Remand Rules: Oregon Supreme Court Clarifies What You Can Appeal

On June 24, 2025, the Oregon Supreme Court held in Crosbie v. Asante that a trial court order of the scope of issues to be retried after reversal and remand cannot be immediately appealed.

Background

The plaintiff in this case was a nurse employed by the defendant hospital who alleged that she was terminated in retaliation for her complaints about safety issues, which included safety violations by other nurses. The plaintiff alleged five claims for relief: (1) whistleblower retaliation under Oregon Revised Statutes (ORS) 659A.199; (2) unlawful retaliation under ORS 659A.030; (3) unlawful employment practices under ORS 654.062 of the Oregon Safe Employment Act (OSEA); (4) common law wrongful discharge; and (5) common law intentional interference with economic relations. The plaintiff voluntarily dismissed the fourth claim (wrongful discharge) and the trial court granted the defendant’s motion for directed verdict on the fifth claim (intentional interference with economic relations). Therefore, only the first three statutory claims for relief went to the jury.

At trial, the plaintiff requested a “cat’s paw” instruction to permit the jury to impute other nurses’ bias against her to the employer to determine whether her termination was unlawful. The defendant objected to the instruction, because in its view, that instruction applies only when a biased supervisor influenced or was involved in the employment decision. Nevertheless, the court instructed the jury that it could impute such bias if it found that the coworkers “influenced, affected or [were] involved in the adverse employment decision” against the plaintiff. This instruction applied to all three surviving claims.

The jury found in the defendant’s favor on the first and second claims for relief, but found in favor of the plaintiff on the third OSEA claim. The trial court accepted the verdict as to the claims and entered a general judgment against the defendant.

The defendant appealed the general judgment, assigning error to the order giving the “cat’s paw” instruction. The court of appeals concluded the trial court erred in its “cat’s paw” instruction and stated at the end of its opinion, “Reversed and remanded on appeal; cross-appeal dismissed as moot.” The court of appeals did not specifically limit its decision to the claim on which the plaintiff had prevailed at trial.

Issue on Appeal

Following the reversal and remand, the parties disputed which claims should be retried. The defendant argued a new trial should only be conducted as the OSEA claim, while the plaintiff argued that the offending jury instruction had applied to all three claims submitted to the jury, and that it was therefore a “global problem affecting the entire trial.” The trial court issued an order granting retrial on all three claims because the three claims were “similar and interrelated.” The defendant appealed that order, but the Appellate Commission issued an order dismissing the appeal for lack of jurisdiction and concluded the defendant must await an entry of judgment for it to appeal the scope of trial on remand. The defendant appealed that decision to the Oregon Supreme Court.

Oregon Supreme Court’s Holding

The Oregon Supreme Court emphasized that the issue it was deciding was not the correctness of the trial court’s order, but whether the trial court’s order determining the scope of trial on remand after reversal was appealable under ORS 19.205(3), which permits appeal from an order “made in the action after a general judgment is entered and that affects a substantial right, including an order granting a new trial.”

In affirming the court of appeals’ decision, the Oregon Supreme Court analyzed the meaning of “general judgment,” explaining that such a judgment decides all requests for relief, except for those decided in a limited judgment, or that may be decided in a supplemental judgment. Here, once the court of appeals reversed the general judgment, a valid general judgment no longer existed. Therefore, the trial court’s order was not made “after a general judgment” as required by the statute. (Emphasis added) For that reason, the trial court’s order was not appealable and the court of appeals lacked jurisdiction to consider the defendant’s appeal.

Practical Takeaways

Based on this decision, Oregon litigators should be mindful that once a general judgment has been reversed and remanded by an appellate court, it is no longer considered a “general judgment” for purposes of appeal. This means that litigators should not assume they can immediately appeal trial court decisions made on remand. Instead, to the extent a party disagrees with the trial court’s interpretation of the remand scope, they should preserve the issue and raise it on appeal after the new judgment is entered. Litigators should also consider that if an error affects multiple claims, a broader retrial may ensue, even if they prevailed on some claims initially.