Rymer v. Zwingli
240 Or. App. 687
Or. Ct. App.2011Background
- Rymers contracted Light Up to investigate and remediate mold in their home; written estimate included an attorney-fee provision on the back.
- Light Up performed the remediation; the Rymers refused to pay, leading Light Up to sue in contract for breach and obtain a lien-foreclosure judgment.
- During the contract case, the Rymers filed a separate UTPA action against Light Up; the trial court directed verdict for Light Up in the UTPA case.
- After judgments, Light Up sought attorney fees under ORS 20.082 in the contract case and under ORS 646A.286(3) and ORS 646.638(3) in the UTPA case; the Rymers objected based on ORCP 68 C(2)(a).
- The trial court ruled that Light Up’s pleadings satisfied ORCP 68 C(2)(a) in both cases and entered supplemental judgments awarding fees and costs.
- On appeal, the court reversed the contract-case fee award for failure to satisfy ORCP 68 C(2)(a) and affirmed the UTPA-case fee award based on notice and pleading sufficiency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Light Up's lien foreclosure was proper against the bond rather than the Rymers' real property given notice requirements. | Rymers contends lack of notice requires real-property foreclosure. | Light Up maintained the foreclosure method supported by the lien and notice provisions. | Assignment rejected; issue not discussed on appeal. |
| Whether Light Up’s pleadings adequately alleged entitlement to fees under ORS 20.082 in the contract case. | Light Up claimed second amended complaint satisfied ORS 20.082 via pleaded facts. | Rymers argued pleadings failed to allege absence of an attorney-fee provision as required by ORS 20.082. | Reversed; pleadings did not adequately allege basis for ORS 20.082 under ORCP 68 C(2)(a). |
| Whether Light Up’s pleadings in the UTPA case satisfied ORCP 68 C(2)(a) to award attorney fees. | Rymers sought fees; Light Up argued pleadings alerted to fee entitlement. | Rymers argued the pleadings sufficiently alleged the statutory basis for fees in UTPA. | Affirmed; pleadings satisfied ORCP 68 C(2)(a) for the UTPA case. |
| Whether the supplemental attorney-fee award in the contract case should stand given the pleadings deficiency under ORCP 68 C(2)(a). | Light Up relied on contractual/statutory basis for fees. | Rymers maintained lack of proper statutory basing in pleadings. | Reversed; contract-case fee award reversed; UTPA-case fee award affirmed. |
Key Cases Cited
- Mulier v. Johnson, 332 Or. 344, 29 P.3d 1104 (Or. 2001) (mandatory ORCP 68 C(2)(a) framework for fee awards; need for adequate pleading)
- Page and Page, 103 Or. App. 431, 797 P.2d 408 (Or. App. 1990) (alert to fee requests; sufficiency of notice and pleading)
- Bruce v. Cascade Collections, Inc., 199 Or. App. 59, 110 P.3d 587 (Or. App. 2005) (pleadings must allege facts justifying fee entitlement)
- Hogue and Hogue, 118 Or. App. 89, 846 P.2d 422 (Or. App. 1993) (application of ORCP 68 C(2)(a) in fee awards)
- Attaway, Inc. v. Saffer, 95 Or. App. 481, 770 P.2d 596 (Or. App. 1989) (fee entitlement based on pleaded facts)
- Swartsley v. Cal-Western Reconveyance Corp., 212 Or. App. 365, 157 P.3d 1260 (Or. App. 2007) (ORCP 68 C(2)(a) satisfaction where defendant asserts fee basis)
- Little Whale Cove Homeowners Assoc. v. Harmon, 162 Or. App. 332, 986 P.2d 616 (Or. App. 1999) (sufficiency of pleading to alert fee entitlement under ORCP 68 C(2)(a))