WOLLHEIM, P.J.

We write to address this issue of appellate procedure: When a party has filed a motion for new trial and a notice of appeal is filed before the motion for new trial is decided, must the appellant file a new notice of appeal after the motion for new trial is decided? We conclude that no new notice of appeal is required. Accordingly, we grant respondent's motion for determination of jurisdiction, determine that the court has jurisdiction of this appeal, and direct that the appeal proceed.

The essential procedural events are these: The trial court resolved plaintiff's claims by granting defendant's motion for summary judgment. Defendant tendered a form of general judgment memorializing that decision, the trial court signed the judgment on June 22, 2010. On June 24, before the judgment was entered in the trial court register, plaintiff filed its "motion to reconsider the court's ruling on defendant Warren's motion for summary judgment; alternative motion to clarify ruling" (motion to reconsider). On July 8, the trial court clerk entered the judgment in the register. On July 21, plaintiff filed a notice of appeal from the judgment. On September 15, the trial court entered an order denying the motion to reconsider.1 Plaintiff did not thereafter file a new notice of appeal.

In October, defendant Warren filed a motion to determine jurisdiction,2 contending that plaintiff's motion filed in the trial court in substance was a motion for new trial and that plaintiff's notice of appeal filed while that motion was pending was premature and, therefore, ineffective. Because plaintiff failed to file a notice of appeal within 30 days after the motion was resolved, defendant argued, this court lacked jurisdiction of the appeal. The Appellate Commissioner denied the motion on the ground that defendant's argument depended on determining that the motion to reconsider was a motion for a new trial and, because defendant had failed to provide the court with a copy of that motion, the court was unable to determine whether it lacked jurisdiction for the reason asserted by defendant. Defendant thereafter renewed his motion for determination of jurisdiction, and provided a copy of the motion to reconsider.

WHETHER THE MOTION TO RECONSIDER WAS A MOTION FOR NEW TRIAL

Defendant's assertion that this court lacks jurisdiction to decide plaintiff's appeal depends in part on whether plaintiff's motion to reconsider was a motion for new trial.3 Plaintiff contends that its motion to reconsider was not, because (1) the motion was filed before, not after, entry of judgment; (2) the motion did not seek relief cognizable under ORCP 64; (3) the motion was not labeled as a motion for new trial; and (4) defendant contended in the trial court that the motion was not a motion for new trial, and the trial court did not treat it as a motion for new trial.

ORCP 64 F(1) requires only that a motion for new trial be filed "not later than 10 days after entry of the judgment" and such a motion is timely notwithstanding that it is filed before entry of judgment. Highway Commission v. Fisch-Or, 241 Or. 412, 417-18, 399 P.2d 1011, opinion modified, 241 Or. 412, 406 P.2d 539 (1965) (motion for new trial filed prior to entry of judgment timely); Way v. Prosch, 163 Or.App. 437, 442, 988 P.2d 422 (1999) (same). Thus, it is of no consequence that plaintiff's motion was filed before entry of the judgment.

Further, the character of a motion is not determined by its caption, but by its substance. State v. Barone, 329 Or. 210, 221, 986 P.2d 5 (1999), cert. den., 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000). A motion for reconsideration can serve the same function as a motion for new trial in cases tried to the court. Schmidling v. Dove, 65 Or.App. 1, 5-6, 670 P.2d 166 (1983); ORCP 64 C.4 More to the point here, a motion to reconsider a grant of summary judgment can be a motion for new trial, depending on the grounds stated in the motion, even if the motion does not identify itself as such or refer to ORCP 64. Carter v. U.S. National Bank, 304 Or. 538, 544-45, 747 P.2d 980 (1987); Welker v. TSPC, 332 Or. 306, 312, 27 P.3d 1038 (2001).

ORCP 64 A defines a new trial as "a re-examination of an issue of fact in the same court after judgment." The possible grounds for seeking a new trial, in cases decided by either a jury or the court, are found at ORCP 64 B and include "[i]nsufficiency of the evidence to justify the verdict or other decision * * *," ORCP 64 B(5), and an "[e]rror in law occurring at the trial and objected to or excepted to by the party making the application," ORCP 64 B(6). Plaintiff's motion in the trial court argued, within the meaning of ORCP 64 B(5), that the court erred in granting summary judgment because there was a material issue of fact, namely, whether the plaintiff was formed before individual unit owners signed unit agreements and thereby waived their right to bring claims. To that extent, plaintiff invited the trial court to re-examine the facts of the case. Plaintiff also argued, within the meaning of ORCP 64 B(6), that the trial court erred in concluding that it was possible for the individual unit owners to waive the rights of the plaintiff in an action against the developer in derogation of a particular statute, and that the unit owners had waived those rights. Therefore, we conclude that the motion to reconsider, in substance, was a motion for new trial.

It makes no difference, as plaintiff argues, that defendant asserted to the trial court that the motion to reconsider was not a motion for new trial. Whether this court has jurisdiction of plaintiff's appeal depends, in part, on whether plaintiff's motion in substance was a motion for new trial, and a party can neither stipulate to, nor waive, jurisdiction. Daly and Daly, 228 Or.App. 134, 139, 206 P.3d 1189 (2009); State v. Young, 188 Or.App. 247, 251, 71 P.3d 119, rev. den., 336 Or. 125, 79 P.3d 882 (2003). That principle, as applied here, means that neither party, by how the party chooses to label or treat a motion filed in the trial court, can either create or obviate this court's jurisdiction if the motion, in substance, was a motion for new trial. Likewise, that the trial court was unwilling to treat the motion as a motion for new trial is not determinative if, fairly viewed, the motion sought relief under ORCP 64.

For the foregoing reasons, we conclude that plaintiff's motion to reconsider was a motion for new trial within the meaning of ORCP 64 F(2) and ORS 19.270(1)(d) (relating to whether the trial court retains jurisdiction notwithstanding filing of notice of appeal to decide motion for new trial), and ORS 19.255(2)(a) (relating to when notice of appeal must be filed if a motion for new trial is timely filed).5

WHETHER APPELLANT MUST TIMELY FILE NEW NOTICE OF APPEAL TO PERFECT THE APPEAL

As noted above, plaintiff filed a notice of appeal within 30 days of the date of entry of the judgment, but while plaintiff's timely filed motion for new trial was pending. The filing of the motion for new trial caused the notice of appeal to be premature because, under ORS 19.255(2), when a timely motion for new trial is filed, the commencement of the appeal period does not begin to run until disposition of the motion for new trial. Welker, 332 Or. at 312-13, 27 P.3d 1038 ("notice of appeal filed before the time to appeal begins to run is jurisdictionally defective"); Alternative Realty v. Michaels, 90 Or.App. 280, 286-87, 753 P.2d 419 (1988) (same).

Further, in Welker, in the course of dismissing the appeal, the court noted that, because of the prematurely filed notice of appeal, the trial court was deprived of jurisdiction to decide the motion for new trial and there could be no resolution of the motion until the trial court regained jurisdiction.6 Welker, 332 Or. at 313, 27 P.3d 1038. That principle goes at least as far back as Johnson v. Assured Employment, 277 Or. 11, 14, 558 P.2d 1228 (1977) ("The great weight of authority of both old and recent cases is that a premature appeal will not * * * ripen and that if the party attempting to appeal does not file a new notice of appeal when the impediment to ripeness is removed, the appellate court lacks jurisdiction.")

However, in House Bill 2368 (2007), the legislature amended ORS 19.270(1) to add to the list of actions that a trial court may exercise during the pendency of an appeal the jurisdiction to "[decide] a motion for new trial under ORCP 64." Or. Laws 2007, ch. 66, § 1. For that reason, unlike the situations that obtained in Johnson and Welker, here, the motion for new trial could be decided by the trial court during the pendency of the appeal and without the need to dismiss the appeal.7 Consistently with ORS 19.270(1) in its current form, we did not dismiss this appeal, but, rather, awaited the trial court's disposition of the motion for new trial.

That the motion for new trial was decided after plaintiff's notice of appeal from the judgment was filed does not resolve the question of whether, after the motion was decided, plaintiff was required to file a new notice of appeal. There are two indicia that the answer is yes. First, ORS 19.255(2) contemplates the filing of a notice of appeal: "If a motion for a new trial is filed and served within the time allowed by ORCP 64, * * * a notice of appeal must be served and filed" within the time specified in ORS 19.255(2)(a) or (b). (Emphasis added.) Second, when HB 2368 was before the 2007 legislature, the following exchange took place between the chair of the House Judiciary Committee and a witness testifying in support of HB 2368:

(Audio Recording, House Committee on Judiciary, HB 2368, Feb. 6, 2007, at 25:49, http:// www.leg.state.or.us/listen (accessed Apr. 14, 2011)).

To the extent that the witness assumed that, when a premature notice of appeal had been filed, the appellant must file a new notice of appeal after the motion for new trial has been resolved, he was mistaken because he failed to take into account two Supreme Court decisions. In Gillespie v. Kononen, 310 Or. 272, 797 P.2d 361 (1990), the tenant in a forcible entry and detainer action prevailed and obtained an order of dismissal. The tenant sought an award of attorney fees, which the trial court denied, also by order. Id. at 274-75, 797 P.2d 361. The tenant filed notice of appeal from the attorney fees order within 30 days of the date of entry of the order. Id. at 275, 797 P.2d 361. On appeal, we noted that the appealability of the trial court decision regarding attorney fees was predicated on the existence of a judgment disposing of the action, and granted the trial court leave to enter a judgment disposing of the action. Gillespie v. Kononen, 98 Or.App. 62, 64-65, 778 P.2d 963 (1989). The trial court entered an order denying the tenant's motion requesting entry of a judgment. The tenant did not file notice of appeal from that order, and we dismissed the appeal. Id.

On review, the Supreme Court reversed. The Supreme Court treated the trial court's order denying the tenant's motion to enter a judgment as a prejudgment order that prevented entry of judgment under former ORS 19.010(2)(a).8 Gillespie, 310 Or. at 279, 797 P.2d 361. The Supreme Court held that the order was appealable, and that the order denying attorney fees became an interlocutory order to which the tenant could assign error under former ORS 19.140 (now ORS 19.425). Id. The Supreme Court so held, even though the tenant had not filed notice of appeal from the trial court's order that the Supreme Court determined was an appealable decision.

The second case is Baugh v. Bryant Ltd. Partnerships, 312 Or. 635, 825 P.2d 1383 (1992). In that case, the plaintiffs appealed from a judgment that this court determined was not "final" because it did not dispose of the defendants' counterclaims.9 Id. at 639, 825 P.2d 1383. This court granted the trial court leave under former ORS 19.033(4) to enter an appealable judgment.10 Id. at 640, 825 P.2d 1383. Our order required the plaintiffs to file an amended notice of appeal not later than 45 days after the date the trial court entered a conclusive judgment. Id. at 638, 825 P.2d 1383. The trial court entered an appealable judgment, and the plaintiffs filed an amended notice of appeal from that judgment within the 45-day period prescribed in our order. Id. at 639, 825 P.2d 1383. The defendants moved to dismiss the appeal on the grounds that the amended notice of appeal was untimely filed. Id. at 640, 825 P.2d 1383. On appeal in this court, we noted that the plaintiffs had filed their amended notice of appeal more than 30 days after the date of entry of judgment, and that former ORS 19.023 (now ORS 19.225) required that the notice of appeal be filed within 30 days of the date of entry of judgment. Baugh v. Bryant Limited Partnerships, 104 Or.App. 665, 672, 803 P.2d 742 (1990). We held that the 30-day appeal period was jurisdictional, and we did not have authority to disregard that jurisdictional requirement by purporting to give the appellant 45 days to file notice of appeal from the only appealable judgment entered in the case. Id.

On review, the Supreme Court reversed, holding that the filing of a new notice of appeal after entry of the judgment was not jurisdictionally required. Baugh, 312 Or. at 644, 825 P.2d 1383. First, the court stated that "ORS 19.033(4) presupposes that the Court of Appeals already has jurisdiction in the circumstances there stated and that it retains that jurisdiction when an inadvertently defective judgment is corrected." Id. at 642, 825 P.2d 1383. Second, the court held that, because former ORS 19.033(4) did not require the filing of a new or amended notice of appeal after entry of an appealable judgment, no additional notice of appeal was required as a matter of jurisdiction. Id. at 643-44, 825 P.2d 1383. The court relied heavily on its decision in Gillespie, characterizing that case as standing for the proposition that this court

Baugh, at 643, 825 P.2d 1383.

This case is like Gillespie and Baugh in that the notice of appeal was filed prematurely under circumstances within ORS 19.270(4). This case is unlike those cases, however, in that this court had no need to grant the trial court leave to enter the judgment, because, under ORCP 64 F(2) and ORS 19.270(1)(d), the trial court retained jurisdiction to decide the motion for new trial, and the time to file a notice of appeal from the judgment commenced without this court granting the trial court leave under ORS 19.270(4). The question becomes, what effect, if any, does not granting the trial court leave under ORS 19.270(4) have on whether an appellant is required to file a new notice of appeal after the motion for new trial was decided?

In summarizing the holding of Gillespie, the court in Baugh suggested that the act of the Court of Appeals granting the trial court leave to enter an appealable judgment pursuant to former ORS 19.033(4) was an essential element of this court possessing and retaining jurisdiction. Baugh, 312 Or. at 643-44, 825 P.2d 1383. But, as noted, this case differs from Baugh and Gillespie in that, in those cases, the time period for filing a notice of appeal could not begin to run unless this court dismissed the appeal and issued the appellate judgment, or granted the trial court leave under former ORS 19.033(4) to enter an appealable judgment. By contrast, here, because the trial court retained jurisdiction notwithstanding the filing of a notice of appeal to rule on the motion for new trial, the time for filing the notice of appeal began to run during the pendency of the appeal and by operation of law. The question becomes whether this court "possesses and retains" jurisdiction where, as here, the notice of appeal was filed prematurely, but the time for filing the notice of appeal began to run without this court granting leave under ORS 19.270(4).

Welker provides some guidance in that respect. In that case, the motion for new trial was filed the day after entry of judgment, followed by the filing of a notice of appeal within 30 days of the date of entry of judgment and before the trial court disposed of the motion for new trial. 332 Or. at 309, 27 P.3d 1038. That case predated the 2003 amendments to ORCP 64 F and ORS 19.270(1) that would have allowed the trial court to rule on the motion for new trial despite the filing of the notice of appeal, so the court was required to dismiss the appeal. Id. at 315, 27 P.3d 1038. It is significant that the parties in Welker asked the court to grant the trial court leave under ORS 19.270(4) to enter an appealable judgment. Id. at 313, 27 P.3d 1038. The court declined that request on the ground that, because the trial court had jurisdiction to enter the judgment when it did so, and because the judgment was appealable in form and substance when entered, the case did not fit the criteria of ORS 19.270(4). Id. at 314, 27 P.3d 1038.

Welker, read in connection with Gillespie and Baugh, supports the proposition that this court has jurisdiction to decide the merits of an appeal from a trial court decision without first requiring the filing of a new notice of appeal,11 if: (1) when the initial notice of appeal was filed, the trial court intended to enter an appealable judgment, but (2) the notice of appeal was premature, i.e., when the initial notice of appeal was filed, the judgment was defective in form, the filing of the notice of appeal deprived the trial court of jurisdiction under ORS 19.270(1) to enter the judgment, the trial court had not yet entered a judgment, or a party had timely filed a motion for new trial and the motion had not yet been disposed of under ORCP 64 F(2).12

When plaintiff filed its initial notice of appeal in this case, the trial court, with jurisdiction to do so, not only intended to enter, but actually had entered, a judgment that conclusively disposed of all claims, and the notice of appeal was premature solely because of the pendency of a timely filed motion for new trial. The motion was deemed denied during the pendency of the appeal; therefore, as was the situation in Gillespie and Baugh, this court retained jurisdiction to decide the appeal without the filing of a new notice of appeal.

Motion for determination of jurisdiction granted; the court determines that it has jurisdiction of the appeal; appeal to proceed.