Beers v. Jeson Enterprises

• Citation: 165 Or. App. 722,998 P.2d 716
• Parties: Helen BEERS, Appellant, v. JESON ENTERPRISES, dba Craft Warehouse, Jerry D. Williams, Sonja A. Williams, and Jeson Enterprises, Inc., dba Craft Enterprises, Respondents.
• Decision Date: 01 March 2000
• Court: Court of Appeals of Oregon

998 P.2d 716

165 Or. App. 722

Helen BEERS, Appellant, v. JESON ENTERPRISES, dba Craft Warehouse, Jerry D. Williams, Sonja A. Williams, and Jeson Enterprises, Inc., dba Craft Enterprises, Respondents.

(97C-892419, 97C-892420; CA A102004 (Control), A102005)

Court of Appeals of Oregon, En Banc.

Argued and Submitted November 5, 1998.

Resubmitted July 7, 1999.

Decided March 1, 2000.

Lauren M. Underwood, Portland, argued the cause for appellant. With him on the brief was Underwood & Norwood.

Steven L. Minetto argued the cause for respondents. With him on the brief were Wendy J. Paris and Kubik & Paris.

Before DEITS, Chief Judge, and EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, and KISTLER, Judges and WARDEN, Senior Judge.

Resubmitted En Banc July 7, 1999.

LINDER, J.

Plaintiff appeals a circuit court judgment affirming an arbitrator's determination that she is not entitled to attorney fees under ORS 20.080. We review for errors of law. Koster Remodeling & Construction, Inc. v. Jataka, 155 Or.App. 142, 145, 963 P.2d 726 (1998) (entitlement to attorneys fees is a legal question). We conclude that plaintiff was entitled to attorney fees on one of the two claims on which she sought fees. We therefore reverse and remand for a determination of reasonable fees to be awarded to plaintiff.

This case arises out of an incident in which plaintiff, while patronizing defendants' store, was detained by defendants' employees and then arrested by police for suspected shoplifting.¹ Plaintiff later was prosecuted for theft and was acquitted. After the acquittal, plaintiff's attorney wrote defendants a letter demanding $4,000 to settle plaintiff's claim for damages allegedly caused by defendants' actions. Plaintiff prepared a single letter, identical in its substance, and sent it first to the store owner and then, about two weeks later, to the store's manager. The letter stated:

"Dear [Store Manager][Store Owner],

"This office represents Ms. Helen Beers in conjunction with an incident that occurredat your store located at 1355 NW 185th Avenue, Hillsboro, Oregon on February 23, 1995.

"On that date Mrs. Beers was detained, and subsequently falsely arrested and imprisoned, at the instance of your employees or agents. Despite a reasonable explanation following the original detention Mrs. Beers was questioned, intimidated, humiliated and imprisoned and her liberty restrained for no just cause. As a result she suffered humiliation, embarrassment, was required to obtain counsel to defend herself and was required to appear in court and endure a trial. As a result of all of the above demand is hereby made against Craft Warehouse for compensation in the sum of $4,000. If payment is not received forthwith Mrs. Beers will file a lawsuit against your company seeking such damages, plus her attorney's fees and costs incurred in prosecuting such action.

"Please contact me immediately in response to this demand. I am enclosing an extra copy of this letter to be provided to your insurance representative, if coverage for this type of incident is available."

(Emphasis added.) The letter then concluded with plaintiff's attorney's signature.

Defendants declined to settle. Plaintiff then filed two separate actions, one alleging false imprisonment and the other alleging malicious prosecution, each seeking damages of $4,000. Although the two actions began as separate proceedings, eventually they were consolidated and were submitted to mandatory arbitration. See ORS 36.405. The arbitrator awarded plaintiff $4,000 on each claim. Plaintiff sought attorney fees under ORS 20.080.

In a written order denying the fee request, the arbitrator first indicated that he agreed with defendants' view of plaintiff's demand letter. Defendants had asserted that the letter, although sent to both the store manager and the store owner, was only a "single, pre-suit demand for payment of damages in the amount of $4,000" and it therefore did "not satisfy the requirements of ORS 20.080 for the two lawsuits subsequently filed by plaintiff."² The arbitrator further observed that, if the letters were construed as plaintiff argued they should be—i.e., each letter serving as a separate demand on each of plaintiff's two causes of action—then the total amount of the settlement demand was $8,000. The arbitrator determined that, under either view, plaintiff was not entitled to attorney fees.

ORS 20.080(1) provides:

"In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $4,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less that 10 days before the commencement of the action."

The statute applies in "any action for damages" to person or property where the amount pleaded is $4,000 or less. To be entitled to a prevailing party attorney fee award, the plaintiff, not less than 10 days before commencing the action, must make a written demand for payment of "such claim." Plaintiff contends that the demand letter in this case satisfied the statute because it "effectively was a demand indicating that both causes of action could be settled for a total of $4,000.00." (Emphasis added.) Defendants, in response, dispute plaintiff's characterization of her pretrial demand:

"Either there was one demand for $4,000 followed by two lawsuits alleging $8,000 in damages; or there were two demands each seeking $4,000 for a total of $8,000. Either way, the pre-filing demand requirement of ORS 20.080 has not been met.

"If the two letters were a single demand notifying defendants that the entire matter could be resolved for $4,000, then the demand may have complied with the statutory requirements, [but] the ultimate filing of two actions each seeking $4,000 runs afoul of the statute. If, however, the two letters constitute separate demands, then as the arbitrator concluded, the pre-suit demand was in reality a demand for $8,000, an amount in excess of the statutory $4,000."

(Emphasis in original.)

We agree that the most reasonable view of the demand letter is that it was a single, presuit demand seeking $4,000 for a single claim, not $4,000 for two claims. The identical text of the twice-mailed letter demands a sum of $4,000 as a result of plaintiff's detention, arrest, and prosecution. The letter then advises that, if the $4,000 is not paid, plaintiff will file "a lawsuit," not two or several, in which plaintiff will seek "such damages." No person receiving the letter reasonably would understand from it that plaintiff was asserting multiple claims for damages based on the incident, was threatening to file multiple lawsuits, and was willing to settle the multiple claims for a single $4,000 payment. Plaintiff's argument to the contrary evidently is based only on the fact that plaintiff sent the letter twice, first to the store owner and then to the store manager. The number of people served with the letter does not alter its essential substance, however. Whether it was mailed to one, two, or a dozen agents of defendants' business, it substantively provided notice of only one threatened action for damages and a demand to settle for $4,000.³

Given the demand contained in the letter, what is the consequence for plaintiff's attorney fee request? Contrary to defendants' position and the arbitrator's conclusion, the answer is not that plaintiff has no entitlement whatsoever to an attorney fee award. Had plaintiff, after sending the letters, filed only one action (either for false imprisonment or for malicious prosecution) and obtained a judgment for $4,000 in that one action, plaintiff would be entitled under the statute to an award of attorney fees. No one contends otherwise. What, then, if plaintiff had filed two separate actions, without consolidating them as in this case? Plaintiff would be entitled to attorney fees in one of the two. If plaintiff then sought fees after prevailing in both actions, defendants would be able to resist an award in one—but not in both—on the ground that plaintiff did not make a written pre-trial demand as to both actions. Nothing in ORS 20.080(1) suggests a different result merely because the separate actions were consolidated for trial.⁴

Consequently, we hold that plaintiff is entitled to attorney fees on one, but not both, of her consolidated claims. Accordingly, plaintiff on remand should designate the claim on which she seeks fees pursuant to ORS 20.080, and the trial court should award a reasonable amount of fees attributable to that claim. See generally Bennett v. Baugh, 164 Or.App. 243, 990 P.2d 917 (1999)

(discussing standards for apportionment of attorney fees requests).

Reversed and remanded for further proceedings.

EDMONDS, J., concurring.

According to the majority, the sending of two copies of a single demand letter does not entitle plaintiff to an award of attorney fees on more than one action under ORS 20.080(1).⁵ I agree. The statute is aimed at notifying putative defendants so they can settle when the amount sought is $4,000 or less. The majority then holds that plaintiff is entitled to attorney fees on one action under the statute even though plaintiff subsequently filed two separate actions for $4,000 each that were eventually consolidated for trial. It reasons that, even without consolidation, plaintiff would have been entitled to attorney fees under the statute on only one of the two actions because plaintiff did not make a written demand as to both actions. It follows, according to the majority, that the statute does not require a different result merely because the separate actions are consolidated for trial.

I agree with the majority's result in this case only because plaintiff's...