ORCP 68

 

NOTES OF DECISIONS

 

      Courts should recognize modern business practices and include expenses additional to attorney’s hourly rate that are specially billed to client when properly documented and reasonable. Willamette Prod. Credit v. Borg-Warner Acceptance, 75 Or App 154, 706 P2d 577 (1985), Sup Ct review denied

 

      Uniform Transfer to Minors Act does not contain attorney fees provision, and this section does not apply to act for reimbursement of custodial expenses consisting of attorney fees. Ivers v. Salladay, 253 Or App 195, 289 P3d 334 (2012)

 

ORCP 68A

 

      See also annotations under ORS 20.010 and 20.020 in permanent edition.

 

NOTES OF DECISIONS

 

      Contract provision of award of attorney fees to prevailing party in action “to enforce compliance with any of the terms, covenants or conditions” of lease provides basis for award of such fees to prevailing party in FED action to recover possession of commercial property. Anderson v. Garrison-Reed Enterprises, 66 Or App 872, 676 P2d 350 (1984), Sup Ct review denied

 

      Because rulemaking power of Council on Court Procedures does not extend to appellate procedure, this section cannot be construed to allow recovery of costs of appeal bond as part of costs and disbursements. State ex rel Roberts v. Duco-Lam, Inc., 74 Or App 253, 702 P2d 78 (1985)

 

      Court erred in awarding expenses paid to court reporter for deposition services because, in absence of language evidencing contrary intent in promissory note, parties intended term “expenses” to mean those costs and disbursements provided for by statute or rule. Malot v. Hadley, 102 Or App 336, 794 P2d 833 (1990)

 

      Court could not award unrecoverable costs by reclassifying costs as attorney fees. Robinowitz v. Pozzi, 127 Or App 464, 872 P2d 993 (1994)

 

      Deposit that will be returned to party is not cost or disbursement. Olson v. Eclectic Institute, Inc., 201 Or App 155, 119 P3d 791 (2005)

 

ORCP 68B

 

      See also annotations under ORS 20.040 and 20.060 in permanent edition.

 

NOTES OF DECISIONS

 

      This rule grants appellate courts authority to deny costs and disbursements to both sides in civil cases. Rogerson v. Baker, 56 Or App 748, 642 P2d 1216 (1982)

 

      Where plaintiff alleged both intentional and negligent trespass and jury returned general verdict for plaintiff but awarded no damages, plaintiff was entitled to costs as “prevailing party”. Hoaglin v. Decker, 77 Or App 472, 713 P2d 674 (1986)

 

      Prevailing party determined by balancing value of claim on which defendant prevails against value of claim on which plaintiff prevails. Meduri Farms, Inc. v. Robert Jahn Corp., 120 Or App 40, 852 P2d 257 (1993)

 

      Where plaintiff proved breach of contract claim but was not awarded damages, defendant was prevailing party entitled to attorney fees. Selective Services, Inc. v. AAA Liquidating, 126 Or App 74, 867 P2d 545 (1994)

 

      Court did not have discretion to award costs to nonprevailing party. Selective Services, Inc. v. AAA Liquidating, 126 Or App 74, 867 P2d 545 (1994)

 

ORCP 68C

 

      See also annotations under ORS 20.050, 20.210 and 20.230 in permanent edition.

 

NOTES OF DECISIONS

 

      Procedure for claiming and assessing attorney fees, costs and disbursements cannot alter appellate jurisdiction and therefore order for attorney fees, costs and disbursements entered after notice of appeal was filed is void. Truax and Truax, 62 Or App 130, 659 P2d 983 (1983)

 

      Party seeking award of attorney fees must, in its pleadings, cite specific facts, statute or rule justifying award. Parkhurst v. Faessler, 62 Or App 539, 661 P2d 571 (1983)

 

      Trial court’s assessment of same attorney fees, costs and disbursements against all defendants jointly and severally serves purpose of the rule to avoid multiple taxation of same fees, costs and disbursement. Hancock v. Suzanne Properties, 63 Or App 809, 666 P2d 857 (1983)

 

      Because no issue of fact was raised by objections to cost bill, court did not err in failing to hold evidentiary hearing on cost bill. Medford Irrigation Dist. v. Western Bank, 66 Or App 589, 676 P2d 329 (1984)

 

      Assertion of claim for attorney fees in motion for judgment was sufficient for award thereof notwithstanding that no claim for fees was made in previously filed motion to dismiss. Horn v. Lieuallen Land & Livestock Corp., 69 Or App 285, 684 P2d 1246 (1984), Sup Ct review denied

 

      Trial court may rely on properly itemized statement as evidence in awarding attorney fees and itemization of charges may support inference of reasonableness. Dept. of Transportation v. Gonzales, 74 Or App 514, 703 P2d 271 (1985), Sup Ct review denied

 

      Petitioner was not entitled to attorney fees where affidavit in support of petition did not itemize services rendered or time spent because such affidavit did not comply with “detailed statement” requirement. Parker v. Scharbach, 75 Or App 530, 707 P2d 85 (1985); Thompson v. Long, 103 Or App 644, 798 P2d 729 (1990)

 

      Post-judgment legal services may be considered in awarding attorney fees only if supported by substantial, competent evidence and proof of contingent fee agreement is not sufficient to support award in excess of value of services actually performed. Johnson v. Jeppe, 77 Or App 685, 713 P2d 1090 (1986)

 

      Although this rule clearly states that right to attorney fees shall be asserted in pleading, there is nothing in Rule to suggest that amendment to comply with Rule is precluded. Benj. Franklin Fed. Savings and Loan v. Phillips, 88 Or App 354, 745 P2d 437 (1987)

 

      Where plaintiff filed breach of contract claim and alleged its right to attorney fees under contract, defendant’s motion requesting attorney fees under contract was sufficient notice to plaintiff to entitle defendant to attorney fees when defendant prevailed. Attaway, Inc. v. Saffer, 95 Or App 481, 770 P2d 596 (1989); Ricciardi v. Frink, 133 Or App 436, 891 P2d 1336 (1995), Sup Ct review denied

 

      This rule, which requires that statute authorizing attorney fees be cited, does not apply to dissolution cases. Poor and Poor, 96 Or App 101, 771 P2d 650 (1989), Sup Ct review denied

 

      Where prevailing party requested attorney fees incurred collecting judgment, it was within trial court’s discretion, under ORCP 15D, to allow motion even though it was not filed within 10 days after judgment was entered as required by this section. Marquez v. Meyers, 96 Or App 214, 772 P2d 437 (1989)

 

      Lack of specificity in statement of attorney fees may be remedied by evidence presented at hearing on attorney fees. Orendain v. Meyer Square Ltd., 97 Or App 608, 776 P2d 1309 (1989), Sup Ct review denied

 

      Although evidentiary hearing is required under this rule when issues of fact exist due to objection to cost bill, plaintiff’s failure to request evidentiary hearing was apparent reliance on evidence already presented and did not require oral argument where argument and evidence had been presented in written form. Jimenez v. Ovchinikov, 98 Or App 336, 779 P2d 189 (1989)

 

      Where party asserts sufficient facts to provide basis for attorney fees and states intent to seek fees, statutory basis for attorney fees need not be specified. McCulloch and McCulloch, 99 Or App 249, 781 P2d 1240 (1989); Hogue and Hogue, 118 Or App 89, 846 P2d 422 (1993)

 

      Amount of attorney fees award was unreasonable under contract because it exceeded amount public agency actually was billed for attorney fees. Associated Oregon Veterans v. DVA, 308 Or 476, 782 P2d 418 (1989)

 

      Defendant was not given adequate opportunity to object to plaintiff’s petition for attorney fees where supporting statement was filed before result of case was known and six weeks before judgment was entered. AA Ambulance Co., Inc. v. Multnomah County, 102 Or App 398, 794 P2d 813 (1990)

 

      Mere summation in totaling hours spent on case will not suffice to support petition for attorney fees. Thompson v. Long, 103 Or App 644, 798 P2d 729 (1990)

 

      Trial court has no authority to reduce award of attorney fees below amount claimed, absent timely objection to fees by adverse party. Walker v. Grote, 106 Or App 214, 806 P2d 725 (1991)

 

      Requirement under this section that right to attorney fees be alleged in pleading may be satisfied by amendment of pleadings, even after trial, when no prejudice is shown. Hall v. Fox, 106 Or App 377, 808 P2d 99 (1991)

 

      Party is not entitled to award of attorney fees in absence of contract or statute conferring that right. Rogue Federal Credit Union v. Phillips, 121 Or App 630, 855 P2d 1146 (1993)

 

      Time for filing statement of costs, disbursements, and attorney fees begins to run when judgment is entered, not when judgment is filed. Davis v. Leek, 124 Or App 294, 862 P2d 548 (1993)

 

      Court may enter amount claimed for attorney fees and costs and disbursements in absence of timely objection, but is not required to do so and may exercise discretion regarding reasonableness of amounts claimed. Frederickson v. Ditmore, 132 Or App 330, 888 P2d 108 (1995)

 

      Where adverse party lacks actual notice, failure to properly carry out service of fee statement or objection cannot be excused under ORCP 12B. CIT Group v. Kendall, 151 Or App 231, 948 P2d 332 (1997)

 

      Pleading and proof requirements for obtaining attorney fees do not apply to appellate court awards. McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200 (1998), clarified 327 Or 185, 957 P2d 1200 (1998)

 

      Court may not deny party right to present supporting affidavit regarding award of attorney fees and to receive court ruling on information presented. O’Neal and O’Neal, 158 Or App 431, 974 P2d 785 (1999)

 

      Where pleadings are amended to withdraw attorney fee request pursuant to intermediate ruling by court, amendment does not waive ability to appeal denial of attorney fees. Little Whale Cove Homeowners Association, Inc. v. Harmon, 162 Or App 332, 986 P2d 616 (1999)

 

      Exception to arbitrator award of attorney fees is not “statement seeking attorney fees” or objection to statement, so exception is not entitled to hearing. Ashley v. Garrison, 162 Or App 585, 986 P2d 654 (1999)

 

      Where judgment determines party’s entitlement to costs, disbursements or attorney fees but does not specify amount awarded, award is not final and appealable until entry of supplemental judgment that specifies amount. Petersen v. Fielder, 170 Or App 305, 13 P3d 114 (2000)

 

      Contemporaneous memorandum claiming entitlement to attorney fees does not cure failure to allege right to attorney fees in motion. Mulier v. Johnson, 332 Or 344, 29 P3d 1104 (2001)

 

      Party is not in default for failure to “appear” if party has provided court with indication that party has interest in case. Evans v. Brentmar, 186 Or App 261, 62 P3d 847 (2003), Sup Ct review denied

 

      For FED action that must comply with summons requirement of ORS 105.113, first appropriate opportunity for defendant to allege right to attorney fees is at first appearance before trial court. Oakleaf Mobile Home Park v. Mancilla, 189 Or App 458, 75 P3d 908 (2003), Sup Ct review denied

 

      Filing of cost bill before entry of final judgment does not nullify cost bill. Oakleaf Mobile Home Park v. Mancilla, 189 Or App 458, 75 P3d 908 (2003), Sup Ct review denied

 

      Where party has notice and opportunity to be heard on issue of attorney fees, failure to comply with this section does not deprive court of subject matter jurisdiction over issue. Weatherspoon v. Allstate Insurance Co., 193 Or App 330, 89 P3d 1277 (2004), Sup Ct review denied

 

      Request for award of attorney fees made after entry of general judgment is “claim” for purposes of court rendering appealable supplemental judgment. Galfano v. KTVL-TV, 196 Or App 425, 102 P3d 766 (2004)

 

      Court retains jurisdiction to consider objections to attorney fee request, notwithstanding that objection is not timely filed. Chase v. Vernam, 199 Or App 129, 110 P3d 128 (2005)

 

      Inadequate fee statement does not preclude award of attorney fees if evidence that provides supporting details missing from fee statement is presented at hearing. Russell v. Nikon, Inc., 207 Or App 266, 140 P3d 1179 (2006), on reconsideration 208 Or App 606, 145 P3d 312 (2006), Sup Ct review denied

 

      Court may not accept attorney fee statement that is not timely filed. Jaffe v. The Principle Company, 215 Or App 385, 170 P3d 4 (2007)

 

LAW REVIEW CITATIONS: 29 WLR 801 (1993)