Pederson v. Barnes

• Decision Date: 13 November 2002
• Docket Number: 99P1681.,A113596.
• Citation: 58 P.3d 240,185 Or.App. 35
• Parties: Arnold L. PEDERSON and Linda L. Pederson, Respondents, v. Robert A. BARNES, Jeannete V. Barnes, and Robert A. Barnes, Trustee of the Robert A. Barnes Trust, Appellants.
• Court: Oregon Court of Appeals

58 P.3d 240

185 Or.App. 35

Arnold L. PEDERSON and Linda L. Pederson, Respondents, v. Robert A. BARNES, Jeannete V. Barnes, and Robert A. Barnes, Trustee of the Robert A. Barnes Trust, Appellants.

99P1681.

A113596.

Court of Appeals of Oregon.

Argued and Submitted October 17, 2002.

Decided November 13, 2002.

Stephen Mannenbach, Dallas, argued the cause and filed the briefs for appellants.

Calvin P. Vance argued the cause and filed the brief for respondents.

Andrea L. Bushnell and Barry Adamson filed the brief amicus curiae for Oregon Association of Realtors.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

Defendants appeal from a judgment awarding plaintiffs ownership by adverse possession of a parcel of real property in Polk County and from a supplemental judgment awarding plaintiffs an enhanced prevailing party fee, ORS 20.190(3), against all defendants. We affirm the judgment, and we affirm in part, and reverse in part, the supplemental judgment.

Defendants raise three assignments of error. The first two challenge the merits of the trial court's determination with respect to adverse possession, and the third raises a variety of arguments with respect to the propriety of the trial court's award of an enhanced prevailing party fee of $5,000 pursuant to ORS 20.190(3). We reject, without further discussion, defendants' first and second assignments of error. We also reject, without further discussion, all but two of defendants' arguments in support of their third assignment of error. The remaining two matters, however, require correction.

First, the supplemental judgment provides that interest on the enhanced prevailing party fee shall be "compounded annually." (Emphasis added.) As plaintiffs acknowledge, ORS 82.010(2), which governs interest on judgments, does not authorize an award of compound interest. Consequently, the reference to compound interest must be deleted from the supplemental judgment.

Second, although the supplemental judgment awards an enhanced prevailing party fee against defendant Robert A. Barnes, as trustee of the Robert A. Barnes Trust, there is no indication in this record that the trial court determined that Robert A. Barnes as trustee engaged in "mismanagement or bad faith" in the defense of this action. ORS 20.150.¹ Here, some of the factors the trial court relied on in awarding costs pursuant to ORS 20.190 might support a determination of "mismanagement or bad faith" for purposes of ORS 20.150, but the court, in awarding an enhanced fee against Robert A. Barnes as trustee, did not refer to ORS 20.150 or explain the relationship, if any, between its determination pursuant to ORS 20.190 and the propriety of an award against a trustee under ORS 20.150. Consequently, that aspect of the supplemental judgment that awards an enhanced prevailing party fee against Robert A. Barnes as trustee is reversed and remanded for the trial court to address the...