Tyler v. Hartford Ins. Group

• Decision Date: 28 December 1989
• Citation: 98 Or.App. 601,780 P.2d 755
• Court: Oregon Court of Appeals
• Parties: Donald E. TYLER, M.D., Appellant, v. HARTFORD INSURANCE GROUP, Yturri, Rose, Burnham, Ebert & Bentz, Anthony Yturri, Carl Burnham, Jr., Cliff S. Bentz, Teresa J. Hutchens, Debbie Freepons Craig, Frederic P. Roehr, Kenneth E. Roberts, James C. Carter, Thomas L. Roberts, Edwin G. Ruland, Donald P. Smith, Jr., Holmes, DeFrancq & Schulte, P.C., Kenneth E. Roberts, P.C., Schwabe, Williamson, Wyatt, Moore & Roberts, Vergeer, Roehr & Sweek, X Insurance Company, a fictitious name, XX Insurance Company, a fictitious name, Y Insurance Company, a fictitious name, YY Insurance Company, a fictitious name, Z Insurance Company, a fictitious name, and ZZ Insurance Company, a fictitious name, Respondents. 87-04-21572-L; CA A45275.

Page 755

780 P.2d 755

98 Or.App. 601

Donald E. TYLER, M.D., Appellant, v. HARTFORD INSURANCE GROUP, Yturri, Rose, Burnham, Ebert &amp Bentz, Anthony Yturri, Carl Burnham, Jr., Cliff S. Bentz Teresa J. Hutchens, Debbie Freepons Craig, Frederic P Roehr, Kenneth E. Roberts, James C. Carter, Thomas L Roberts, Edwin G. Ruland, Donald P. Smith, Jr., Holmes, DeFrancq & Schulte, P.C., Kenneth E. Roberts, P.C., Schwabe, Williamson, Wyatt, Moore & Roberts, Vergeer, Roehr & Sweek, X Insurance Company, a fictitious name, XX Insurance Company, a fictitious name, Y Insurance Company, a fictitious name, YY Insurance Company, a fictitious name, Z Insurance Company, a fictitious name, and ZZ Insurance Company, a fictitious name, Respondents.

87-04-21572-L; CA A45275.

Court of Appeals of Oregon.

Submitted on Remand May 31, 1989.

Decided Oct. 11, 1989.

Reconsideration Denied Nov. 24, 1989.

Review Denied Dec. 28, 1989.

Mildred J. Carmack and Schwabe, Williamson & Wyatt, Portland, for the petition for attorney fees on behalf of Kenneth E. Roberts, Kenneth E. Roberts, P.C., and Schwabe, Williamson, Wyatt, Moore & Roberts.

Lee Aronson and Holmes, DeFrancq & Schulte, P.C., Portland, for the petition for attorney fees on behalf of Edwin G. Ruland, Donald P. Smith, Jr., James C. Carter, and Holmes, DeFrancq & Schulte, P.C.

Donald E. Tyler, M.D., appeared contra.

Before JOSEPH, C.J., and WARREN and ROSSMAN, JJ.

JOSEPH, Chief Justice.

The Supreme Court vacated our order ¹ that granted attorney fees pursuant to ORS 20.105(1) to certain of the defendants who had appeared in this court and remanded the matter to us to make findings on the record and a new order. Tyler v. Hartford Insurance Group, 307 Or. 603, 771 P.2d 274 (1989). We reinstate our original order on the basis of the findings in this opinion.

On April 29, 1987, plaintiff filed a 92-page complaint. On August 3, 1987, the complaint was dismissed for failure to state a claim. ² Defendants were awarded attorney fees by the trial court pursuant to ORS 20.105(1) and ORCP 17. ³ On October 5, 1988, we affirmed without opinion. Tyler v. Hartford Insurance Group, 93 Or.App. 429, 762 P.2d 1069 (1988), rev. den. 307 Or. 326, 767 P.2d 902 (1989). Defendants then petitioned for attorney fees on appeal, arguing that, by bringing the action, "plaintiff acted wantonly, in bad faith, and solely for oppressive reason. It is, therefore, established as a matter of law that plaintiff's appeal also justifies an award of attorney fees * * *." ⁴

ORS 20.105(1) provides:

"In any civil action, suit or other proceeding in a district court, a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court may in its discretion, award reasonable attorney fees appropriate in the circumstances to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party wilfully disobeyed a court order or acted in bad faith, wantonly or solely for oppressive reasons."

We need not decide whether, as a matter of law, plaintiff's appeal was filed "in bad faith, wantonly or solely for oppressive reasons," because we find that the appeal was filed in bad faith as a matter of fact. Plaintiff's case, claims and arguments are and always have been wholly incomprehensible. ⁵ The record shows that he has been properly and correctly advised on many occasions that he has no claim. He brought this appeal despite having every reason to know and to understand that it has no basis in law or in fact. See Brown v. Infotec Development, Inc., 88 Or.App. 37, 39, 744 P.2d 268 (1987). We find that he acted in bad faith, and we hold that defendants are entitled to the attorney fees that we previously awarded. See Portland Development Comm. v. CH2M Hill Northwest, 92 Or.App. 43, 758 P.2d 353, rev. den. 307 Or. 77, 763 P.2d 731 (1988).

Order awarding attorney fees and costs reinstated.

1 Actually, the court said: "The decision of the Court of Appeals is vacated." Unfortunately, that bit of inadvertance also vacated our award of costs, but that award is not otherwise in issue.

2 The trial court found:

"It is obviously another attempt in a series of lawsuits to obtain redress for real or imagined damages arising out of a series of incidents in Colorado, not Oregon. Plaintiff's complaint, including exhibits by its own allegations reveals that it is an attempt to relitigate a matter commenced in the Circuit Court of the State of Oregon for Malheur County on July 7, 1986 as case numbers 86-06-20969 L * * * The case was removed to Federal Court. * * * Judge Redden issued his opinion on March 31, 1987. * * * Plaintiff herein was ordered to pay Defendant Hartford's attorney fees and costs in the sum of $4,976.41. * * *

"There was no appeal.

"This lawsuit is no different from the last, except that Plaintiff now attempts to involve the attorneys for the Defendants previously sued by claiming they are part of the alleged conspiracy he claimed in his original lawsuit.

"In the Court's opinion, adding different Defendants and claiming a conspiracy in removing the case from State to Federal Court does not change the basic underlying claim which has already been determined and is therefore res judicata and Plaintiff is collaterally estopped from raising the same issues in this litigation.

"Under different circumstances, the Court could go along with Plaintiff's argument that claiming res judicata would be an affirmative defense, but here the Plaintiff has himself pled the fact that the case was previously decided in Federal Court.

"It is...