Rivera–martinez v. Tommy C. Vu

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Citation: 263 P.3d 1078,245 Or.App. 422
• Docket Number: 080913379; A144371.
• Parties: Saul RIVERA–MARTINEZ, Plaintiff–Appellant,v.Tommy C. VU, dba Pho Dalat; and Ninh V. Vuong, dba Pho Dalat, Defendants,andDonald M. Hooton; and Hooton Wold & Okrent, LLP, Defendants–Respondents.
• Decision Date: 08 September 2011

245 Or.App. 422

263 P.3d 1078

Saul RIVERA–MARTINEZ, Plaintiff–Appellant,

v.Tommy C. VU, dba Pho Dalat; and Ninh

v. Vuong, dba Pho Dalat, Defendants,andDonald M. Hooton; and Hooton Wold & Okrent, LLP, Defendants–Respondents.

080913379; A144371.

Court of Appeals of Oregon.

Argued and Submitted Jan. 26, 2011.Decided Sept. 8, 2011.

Jack Oswald argued the cause for appellant. With him on the briefs was Oswald & Mitchell.Trung D. Tu, Portland, argued the cause for respondents. With him on the briefs were Jonathan M. Radmacher and McEwen Gisvold LLP.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and RIGGS, Senior Judge.SERCOMBE, J.

Plaintiff, who pursued and prevailed on a minimum wage claim against his former employers and a legal malpractice claim against his former attorneys, appeals a judgment that denied him attorney fees against the lawyer defendants, Donald N. Hooton and Hooton Wold & Okrent, LLP. Plaintiff argues that the trial court erred in denying him attorney fees against the lawyer defendants, because his legal malpractice claim arose from their negligence in handling an overtime wage claim against plaintiff's former employers and prevailing party attorney fees are statutorily authorized on overtime wage claims under state and federal law. See ORS 653.055(4); 29 U.S.C. § 216(b).¹ For the reasons that follow, we affirm.

The relevant facts are undisputed. Plaintiff worked for his former employers from June 15, 2003 through June 3, 2005. During the course of his employment, plaintiff was not paid applicable minimum and overtime wages. On or about June 13, 2005, plaintiff retained the lawyer defendants to pursue, on plaintiff's behalf, certain wage claims against plaintiff's former employers. The lawyer defendants filed suit against plaintiff's former employers on or about June 4, 2007, by which time the two-year statute of limitations had run on plaintiff's claim for unpaid overtime wages. In addition, the lawyer defendants permitted plaintiff's action to be dismissed for failure to prosecute on December 5, 2007. Thereafter, plaintiff retained new counsel and instituted the current action against his former employers and his former attorneys.

In plaintiff's first amended complaint, with respect to his minimum wage claim against his former employers, plaintiff sought $11,841.25 for earned but unpaid minimum wages, prejudgment interest on that sum, along with reasonable attorney fees, costs, and disbursements. With respect to plaintiff's legal malpractice claim against his former attorneys, plaintiff sought $9,104.05 for earned but unpaid overtime wages, certain statutorily authorized penalties, liquidated damages of $9,104.05, “[p]laintiff's reasonable attorneys' fees,” and reasonable costs and disbursements.

Pursuant to ORS 36.400(3), plaintiff's claims were subject to court-annexed arbitration.² Following the arbitration hearing, the arbitrator determined that plaintiff was entitled to recover $11,841.25 plus prejudgment interest and his reasonable attorney fees and costs from his former employers on his minimum wage claim. The arbitrator also determined that plaintiff was entitled to recover $18,208.10 plus costs from the lawyer defendants on his legal malpractice claim. However, the arbitrator concluded that plaintiff was not entitled to attorney fees from the lawyer defendants. The arbitrator reasoned:

“[N]ormally a party may recover attorney's fees only if there is a statute or contractual provision that provides for such recovery. See Domingo v. Anderson, [325 Or. 385, 938 P.2d 206 (1997) ]. Plaintiff sufficiently alleged his request for attorney's fees as an item of damage in paragraph 19 of his First Amended Complaint. This takes this case out from under the rule of Domingo. The question then becomes whether plaintiff can recover attorney's fees in the malpractice action if he lost the opportunity to recover attorney's fees due to the attorney's negligence in the underlying claim. If yes, should they be part of plaintiff's case in chief or be handled in a post-trial attorney's fee petition under ORCP 68? * * *

“Plaintiff argues that the attorney's fees should be handled under Rule 68, and relies upon Glamann v. St. Paul Fire & Marine Ins. , 424 N.W.2d 924 (Wis.1988)[.] There are cases contrary[.] See Fitzgerald v. Walker , 826 P.2d 1301 (Idaho 1992). The better reasoned approach is that if attorney's fees are sought as part of economic damages in a legal malpractice case, they need to be alleged and proven as part of plaintiff's case in chief and not delayed until post-Rule 68 proceedings.”

(Underlining in original; emphases added.)

After the arbitration award was filed with the trial court pursuant to ORS 36.425(6),³ plaintiff filed exceptions to the “denial of attorney fees against lawyer defendants.” Plaintiff argued that, because the measure of damages in a malpractice action arising from the loss of a viable claim is generally the value of the lost putative judgment, and the lost judgment on his overtime wage claim would have included an award of attorney fees, he was entitled to an award of attorney fees on his malpractice claim. Moreover, plaintiff contended that the proper method of determining the amount of those fees was the post-trial procedure provided by ORCP 68, because the amount of such fees would be for the actual prosecution of the underlying claim—the “case within the case”—and any other procedure to determine the fees would be uncertain and speculative. By order, the trial court affirmed the arbitrator's fee award. The court explained:

“Upon review, this court finds that the fees sought but not recovered fall into two categories. First there are the fees expended proving the ‘case within the case.’ As with the fees that would have been charged and earned (and paid by the [plaintiff's former employers] ) had the case been handled without negligence the fees expended in this case to achieve that same result are recoverable. In this case, however, they are an element of damages and must be ple[d] and proved in that manner, rather than sought via ORCP 68. As to the fees incurred in proving the malpractice case, those fees could be sought via ORCP 68 but for the fact that there is no basis upon which such an award could be made. The plaintiff is not entitled to an award of fees on his malpractice claim beyond what he could have recovered in the ‘case within a case.’ ”(Emphasis added.) Ultimately, the court entered a general judgment consistent with that order and the arbitrator's award.

On appeal, plaintiff assigns error to the trial court's order affirming the arbitrator's denial of attorney fees on plaintiff's legal malpractice claim. We understand plaintiff to essentially renew on appeal his argument to the trial court that he is entitled to recover, in his malpractice claim, the attorney fees he would have been awarded on the underlying claim, but that those fees should be determined by the post-trial procedure provided by ORCP 68 C because they are based on the fees he actually incurred in proving the case within the case.

The lawyer defendants respond that the trial court and the arbitrator properly denied plaintiff's request for attorney fees. The lawyer defendants argue that, pursuant to UTCR Chapter 13, ORCP 68 does not apply to court-annexed arbitration and that the arbitrator had considerable discretion to establish the procedures for determining and awarding attorney fees. In addition, the lawyer defendants argue that, because plaintiff alleged that he was entitled to attorney fees as a form of “damages” relating to his legal malpractice claim, plaintiff was required to prove those damages during his case-in-chief. The lawyer defendants also raise two cross-assignments of error challenging (1) the rulings by the trial court and arbitrator that plaintiff was entitled to recover, as damages in his malpractice claim, his lost attorney fees on his underlying claim; and (2) the ruling by the arbitrator that plaintiff had sufficiently alleged, in his first amended complaint, that he was entitled to the lost attorney fees as a form of economic damages.

We review a trial court's judgment affirming or reversing an arbitrator's determination of a party's claim for attorney fees for legal error. Capital One Bank v. Fort, 242 Or.App. 166, 170, 255 P.3d 508 (2011); Great Seneca Financial Corp. v. Lisher, 223 Or.App. 496, 500, 196 P.3d 86 (2008). In this case, the trial court determined that plaintiff could recover, as damages in his malpractice claim, the lost attorney fees on his underlying claim, but that plaintiff had failed in proving those damages in his case-in-chief. In addition, the trial court specifically determined that there was no legal basis for an award of attorney fees on the malpractice claim itself.

Assuming without deciding that plaintiff was entitled to recover his lost attorney fees as damages in his malpractice claim, it is axiomatic that plaintiff was required to present sufficient proof of those damages in his case-in-chief. See Parker v. Harris Pine Mills, Inc., 206 Or. 187, 197, 291 P.2d 709 (1955) (“In every case actual damages sustained must be established by evidence upon which their existence and amount may be determined with reasonable certainty.”); Ridenour v. Lewis, 121 Or.App. 416, 419, 854 P.2d 1005, rev. den., 317 Or. 583, 859 P.2d 540 (1993) (to overcome a defendant's motion for directed verdict in a legal malpractice case, a plaintiff must present some evidence of the value of the judgment the plaintiff lost as a result of the defendant's negligence). Here, a number of avenues were available to plaintiff to prove the value of those damages; for example, plaintiff could have...