Merrick v. City of Portland

An order that makes the determination of a third-party binding does not absolve a trial court of further responsibility in resolving a matter. Under ORS 192.431(3), the determination of a third-party made binding by a trial court is a permissible basis upon which to determine the prevailing party for purposes of awarding attorney's fees.

Merrick appealed an order dismissing as moot and denying attorney's fees in his action to compel the City of Portland to disclose public records. Merrick assigned error to the trial court's dismissal, its determination that he did not prevail in the proceedings, and its novel abate-and-remand procedure. On appeal, Merrick argued that he received his requested records because "the court's abatement order predetermined * * * the ruling of the district attorney," that he prevailed as a result, and that the abatement process was inappropriate. In response, the city argued that “any further decision by the court would have no practical effect on [Merrick] 's rights" and that the court had not awarded Merrick a favorable ruling. An order that makes the determination of a third-party binding does not absolve a trial court of further responsibility in resolving a matter. Under ORS 192.431(3), the determination of a third-party made binding by a trial court is a permissible basis upon which to determine the prevailing party for purposes of awarding attorney's fees. The Court found that the case was not moot and that Merrick prevailed. The Court reasoned by analogy to arbitration and appointing referees, as the abate-and-remand order bore similarities to both. The trial court was still obligated to resolve pending orders after the outcome of the third-party determination, like in arbitration or with a referee, so the case was not moot. Additionally, because the trial court made the district attorney's decision binding, Merrick received the equivalent of a favorable arbitration or referee award, allowing him to recover attorneys' fees. Reversed and remanded.