Bush v. City of Prineville

In order to designate an appellant as the prevailing party for purposes of awarding costs, ORAP 13.05(3) requires that "the court reverses or substantially modifies the judgment . . . Otherwise, the respondent is the prevailing party."

Defendant-Appellant, City of Prineville, appealed an earlier decision by Cook County Circuit Court. The Court reversed and designated Defendant-Appellant as the prevailing party. Plaintiff-Respondent Bush sought reconsideration, arguing that Defendant-Appellant should not have been designated as the prevailing party on appeal or awarded costs.

ORAP 13.05(3) provides that an appellant “is the prevailing party only if the court reverses or substantially modifies the judgment or order from which the appeal or judicial review was taken. Otherwise, the respondent . . . is the prevailing party.”

The Court found that this case was similar to Village at North Pointe Condo. Assn. v. Bloedel Constr., 281 Or. App. 322, 327 (2016). In that case, the Court had reversed and remanded a portion of the circuit court’s judgment, but determined that the “intermediate and, possibly, temporary success” of the reversal should not change the prevailing party nor change the party responsible for costs. 

Because the Plaintiff-Respondent was still entitled to a judgment and costs to be determined by the lower court, the appellate court’s reversal did not substantially modify the judgment. Plaintiff-Respondent Bush is the prevailing party.

RECONSIDERATION ALLOWED.