
Filed:  November 27, 1998





IN THE SUPREME COURT OF THE STATE OF OREGON
WEST LINN-WILSONVILLE SCHOOL



DISTRICT 3 J T,





									Petitioner on Review,





		v.





KENT SEIDA, JOYCE BURNETT, fka



JOYCE SEIDA AND DAVID SEIDA,





	Defendants,





		and





CURTIS M. HUNTER,





	Respondent on Review.





(CC 95-10408; CA A95504; SC S44283)
	On review of an order of the Court of Appeals allowing a

motion for summary determination of appealability.*





	Argued and submitted November 4, 1997.





	John Dudrey, of Williams, Fredrickson & Stark, P.C.,

Portland, argued the cause on behalf of petitioner on review. 

With him on the brief was Donald R. Stark.





	Jeffrey S. Seymour, Lake Oswego, argued the cause and filed

the briefs on behalf of respondent on review.





	Before Carson, Chief Justice, and Gillette, Van Hoomissen,

Durham, and Kulongoski, Justices.**





	KULONGOSKI, J.





	The order of the Court of Appeals is vacated.  The case is

remanded to the Court of Appeals with instructions to dismiss

respondent's appeal as moot.





*	Appeal from order denying intervention,



	Clackamas County Circuit Court, 



	Raymond Bagley, Judge.





**	Fadeley, J., retired January 31, 1998, and did not

participate in this decision.  Graber, J., resigned March

31, 1998, and did not participate in this decision.








		KULONGOSKI, J.




		In October 1995, plaintiff West Linn-Wilsonville School

District 3 J T commenced an eminent domain proceeding, naming as

defendants Kent and David Seida and Joyce Burnett.  Defendants

jointly owned a parcel of land on which plaintiff planned to

build a new middle school.  One year later, before trial, Hunter

moved to intervene pursuant to ORCP 33 C.(1)  He alleged that he

had a contract with defendants for the purchase of boulders and

rocks from the subject parcel.  The circuit court entered an

order denying Hunter's motion.  Plaintiff and defendants then

settled.  




		In December 1996, Hunter appealed the circuit court's

order denying his motion to intervene.  Plaintiff challenged the

appealability of the order denying the motion to intervene in the

circuit court, moving for a summary determination of

appealability pursuant to former ORS 19.034(1) (1995).(2)  Hunter

then moved the Court of Appeals for a stay of the circuit court

proceedings, former ORS 19.034(2) (1995),(3) and for a summary

determination of the appealability of the circuit court's order

denying his motion to intervene, former ORS 19.034(3) (1995).(4) 

Hunter did not move the circuit court, as he might have done

pursuant to former ORS 19.034(2), for a stay of proceedings

pending the outcome of his appeal of the circuit court order

denying his motion to intervene. 




		The circuit court subsequently concluded that its

earlier order denying Hunter's motion to intervene was not

appealable.  The court then entered a final judgment in the

eminent domain proceeding based on the settlement between

plaintiff and defendants.(5)  That final judgment required

plaintiff to make an initial payment of $100,000 to defendants

within 10 days of entry of the judgment and to later deposit with

the circuit court the additional sum of $1,137,750 plus

stipulated damages, attorney fees, and costs.  Hunter did not

move either the circuit court or the Court of Appeals under

former ORS 19.034(2) for a stay of the proceedings to enforce

that final judgment or make a claim against the settlement fund.



		Plaintiff timely deposited the initial $100,000 payment

with the circuit court.  Defendants withdrew that sum, and the

circuit court entered an order approving that distribution.

Plaintiff later timely deposited the balance of the settlement

fund, $1,216,750, with the circuit court.  Defendants withdrew

that sum, and the circuit court entered an order approving that

final distribution of the settlement funds to defendants.  By

that time, the parties had carried out the court's judgment, and

no funds remained on deposit with the court.  Assuming, arguendo,

that the court's order denying intervention had some practical

effect on the rights of the parties, the court's subsequent

orders approving the disbursement of the settlement funds

eliminated any such effect in regard to this controversy.



		After all the foregoing had occurred, the Court of

Appeals granted Hunter's motions for a stay of proceedings in the

circuit court and for a summary determination of appealability. 

The Court of Appeals then determined that the circuit court's

order denying Hunter's motion to intervene was appealable. 

Plaintiff petitioned this court for review of that decision,

which we allowed.  See former ORS 19.034(3) (providing petition

for review procedure).  



		The difficulty is that the Court of Appeals' order was

issued after entry and execution of the final judgment.  By that

time, no action remained in which Hunter could intervene.  Even

if Hunter prevailed on appeal, reversal of the order denying

intervention could have no practical effect on the eminent domain

proceeding.  Thus, Hunter's appeal was moot.  See Brumnett v.

PSRB, 315 Or 402, 405-06, 848 P2d 1194 (1993) (cases in which a

court's decision no longer will have a practical effect on or

concerning the rights of the parties will be dismissed as moot). 

Because the appeal became moot, the Court of Appeals lacked

jurisdiction to proceed with the appeal after entry of final

judgment.  The court's order thus must be vacated.  Id. at 406.



		The order of the Court of Appeals is vacated.  The case

is remanded to the Court of Appeals with instructions to dismiss

respondent's appeal as moot.








1. 	ORCP 33 C provides:




		"At any time before trial, any person who has an

interest in the matter in litigation may, by leave of

court, intervene.  In exercising its discretion, the

court shall consider whether the intervention will

unduly delay or prejudice the adjudication of the

rights of the original parties."



Return to previous location.




2.  Former ORS 19.034(1) (1995), renumbered as ORS

19.235(1) in 1997, provided:




		"Notwithstanding ORS 19.033, if any party or the

trial court on its own motion, on receiving actual

notice of the filing of the notice of appeal, raises

the issue whether the decision being appealed is

appealable, the trial court shall have jurisdiction to

make a summary determination, with or without a

hearing, whether the decision is appealable.  As used

in this section, 'decision' means any trial court

ruling, either oral or written."


Return to previous location.



3.  Former ORS 19.034(2) (1995), renumbered as ORS

19.235(2) in 1997, provided:




		"If the trial court determines that the decision

is not appealable, the trial court, in its discretion,

may proceed through entry of judgment or stay

proceedings pending an appellate court determination of

the existence of an appealable decision.  The trial

court may refer the question of the existence of an

appealable decision to the court to which the appeal is

taken.  Neither an order by the trial court to proceed

through entry of judgment, an order by the trial court

to stay proceedings pending an appellate court

determination, nor a trial court referral of the

question of the existence of an appealable decision to

the appellate court is appealable.  However, on motion

of any party or on its own motion the appellate court

may stay proceedings in the trial court or stay any

order or judgment entered by the trial court pending a

final determination of appealability."


Return to previous location.



4.  Former ORS 19.034(3) (1995), renumbered as ORS

19.235(3) in 1997, provided, in relevant part:




		"When a party by motion, the trial court by

referral or the appellate court on its own motion

raises the issue whether the decision is appealable,

the appellate court may make a summary determination of

the appealability of the decision.  A summary

determination of the appealability of a decision under

this subsection is subject to review by the Supreme

Court as provided in ORS 2.520 except that the petition

for review shall be served and filed within 14 days

after the date of the court's determination.  Either

the Court of Appeals or the Supreme Court may shorten

the time period within which the petition for review

shall be filed." 


Return to previous location.



5. 	Notwithstanding the pendency of Hunter's appeal, the

trial court, on determining that the order denying intervention

was not appealable, had jurisdiction under former ORS 19.034(2)

to enter final judgment.


Return to previous location.



