State ex rel Rosenblum v. Living Essentials, LLC ( 2024 )

No. 793 November 6, 2024 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE ex rel Ellen F. ROSENBLUM,
in her official capacity as Attorney General for the
State of Oregon,
Plaintiff-Appellant
Cross-Respondent,
v.
LIVING ESSENTIALS, LLC,
a Michigan limited liability company;
and Innovation Ventures, LLC,
a Michigan limited liability company,
Defendants-Respondents
Cross-Appellants.
Multnomah County Circuit Court
14CV09149; A163980
Kelly Skye, Judge.
On respondents-cross-appellants’ petition for reconsider
ation filed October 1, 2024, and appellant’s-cross-respondent’s
response filed October 7, 2024, and respondents-cross-
appellants’ reply to response filed on October 8, 2024.
Opinion filed September 18, 2024. 335 Or App 30, ___ P3d
___ (2024).
Michael J. Sandmire and Buchalter and Rachel Lee and
Stoel Rives LLP, for petition.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Carson L. Whitehead, Assistant
Attorney General, for response.
Before Aoyagi, Presiding Judge, Lagesen, Chief Judge,
and DeVore, Senior Judge.
LAGESEN, C. J.
Reconsideration allowed; former opinion modified and
adhered to as modified.
2 State ex rel Rosenblum v. Living Essentials, LLC
Cite as 336 Or App 1 (2024) 3
LAGESEN, C. J.
Defendants petition for reconsideration of our
most recent decision in this matter, State ex rel Rosenblum
v. Living Essentials, LLC, 335 Or App 30, ___ P3d ___
(2024) (Living Essentials III), which we issued following a
remand from the Supreme Court. See State ex rel Rosenblum
v. Living Essentials, LLC, 371 Or 23, 529 P3d 939 (2023)
(Living Essentials II). They seek correction and clarifica-
tion of statements we made in resolving the state’s cross-
assignment of error regarding defendants’ entitlement to
attorney fees under ORS 646.632(8). Having considered the
parties’ arguments, we agree that our decision needs to be
corrected as follows.
We modify the phrase in which we noted that we
previously “remanded for the trial court to determine, in
its discretion, whether and what amount of attorney fees to
award.” Living Essentials III, 335 Or App at 33. We strike
the italicized portion of the phrase and replace it with the
words, “what amount of attorney fees to award.”
We also modify the following paragraph:
“We note that, in light of partial reversal and remand,
defendants are not, at present, prevailing parties. However,
our remand to the trial court leaves the possibility that
defendants prevail. In the event that they do, our conclu-
sion that defendants’ AVC was satisfactory means that
defendants would be eligible for a discretionary award of
attorney fees under ORS 646.632(8).”
Living Essentials III, 335 Or App at 57 (emphasis added). We
strike the above-quoted paragraph and replace it with the
following paragraph:
“We note that, in light of our partial reversal and
remand, it will be for the trial court to enter an order
addressing prevailing parties and to resolve any petition
for attorney fees consistent with this opinion and our pre-
vious opinion.”
Reconsideration allowed; former opinion modified
and adhered to as modified.