Shibahara v. State of Oregon

Summary

The Oregon Court of Appeals affirmed summary judgment for the State of Oregon in a judicial review proceeding challenging an agency order. The court held that the petition was untimely because service occurred when the agency deposited the order in the mail, and the petitioner failed to establish a genuine issue of material fact regarding the mailing date.

Holdings

1. Under ORS 183.484(2), when an agency serves a final order in an other-than-contested case by mail, the date the order is deposited in the mail is the date of service and starts the 60-day period for seeking judicial review.
2. Shibahara failed to establish a genuine issue of material fact regarding when the agency placed the order in the mail, so summary judgment for the State was proper.
3. The trial court did not abuse its discretion by refusing to require Tackman to testify about the definition she assigned to "mailed" in her declaration.
4. The court declined to address Shibahara's argument that service was inadequate because the order was not postmarked because the argument was raised for the first time on appeal and was unpreserved.

Questions Presented

1. Whether Shibahara's petition for judicial review was timely under ORS 183.484(2), based on the date the agency deposited its order in the mail.
2. Whether Shibahara established a genuine issue of material fact concerning the date the order was mailed.
3. Whether the trial court abused its discretion by refusing to require the agency declarant to testify about the meaning of the term "mailed."
4. Whether an unpreserved argument that the agency's service was inadequate because the order was not postmarked could be considered on appeal.

Disposition

affirmed