Bruce v. Cascade Collections, Inc.

• Decision Date: 13 April 2005
• Citation: 110 P.3d 587,199 Or. App. 59
• Parties: Diane D. BRUCE, Appellant, v. CASCADE COLLECTIONS, INC., an Oregon corporation, Respondent, and Green Thumb Yard Maintenance, Inc., dba Green Thumb Landscaping, an Oregon corporation, Defendant.
• Court: Oregon Court of Appeals

110 P.3d 587

199 Or. App. 59

Diane D. BRUCE, Appellant, v. CASCADE COLLECTIONS, INC., an Oregon corporation, Respondent, and Green Thumb Yard Maintenance, Inc., dba Green Thumb Landscaping, an Oregon corporation, Defendant.

02C-17949; A122369.

Court of Appeals of Oregon.

Argued and Submitted February 23, 2005.

Decided April 13, 2005.

Conrad E. Yunker, Salem, argued the cause and filed the briefs for appellant. With him on the briefs was Conrad E. Yunker, P.C.

Jeffrey I. Hasson, Portland, argued the cause and filed the brief for respondent.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA,¹ Judges.

HASELTON, P.J.

Plaintiff appeals from a supplemental judgment, challenging, inter alia, the trial court's denial of attorney fees under the federal Fair Credit Reporting Act (FCRA), 15 USC sections 1681 to 1681v, and the court's denial of the costs of computer-assisted legal research. The trial court concluded that (1) plaintiff had failed to adequately plead an entitlement to fees under the FCRA; and (2) in all events, plaintiff's requested fees were so unreasonable as to preclude any award of fees. We disagree with both of those determinations. We further conclude that the trial court's denial of the recovery of computer-assisted research expenses depended on an incorrect legal premise. Accordingly, we vacate the supplemental judgment and remand.

The facts material to our review are undisputed. In September 2002, plaintiff filed her operative first amended complaint. That complaint alleged only one claim for relief against defendant Cascade Collections, Inc.² That claim — the first claim for relief — alleged that defendant had "willfully and/or negligently" violated the FCRA's provisions regarding dissemination of consumer credit information in several respects. The two concluding paragraphs of the first claim for relief alleged that plaintiff had suffered both unspecified economic and noneconomic damages as a result of defendant's alleged conduct, but did not refer to any entitlement to attorney fees. However, the prayer of the first amended complaint stated that plaintiff sought judgment

"[a]gainst Defendant Cascade Collections, Inc., for her actual damages on her First Claim for Relief in the amount of $50,000 economic damages, together with non-economic damages in an amount determined reasonable by a jury but in any event no more than $100,000, together with her costs and expenses of this action and reasonable attorney fees[.]"

(Emphasis added.)

Defendant subsequently filed an answer, including affirmative defenses and counterclaims. That answer denied the allegations of the first amended complaint that specified violations of the FCRA. In addition, as a first counterclaim, defendant alleged that it was "entitled to its reasonable attorney fees in defending the claim under the Oregon Unlawful Debt Collection Practices Act."³

On October 28, 2002, less than a week after filing its answer, defendant made an offer of judgment pursuant to ORCP 54 E, by which defendant offered

"to allow judgment to be given against [defendant] in favor of plaintiff for the sum of $1,250.00, exclusive of costs, disbursements, and attorney fees."

Plaintiff immediately accepted that offer of judgment.

Several rounds of procedural sparring followed. Ultimately, in March 2003, after the original judgment on the offer of judgment had been entered and then vacated, the court entered a form of judgment prepared by defendant's counsel. That judgment directed that

"[It is hereby] ORDERED and ADJUDGED that [plaintiff] have and is awarded Judgment against [defendant] for $1,250.00 together with Plaintiff's reasonable Costs and Disbursements, including her reasonable attorney fees as may be allowed by the Court."

(Emphasis added.)

Plaintiff then filed a statement pursuant to ORCP 68 C(4) for costs and disbursements and attorney fees. The caption of that submission expressly requested that the court render findings of fact.⁴ The statement recited that plaintiff's requested entitlement to costs and fees was based on the FCRA and, specifically, "15 USC § 1681a(o)."⁵ Plaintiff sought fees of $3,262.50 for representation on the FCRA claim, as well as costs and disbursements, including $134.57 for "computer research." Plaintiff concurrently filed an "alternative motion" to file a second amended complaint, which differed from the first amended complaint in that it revised one paragraph of the first claim for relief to include an allegation that plaintiff was "entitled to an award of costs and reasonable attorney fees pursuant to 15 USC § 1681o(a)."

Defendant opposed both plaintiff's Rule 68 C statement and the alternative motion to amend. Defendant asserted, inter alia, that (1) plaintiff could not recover prevailing party fees under the FCRA because plaintiff had not adequately pleaded an entitlement to fees in the first amended complaint; (2) plaintiff's alternative motion to amend the complaint after the acceptance of the offer of judgment was untimely; (3) plaintiff's requested fees were unreasonable under the criteria of ORS 20.075(2); (4) the cost of computer research was not recoverable; and (5) the court was not obligated to render findings under ORCP 68 C(4)(c) because "[t]here was no trial in this matter."

The trial court denied both plaintiff's motion to amend and any recovery of attorney fees. With respect to the denial of attorney fees, the court stated:

"(1) The plaintiff did not allege entitlement to attorney fees in her complaint, and the award of same is denied.

"* * * * *

"(3) The request for attorney fees is not reasonable for settlement of a $1250.00 claim."

The court rendered no findings of fact amplifying its alternative rationale that plaintiff's requested fees were not "reasonable." The court also concluded, without explanation, that plaintiff's claimed computer research expenses were not recoverable.

Plaintiff appeals from the ensuing supplemental judgment and raises five assignments of error. Those assignments challenge the trial court's determination that the first amended complaint did not adequately plead an entitlement to fees under the FCRA, the denial of plaintiff's alternative motion to amend, the court's failure to render findings explaining its alternative determination that the requested fees were unreasonable, the denial of computer research expenses, and the inclusion of allegedly extraneous language in the supplemental judgment.

For the reasons that follow, we conclude that plaintiff's first amended complaint adequately pleaded entitlement to attorney fees under the FCRA. Further, to the extent that the trial court's denial of attorney fees was alternatively based on its determination that the requested fees were "not reasonable," that alternative ground was insufficient because the court failed to render findings of fact as required under ORCP 68 C(4)(e) and failed to explain why the alleged unreasonableness of the requested fees would justify the complete denial of any attorney fees. Finally, we conclude that reasonably incurred expenses of computer-assisted legal research are recoverable as a component of attorney fees under the FCRA. Accordingly, we vacate the supplemental judgment and remand.⁶

We begin with the sufficiency of plaintiff's pleadings of an entitlement of attorney fees. ORCP 68 C(2)(a) provides:

"A party seeking attorney fees shall allege the facts, statute, or rule which provides a basis for the award of such fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover such fees accrues. No attorney fees shall be awarded unless a right to recover such fee is alleged as provided in this subsection."

In assessing compliance with Rule 68 C(2)(a), we have adopted and adhered to the principle that

"[i]t is not necessary to specify the statutory basis of a request for fees when the facts asserted would provide a basis for an award of fees, the parties have fairly been alerted that attorney fees would be sought and no prejudice would result."

Page and Page, 103 Or.App. 431, 434, 797 P.2d 408 (1990); see, e.g., Lumbermen's v. Dakota Ventures, 157 Or.App. 370, 375, 971 P.2d 430 (1998) ("Thus, we look to whether plaintiff was fairly alerted to the fact that attorney fees would be sought [by defendant] and whether the defect in the pleading prejudiced plaintiff."); Hogue and Hogue, 118 Or. App. 89, 92, 846 P.2d 422 (1993) ("The correct rule is stated in Page and Page [.]"). Indeed, in Page itself, we affirmed the award of attorney fees notwithstanding that the prevailing party's request for fees "relied on the wrong statute." Page, 103 Or.App. at 433-34, 797 P.2d 408; cf. St. Sauver and St. Sauver, 196 Or.App. 175, 189-90, 100 P.3d 1076 (2004) ("Misidentification of the proper attorney fee provision will be treated as harmless error when the facts asserted provide a basis for attorney fees and the affected party is given adequate notice that fees will be sought.").

Here, the allegations of plaintiff's claim for relief under the FCRA — which was plaintiff's sole claim against defendant — asserted the facts that "would provide a basis for an award of fees" under the FCRA. Page, 103 Or.App. at 434, 797 P.2d 408. Moreover, although the allegations of the claim for relief itself did not explicitly state that plaintiff was seeking attorney fees, the paragraph of the prayer that describes the relief sought for the FCRA claim did so state. 199 Or. App. at 61, 110 P.3d at 588. Thus, defendant was "fairly alerted to the fact that attorney fees would be sought" under the FCRA. Lumbermen's,157 Or.App. at 375,971 P.2d 430. Finally, defendant was not prejudiced by plaintiff's failure to explicitly invoke a particular fee-generating provision of the FCRA (viz., 15 USC section 1681o(a)) in the allegations of the first claim for relief. Indeed, the form of judgment that defendant's counsel submitted, and the trial court ultimately executed,...