Development Northwest, Inc. v. Zhiryada ( 2024 )

No. 61 January 31, 2024 509
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DEVELOPMENT NORTHWEST, INC.,
an Oregon corporation, dba Wolcott Plumbing,
Plaintiff-Appellant,
v.
Valeriy ZHIRYADA,
an individual;
Valentina Zhiryada,
an individual;
and Northwest Freight, LLC,
a Washington limited liability company,
Defendants-Respondents,
and
VALLEY PACIFIC CONSTRUCTION, INC.,
an Oregon corporation;
and Keith Minter, Inc.,
an Oregon corporation, dba Jade Smith Paving,
Defendants.
Multnomah County Circuit Court
19CV13524; A176707
Christopher J. Marshall, Judge.
On appellant’s petition for reconsideration filed
December 15, 2023. Opinion filed December 6, 2023. 329
Or App 427 (2023)
Thomas M. Christ argued the cause and filed the briefs
for appellant. Also on the briefs was Sussman Shank LLP.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Reconsideration allowed; opinion modified and adhered
to as modified.
510 Development Northwest, Inc. v. Zhiryada
SHORR, P. J.
Plaintiff petitions for reconsideration of our opinion
in Development Northwest, Inc. v. Zhiryada, 329 Or App 427(2023) (nonprecedential memorandum opinion). We allow
reconsideration, modify our prior opinion as described below,
and adhere to the opinion as modified.
In its petition, plaintiff contends that the opinion
is inaccurate and incomplete due to our failure to address
the supplemental judgment that awarded costs and attorney
fees to defendant for having prevailed on the construction
lien foreclosure claim. Defendant has not filed a response to
the petition.
We agree with plaintiff and therefore grant recon-
sideration. Pursuant to ORS 20.220(3)(a), “[w]hen an appeal
is taken from a judgment under ORS 19.205 to which an
award of attorney fees or costs and disbursements relates[,
i]f the appellate court reverses the judgment, the award of
attorney fees or costs and disbursements shall be deemed
reversed[.]” Although the supplemental judgment awarding
costs and attorney fees to defendant is reversed by opera-
tion of law in light of our opinion, we allow reconsideration
for the purpose of correcting the oversight and explicitly
addressing the supplemental judgment in our disposition.
We therefore modify the first sentence of the opinion to read:
“Following a bench trial, plaintiff appeals from a judgment
dismissing its claim for construction lien foreclosure, and
from the supplemental judgment awarding costs and attor-
ney fees to defendant for having prevailed on that claim.”
We further modify the disposition of the opinion to read:
“General judgment reversed and remanded as to plaintiff’s
lien foreclosure claim; supplemental judgment awarding
costs and attorney fees to defendant reversed; otherwise
affirmed.”
Reconsideration allowed; opinion modified and
adhered to as modified.