FILED: June 10, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

BARBARA ANDERSON, JOHN R. GILBERT,
THOMAS K. HATFIELD, MARGARET S. IVERS,
ELLEN LEIGH, MEADOWS LAND PARTNERSHIP,
DIANE L. NIKKILA, RUTH SEIBEL, JOYCE
WINEBERG, JUDE DELONG, as Trustee for the
Estate of STELLA HATFIELD, and FIRST
INDEPENDENT BANK, as Trustee for the Estate
of WILLIAM L. SEIBEL,

Respondents,

v.

JENSEN RACING, INC., (formerly known as
JENSEN RACING CORPORATION), an
Oregon corporation, and DONNA JENSEN,

Defendants,

and

THE NEW PORTLAND MEADOWS, INC.,

Appellant.

(9408-05683; CA A90461)

Appeal from Circuit Court, Multnomah County.

James R. Ellis, Judge.

Argued and submitted May 11, 1998.

William H. Walters argued the cause for appellant. With him on the briefs was Miller, Nash, Wiener, Hager & Carlsen LLP.

John Paul Graff argued the cause for respondents. With him on the brief was Graff & O'Neill.

Before De Muniz, Presiding Judge, and Deits, Chief Judge, and Haselton, Judge.

PER CURIAM

Reversed and remanded.


DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Appellant

[ ] No costs allowed.
[X] Costs allowed, payable by: Respondent
[ ] Costs allowed, to abide the outcome on remand, payable by:


PER CURIAM

Defendant, The New Portland Meadows, Inc., (NPM) appeals from a judgment determining that paragraph five of an agreement between plaintiffs and NPM governs NPM's obligations with respect to income received from allowing facilities at Portland Meadows to be used as an off-track betting site during NPM's off-season. After the trial court entered judgment and before oral argument of this appeal, the Supreme Court issued its opinion in an earlier appeal between the parties raising related issues. Anderson v. Jensen Racing, Inc., 324 Or 570, 931 P2d 763 (1997). Based on the Supreme Court's intervening analysis in Anderson, and particularly its determination that makes it clear that paragraph five "refers to the annual racing season during which the operator is licensed,"(1) 324 Or at 576, we conclude that the trial court erred in determining that paragraph five governs the circumstances presented here. A further writing would benefit neither bench nor bar.

Reversed and remanded.


1. The Supreme Court's discussion makes it clear that "the operator" for purposes of paragraph five is NPM. Anderson, 324 Or at 576-77.

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