Kahn v. Canfield

• Decision Date: 24 February 2000
• Citation: 330 Or. 10,998 P.2d 651
• Parties: Stephen KAHN and Christine Kahn, Respondents on Review, v. Christopher CANFIELD, Janet Lee Tuininga, Nicholas M. Cutting, Canfield Associates, Oreg. Ltd., Cerro Gordo Forestry Cooperative, Inc., Town Forum, Inc., Cerro Gordo Silviculture, L.L.C, and Cerro Gordo Cooperative, Inc., Petitioners on Review, and Cerro Gordo Construction Company, Inc., Cerro Gordo Water Service Cooperative, Inc., and John Does 1-25, Defendants.
• Court: Oregon Supreme Court

998 P.2d 651

330 Or. 10

Stephen KAHN and Christine Kahn, Respondents on Review, v. Christopher CANFIELD, Janet Lee Tuininga, Nicholas M. Cutting, Canfield Associates, Oreg. Ltd., Cerro Gordo Forestry Cooperative, Inc., Town Forum, Inc., Cerro Gordo Silviculture, L.L.C, and Cerro Gordo Cooperative, Inc., Petitioners on Review, and Cerro Gordo Construction Company, Inc., Cerro Gordo Water Service Cooperative, Inc., and John Does 1-25, Defendants.

(CC 16-95-06314; CA A95887; SC S46576).

Supreme Court of Oregon, En Banc.

On petitions for attorney fees October 19, 1999.

November 18, 1999.

Decided February 24, 2000.

David A. Bahr of Bahr & Stotter Law Offices, Eugene, filed the petitions for attorney fees for respondents on review.

George W. Kelly, Eugene, filed the objections for respondents on review.

GILLETTE, J.

Petitioners (hereafter referred to by their trial role as "plaintiffs"), who prevailed against respondents (hereafter "defendants") both at trial and in the Court of Appeals in an underlying action for fraud, breach of contract, ORICO, and other statutory violations, seek $15,065.89¹ in attorney fees for their efforts in filing a response to defendants' petition for review by this court. Plaintiffs claim entitlement to those fees under three statutes: ORS 166.725(7)(a) (1993) (providing an action and authorizing an award of "reasonably incurred" attorney fees to any person injured by a violation of Oregon's racketeering statute;² ORS 20.096 (1993) (providing for reasonable attorney fees to the prevailing party in a contract action when the underlying contract provides for attorney fees for enforcement); and ORS 648.135(2) (providing for attorney fees "reasonably incurred" in actions involving a violation of the statutory prohibition against conducting business under an unregistered name). We conclude that plaintiffs are entitled to an award of attorney fees, but that the amount that they seek is excessive. We determine that $11,651.15 in attorney fees were "reasonably incurred" and that plaintiffs are entitled to an award in that amount.

Plaintiffs retained lawyers to represent them, on a contingent fee basis, in complex litigation arising out of a real estate transaction. The case went to trial, and the jury returned a 31-page special verdict in plaintiffs' favor. Defendants appealed the ensuing judgment, but the Court of Appeals affirmed without issuing an opinion. Kahn v. Canfield, 158 Or.App. 144, 972 P.2d 1233 (1999). Defendants then filed a petition for review in this court. Plaintiffs responded by filing a 35-page response urging this court to deny review. We denied review on September 21, 1999. Kahn v. Canfield, 329 Or. 357, 994 P.2d 124 (1999). Plaintiffs now request an award of attorney fees for their lawyers' efforts in responding to defendants' petition in this court.³

In support of their request, plaintiffs have submitted a statement of facts, verified by one of their lawyers, that purports to demonstrate the reasonableness of the requested amount. The statement asserts that five lawyers, all members of the same Eugene law firm, worked a total of 107.62 hours on responding to defendants' petition for review.⁴ The statement sets out billing rates, ranging from $65 to $150 per hour for each of the five lawyers. The statement also claims small amounts for postage, photocopies, and telephone calls.

Plaintiffs' lawyers assert, in the verified statement, that the hours, rates, and resulting overall fee request are reasonable in light of (1) the complexity and difficulty of the litigation; (2) the skill and experience required to litigate the case and the level and skill and experience that they, in fact, brought to the case; (3) the fact that they accepted the case under a contingent fee arrangement; and (4) plaintiffs' awareness that their acceptance of the case would preclude other employment opportunities. The lawyers note that they have been awarded fees based on rates that are the same as or similar to the ones requested in other litigation (including the appeal of the present case in the Court of Appeals) and that the requested rates are consistent with those of lawyers with comparable experience in their community.

Defendants do not appear to dispute that plaintiffs are entitled to reasonable attorney fees under the statutes cited. As we noted in a companion case, Dockins v. State Farm Ins. Co., 330 Or. 1, 6, 997 P.2d 859 (2000), when an attorney fees petition comports with the requirements of ORAP 13.10(5), as this one does, our inquiry into the request generally will be limited to the objections that are filed by the party opposing the petition. Here, defendants raise a single objection to plaintiffs' attorney fees request—that the total amount requested is excessive in view of the fact that "most" of the document produced in response to defendants' petition for review "is either direct quotation from, or nearly direct quotation from, [plaintiffs'] brief in the [C]ourt of [A]ppeals." Defendants argue that, despite the hours and services claimed, plaintiffs' lawyers produced little original work in preparing defendants' response to plaintiffs' petition for review and, therefore, should not receive the sum requested.⁵

In response to that objection, plaintiffs assert that: (1) the duplications noted by defendants were appropriate and justified as a time-saving device; (2) on the whole, the document filed in this court was a "unique and individual work product" that required a significant period of time to produce; and (3) because defendants' objection is aimed broadly at the total amount of attorney fees requested, rather than at specific time expenditures, it is too general to merit serious consideration.

Plaintiffs'...