Crosbie v. Asante: Remand-Scope Orders Are Not Immediately Appealable under ORS 19.205(3)

1. Introduction

In Crosbie v. Asante, 373 Or 773 (2025), the Oregon Supreme Court confronted a recurring procedural puzzle: When the Court of Appeals reverses and remands a general judgment for a new trial, may the parties immediately appeal a subsequent trial-court order that merely delineates what issues will be retried? The Petitioners (employers Asante entities) attempted such an interlocutory appeal, contending that the trial court wrongly expanded the scope of retrial to include claims on which they had prevailed in the first trial. The Supreme Court held that ORS 19.205(3) does not confer jurisdiction over an appeal from a remand-scope order. Once a general judgment has been reversed and remanded, no “general judgment” exists for purposes of ORS 19.205(3); hence any order entered thereafter is not “made … after a general judgment” and is unappealable until a new final judgment is entered.

The decision stabilises Oregon appellate practice by clarifying the boundary between permissible interlocutory appeals and matters that must await the new final judgment. Below is a structured commentary on the ruling.

2. Summary of the Judgment

• The original jury trial produced split outcomes on three statutory retaliation claims.
• The Court of Appeals previously reversed and remanded because of an erroneous “cat’s paw” jury instruction.
• On remand, the trial court vacated the old judgment and ordered a new trial on all three statutory claims — including the two claims the defendant had originally won.
• Defendants attempted to appeal this remand-scope order under ORS 19.205(3).
• The Court of Appeals’ Appellate Commissioner dismissed for lack of jurisdiction; the Supreme Court affirmed.

Holding: A trial-court order that only delineates the issues to be retried after an appellate reversal is not an appealable order under ORS 19.205(3) because (a) such an order is not made “after a general judgment” (the original judgment having been nullified by the reversal), and (b) the legislature intended ORS 19.205(3) to reach a narrow class of post-judgment orders, chiefly orders granting new trials while a judgment still exists.

3. Analysis

3.1 Precedents Cited and Their Influence

State v. Cloutier, 351 Or 68 (2011) – reaffirmed that the right to a direct appeal is purely statutory; a party must point to a specific statute granting appellate jurisdiction.
Mangus v. Progress Quarries, Inc., 290 Or 377 (1981) – interpreted the predecessor to ORS 19.205(3) and concluded that an order granting a new trial is appealable only if it simultaneously sets aside an existing judgment. The Court relied heavily on Mangus to show the legislature’s narrow intent.
Allen v. Premo, 251 Or App 682 (2012); Mendoza v. Xtreme Truck Sales, 328 Or App 471 (2023) – Court of Appeals cases establishing that a blanket “reverse and remand” disposition generally nullifies the entire appealed judgment.
Beall Transport Equip. v. SP (Beall I & II), 186/187 Or App (2003) – addressed scope-of-remand disputes; cited to illustrate the practical problem but distinguished because Beall was not about appealability.
Ossanna v. Nike, 365 Or 196 (2019) – supplied background on “cat’s paw” theory, relevant to the underlying merits but not dispositive of the jurisdictional question.

3.2 Legal Reasoning

1. Textual focus on “after a general judgment.”
The Court parsed ORS 19.205(3): for an order to be appealable it must (i) be made after a general judgment is entered and (ii) affect a substantial right. Importantly, “general judgment” is defined by ORS 18.005(7) as a judgment that decides all requests for relief. Once a judgment is reversed on appeal, it no longer decides anything and therefore ceases to exist for statutory purposes.

2. Effect of Appellate Reversal.
The Court accepted the Court of Appeals’ view that a blanket reversal renders the original judgment a nullity. Without a general judgment in place, the temporal pre-condition in ORS 19.205(3) (“after a general judgment”) is unsatisfied.

3. Legislative history.
The 2003 revision of the Judgments Act kept former ORS 19.205(2)(d) (new-trial orders) but intentionally did not broaden interlocutory review. Materials from the Oregon Law Commission emphasised a policy aversion to “piecemeal appeals.” This context convinced the Court that the statute should be read narrowly.

4. Rejection of Analogy to “Order Granting a New Trial.”
Although ORS 19.205(3) mentions “including an order granting a new trial,” the Court treated that phrase as a residual illustration, not a springboard for creative analogies. A true new-trial order under ORCP 64 presupposes the continued existence of the original judgment (because the court must “set aside” the judgment). That scenario is the converse of what happens after an appellate reversal.

3.3 Impact on Future Litigation

Forecloses a category of interlocutory appeals. Parties must now litigate any disagreement about the scope of remand within the second trial and raise the issue in a single, comprehensive appeal from the new final judgment.
Reduces strategic delays. Litigants cannot postpone the second trial by appealing procedural remand orders, leading to faster ultimate resolutions.
Clarifies trial-court authority on remand. While trial courts must still stay within the appellate mandate, their decisions regarding which issues will be retried are not immediately reviewable, fostering judicial efficiency but placing a premium on precise appellate mandates.
Guidance for appellate courts. The opinion encourages the Court of Appeals to draft clearer remand instructions (e.g., specifying which claims are affected) to minimise downstream disputes.

4. Complex Concepts Simplified

General Judgment: The final judgment that resolves every claim in the case (except those handled separately by a limited or supplemental judgment).
ORS 19.205(3): A statute that permits an immediate appeal of (a) a limited, general, or supplemental judgment or (b) certain post-judgment orders made after a general judgment, provided they affect a substantial right – prominently including true new-trial orders.
“Cat’s Paw” Theory: A doctrine allowing an employer’s liability for discrimination or retaliation to be based on the bias of a subordinate or coworker who influenced the ultimate decision‐maker.
Remand-Scope Order: An order by the trial court defining what issues are left for decision after an appellate court has reversed or otherwise modified the previous judgment.
Interlocutory Appeal: An appeal taken before the final judgment in a case. Oregon allows them only when a statute expressly authorises appellate jurisdiction.

5. Conclusion

Crosbie v. Asante sets a clear boundary: ORS 19.205(3) does not supply appellate jurisdiction over trial-court orders that merely implement an appellate mandate by deciding what will be retried. Once a general judgment is reversed, it evaporates for statutory purposes; until a new judgment is entered, intermediate orders must proceed without appellate oversight. The decision promotes procedural economy, curtails piecemeal litigation, and underscores the importance of precise appellate instructions. Litigants dissatisfied with a remand-scope order must now preserve their objections for the post-retrial appeal, integrating all issues into one final review.