 
Plaintiff argues that, because the word "judgment" in ORCP 71 B
is unqualified, it necessarily refers to all judgments, including
appellate judgments.  Therefore, in plaintiff's view, ORCP 71 B
authorizes circuit court judges to set aside appellate as well as
circuit court judgments if the party moving to have a judgment
set aside satisfies the requirements of the rule.  The city
responds that the rules of civil procedure make clear that the
word "judgment" in ORCP 71 B refers only to circuit court
judgments.  It follows, the city contends, that ORCP 71 B affords
no authority to a circuit court to relieve a party from an
appellate judgment.
		Whether ORCP 71 B authorizes a circuit court judge to
set aside an appellate judgment requires us to construe the rule.
We begin with an examination of the text and context.  See Mulier
v. Johnson, 332 Or 344, 349, 29 P3d 1104 (2001) (court follows
template for statutory construction described in PGE v. Bureau of
Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), when
construing rule of civil procedure).
		ORCP 71 B provides that, under specified conditions, a
circuit court may "relieve a party * * * from a judgment[.]"
(Emphasis added.)  ORCP 67 defines "judgment," in part, as "the final determination of the rights of the parties in an
action * * *."  Standing alone, neither the word "judgment," nor
its definition in ORCP 67, advances the interpretive effort here. 
We turn to the context of ORCP 71 B.
		ORS 1.735 and ORCP 1 define the scope of the rules of
civil procedure.  ORS 1.735 states, in part, that "[t]he rules
authorized by this section do not include * * * rules of
appellate procedure."  (Emphasis added.)  Similarly, ORCP 1 A
provides, in part, that the rules of civil procedure, including
ORCP 71, "govern procedure and practice in all circuit courts of
this state * * *."  (Emphasis added.)  This court has interpreted
those provisions to mean that "the ORCP apply only in trial
courts."  McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 89, 957
P2d 1200, adh'd to on recons, 327 Or 185, 957 P2d 1207 (1998). 
Accord Robinson v. Lamb's Wilsonville Thriftway, 332 Or 453, 459,
31 P3d 421 (2001) (stating that ORCP "are rules to be applied to
actions in trial courts" (emphasis in original)).  The foregoing
suggests that the word "judgment" in ORCP 71 B was intended to
include circuit court judgments, not appellate judgments.
		Other references to the word "judgment" in ORCP 71
support that conclusion.  For example, ORCP 71 A provides, in
part, that, "[d]uring the pendency of an appeal, a judgment may
be corrected as provided in subsection (2) of section B of this
rule."  (Emphasis added.)  ORCP 71 B(2) provides that a circuit
court may decide a motion to correct errors in a judgment, under
ORCP 71 A, or a motion for relief from a judgment under ORCP 71
B, "during the time an appeal from a judgment is pending before
an appellate court."  Because an appellate judgment generally
does not exist when a case is "pending before an appellate
court," reference to the word "judgment" in those sections
suggests that the judgment referred to in ORCP 71 B is the
circuit court judgment from which an appeal is taken, not an
appellate judgment.
		The rules and statutes defining an "appellate judgment"
confirm the conclusion that the word "judgment" in ORCP 71 B does
not encompass appellate judgments.  ORS 19.450(1)(b) defines an
"appellate judgment" as 

	"the decision of the Court of Appeals or Supreme Court,
or such portion of the decision as may be specified by
the rule of the Supreme Court, together with an award
of attorney fees or allowance of costs and
disbursements, if any."

ORAP 14.05 provides, in part, that "[a]ppellate judgment means a
decision of the Court of Appeals or Supreme Court together with a
final order and the seal of the court."  Those definitions of an
appellate judgment make clear that such a judgment is a different
species of judgment than the judgment that a circuit court is
authorized to set aside. (2)
		Finally, we note that former ORS 18.160, repealed by Or
Laws 1981, chapter 898, section 53, was the predecessor statute
to ORCP 71 B(1)(a).  In Mullenaux v. Dept. of Revenue, 293 Or
536, 540 n 1, 651 P2d 724 (1982), this court stated that that
statute "relates to a court granting relief from its own judgment
* * *."
		Based on the text and context of ORCP 71 B, we conclude
that the word "judgment" in the rule refers to a circuit court
judgment, not to an appellate judgment.  We proceed no further. 
See PGE, 317 Or at 611 (if legislative intent clear at first
level of analysis, inquiry ends).  It follows that, in this
circumstance, ORCP 71 B does not authorize a circuit court to set
aside an appellate judgment on the ground that it is void.  The
trial court did not err in denying plaintiff's motion to set
aside the Court of Appeals' judgment in Lincoln Loan. 
Accordingly, we affirm the trial court's order.
		The order of the circuit court is affirmed.




1.  	ORCP 71 B provides, in part:

		"B(1) By Motion.  On motion and upon such terms as
are just, the court may relieve a party or such party's
legal representative from a judgment for the following
reasons:  * * * (d) the judgment is void[.] * * * A
motion under this section does not affect the finality
of a judgment or suspend its operation.
		"B(2) When Appeal Pending.  A motion under
sections A or B may be filed with and decided by the
trial court during the time an appeal from a judgment
is pending before an appellate court.  The moving party
shall serve a copy of the motion on the appellate
court.  The moving party shall file a copy of the trial
court's order in the appellate court within seven days
of the date of the trial court order.  Any necessary
modification of the appeal required by the court order
shall be pursuant to rule of the appellate court."

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2. 	Plaintiff's reading of ORCP 71 B would give trial
courts broad authority to relieve a party from an appellate
judgment.  Such authority would be inconsistent with the trial
court's duties under ORS 19.450(3), which provides, in part:

	"If a new trial is ordered, upon the receipt of the
appellate judgment by the trial court administrator for
the court below, the trial court administrator shall
enter the appellate court's decision in the register of
the court below and thereafter the cause shall be
deemed pending for trial in such court, according to
the directions of the court which rendered the
decision.  If a new trial is not ordered, upon the
receipt of the appellate judgment by the trial court
administrator, a judgment shall be entered in the
register and docketed according to the directions of
the court which rendered the decision, in like manner
and with like effect as if the same was given in the
court below."

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(Emphasis added.)
