*1 485 6, January respondent’s petition appellant’s petition filed for reconsideration On January 7, appellant’s response respondent’s and filed for reconsideration 13, January petition filed for reconsideration (1998)) (157 703, 971 to as modified modified and adhered Or P2d 914 17, 1999 February HOLMES, Eric M. Professor Appellant, v. UNIVERSITY, WILLAMETTE Respondent. A95864) (9507-05266; CA P2d 922 975 McDermott, Steven C. Berman and Ball Janik James T. response. LLP, and petition.

Paul C. Buchanan for Judge, Haselton, Deits, Warren, Chief Before Armstrong Judges. Wollheim, part;

Deits, J., C. *2 reconsideration, contending for petitions Plaintiff 703, 971 P2d 914 157 Or that, original opinion, our (1998), pertaining to address certain arguments failed we in his initial brief- claim that he raised his breach of contract and adhere to our ing. grant We address did not specifically our opinion. Although triable issues of fact as that there were plaintiffs arguments defendant on actually discharged by plaintiff to whether those 29, 1993, rejected July or we considered before further dis- rejection reiterate that arguments. We cussion. reconsideration, assert-

Defendant also petitions erro- of our discussion of the record was ing aspect one neous. In defendant takes issue with footnote two particular, of our which read as follows: opinion, argument appeal, argued,

“At oral Willamette for the time, grant first that it would have futile to Holmes a been *3 one-year undergo to treatment at unpaid leave of absence because, COPAC, he drawing pay, would have been responded, unable to fund his treatment. Holmes also for argument, simply the at oral that not first time was continuing true —that because of a COBRA-based entitle- COPAC, benefits, gone even ment to health he could have to drawing salary faculty if as a member. Willam- he wasn’t “unpaid ette’s leave would have been firtile” contention is argument, necessarily is properly not factual, before us. That which utterly unsupported raised and is was not below n 2. evidentiary the record.” 157 Or at 707 record, After the we conclude that defen- reviewing is, in we mod- Accordingly, dant’s well taken. objection part, the sentence of footnote two to read as follows: ify final factual, necessarily not argument,

“That which is any suscep- in fashion that is developed appeal below or on appellate review.” tible modified opinion

Reconsideration adhered to as modified. part DEITS, J.,C. agree majority’s disposition

I with the ofthe respects, my sep- reconsideration. In all other I adhere to Accordingly, arate in our decision. I concur in majority’s disposition the of the contract claim and dissent disposition statutory from claim. its of the joins opinion.

Warren, J., in this