McCarthy v. Oregon Freeze Dry, Inc.

Decision Date11 June 1998
Citation327 Or. 185,957 P.2d 1200
Parties, 327 Or. 84 Terry B. McCARTHY, Petitioner on Review, v. OREGON FREEZE DRY, INC., an Oregon corporation, Respondent on Review. CC 93-0020; CA A87840; SC S43877.
CourtOregon Supreme Court

William G. Wheatley, of Jaqua & Wheatley, P.C., Eugene, argued the cause for petitioner on review. With him on the briefs was Nickolas Facaros, Eugene.

William F. Gary, of Harrang, Long, Gary, Rudnick, P.C., Eugene, argued the cause for respondent on review. With him on the briefs were Judith Giers, Eugene, and Brendan Dunn, Salem.

Stephen L. Brischetto, Portland, filed a brief for amicus curiae Oregon Trial Lawyers Association.


DURHAM, Justice.

The issue in this proceeding is whether the Court of Appeals erred in awarding attorney fees on appeal to defendant. Because the order awarding attorney fees lacks necessary findings to explain the legal and factual basis for the award, we vacate the order and remand the case to the Court of Appeals for further proceedings.

Plaintiff worked for defendant as a forklift operator. In August 1991, plaintiff filed a claim for workers' compensation benefits for an on-the-job injury. On October 7, 1991, defendant terminated plaintiff's employment.

On October 6, 1992, plaintiff filed this action against defendant for breach of employment contract, wrongful discharge, unlawful employment practices and reckless infliction of severe emotional distress. Plaintiff based his claim for unlawful employment practices on ORS 659.121 1 and alleged generally that On August 31, 1993, plaintiff filed a notice of dismissal pursuant to ORS 12.220 and ORCP 54 A(1). Defendant sought an award of its attorney fees but later withdrew that request. 3 The court entered a judgment of dismissal on December 7, 1993.

defendant had discriminated against plaintiff because of his workers' compensation claim in violation of ORS 659.410 to 659.420. 2

On December 5, 1994, plaintiff filed a motion under ORCP 71 B to set aside the judgment of dismissal and to reinstate the action. He also filed a second amended complaint that restated his claim against defendant under ORS 659.121 for unlawful employment practices. The court denied plaintiff's motion on the ground that plaintiff had not shown that the court had entered the judgment due to his excusable neglect.

Plaintiff appealed, arguing that the trial court had erred in refusing to set aside its judgment dismissing the action. The Court of Appeals affirmed without opinion, and this court denied review. McCarthy v. Oregon Freeze Dry, Inc., 142 Or.App. 595, 922 P.2d 729, rev. den. 324 Or. 322, 927 P.2d 598 (1996).

Following plaintiff's loss of his appeal, defendant petitioned for attorney fees on appeal in the sum of $18,268, arguing that it was a prevailing party under ORS 659.121(1) and that plaintiff's appeal was frivolous. Plaintiff filed objections. On November 20, 1996, the Court of Appeals entered an order that stated only the following: "Respondent's petition for attorney fees is allowed in the amount of $12,000." This court granted review of that order.

Plaintiff argues that the award of attorney fees on appeal is flawed on both procedural and substantive grounds. First, plaintiff contends that defendant failed to comply with various provisions of ORCP 68 C in seeking fees on appeal. Plaintiff relies on ORCP 68 C(1), which provides:

"Notwithstanding Rule 1 A and the procedure provided in any rule or statute permitting recovery of attorney fees in a particular case, this section governs the pleading, proof, and award of attorney fees in all cases, regardless of the source of the right to recovery of such fees, except where:

"C(1)(a) Such items are claimed as damages arising prior to the action; or

"C(1)(b) Such items are granted by order, rather than entered as part of a judgment."

Plaintiff points out that ORCP 68 C(1) provides that ORCP 68 governs in "all cases" and "[n]otwithstanding Rule 1 A," subject to exceptions that do not apply here. Defendant responds that the Oregon Rules of Civil Procedure (ORCP) apply only in trial courts, not appellate courts.

Because plaintiff's arguments based on defendant's noncompliance with ORCP 68 fail if that rule is inapplicable, we address that question first. In answering the question whether ORCP 68 applies to an award of On its face, ORCP 68 would seem to apply. Certainly the phrase "in all cases" supports such a reading. We turn to context to determine whether there is anything at the first level of analysis that calls into question the apparently absolute declaration in ORCP 68 C(1). See PGE, 317 Or. at 610, 859 P.2d 1143 (court examines both text and context at first level of analysis).

attorney fees by the Court of Appeals, this court's objective is to discern and give effect to the legislature's intention. The first step toward that objective is the examination of the text and context of the material provisions of the ORCP. In conducting that examination, we follow the interpretive methodology that applies in the construction of statutes. See State v. Arnold, 320 Or. 111, 119, 879 P.2d 1272 (1994) (because a provision of the ORCP "is a statute," the court discerns the meaning of the rules of civil procedure by applying the methodology for statutory interpretation set forth in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993)); see also Pamplin v. Victoria, 319 Or. 429, 433, 877 P.2d 1196 (1994) (ORCP is subject to "the usual method of statutory interpretation," citing PGE).

ORCP 68 C(1) cross-references ORCP 1 A, which is context for ORCP 68 C(1). ORCP 1 A provides:

"These rules govern procedure and practice in all circuit courts of this state, except in the small claims department of circuit courts, for all civil actions and special proceedings whether cognizable as cases at law, in equity, or of statutory origin except where a different procedure is specified by statute or rule. These rules shall also govern practice and procedure in all civil actions and special proceedings, whether cognizable as cases at law, in equity, or of statutory origin, for the small claims department of circuit courts and for all other courts of this state to the extent they are made applicable to such courts by rule or statute. Reference in these rules to actions shall include all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin."

The context of ORCP 1 A and ORCP 68 also includes statutes that relate to the same subject as those rules. ORS 1.735(1), which is part of the context of those rules, provides, in part:

"The Council on Court Procedures shall promulgate rules governing pleading, practice and procedure, including rules governing form and service of summons and process and personal and in rem jurisdiction, in all civil proceedings in all courts of the state which shall not abridge, enlarge, or modify the substantive rights of any litigant. The rules authorized by this section do not include rules of evidence and rules of appellate procedure." (Emphasis added.)

ORCP 1 A does not resolve completely the question whether the ORCP apply to appellate court proceedings. However, our examination of the context of that rule eliminates any doubt about that matter: the ORCP apply only in trial courts.

It is inescapable that rules governing the procedures for recovering an award of attorney fees in an appellate court are "rules of appellate procedure" within the meaning of ORS 1.735(1). That statute thus makes it clear that ORCP addresses trial procedure. It follows that ORCP 68 C(1) cannot be read plausibly to govern a claim for attorney fees in an appellate court. Thus, we reach the same conclusion here that this court reached earlier in deciding a related issue in State ex rel. KOIN-TV v. Olsen, 300 Or. 392, 394 n. 1, 711 P.2d 966 (1985), viz., "The Oregon Rules of Civil Procedure do not govern procedure in this court."

Our review of the text and context of ORCP 68 C(1) satisfies us that the applicable scope of that rule is clear. Accordingly, we proceed no further. See Jones v. General Motors Corp., 325 Or. 404, 419, 939 P.2d 608 (1997) (illustrating methodology). Defendant was not obligated to comply with ORCP 68 in seeking attorney fees in the Court of Appeals.

Plaintiff also argues that defendant failed to allege a claim for attorney fees in any pleading or motion in the trial court, as required by ORCP 68 C(2)(a) and (b) and Plaintiff next argues that, in petitioning for attorney fees, defendant violated ORAP 13.10(5), which provides, in part:

consequently, has no right to seek attorney fees on appeal. We disagree. ORS 659.121(2) does not condition the right of a prevailing party to recover attorney fees on appeal in cases of this kind on that party's compliance with rules governing recovery of attorney fees at trial. ORAP 13.10, which states the rules of procedure for seeking attorney fees on appeal, does not impose a requirement of prior notification of an attorney fee claim similar to that found in ORCP 68 C(2)(a) and (b). On appeal, a party may request attorney fees by filing a petition under ORAP 13.10. Defendant followed that procedure.

"A petition shall state the total amount of attorney fees claimed and the authority relied on for claiming the fees." (Emphasis added.)

Plaintiff contends that he filed this action under ORS 659.121(2), but defendant petitioned for fees pursuant to ORS 659.121(1). According to plaintiff, ORS 659.121(1) is not "authority," within the meaning of ORAP 13.10(5), for recovery of a fee in an action filed under ORS 659.121(2). We disagree.

The requirement in ORAP 13.10(5) of a statement of the ...

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