Bush v. City of Prineville ( 2023 )

538
On respondent’s petition for reconsideration filed April 5, and appellants’
response to petition for reconsideration filed April 12, opinion filed
March 29, 325 Or App 37, 529 P3d 970 (2023); reconsideration allowed, former
opinion and disposition adhered to, designation of prevailing party revised to
designate respondent as the prevailing party on appeal and allowing costs to
respondent payable by appellants June 22; petition for review denied
October 5, 2023 (371 Or 476)
Eric C. BUSH,
an individual,
Plaintiff-Respondent,
v.
CITY OF PRINEVILLE,
a political subdivision of the State of Oregon,
and Michael Boyd, an individual,
Defendants-Appellants,
and
LEAGUE OF OREGON CITIES
and Association of Oregon Counties,
dba Local Government Personnel Institute,
Defendants.
Crook County Circuit Court
14CV08987; A175868 (Control)
Eric C. BUSH,
an individual,
Plaintiff-Respondent,
v.
CITY OF PRINEVILLE,
a political subdivision of the State of Oregon,
and Michael Boyd, an individual,
Defendants,
and
LEAGUE OF OREGON CITIES
and Association of Oregon Counties,
dba Local Government Personnel Institute,
Defendants-Appellants.
Crook County Circuit Court
14CV08987; A175907
532 P3d 1261
Cite as 326 Or App 538 (2023) 539
Respondent seeks reconsideration of the decision in Bush v. City of Prineville,
325 Or App 37, 529 P3d 970 (2023), contending that appellants should not have
been designated the prevailing parties on appeal or awarded costs. Held: The
Court of Appeals allowed the petition for reconsideration and revised the pre-
vailing party designation because, even though the decision reversed the third
supplemental judgment for the trial court to apportion fees, it did not represent a
substantial modification of the judgment from which the appeal was taken.
Reconsideration allowed; former opinion and disposition adhered to; designa-
tion of prevailing party revised to designate respondent as the prevailing party
on appeal and allowing costs to respondent payable by appellants.
A. Michael Adler, Senior Judge.
Roxanne L. Farra and Roxanne L. Farra, P.C., for
petition.
Janet M. Schroer and Hart Wagner LLP and Robert
E. Franz, Jr. and Law Office of Robert E. Franz, Jr. for
response.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Reconsideration allowed; former opinion and disposition
adhered to; designation of prevailing party revised to des-
ignate respondent as the prevailing party on appeal and
allowing costs to respondent payable by appellants.
540 Bush v. City of Prineville
PAGÁN, J.
Plaintiff seeks reconsideration of our decision
in Bush v. City of Prineville, 325 Or App 37, 529 P3d 970
(2023), contending that defendants, the parties who filed the
appeal, should not have been designated the prevailing par-
ties on appeal or awarded costs. For the reasons that follow,
we allow reconsideration and adhere to the former opinion,
but we designate plaintiff as the prevailing party on appeal.
Plaintiff is entitled to an award of costs on appeal payable
by defendants, the City of Prineville (the city) and the Local
Government Personnel Institute (LGPI).
Our determination of the prevailing party on
appeal for purposes of allowing costs is governed by ORAP
13.05(3), which provides that the appellant “is the prevail-
ing party only if the court reverses or substantially modi-
fies the judgment or order from which the appeal or judicial
review was taken. Otherwise, the respondent * * * is the pre-
vailing party.” ORAP 13.05(3). Similarly, “upon appeal of a
judgment in an action or suit in which one or more claims
are asserted for which the prevailing party may receive an
award of attorney fees, the appellate court in its discretion
may designate as the prevailing party a party who obtains
a substantial modification of the judgment.” ORS 20.077(3).
In similar circumstances, we have focused on the
practical effects of our decision on the parties below. In
Village at North Pointe Condo. Assn. v. Bloedel Constr., 281
Or App 322, 327, 383 P3d 409 (2016), we allowed reconsider-
ation and changed the prevailing party designation. We had
reversed and remanded a supplemental judgment because
the trial court should have apportioned fees. Noting that
our decision provided only an “intermediate and, possibly,
temporary success,” we determined that the party obtain-
ing that reversal was not the prevailing party on appeal.
Id. at 332 (internal quotation marks omitted). Furthermore,
on remand, one of the defendants remained “entitled to a
favorable judgment for a substantial amount of attorney
fees,” which weighed against a determination that the
party who obtained the reversal was the prevailing party
on appeal. Id. at 330; see also English v. Multnomah County,
230 Or App 125, 131, 213 P3d 1265 (2009), rev dismissed,
Cite as 326 Or App 538 (2023) 541
348 Or 670 (2010) (granting plaintiff’s petition for recon-
sideration and changing the prevailing party designation
because, although the defendant “did secure a remand for
redetermination of the amount of fees, it is patent that the
fee award on remand will still be very substantial”).
Here, defendants appealed, and we reversed the
third supplemental judgment for the trial court to appor-
tion fees between the city and LGPI after December 2, 2014.
Bush, 325 Or App at 39. On remand, plaintiff will be entitled
to the same amount of attorney fees for work performed from
September 3, 2013 to December 2, 2014, and plaintiff will be
entitled to reasonable attorney fees from December 3, 2014
to September 10, 2015. Id. at 60. As a result, defendants
obtained an intermediate, possibly temporary, success, and,
on remand, plaintiff will be awarded a significant amount
of attorney fees. Our opinion does not necessarily require
the trial court to reduce fees by any particular amount, but
rather to apportion the fees appropriately. Thus, our deci-
sion does not represent a substantial modification of the
judgment from which the appeal was taken. Under ORAP
13.05(3) and ORS 20.077(3), it follows that plaintiff is the
prevailing party entitled to an award of costs on appeal.
Reconsideration allowed; former opinion and dispo-
sition adhered to; designation of prevailing party revised to
designate respondent as the prevailing party on appeal and
allowing costs to respondent payable by appellants.