text:
    STATE of Oregon, Plaintiff-Appellant, v. Charles Bo MCGEE, Defendant-Respondent.
    A158845
    Court of Appeals of Oregon.
    Argued and submitted May 9, 2016. January 30, 2019
    Joanna L. Jenkins, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.
    John Henry Hingson, III, Oregon City, argued the cause and filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

The state appeals a pretrial order dismissing on speedy-trial grounds a 2008 charge against defendant for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010(1). This is the second time we are reviewing a trial court dismissal of this case on speedy-trial grounds. In the first appeal, we concluded that the trial delay was "reasonable" under former ORS 135.747 (2011), repealed by Or. Laws 2013, ch. 431, § 1, and reversed and remanded. State v. McGee , 255 Or. App. 460, 488, 297 P.3d 531, rev. den. , 354 Or. 389, 315 P.3d 420 (2013) ( McGee I ). On remand, defendant sought dismissal under the new speedy-trial statute, ORS 135.746. That statute provides that a criminal trial in which the most serious charge is a misdemeanor must be commenced within two years from the date that the state files the charging instrument. ORS 135.746(1)(a). However, ORS 135.748 excludes certain time periods from that two-year calculation. The question presented in this case is whether a stay requested by defendant and granted by the trial court, which stayed the case pending resolution of a mandamus proceeding in the Supreme Court, falls within one of those exclusions. We conclude that it does and, with that time excluded, defendant would have been brought to trial within two years as required by ORS 135.746. Accordingly, we reverse and remand.

We take the facts, which are largely procedural, from our opinion in McGee I . Defendant was charged by information on March 31, 2008, with misdemeanor DUII. 255 Or. App. at 463, 297 P.3d 531. In preparation for a motion to suppress hearing, defendant served a subpoena duces tecum on one of the arresting officers, requiring him to appear at a pretrial hearing and to bring certain documents with him. The officer appeared but failed to bring most of the requested documents with him. The court continued the hearing for a month, during which time the officer provided the requested documents to defendant. However, defendant asked the trial court to issue a show-cause order to initiate a proceeding to find the officer in contempt of court. Defendant sought a finding of contempt to use in his criminal trial as evidence of the officer's bias. The trial court denied the request, and defendant sought mandamus relief from the Supreme Court. Id. at 464-67, 297 P.3d 531.

After the Supreme Court issued an alternative writ and the trial court did not change its ruling, defendant requested a stay of the criminal case pending final resolution of the mandamus proceeding. At the time of defendant's stay request, his trial was set for January 19, 2009. The trial court granted defendant's stay request. In April 2009, because the mandamus proceeding was still pending, the trial court set the case for a status hearing on those proceedings for December 22, 2009, which was later continued to January 27, 2010. Id. at 467-68, 297 P.3d 531.

The Supreme Court ultimately concluded that the trial court had misapplied the law of contempt and, on November 16, 2009, issued a preemptory writ directing the trial court to vacate its order denying defendant's motion to show cause and to reconsider the motion. Id. at 468, 297 P.3d 531. On remand, after some procedural issues, the trial court again denied defendant's motion to show cause. See id. at 468-72, 297 P.3d 531 (describing the various proceedings and associated dates). The same day as the resolution of the contempt proceeding, April 23, 2010, the trial court reset trial for June 30, 2010, which was later reset for July 14, 2010. Id. at 472, 297 P.3d 531.

Defendant then moved to dismiss the DUII case on speedy-trial grounds under former ORS 135.747 (2011), which the trial court granted. The state appealed that dismissal order, and we reversed and remanded, concluding that the delays in the proceeding were reasonable. McGee I , 255 Or. App. at 488, 297 P.3d 531.

After we decided McGee I , the legislature enacted new speedy-trial statutes. See Or. Laws 2014, ch. 73, §§ 1-4. On remand, defendant moved to dismiss the case under the new statute, ORS 135.746. The trial court granted that motion because, after excluding days under ORS 135.748, the trial court determined that the delay was 903 days, which was more than the two years allowed by ORS 135.746. As relevant to this appeal, the trial court concluded that it would not exclude 337 days from the calculation, which represented the time that trial was delayed during the pendency of the mandamus proceeding. The state now appeals that dismissal. The issue on appeal reduces to whether the trial court erred when it concluded that ORS 135.748 does not exclude from the speedy-trial calculation under ORS 135.746 the time during which the case was stayed pending resolution of the mandamus proceeding. To provide context for the parties' arguments on that issue, we first turn to the text of those statutes.

As relevant to this case, ORS 135.746(1)(a) provides that "[e]xcept as provided in ORS 135.748 * * * [a] trial in which the most serious charge alleged in the charging instrument is designated by statute as a misdemeanor must commence within two years from the date of the filing of the charging instrument." In turn, ORS 135.748(1) sets out eight types of time periods that are excluded from the calculation of that two-year period. In this case, two of the enumerated time periods are relied on by the parties for their respective arguments, and provide as follows:

"(1) All applicable periods of elapsed time as follows are excluded from the time limits described in ORS 135.746 :
"* * * * *
"(b) A period of time following the filing of an interlocutory appeal or an appeal from the dismissal of the charge or charging instrument, or that results from a stay issued by an appellate court in a mandamus or habeas proceeding, until the appellate judgment is issued or the stay is lifted by the appellate court.
"* * * * *
"(h) A period of time between a continuance or a rescheduling of a trial date, granted at the request of, or with the consent of, the defendant or the defendant's counsel, and the new trial date."

ORS 135.748(1). Finally, ORS 135.752 provides that, "[i]f a trial is not commenced as required by ORS 135.746, the court shall order the charging instrument to be dismissed without prejudice unless the court finds on the record substantial and compelling reasons to allow the proceeding to continue."

On appeal, the state argues that the 337 days during the stay should be excluded under ORS 135.748 (1)(h). The state notes that the plain text of subsection (1)(h) excludes trial delays that a defendant has requested or consented to. And, because defendant had requested that the trial court stay the criminal trial pending the outcome of the mandamus proceeding, the state argues that subsection (1)(h) excludes that time period from the ORS 135.746 calculation.

Defendant responds with two arguments. First, defendant argues that ORS 135.748(1)(h) should be construed in conjunction with ORS 135.748(1)(b), which expressly covers stays issued by appellate courts in mandamus proceedings but not stays issued by trial courts in such proceedings. Defendant argues that the legislature must have intended not to exclude time periods for trial court stays during mandamus proceedings because the legislature would have known that relators must first seek stays in the trial court before requesting a stay from the appellate court. See ORAP 11.05(2)(e). Defendant thus concludes that, if we construe subsection (1)(h) to exclude the delay here, it would create a conflict with subsection (1)(b). Second, defendant argues that subsection (1)(h) does not cover "stays" because the plain text of that exclusion refers only to "a continuance or a rescheduling" of a trial date.

We reject defendant's arguments and conclude that ORS 135.748(1)(h) excludes the 337-day time period during which the trial court stayed the criminal trial at defendant's request. The two exclusions in subsections (1)(b) and (1)(h) are directed at different types of delays, depending on the court in which the delay originates. Subsection (1)(b), which covers time periods during interlocutory appeals, appeals from a dismissal of the charge or charging instrument, or "a stay issued by an appellate court in a mandamus or habeas proceeding," excludes delays to criminal trials caused by an appellate court-either through an automatic stay or a stay issued by the appellate court. That is, subsection (1)(b) applies to trial delays caused by the appellate court itself; it does not address whether or not other delays that may be connected to the identified appellate proceedings would also be excluded under a different subsection of ORS 135.748. Subsection (1)(h), on the other hand, addresses delays that are caused by the trial court, and only those delays that the defendant requests or consents to can be excluded from the speedy-trial calculation.

The distinction between the type of court causing a trial delay is critical because subsection (1)(b) protects the state's right to appeal certain pretrial matters without running afoul of the speedy-trial statute; and, likewise, allows the party seeking mandamus or habeas relief to obtain a stay from the appellate court without that court running afoul of the speedy-trial statute. On the other hand, delays caused in the trial court are the reason for the speedy-trial statute. And, under the statute, only those delays that the defendant requests or consents to can be excluded from the speedy-trial calculation. Hence, it is of no import that subsection (1)(b) does not address stays in mandamus proceedings that are granted by a trial court because that is not the type of delay that that exclusion is meant to address. Rather, that type of delay is addressed under subsection (1)(h) because, even for a stay pending a mandamus proceeding, if the trial court decides to delay trial it matters for speedy-trial purposes if the defendant requests or consents to the delay. There is no conflict caused between subsections (1)(b) and (1)(h) by applying subsection (1)(h) to the trial court's grant of defendant's requested stay because those subsections address different speedy-trial concerns.

The plain text of ORS 135.748(1)(h) excludes trial court delays of the trial date requested, or consented to, by a defendant, regardless of the reason for the delay. The use of the terms "continuance" and "rescheduling" does not fore-close applying that subsection to a "stay." A "continuance" is a legal term of art that refers to "[t]he adjournment or postponement of a trial or other proceeding to a future date." Black's Law Dictionary 316 (7th ed. 1999). A "stay" is also a legal term of art that refers to "[t]he postponement or halting of a proceeding, judgment, or the like," or "[a]n order to suspend all or part of a judicial proceeding or a judgment resulting from that proceeding." Black's at 1425. The difference between the two terms is that a "stay" may also include halting the enforcement of a judgment or order, but both terms encompass the postponement of a proceeding. For purposes of the speedy-trial statute, it is of no import if a judgment or order is stayed; what is important is the postponement of trial, i.e. , the "continuance" portion of a "stay." Thus, whether a stay issued by a trial court during a mandamus proceeding is a time period excluded under ORS 135.748, depends on the actual effect of that stay order-viz ., does the stay have the effect of "continuing" the trial. If so, and the defendant requested or consented to that stay, then the time period of the stay is covered by ORS 135.748.

Here, defendant requested in his "motion for stay" that the court "stay" the criminal proceedings against him pending resolution of the mandamus action. The court granted that request. Defendant's request, and the trial court's grant of that request, was directed solely at postponing the criminal trial-that is, it "continued" the trial date. As such, the time period between the continued trial date and the new trial date set after resolution of the mandamus proceeding falls within the exclusion under ORS 135.748 (1)(h) ("A period of time between a continuance or a rescheduling of a trial date, granted at the request of, or with the consent of, the defendant or the defendant's counsel, and the new trial date."). As noted, 295 Or. App. at 804 n. 1, for purposes of this appeal, that time period is 337 days.

In sum, ORS 135.748(1)(h) excludes from the two-year speedy-trial calculation, under ORS 135.746, the 337-day delay that resulted from defendant's request to stay the trial court proceedings pending final resolution of his mandamus proceeding. Excluding that time period, along with the other time periods that the trial court determined should be excluded under ORS 135.748, defendant's trial would have commenced within two years of the filing of the DUII charge. Hence, the trial court erred by dismissing that charge.

Reversed and remanded.

      The 337 days represent the time from the date of the vacated trial date, January 19, 2009, to the date of the first status hearing after the conclusion of the mandamus proceeding, December 22, 2009. Below, the parties argued about additional days of the stay, from December 22, 2009, to the new trial date of June 30, 2010, as separate time periods. Because of that framing, and because the trial court excluded the majority of those days from the speedy-trial calculation, the state argues on appeal only that the additional 337 days should be excluded.

      We note that the state also contends on appeal that the trial court erred by failing to exclude two other time periods, which total 49 days. However, because the issue is dispositive, the parties have focused their arguments solely on the time period during the stay pending resolution of the mandamus proceeding. We thus do not consider those other time periods.

      ORAP 11.05(2)(e) provides:
      "If the relator seeks a stay in the proceedings from which the mandamus proceeding arises, the caption shall indicate 'STAY REQUESTED,' and the relator shall show, in the statement in support of the petition, that the relator requested a stay from the court, judge, or administrative agency or official whose order or decision is being challenged and that the request for a stay was denied , or that it would be futile to request a stay from the court, judge, or administrative agency or official."
      (Emphasis added; capitalization in original.)

      A criminal case is automatically stayed during a state appeal from an interlocutory order or a dismissal of a charge or charging instrument. See former ORS 138.160 (2015), renumbered as ORS 138.295 (2017) ("An appeal taken by the state stays the effect of the judgment or order in favor of the defendant[.]"). Defendants are not entitled to take such appeals. See former ORS 138.040 (2015), repealed by Or. Laws 2017, ch. 529, § 26; former ORS 138.050 (2015), repealed by Or. Laws 2017, ch. 529, § 26; former ORS 138.053 (2015), repealed by Or. Laws 2017, ch. 529, § 26; see also ORS 138.035 (current statute setting out what a criminal defendant may appeal).

      Our construction of ORS 135.748 is confirmed by the legislative history of that statute. The Oregon Department of Justice (DOJ) and Oregon Criminal Defense Lawyers Association (OCDLA) worked together to enact the new speedy-trial statutes. See Testimony, Senate Committee on Judiciary, SB 1550, Feb. 13, 2014 (statement of OCDLA representative Gail L. Meyer). Both DOJ and OCDLA testified that the speedy-trial law would exempt all delays caused by defendants. See id . ("Exclusions from the timeframe for any delays caused by the accused. If the accused were to be responsible for delays, whether intentional or not, the bright-line timeframe is tolled during that period. Examples are: * * * the accused requesting a delay or continuance to prepare his case[.]" (Underscoring in original.) ); Testimony, Senate Committee on Judiciary, SB 1550, Feb. 24, 2014 (statement of DOJ Legislative Director Aaron Knott) ("[The bill e]xcludes all delays caused by the defendant and provides specific statutory language for the periods to be excluded. Any time [delay] caused by the defendant is not counted against the two or three year time period.").


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. James Everette JACOBSON, Jr., Defendant-Appellant.
    A158826
    Court of Appeals of Oregon.
    Argued and submitted December 21, 2016. February 13, 2019
    Rond Chananudech, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Nathan K. Riemersma, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.
   EGAN, C. J.

In this criminal case, defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140, contending that the trial court erred in allowing a jury trial to proceed in his absence and without counsel. We conclude that the trial court erred in allowing the trial to proceed in defendant's absence. We therefore reverse defendant's convictions and remand for a new trial.

The relevant facts are largely procedural and, for purposes of this appeal, are undisputed. Defendant was arrested and charged with the above-described misdemeanor offenses. At the time of his arraignment on July 23, 2013, defendant was appointed counsel and entered pleas of not guilty. On the state's request, the court required security for defendant's release. Noting the possibility that defendant might be released without security "because of jail crowding issues," the court explained that it would require defendant to execute a waiver of appearance: "In any event, you do-if you are released in spite of our efforts to hang onto you, I will order that you sign a waiver of appearance, which means that if you do not come back here to finish this case the prosecution will go on without you."

Following the arraignment hearing, defendant posted the required security and executed a "Security Release Agreement." As part of that agreement, defendant acknowledged that he would appear for all required court appearances and that, if he did not, "a warrant may be ordered for my arrest, a judgment for the entire security amount may be levied against me, I will forfeit the security deposit or security amount; and I may be prosecuted for Contempt of Court and/or for Failure to Appear."

Despite posting security, defendant also executed a "Waiver of Appearance for Trial and Jury Waiver." That form stated that defendant was required to appear in court for all scheduled hearings and trial, and warned defendant that if he failed to appear, the trial might proceed in his absence. The form also stated twice that the failure to appear would constitute an authorization to proceed to trial in defendant's absence. Defendant was released after posting bail and signing the two aforementioned documents.

Defendant appeared with his attorney at a status conference on January 15, 2014, and again at a hearing on a motion to suppress on March 18, 2014. Two weeks before the scheduled trial date of September 30, 2014, defendant's court appointed-attorney asked to withdraw, citing an irreconcilable breakdown in the attorney-client relationship. The court granted the request and appointed new counsel.

Defendant's new counsel appeared without defendant at a pretrial hearing on September 25, 2014, and explained that defendant was absent because he had undergone oral surgery the day before. He requested the court to reschedule the trial to a later date. Defendant's counsel appeared at a pretrial hearing on December 11, 2014, again without defendant, and reported that he had not had contact with defendant and that investigators had been unable to find him. The court noted that the file contained a waiver-of-appearance form and that, on that form, defendant had not waived the right to a jury trial. The court scheduled the trial to be held in five days. The court then granted counsel's request to withdraw from representation of defendant and issued a warrant for defendant's arrest.

On the day of trial, December 16, 2014, neither defendant nor any defense counsel appeared. The case was tried to a jury nonetheless. Based on the state's evidence, the jury found defendant guilty of DUII and reckless driving.

On appeal, defendant contends that the trial court erred in concluding that defendant validly waived his right to appear at trial by signing the waiver of appearance form and therefore erred in proceeding to trial in his absence and without counsel. As a preliminary matter, we reject the state's contention that the issues raised on appeal are not preserved. This case presents one of those rare exceptions to the preservation requirement because it was a practical impossibility for defendant to object to the trial being held in his absence when neither he nor counsel was present at trial to object. See Peeples v. Lampert , 345 Or. 209, 220, 220 n. 7, 191 P.3d 637 (2008) (explaining that under certain circumstances there is an exception to the preservation requirement "when a party has no practical ability to raise an issue" and providing examples of same); State v. Almaraz-Martinez , 282 Or. App. 576, 579, 385 P.3d 1234 (2016) ; State v. DeCamp , 158 Or. App. 238, 241, 973 P.2d 922 (1999). It is true that counsel was present at the hearing at which the court set the trial date. But, at that hearing, the court did not decide that the scheduled trial would proceed in defendant's absence. Although it noted the waiver-of-appearance form in the file, it did so in the context of determining whether defendant had waived the right to have a jury decide his case. Further, the court issued a warrant for defendant's arrest-an effort signaling the court's intent to secure defendant's presence at trial. Counsel then withdrew, and no counsel was present on the day of trial. Under those circumstances, there was no opportunity for defendant to object to trial being held in his absence. Thus, we conclude that, on appeal, defendant can raise the issue whether he validly waived his right to appear without first having preserved the issue in the trial court.

On the merits, for the reasons explained here, we conclude that the trial court erred in its determination that defendant waived his appearance based on his signature on the form and allowing trial to proceed in defendant's absence. We reverse defendant's convictions on that ground and do not reach his contention regarding waiver of the right to counsel.

The Oregon Constitution, Article I, section 11, provides:

"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel."

A criminal defendant's right to appear at trial is a fundamental constitutional right. State v. Menefee , 268 Or. App. 154, 184, 341 P.3d 229 (2014) (describing a pro se defendant's right to be present at trial as a fundamental constitutional right). However, the right of the defendant to appear at trial may be waived. State v. Harris , 291 Or. 179, 185, 630 P.2d 332 (1981). A waiver is the intentional relinquishment or abandonment of a known right or privilege. Church v. Gladden , 244 Or. 308, 312-13, 417 P.2d 993 (1966). In State v. Meyrick , 313 Or. 125, 831 P.2d 666 (1992), in addressing a defendant's waiver of a right to counsel, the court, noting that courts are reluctant to find that fundamental rights have been waived, held that a trial court may accept a defendant's proffered waiver of counsel only if it finds that the defendant "knows of his or her right * * * and that the defendant intentionally relinquishes or abandons that right." Id. at 133, 831 P.2d 666. In determining whether a defendant's waiver of counsel was the intentional relinquishment of a known right, the court said that the focus is on what the defendant knows and understands, based on the particular circumstances of the case. Id. at 132, 831 P.2d 666.

Like the waiver of the right to counsel, the waiver of the right to appear at trial must be an intentional relinquishment of a known right, based on what the defendant knows and understands. In In re Jordan , 290 Or. 669, 672-73, 624 P.2d 1074 (1981), the court stated:

"In a criminal case involving a charge of either a felony or a misdemeanor * * * it is improper for a judge to commence the trial of such a case in the absence of the defendant and to enter a finding of 'guilty' without evidence sufficient to support a finding that he had waived his right to be present at his trial in the usual sense of an intentional relinquishment of a known right. Failure to appear after a notice of the trial date was mailed to him by regular mail is not sufficient as evidence that such a defendant has waived his right to be present at trial in the absence of some additional evidence that he received such a notice and intentionally waived his right to be present at the trial."

(Emphases in original.) In Meyrick , the court explained that the "intentional" component of a waiver of the right to counsel refers to the defendant's intent to waive the right. 313 Or. at 132 n. 8, 831 P.2d 666. "Encompassed within the 'intentional' component is the requirement that the choice must be 'voluntary.' " Id. ; see State v. Turner , 99 Or. App. 176, 178, 781 P.2d 404 (1989) (before trying a defendant in absentia, the court "must determine that the defendant voluntarily waived the right to be present"). Whether a waiver is voluntary depends on the particular circumstances of the case. Meyrick , 313 Or. at 132, 831 P.2d 666. Generally, the court said in Meyrick , in the absence of coercion, most intentional acts are voluntary acts. Id. at 132 n. 8, 831 P.2d 666.

Defendant contends that, contrary to the trial court's ruling, he did not intentionally and voluntarily waive his right to be present at trial by signing the waiver form. We agree with defendant that the trial court erred in so concluding.

In State v. Peters , 119 Or. App. 269, 850 P.2d 393 (1993), we addressed whether the trial court erred in concluding that the defendant waived the right to appear at trial by signing a conditional release agreement. The agreement provided that the defendant agreed that if he did not appear at trial, the trial could proceed in his absence. The defendant, who had a long history of failing to appear, chose to sign the agreement rather than to post bail. At the time he signed the agreement, the defendant consulted with his attorney, who was present. Against his attorney's advice, the defendant signed the agreement and also noted on the form that he was acting against his attorney's advice. The trial court twice admonished the defendant that if he failed to appear at trial, the case could proceed without him. The trial court also explained to the defendant the impact on the defendant's other rights if he failed to appear at trial. Under those circumstances, we concluded that the trial court did not err in finding that the defendant had intentionally relinquished a known right by signing the written waiver form. Id. at 274, 850 P.2d 393. Here, the state asserts that, under Peters , the waiver form signed by defendant was sufficient to establish that defendant validly waived his right to be present at trial.

We disagree. The circumstances surrounding defendant's execution of the written waiver differ significantly from those present in Peters and, in our view, are legally insufficient to establish that defendant's waiver was knowing and voluntary. In Peters , the defendant had a long history of failures to appear, unlike defendant. As a consequence, the defendant in Peters "had the choice of staying in jail, posting bail or agreeing to the waiver." 119 Or. App. at 274, 850 P.2d 393 (emphasis added). The defendant was counseled by his lawyer about the waiver and expressly acknowledged that he had been advised against signing it. We held that in those circumstances, "defendant exercised an informed choice in agreeing to the waiver." Id.

Here, by contrast, it was not communicated to defendant in any clear way that he had a choice to sign the form; the court stated that it was ordering defendant to do so in the event he was released. Additionally, unlike the defendant in Peters , defendant here posted bail but ultimately was still required to sign a waiver of appearance form as a condition for his release. Further, defendant executed the forms outside the presence of the court, and the state developed no facts showing that he was advised by counsel regarding the consequences of signing those forms and, in particular, that he was advised that the trial could proceed in his absence even though he had posted security. Finally, the forms that defendant signed in connection with the security release gave conflicting information about what would happen if he did not appear at trial. His security release agreement explained that if he did not appear at his scheduled court dates (or violated the conditions of release in other ways), the potential consequences would be arrest, forfeiture of security, contempt proceedings, or prosecution for failure to appear. The waiver form stated something different-that by signing the form, defendant acknowledged that trial could proceed in his absence.

We note, additionally, that the court said in Meyrick that the "known right" component of a waiver "refers to the defendant's knowledge and understanding of the right[.]" 313 Or. at 132 n. 8, 831 P.2d 666. The court explained that "[t]his is the more expansive of the two components, because a defendant's knowledge and understanding of the right to counsel" may turn on factors other than what the defendant tells the court, such as the defendant's age and education. Id. In Peters , we held that there was evidence from which the trial court could find that the defendant "exercised an informed choice in agreeing to the waiver." 119 Or. App. at 274, 850 P.2d 393. Here, unlike in Peters , the court did not explain the significance of the waiver other than to tell defendant, "if you do not come back here to finish this case, the prosecution will go on without you." The court did not inquire whether defendant understood that, by signing the form, he was agreeing that the trial would proceed in his absence if he did not appear. The court did not explain the impact on defendant's other rights if he failed to appear at trial. The record does not disclose whether, like in Peters , defendant's attorney was present when he signed the form or advised him to sign it. This record does not show that defendant signed the form with knowledge and an understanding of his right.

The trial court's conclusion that defendant had waived his appearance by signing the form was the basis for its conclusion that defendant's failure to appear at trial was voluntary. In light of our conclusion that the state did not establish that defendant validly waived his appearance by signing the form, we also conclude that the trial court erred in concluding that defendant's absence was voluntary and in allowing the trial to proceed in his absence.

Reversed and remanded.

      Defendant was acquitted of two counts of recklessly endangering another person.

      The form also included a statement that the failure to appear for trial constituted the waiver of the right to counsel. The form provided:
      "If I fail to appear for trial, I waive my right to be represented by an attorney, including a court-appointed attorney. If I am represented by an attorney, I will maintain regular contact with my attorney. If I fail to maintain regular contact with my attorney and my attorney asks the Court to withdraw as counsel, I waive my right to be represented by an attorney, including a court-appointed attorney."

      ORS 136.040(1) provides:
      "If the charge is for a misdemeanor, the trial may be had in the absence of the defendant if the defendant appears by counsel; but if it is for a felony, the defendant shall appear in person."
      Although ORS 136.040(1) makes the defendant's personal appearance mandatory only in felony cases, it has nonetheless been applied to misdemeanor cases as well. See State v. Turner , 99 Or. App. 176, 178, 781 P.2d 404 (1989) (the court may conduct a trial in a misdemeanor case when a defendant appears by counsel, but only after determining that the defendant voluntarily waived the right to be present); see also State v. Shutoff , 263 Or. App. 615, 616, 330 P.3d 1237 (2014) (citing ORS 136.040 as source of statutory right to be present at trial on misdemeanor charges). We note that in State v. Skillstad , 204 Or. App. 241, 246, 129 P.3d 232 (2006), rev. den. , 342 Or. 727, 160 P.3d 992 (2007), we held that if there is a valid waiver of the right to appear, ORS 136.040 does not prevent a trial from proceeding, even if both the defendant and counsel are absent and whether or not the defendant is represented by counsel.

      We recognize that it is not entirely clear that the court intended to order defendant to sign the waiver of appearance form in the event defendant posted security. The court's order followed the discussion of the possibility that defendant might be released without security because of jail over-crowding.

      We note that ORS 135.255(1) provides:
      "The defendant shall not be released from custody unless the defendant files with the clerk of the court in which the magistrate is presiding a release agreement duly executed by the defendant containing the conditions ordered by the releasing magistrate or deposits security in the amount specified by the magistrate in accordance with ORS 135.230 to 135.290."
      ORS 135.250(1) states the conditions for a release agreement:
      "If a defendant is released before judgment, the conditions of the release shall be that the defendant will:
      "(a) Appear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until the defendant is discharged or the judgment is entered;
      "(b) Submit to the orders and process of the court;
      "(c) Not depart this state without leave of the court; and
      "(d) Comply with such other conditions as the court may impose."
      ORS 135.260(1)(d) provides that a conditional release may include any "reasonable restriction designed to assure the defendant's appearance." We are not aware, however, of any provision that authorizes a court to impose as a condition for release an agreement to waive the right to counsel or the right to be present at trial as a consequence of a subsequent failure to appear. Instead, one of the statutory mechanisms for punishing a failure to appear is a prosecution for failure to appear under ORS 162.195 or ORS 162.205. ORS 135.255(2).


author: HADLOCK, J.

text:
    EMON ENTERPRISES, LLC, Plaintiff-Respondent, v. Rick KILCUP, Lorie Kilcup, et al., Defendants-Appellants.
    A159726
    Court of Appeals of Oregon.
    Argued and submitted May 30, 2017. January 24, 2019
    Harry D. Ainsworth, Portland, argued the cause for appellants. Also on the brief was Leslie A. Nelson.
    Frank Wall, Portland, argued the cause and filed the brief for respondent.
    Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge.

      Powers, J., vice Sercombe, S. J.

   HADLOCK, J.

In this forcible entry and detainer (FED) action, tenants, Rick Kilcup and Lorie Kilcup, who are husband and wife, appeal a judgment of restitution of rental premises to landlord. In their first assignment of error, tenants assert that, having previously obtained a judgment of restitution under ORS 90.396(1)(f) (allowing a landlord to terminate a tenancy on an expedited basis for conduct that is "outrageous in the extreme"), the landlord was precluded from obtaining a judgment of restitution under ORS 90.394 (allowing termination of rental agreement for nonpayment of rent). In a second assignment of error, tenants also contend that the trial court erred in determining that landlord adequately served the notice of termination on Rick Kilcup. As explained below, we reject both of tenants' assignments of error. Accordingly, we affirm the judgment of the trial court.

The relevant facts are as follows. Tenants own a manufactured home for which they rented a space in landlord's manufactured home park. Landlord sent tenant Rick Kilcup a 24-hour notice, dated February 25, 2015, that the tenancy was being terminated for an act that was outrageous in the extreme pursuant to ORS 90.396(1)(f). After a trial, on April 17, 2015, the court granted landlord a judgment of restitution. However, execution of the judgment was delayed until an agreed move-out date of May 1, 2015. At the end of April, tenant filed a notice of appeal of the judgment of restitution along with a supersedeas undertaking. See Emon Enterprises, LLC v. Kilcup , 285 Or. App. 639, 640-41, 395 P.3d 78 (2017). The supersedeas undertaking stayed the execution of the judgment of restitution that the court had entered after the trial on the 24-hour notice. See ORS 19.335(2). Meanwhile, tenants had tendered rent checks for March and April; landlord deposited the checks after the conclusion of the trial on the 24-hour termination notice but, on April 29, 2015, the bank returned the checks because the account on which they were drawn had insufficient funds. On May 8, 2015, landlord issued a 72-hour notice of termination of the tenancy for nonpayment of rent pursuant to ORS 90.394. Landlord served the notice by mailing it to "Rick Kilcup, Lorie Kilcup and all other occupants" at the premises that were the subject of the rental agreement. Thereafter, landlord filed an FED action against tenants to terminate their tenancy based on that notice.

At trial, tenants asserted that landlord could not obtain a judgment of restitution of the premises because landlord had already obtained such a judgment in the first trial. Tenants also asserted that landlord's service of the 72-hour notice on Rick Kilcup did not satisfy the "good faith" requirement contained in ORS 90.130. At the close of evidence and after hearing argument, the trial court ruled in favor of the landlord and, as in the first trial, entered a judgment awarding landlord restitution of the premises.

In their first assignment of error on appeal, tenants contend that the trial court erred in entering the judgment of restitution because "Landlord already had successfully adjudicated that a prior 24 hour notice had terminated the * * * tenancy and had a judgment of restitution for the premises." Pointing to principles of claim preclusion and mootness, tenants assert that, in the earlier case on the 24-hour notice, "the parties adjudicated the question of termination of the tenancy," and landlord cannot file "serial actions requesting the court to award it the exact same relief already obtained." In response, landlord points out that tenants continued to occupy the premises at all times relevant to this case.

Furthermore, landlord asserts that ORS 90.401 permits it to pursue multiple remedies and that this FED action was proper in light of that statute. We agree with landlord.

ORS chapter 90, the Residential Landlord Tenant Act (RLTA) "governs the obligations, rights, and remedies of landlords and tenants in residential tenancies." Eddy v. Anderson , 294 Or. App. 163, 172, 430 P.3d 1100 (2018) ; see ORS 90.100 - 90.940. As noted, ORS 90.394 provides for the termination of a tenancy for nonpayment of rent and ORS 90.396 provides for termination of a tenancy for an act that is "outrageous in the extreme," ORS 90.396(1)(f). Pursuant to ORS 90.401(1), a "landlord may pursue any one or more of the remedies set forth in ORS 90.392, 90.394, 90.396, 90.398, 90.403 and 90.405, simultaneously or sequentially."

Tenants assert that the legislature's intent, as expressed in ORS 90.401(1) is not to allow "a landlord to obtain multiple judgments for possession against the same tenants." See State v. Gaines , 346 Or. 160, 170-72, 206 P.3d 1042 (2009) (in interpreting a statute to determine the legislature's intent, the court examines the statutory text in context and may consider legislative history proffered by a party to the extent it is useful). Although tenants acknowledge that the legislature intended to allow landlords flexibility in terminating tenancies for cause, they maintain that if a landlord has obtained a judgment granting it a remedy under one of the statutory provisions listed in ORS 90.401(1), it cannot, thereafter, obtain a judgment granting a remedy under another of the statutes listed therein. However, tenants' contention is inconsistent with the plain text of ORS 90.401(1).

"Sequential" means "of, relating to, or forming a sequence." Webster's Third New Int'l Dictionary 2071 (unabridged ed. 2002). That is, "consecutive" or "serial." Id. (capitalization omitted). In other words, in pursuing statutory remedies sequentially, as permitted by the statute, a landlord may pursue them "in a series," "one right after the other often with small intervening intervals." Id. at 482 (definition of "consecutive"); see Comcast Corp. v. Dept. of Rev. , 356 Or. 282, 295-96, 337 P.3d 768 (2014) (where the legislature has not provided a term with a statutory definition, we "ordinarily look to the plain meaning of a statute's text" and, "as stilted as the approach may sometimes seem, we frequently consult dictionary definitions of terms, on the assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legislature would naturally have intended"). Thus, by the plain, unambiguous text of ORS 90.401(1), a landlord may pursue a series of actions to terminate a tenancy and obtain possession of residential property one right after another.

Furthermore, although the doctrine of claim preclusion generally "bars litigation of a claim based on the same factual transaction that was or could have been litigated between the parties in a prior proceeding that has reached a final determination," Liberty Northwest Ins. Corp. v. Rector , 151 Or. App. 693, 698, 950 P.2d 387 (1997) (internal quotation marks and brackets omitted), that bar does not apply in this case for at least two reasons. One reason is that, as discussed, ORS 90.401(1) expressly permits a landlord to pursue remedies under the provisions of RLTA listed therein either at one time ("simultaneously") or one after another ("sequentially"). Another reason is that an action seeking termination of a tenancy based on nonpayment of rent is not based on the same facts as an action seeking termination as the result of an act that is alleged to be "outrageous in the extreme." See Liberty Northwest , 151 Or. App. at 698, 950 P.2d 387. Thus, we are unpersuaded by tenant's assertion that landlord's FED action in this case was barred by claim preclusion.

Tenants also suggest that this FED action was moot and, therefore, the trial court lacked authority to adjudicate it. However, we are not persuaded by tenants' contention that a judgment in this case could have no practical effect on the rights of the parties in light of the earlier judgment on the 24-hour notice. See Brumnett v. PSRB , 315 Or. 402, 406, 848 P.2d 1194 (1993). Because, as noted above, at all times relevant to this case, tenants remained in possession of the rental premises, landlord had not obtained the remedy it sought-restitution of the premises. And, as also noted, tenants appealed, ultimately successfully, the judgment in the case on the 24-hour notice. To the extent that landlord had new grounds to terminate the tenancy and obtain restitution of the premises, a judgment granting relief on that ground would have a practical effect in this case. For all of those reasons, we reject tenants' first assignment of error.

In their second assignment of error, tenants contend that the trial court erred in determining that landlord adequately served the 72-hour notice of termination on Rick Kilcup. Specifically, tenants assert that landlord did not adequately serve Rick Kilcup by sending the notice in an envelope jointly addressed to "Rick Kilcup, Lorie Kilcup, and all other occupants." Before the trial court, tenants raised a single argument in association with their "inadequate service" argument. They asserted that landlord's service of the notice by sending a single envelope containing the notice to the premises did not satisfy the statutory requirement of "good faith" under ORS 90.130. The trial court rejected that argument, determining that landlord "used good faith" in this case. Having reviewed the record, we are not persuaded that the trial court erred in determining that landlord satisfied the requirement of good faith under ORS 90.130 under the circumstances of this case. We therefore reject tenants' "lack of good faith" argument without further discussion. Furthermore, to the extent that tenants now raise additional arguments regarding landlord's service of the 72-hour notice, they did not raise those contentions before the trial court and, because they are unpreserved, we do not address them. See Drake v. Alonso , 285 Or. App. 620, 624, 396 P.3d 961 (2017) (discussing preservation requirement).

Affirmed.

      On appeal, we reversed the judgment of restitution that the court entered following the FED trial on the 24-hour notice, holding that tenant's act had not been "outrageous in the extreme." Emon Enterprises , LLC , 285 Or. App. at 645, 395 P.3d 78.

      Pursuant to ORS 19.335(2),
      "If a judgment requires the transfer or delivery of possession of real property, a supersedeas undertaking acts to stay the judgment if the undertaking provides that the appellant will not commit waste or allow waste to be committed on the real property while the appellant possesses the property, and the appellant will pay the value of the use and occupation of the property for the period of possession if the judgment is affirmed. The value of the use of and occupation during the period of possession must be stated in the undertaking."

      ORS 90.130 provides:
      "Every duty under this chapter and every act which must be performed as a condition precedent to the exercise of a right or remedy under this chapter imposes an obligation of good faith in its performance or enforcement."

      As noted, the landlord in this case had previously pursued a remedy under ORS 90.396 and, in this case, sought a remedy pursuant to ORS 90.394.

      Tenants briefly discuss the legislative history of ORS 90.401(1), stating that it is "unremarkable." The legislative history that they discuss is, first, not particularly helpful and, in any event, does not persuade us that the statute means anything different from what its plain text unambiguously provides.


author: ARMSTRONG, P. J.

text:
    In the MATTER OF the COMPENSATION OF Jason C. GRIFFIN, Claimant.
    Jason C. Griffin, Petitioner, v. Dish Network Services, Respondent.
    A160696
    Court of Appeals of Oregon.
    Argued and submitted November 8, 2017. February 27, 2019
    Donald M. Hooton argued the cause and filed the briefs for petitioner.
    Jason A. McClain argued the cause for respondent. Also on the brief was Thomas P. Busch, Portland.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

In this workers' compensation case, claimant seeks review of an order of the Workers' Compensation Board on reconsideration upholding a notice of closure that awarded claimant temporary disability benefits but no benefits for permanent impairment or work disability. We conclude that the board's order is supported by substantial evidence and that the board did not err as a matter of law in upholding the notice of closure. ORS 656.298 ; ORS 183.482(7), (8).

We summarize the board's findings, which are largely undisputed and are supported by substantial evidence. Claimant has a lengthy pre-employment history of low back problems, including diagnoses of degenerative disc disease, disc herniations and protrusions at L4-5 and L5-S1, pain radiating into his legs, and surgery at L4-5.

Claimant installs satellite dishes for employer and, on February 27, 2011, while adjusting his position to support a satellite dish, claimant twisted his back and felt pain. He filed a claim, in which he described the injury as "low back strain." Employer denied the claim for the reason that the "primary contributing cause" of claimant's need for treatment or disability was his preexisting back condition, asserting, essentially, a "combined condition defense."

We summarize briefly the relevant legal context for the issue raised on review. Ordinarily, it is the claimant's burden to prove the compensability of a claim. ORS 656.266(1) ("The burden of proving that an injury * * * is compensable * * * is upon the worker."). When a "combined condition" is asserted, either by the claimant or by the employer, special burdens of proof apply in determining the initial compensability of the claim. If the claimant seeks to establish the compensability of a claim as a combined condition in the first instance, then it is the claimant's burden to establish the existence of an "otherwise compensable condition" that has combined with a preexisting condition "to cause or prolong disability or a need for treatment." ORS 656.005(7)(a)(B). If the claimant meets that initial burden and the employer disputes the compensability of the combined condition, then the employer must establish that the "otherwise compensable condition" is not the major contributing cause of the claimant's disability or need for treatment. McDermott v. SAIF , 286 Or. App. 406, 419, 398 P.3d 964 (2017) ; Keystone RV Co.-Thor Industries, Inc. v. Erickson , 277 Or. App. 631, 373 P.3d 1122 (2016). If the "combined condition" is raised by the employer as a defense to the claim, then the claimant bears the initial burden to establish an "otherwise compensable injury" by proof that a work injury is a material contributing cause of the worker's disability or need for treatment, ORS 656.005(7)(a), and the employer bears the burden to prove that a combined condition exists and that the "otherwise compensable condition" is not the major contributing cause of the claimant's disability or need for treatment. ORS 656.266(2)(a).

Claimant requested a hearing on employer's denial of the claim for "low back strain," and the parties agreed that the claim involved a "combined condition." For that reason, the ALJ did not make a determination as to the existence of a combined condition, the nature of the combined condition, or which of claimant's several preexisting conditions had combined with the work injury. The ALJ found that claimant had established an "otherwise compensable injury" (i.e. , that claimant's work injury was a material contributing cause of his need for treatment or disability), ORS 656.005(7)(a), and that employer had failed to establish that claimant's preexisting condition was the major contributing cause of claimant's need for treatment and disability. ORS 656.266(2). The ALJ therefore determined that claimant had established the compensability of his claim for low back strain.

Employer appealed the ALJ's order. In its order of October 10, 2012, the board noted that the parties did not challenge the ALJ's finding that claimant had a "combined condition." The board agreed with the ALJ's findings that claimant had established an "otherwise compensable injury" and that employer had failed to show that claimant's preexisting back condition was the major contributing cause of claimant's need for treatment, and set aside the denial. Thus, the board affirmed the ALJ's order overturning the denial. Thereafter, on December 21, 2012, employer accepted an injury claim for "lumbar strain." Claimant did not challenge the notice of acceptance or seek acceptance of a "combined condition" as an omitted condition. See ORS 656.262(6)(d) ; ORS 656.267(1).

In March 2013, Dr. Ward, claimant's treating physician, determined that claimant's lumbar strain had resolved without permanent impairment or work restriction. Ward determined that claimant was medically stationary and could continue to work at his regular job and receive medical treatment as needed. In an updated notice of claim acceptance at closure, employer again identified the accepted condition as "lumbar strain."

Once again, claimant did not challenge the notice of acceptance or seek acceptance of a "combined condition" as an omitted condition. See ORS 656.262(6)(d) ; ORS 656.267(1). Employer closed the claim in June 2013 with an award of temporary disability benefits but no benefits for permanent disability.

Claimant requested reconsideration of the notice of closure and an updated opinion from Ward. In response to claimant's counsel's representation to Ward that the accepted condition as a result of the board's October 10, 2012, order was "lumbar strain combined with instability of L4-5," Ward opined that the accepted condition was medically stationary, as were claimant's "preexisting low back pathologies, including L4-5 instability," without physical permanent impairment or work restrictions. A medical arbiter panel performed an examination and observed a range of motion deficit that the panel concluded was attributable to claimant's underlying degenerative disc disease and the residual effects of claimant's non-work-related lumbar surgery. The panel determined that 90 percent of claimant's impairment was due to degenerative disc disease, ten percent was attributable to the residual effects of the lumbar surgery, and zero percent was attributable to the accepted lumbar strain.

Before the board, claimant contended that he should receive benefits for permanent disability associated with the identified loss of range of motion. Citing Forest Products v. Lund , 245 Or. App. 65, 261 P.3d 1265 (2011), claimant asserted that the October 10, 2012, board order was preclusive as to the compensability of a combined condition and that employer was therefore required and must be deemed to have accepted a combined condition. Claimant further argued that because, before claim closure, employer had not denied claimant's combined condition (which claimant now asserted was a lumbar strain combined with degenerative disc disease, disc protrusions at L4-5 and L5-6, prior discectomy at L4-5, and residual instability arising out of the surgical procedures), claimant was entitled to an unapportioned permanent impairment value for the loss of range of motion identified by the medical arbiter panel, as well as work disability.

The board rejected claimant's contention that Lund was controlling and precluded employer from limiting its acceptance to a strain. In Lund , the board concluded that a previous final order of the board had determined that the new/omitted medical condition claim for a right shoulder rotator cuff tearwas compensable as a combined condition with the claimant's preexisting osteoarthritis. Despite that, the insurance carrier had subsequently accepted only a right shoulder strain and rotator cuff tear, not a combined condition, and the notice of closure had apportioned the claimant's impairment findings accordingly. The claimant appealed, asserting that he was entitled to a permanent disability award for a combined condition. The board and we agreed, holding that, in light of the prior litigation, the carrier's acceptance was "properly understood" as acceptance of a combined condition. Id . at 72, 261 P.3d 1265.

Here, in contrast, the board interpreted its October 10, 2012, order differently. The board explained that the order had related only to the initial compensability of the claim for "low back strain," and did not constitute a determination that claimant has a compensable combined condition. Rather, the order merely rejected employer's defense that claimant's symptoms and need for treatment were caused in major part by his preexisting conditions. The board reasoned that, although the October 10, 2012, order had accepted the parties' agreement that claimant suffered from a combined condition, unlike in Lund , the order did not determine the compensability of a particular combined condition or the scope of the acceptance. The board stated that the October 10, 2012, order "did not specifically identify the components of the 'combined condition' or order acceptance of a specific condition, combined or otherwise." That, the board reasoned, was a claims-processing matter to be addressed by employer pursuant to ORS 656.262. Unlike in Lund , the scope of the preexisting condition had not been defined. The board concluded that the only issue that was actually litigated through the October 10, 2012, order was the compensability of claimant's initial injury claim. Thus, the board concluded, Lund was distinguishable. Citing Nelson v. Emerald People's Utility Dist. , 318 Or. 99, 104, 862 P.2d 1293 (1993) (issue preclusion requires that the issue was actually litigated and essential to a final decision on the merits), the board concluded that the October 10, 2012, order did not have the preclusive effect of determining the scope of the acceptance or the compensability of a combined condition.

The board further determined, as a factual matter, that employer's acceptance of "lumbar strain," which had not been challenged by claimant, did not constitute an acceptance of a combined condition. See Columbia Forest Products v. Woolner , 177 Or. App. 639, 643, 34 P.3d 1203 (2001) (scope of an acceptance is a question of fact). But, assuming that a combined condition (which the board characterized as low back strain and instability at L4-5) had been accepted, the board noted that the medical arbiter had attributed zero impairment to that condition. Thus, for that additional reason, the board upheld the notice of closure.

On claimant's request, the board reconsidered but adhered to its order, noting that, if claimant had objected to the failure to specifically accept a combined condition, he could have sought (and can still seek) acceptance of a combined condition as a new or omitted condition. See ORS 656.262(6)(d) ; ORS 656.267(1).

On judicial review, claimant contends that requiring the filing of a new or omitted medical condition claim would force him to relitigate what has previously been determined-the compensability of a combined condition claim-and he continues to pursue entitlement to permanent disability and work disability on his claim, based on the medical finding that he has a loss of range of motion. He asserts that employer, having been required by the ALJ's order of October 10, 2012, to accept a combined condition, and having failed subsequently to deny that condition, may not apportion for loss of range of motion due to the preexisting condition. He further argues that, in light of Lund , he would not have known that it would have been necessary for him to specifically request acceptance of a combined condition as an omitted condition under ORS 656.262(6)(d).

We have considered claimant's arguments and reject them for the same reasons expressed by the board. As the board noted, the scope of an acceptance is a question of fact. Employer's acceptance of "lumbar strain" was unambiguous and did not state that it was for a combined condition, and we conclude that the board's finding that the acceptance did not encompass a combined condition is supported by substantial evidence. As noted, claimant did not seek clarification or acceptance of an omitted condition. See ORS 656.262(6)(d) ; ORS 656.267(1).

The board also was correct that the October 10, 2012, order did not compel employer to accept a combined condition. The board could reasonably interpret its October 10, 2012, order as merely a rejection of employer's "combined condition defense,"-a determination that employer had failed to establish that the symptoms and need for treatment of an "otherwise compensable injury" were caused in major part by claimant's preexisting condition. In light of the board's finding that the work injury was the "major contributing cause" of claimant's low back strain, the board's acceptance of the parties' agreement that claimant had a combined condition was not necessary to the board's ultimate determination that claimant's low back strain was compensable and that the denial should be set aside. And, unlike in Lund , the board could reasonably conclude that the October 10, 2012, order did not actually determine the scope of the acceptance or the nature of the combined condition; nor did it require acceptance of a particular combined condition. Thus, we conclude that the board did not err in determining that its order did not preclusively determine the compensability of a particular combined condition or even that a combined condition was compensable. See Nelson , 318 Or. at 104, 862 P.2d 1293 ("issue preclusion" applies to an issue that was actually litigated and essential to a final decision on the merits).

Finally, even assuming that employer's acceptance were understood to encompass a combined condition, the board identified that condition as a combining of the lumbar strain and instability at L4-5, just as claimant had asserted before the Appellate Review Unit, and we conclude that that determination is supported by substantial evidence. The medical arbiter panel attributed zero permanent impairment to that condition. That is substantial evidence on which the board could rely to uphold the notice of closure.

Affirmed.

      ORS 656.266(2) provides that
      "for the purpose of combined condition injury claims under ORS 656.005 (7)(a)(B) only:
      "(a) Once the worker establishes an otherwise compensable injury, the employer shall bear the burden of proof to establish the otherwise compensable injury is not, or is no longer, the major contributing cause of the combined condition or the major contributing cause of the need for treatment of the combined condition."