On Remand: No Immediate Appeal of Remand Scope Order

Crosbie v. Asante, 373 Or 773 (2025), clarifies when parties can—and cannot—appeal a trial court’s determination of what gets retried after reversal and remand.

In a unanimous decision issued last week, the Oregon Supreme Court held that trial court orders determining the scope of retrial on remand are not immediately appealable under ORS 19.205(3).  Parties who disagree with these scope-of-retrial determinations must wait until after the new trial to challenge them on appeal.

What Happened: Nurse Crosbie sued Asante hospital for wrongful termination, claiming retaliation for her safety complaints.  At trial, the jury delivered a split verdict: Asante won on two claims, Crosbie won on one.  The Court of Appeals found error in the trial court’s “cat’s paw” jury instruction and reversed with a simple tagline: “Reversed and remanded.”

Here’s where things got messy.  On remand, the parties disagreed about which claims should be retried.  Asante’s position—only retry the claim Crosbie won.  Crosbie’s position—retry all three claims that went to the jury.  Trial court’s ruling—retry all three claims.

Asante tried to immediately appeal that scope determination under ORS 19.205(3), which allows appeals of post-judgment orders affecting substantial rights. The Appellate Commissioner dismissed for lack of jurisdiction, and the court of appeals denied Asante’s request for reconsideration.

The Court’s Reasoning: The Supreme Court’s analysis is straightforward but significant.  ORS 19.205(3) permits appeals of orders made “after a general judgment is entered.”  But what happens to that general judgment after reversal and remand?

Once the Court of Appeals reverses and remands, there’s no longer a “general judgment” in existence.  Why?  Because a general judgment, by definition, is one that “decides all requests for relief in the action.”  After reversal of even one claim, at least one request for relief remains unresolved—so no general judgment exists.

In this case, then, the trial court’s scope order wasn’t made “after a general judgment” and thus wasn’t immediately appealable.

Why It Matters: This ruling has several practical implications that are worth considering in your next appeal.

1. On remand, there’s no quick fix: Parties can’t count on immediate appellate review to fix unfavorable scope-of-remand determinations.  You’ll need to live with the trial court’s decision through the new trial.  To prepare for this, be specific in your appellate briefing about which claims are affected by the alleged error.
2. Front-load your appellate strategy: When appealing, or after you get a ruling on appeal, consider seeking clarification from the appellate courts if remand scope might be unclear, since you may not get another bite at that apple until after retrial.
3. Anti-piecemeal policy reinforced: The decision aligns with Oregon’s aversion for piecemeal, or interlocutory appeals.  It prevents multiple rounds of appeals during remand but also means you should preserve any scope objections for the post-trial appeal.
4. Trial court discretion protected: Trial courts retain broad discretion to determine remand scope without immediate appellate interference, so budget accordingly for potentially broader retrials than initially anticipated.

The Bigger Picture:  Crosbie eliminates a potential source of delay and expense in the appellate process.  While parties lose the ability to immediately challenge scope determinations, the legal system gains efficiency by avoiding multiple interlocutory appeals during remand proceedings   The decision also reinforces that Oregon’s appellate jurisdiction statutes will be interpreted narrowly, consistent with the legislature’s intent to limit piecemeal appeals.

For practitioners, the message is clear: get your appellate strategy right the first time, because the remand process offers fewer exit ramps than you might expect.

The Supreme Court’s opinion in Crosbie v. Asante is available at 373 Or 773 (2025).   While this post summarizes key holdings, practitioners should review the full opinion and consult current authority for specific cases.