Samuel v. Frohnmayer

• Jurisdiction: Oregon
• Parties: Edmonde G. SAMUEL, D.C., Appellant, v. Dave FROHNMAYER and the State of Oregon, Respondents. 137346; CA A47340.
• Citation: Samuel v. Frohnmayer, 770 P.2d 914, 95 Or.App. 561 (Or. App. 1989)
• Court: Oregon Court of Appeals
• Decision Date: 26 May 1989

Page 914

770 P.2d 914

95 Or.App. 561

Edmonde G. SAMUEL, D.C., Appellant, v.Dave FROHNMAYER and the State of Oregon, Respondents.

137346; CA A47340.

Court of Appeals of Oregon.

Argued and Submitted Oct. 26, 1988.

Decided March 8, 1989.

Reconsideration Denied May 26, 1989.

David C. Force, Eugene, argued the cause and filed the briefs for appellant.

Linda DeVries Grimms, Asst. Atty. Gen., Salem, argued the cause for respondents.With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol.Gen., Salem.

Before WARDEN, P.J. Pro Tem., and GRABER and RIGGS, JJ.

GRABER, Judge.

Plaintiff brought this declaratory judgment action to obtain indemnification for the expenses of defending a civil action.We previously held that plaintiff here had been sued in his capacity as a state agent and that the state was, therefore, required to indemnify him.Samuel v. Frohnmayer, 82 Or.App. 375, 84 Or.App. 80, 728 P.2d 97(1986), rev. den.303 Or. 261, 735 P.2d 1224(1987).On remand, plaintiff petitioned for further relief under ORS 28.080 to recover the expenses incurred in bringing the action for indemnification.He describes those expenses as additional damages.They are, in essence, his attorney fees.The trial court denied his petition, and he appeals.

ORS 28.080 provides:

"Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper.The application thereof shall be by petition to a court having jurisdiction to grant the relief.If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith."

Plaintiff asserts that the supplemental relief that the court may grant includes the damages that he suffered because he had to bring the action to secure indemnification of the expenses of defending the civil action.He points out that he has spent over $10,000 to recover indemnity for approximately $1,870 that he spent in defending the civil action.The supplemental relief that he requests is necessary, he argues, "in order to vindicate the rights and duties of the parties as determined and declared in the judgment itself."Those damages are, he emphasizes in his reply brief, "the direct and forseeable consequence of Defendant's breach of his statutory duty to defend and indemnify Plaintiff."(Emphasis in original.)

What plaintiff seeks is an award of attorney fees under another name: "damages."The state quotes Shakespeare: "What's in a name?That which we call a rose by any other name would smell as sweet * * *."¹ It could also have quoted Gertrude Stein: "[A] rose is a rose is a rose.""Damages" that are determined by the charges that an attorney makes for services in the action in which those damages are sought are attorney fees, although fees incurred in maintaining a lawsuit may at times be damages in some other action.See, e.g., Sizemore v. Swift, 79 Or.App. 352, 358, 719 P.2d 500(1986).

The characterization of plaintiff's request for relief as fees instead of damages does not end the inquiry, however, because ORS 28.080 permits further "relief," without regard to its label, "whenever necessary or proper."The dispositive issue is whether an award of fees is "necessary or proper."

Relief is "necessary" when it is required in order to enforce the judgment because of the failure of one party to comply.SeeLowe v. Harmon, 167 Or. 128, 115 P.2d 297(1941); Borchard, Declaratory Judgments 439 (2d ed 1941).Fees are not "necessary" relief in this case, because plaintiff is not seeking an order to compel the state to comply with the original declaration.It has complied.

Fees may, however, be "proper" relief.ORS 28.080 is based on the Uniform Declaratory Judgment Act, which, in turn, is based on the Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201,2202.Federal cases interpreting 28 U.S.C. § 2202, which is identical for present purposes to ORS 28.080, thus are helpful in deciding what ORS 28.080 means.SeeORS 28.150. ²

Several federal courts have construed 28 U.S.C. § 2202(albeit without much analysis) to allow an award of attorney fees in a declaratory judgment action in the absence of contractual or other statutory authority for doing so.See, e.g., Freed v. Travelers, 300 F.2d 395, 399(7th Cir.1962);Security Insurance Company of New Haven v. White, 236 F.2d 215(10th Cir.1956);Automobile Club Ins. Co. Inc. v. Tyrer, 560 F.Supp. 755, 760(D.Idaho1983), aff'd.734 F.2d 20(9th Cir.1984);Preferred Risk Mutual Insurance Co. v. Main, 295 F.Supp. 207, 218(W.D.Mo.1968).³ None of those cases involved a public official; each concerned a dispute between an insured and its private insurer about the existence or extent of coverage.However, in tort claims against the state and its agents, the Attorney General takes the role of an insurer and assumes an insurer's duty to defend.ORS 30.285(3).For that reason, the cited cases are persuasive by analogy.

When, as here, the Attorney General fails to discharge his statutory duty and an agent of the state must resort to litigation to force him to perform it, awarding that agent the expense of litigation will often be both "proper" and fair.In Van Gordon v. Ore. State Bd. of Dental Examiners, 63 Or.App. 561, 568, 666 P.2d 276(1983), we noted that "fairness" is a factor that we consider in deciding whether to assess attorney fees against a state agency pursuant to ORS 183.495, when that agency misconstrues a statute.Whether an award is proper requires a case by case consideration and depends on many factors, including benefit to the public at large, seeDeras v. Myers, 272 Or. 47, 535 P.2d 541(1975), ⁴ and the reasonableness of the Attorney General's refusal to defend.SeeORS 28.120andORS 182.090.⁵

In summary, we hold that an award of attorney fees may be "proper" when a declaratory judgment action seeks to compel a public official to do his or her duty.We remand for the trial court to determine whether to award fees and, if so, in what amount.

Reversed and remanded.⁶

WARDEN, Presiding Judge Pro Tem., dissenting.

The majority reaches a result that appears to be just; unfortunately, its opinion has no legal basis and, if accepted, would destroy long established law about when a prevailing party may receive an award of attorney fees.Because I cannot join the majority in ignoring the law, even in order to do justice, I dissent.

Plaintiff apparently concedes that there is no statute other than the Declaratory Judgment Act that might authorize an award of attorney fees in this case.¹ The only authority that he suggests for an award is ORS 28.080, which provides:

"Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper.The application thereof shall be by petition to a court having jurisdiction to grant the relief.If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith."

As the majority notes, plaintiff must show that attorney fees would either be "necessary" or "proper" in this case.They would not be "necessary," because they are not required to enforce the declaratory judgment.Despite the majority's efforts to show otherwise, they are also not "proper."

A declaratory judgment may establish a party's right to some particular relief.It would then be "proper" under ORS 28.080 for the court to award that relief, thereby avoiding the need for a second action.See, e.g., Aspgren v. City of Columbia City, 34 Or.App. 991, 1002 n. 3, 581 P.2d 536(1978);Heimbouch v. Victorio Ins. Serv., Inc., 220 Neb. 279, 283-284, 369 N.W.2d 620(1985);Utah Rest. Ass'n v. Davis Cty. Bd. of Health, 709 P.2d 1159, 1162(Utah1985).In this case, it was "proper" under indemnity law for the court to award plaintiff the attorney fees that he incurred in defending the original action, because defendant failed to perform a duty to defend him.What relief is "proper," however, depends on whether plaintiff would have a right to it under other law;ORS 28.080 does not in itself create rights.

Plaintiff argues that attorney fees are "proper" relief, because he had to incur them "in order to vindicate the rights and duties of the parties," and that they were the "direct and foreseeable consequences "(emphasis inappellant's brief) of defendant's failure to comply with his statutory duty.95 Or.App. at 563, 770 P.2d 915.Every successful plaintiff could make the same argument.If we were to accept it, we would destroy the rule that a court may award attorney fees only when a statute or contract provides specific authority for the award.See, e.g., Beaver v. Davis, 275 Or. 209, 217-218, 550 P.2d 428(1976).²

The majority relies on several cases under 28 U.S.C. § 2202 to support its position.Unfortunately, they do not.In both Freed v. Travelers, 300 F.2d 395, 399(7th Cir.1962), andSecurity Insurance Company of New Haven v. White, 236 F.2d 215, 220(10th Cir.1956), the court made a lump sum award of attorney fees for a previous personal injury case.Neither court said whether any part of the fees was for services in the declaratory judgment action.It is possible that all of each award was for the fees incurred in defending the earlier case.SeeTravelers Indemnity Company v. Holman, 330 F.2d 142, 152(5th Cir.1964).Those cases, therefore, are not authority for awarding fees in this one.

Somewhat stronger for the majority is Preferred Risk Mutual Insurance Co. v. Main, 295 F.Supp. 207, 218(W.D.Mo.1968), in which the court looked both to state law and to what it described as the court's inherent equitable authority under 28 U.S.C. § 2202 as sources for an award of attorney fees.See alsoNational...