Powers v. Quigley

• Jurisdiction: Oregon
• Parties: Elena POWERS, Plaintiff-Appellant, v. William QUIGLEY, Defendant-Respondent.
• Citation: 212 Or. App. 644,159 P.3d 371
• Docket Number: 040605930.,A129463.
• Court: Oregon Court of Appeals
• Decision Date: 16 May 2007

159 P.3d 371

212 Or. App. 644

Elena POWERS, Plaintiff-Appellant, v.William QUIGLEY, Defendant-Respondent.

040605930.

A129463.

Court of Appeals of Oregon.

Argued and Submitted September 18, 2006.

Decided May 16, 2007.

Christopher T. Hill argued the cause and filed the brief for appellant.

James B. Rich argued the cause for respondent.With him on the brief was Harris, Wyatt & Amala, LLC, Salem.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

ARMSTRONG, J.

Plaintiff appeals from a judgment awarding plaintiff attorney fees in the amount of $1,267.67, and awarding defendant costs of $414.00, on judicial review of an arbitration award.¹Plaintiff asserts that the trial court erred (1) in applying ORCP 54 E to limit plaintiff's recovery of attorney fees under ORS 20.080, and (2) in considering defendant's untimely exception to the arbitrator's denial of his costs.We vacate the trial court's award of costs to defendant and otherwise affirm.

The material facts are undisputed.Plaintiff's vehicle was damaged when defendant rear-ended it in an automobile accident on April 3, 2003.Plaintiff's car was properly repaired.On May 21, 2004,²plaintiff sent a written demand to defendant for $4,271 for the car's diminished value after repairs.In response, defendant tendered an offer of $3,200 on June 2, 2004.On June 9, 2004, plaintiff filed a complaint in circuit court, requesting economic damages of $4,271, costs, and attorney fees under ORS 20.080.On August 30, 2004—after plaintiff filed her complaint—defendant served plaintiff with an offer of judgment under ORCP 54 E for $3,636, exclusive of costs, disbursements, and attorney fees.

The case went to arbitration, and plaintiff received an award for damages of $3,300.She was also awarded attorney fees of $828.50, although the attorney fee statement she submitted reflected fees of $5,482.33.The arbitrator denied both parties' requests for costs.

The award was filed on April 20, 2005.On April 26, 2005, pursuant to ORS 36.425(6), plaintiff filed and served on defendant her written exceptions to the amount of attorney fees awarded and to the denial of her costs.Defendant filed his response to plaintiff's exceptions on May 4, 2005, asserting, among other things, that plaintiff was not entitled to recover any fees incurred after August 30, 2004, the date of defendant's offer of judgment under ORCP 54 E. Defendant also requested his claimed costs of $414.00, pursuant to ORCP 54 E(3).³Defendant did not serve his response on plaintiff until June 9, 2005.⁴

A hearing was held on May 6, 2005.At that time, the court concluded that defendant's offer of judgment under ORCP 54 E operated to limit plaintiff's entitlement to attorney fees to those incurred as of the date of that offer and, accordingly, awarded plaintiff attorney fees of $1,267.67.The court also considered defendant's request for costs, despite plaintiff's objection on the ground that it was untimely under ORS 36.425(6).The court subsequently awarded both parties costs—plaintiff in the amount of $271.95 and defendant in the amount of $414.00.

Plaintiff's first assignment of error on appeal concerns the interplay between ORS 20.080(1)andORCP 54 E. 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 $5,500 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 than 10 days before the commencement of the action * * *.However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action * * * an amount not less than the damages awarded to the plaintiff."

ORCP 54 E provides, in part:

"E(1) Except as provided in ORS 17.065 through 17.085[concerning compromise with an injured worker], the party against whom a claim is asserted may, at any time up to 10 days prior to trial, serve upon the party asserting the claim an offer to allow judgment to be given against the party making the offer for the sum, or the property, or to the effect therein specified.

"* * * * *

"E(3) If the offer is not accepted and filed within the time prescribed, it shall be deemed withdrawn, and shall not be given in evidence on the trial; and if the party asserting the claim fails to obtain a more favorable judgment, the party asserting the claim shall not recover costs, prevailing party fees, disbursements, or attorney fees incurred after the date of the offer, but the party against whom the claim was asserted shall recover of the party asserting the claim costs and disbursements, not including prevailing party fees, from the time of the service of the offer."

As noted, the trial court concluded that both the statute and the rule applied; therefore, because plaintiff's arbitration award ($3,300) was greater than defendant's pre-filing settlement offer under ORS 20.080(1)($3,200), but less than defendant's post-filing offer of judgment under ORCP 54 E ($3,636), plaintiff's attorney fee recovery was limited to fees incurred as of the date of defendant's offer of judgment.

On appeal, plaintiff challenges that conclusion.Citing Colby v. Larson,208 Or. 121, 297 P.2d 1073, on reh'g,208 Or. 121, 299 P.2d 1076(1956), she argues that, because ORCP 54 E and ORS 20.080(1) are in direct conflict, the specific provisions of ORS 20.080(1) must prevail over the general provisions of ORCP 54 E.

We recently decided this precise issue contrary to plaintiff's position.In Bell v. Morales,207 Or.App. 326, 336, 142 P.3d 76(2006), we held that both the statute and the rule could be given full effect because the legislature, in replacing formerORS 17.055(1953), repealed byOr. Laws 1979, ch. 284, § 199(the predecessor offer-of-judgment statute) with ORCP 54 E, had eliminated the conflict between the two that had concerned the court in Colby.Thus, the trial court did not err in applying ORCP 54 E to limit plaintiff's award of attorney fees accordingly.

Plaintiff's second assignment of error challenges the court's award of costs to defendant.According to plaintiff, because defendant did not file and serve his written exception to the arbitrator's denial of his costs within the time required by ORS 36.425(6), the court erred in upholding that exception.Although, under ORCP 68 B,⁵we generally review a trial court's decision to award costs for abuse of discretion, see, e.g., Mosley v. Allstate Ins. Co.,165 Or.App. 304, 313, 996 P.2d 513(2000), where, as here, the court's decision is based on an interpretation of statute, we review for errors of law.SeeSelective Services, Inc. v. AAA Liquidating,126 Or.App. 74, 78-79, 867 P.2d 545(1994).ORS 36.425(6) describes the procedure for objecting to an award or denial of attorney fees and costs awarded by an arbitrator.It provides, in part:

"Within seven days after the filing of a decision and award under subsection (1) of this section, a party may file with the court and serve on the other parties to the arbitration written exceptions directed solely to the award or denial of attorney fees or costs.Exceptions under this subsection may be directed to the legal grounds for an award or denial of attorney fees or costs, or to the amount of the award.* * * A judge of the court shall decide the issue and enter a decision on the award of attorney fees and costs."

Notwithstanding the statute's use of the term "may,"we have previously concluded that the first sentence of ORS 36.425(6) establishes a mandatory seven-day time limit for filing exceptions to the arbitrator's award.Webster v. Harmon,205 Or.App. 196, 200, 134 P.3d 1012(2006)(trial court erred in upholding the defendant's exceptions to an arbitrator's attorney fee award where the defendant did not file his exceptions within the statutory time limit).

Defendant does not dispute that he did not file written exceptions directed to the arbitrator's denial of his claimed costs within the statutory time limit.Rather, defendant argues that, because "ORS 36.425(6) requires the Trial Court to exercise de novo review of the arbitrator's fee and costs decisions upon the filing of exceptions[,]" once plaintiff filed her exceptions to those decisions, all of the arbitrator's decisions regarding fees and costs were placed at issue before the court.Defendant also asserts that "ORCP 15andORCP 68 grant to the Trial Court discretion to be flexible in the procedures and time lines regarding requests for and objections to attorneys fees and costs."

We disagree with defendant in both respects.Defendant's first argument is premised on his understanding—and the trial court's—that ORS 36.425(6) requires the trial court to review the arbitrator's fee and cost decisions de novo.While we are unpersuaded that this would be significant in any event, we note that it is incorrect.Foust v. American Standard Ins. Co.,189 Or.App. 125, 133-34, 74 P.3d 1111(2003)("Under [ORS 36.425(6)], the arbitrator's decision cannot be supplanted by an independent determination by the trial court on a new record.* * * Rather, as pertinent here, review is limited to determining whether the arbitrator correctly applied the law in awarding or denying attorney fees.").

More significantly, there is nothing in the text or context of ORS 36.425(6) to support defendant's argument that the court was free to consider his untimely exceptions to the denial of costs simply because the other party to the arbitration filed timely exceptions to the arbitration award.To agree with defendant would require us to add additional words to the text of the statute, contrary to ORS 174.010.⁶Although, to...