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Bova v. City of Medford

Court of Appeals of Oregon

August 13, 2014

JOSEPH BOVA, Plaintiff-Respondent,
v.
CITY OF MEDFORD, an incorporated Subdivision of the State of Oregon; and MICHAEL DYAL, City Manager of the City of Medford, as an Individual, and in his official capacity, Defendants-Appellants

Jackson County Circuit Court. 081663E7. Timothy C. Gerking, Judge. On respondent's petition for reconsideration filed May 30, 2014; and on appellants' petition for reconsideration filed June 4, 2014, and respondent's response to appellants' petition for reconsideration filed June 11, 2014.Opinion filed May 21, 2014. 263 Or.App. 179, 326 P.3d 1256 .

Robert E. Franz, Jr., for appellants' petition.

Stephen L. Brischetto for respondent's petition and response.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.

OPINION

Page 1145

[264 Or.App. 764] SCHUMAN, S. J.

Plaintiff is a retired employee of defendant, the City of Medford. Both parties petition this court for reconsideration of its opinion in Bova v. City of Medford, 263 Or.App. 179, 326 P.3d 1256 (2014) ( Bova II ). In that opinion, we summarized the procedural posture and the parties' positions as follows:

" The underlying dispute is over the city's refusal to make available to retired employees the same health care insurance that was available to them before retirement. The trial court ruled in favor of plaintiff on his claim that the city violated a statute requiring local governments to provide the health care opportunities to retirees, ORS 243.303(2); on his claim that the city violated ORS 659A.030(1)(b) by discriminating against him on the basis of his age; and on his claim that the city was in contempt of court for failing to comply with the court's order to provide the requested health care opportunities. In Bova v. City of Medford, 262 Or.App. 29, 324 P.3d 492 (2014) ( Bova I ), we affirmed the trial court's ruling holding the city in contempt, we reversed and remanded the trial court's ruling on the claim under ORS 243.303(2), and we reversed the trial court's judgment in favor of plaintiff on his claim under ORS 659A.030(1)(b). In this appeal, filed as a separate matter, the city challenges the trial court's rulings that awarded plaintiff costs and attorney fees with respect to the contempt and age discrimination claims."

Bova II, 263 Or.App. at 180.

Because this court, in Bova I, had reversed the trial court's decision in favor of plaintiff on his age discrimination claim, we held that plaintiff was consequently not entitled to attorney fees ($68,771.25) on that claim. Bova II, 263 Or.App. at 182. We also held that, because plaintiff had prevailed in Bova I on his contempt claim, he was

Page 1146

entitled to the attorney fees associated with that claim ($48,609.96). We stated, " Because we affirmed the trial court with respect to the contempt matter in Bova I, we have no reason to reverse the associated award of costs and fees, nor does the city so argue. We therefore affirm the trial court's award of fees on that matter." Finally, we rejected plaintiff's cross-assignment of error in which he argued that he was entitled [264 Or.App. 765] to all of his attorney fees on all of his claims under the equitable doctrines of " common fund" or " substantial benefit."

We predicted in Bova II that it was " the latest battle--but probably not the last--in an ongoing war between the City of Medford and its retired employees * * *." Id. at 180. This case ( Bova III ) validates our premonition. The city argues that we should have reversed the trial court's award of attorney fees to plaintiff for prevailing on the contempt claim. Plaintiff argues that we should have awarded him fees for all of his work on the case under the " substantial benefit" doctrine. We reject both of those arguments for the reasons that follow.

We begin with the city's petition. It asserts that we made a factual error in stating that the city did not contest plaintiff's award of costs and fees for the contempt claim; according to the city, it advanced that contention in a supplemental brief when it stated that the award of costs and fees relative to the age discrimination claim had to be reversed ...


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