521 P.3d 151
Or.2022Background
- Defendant assaulted neighbors with a metal chain; victims suffered significant injuries and incurred medical expenses.
- Victims had retained a civil attorney for a property dispute and that attorney also appeared in the criminal prosecution to protect the victims’ restitution interests (arraignment, hearings, plea, sentencing), met with prosecutors, moved to quash an overbroad subpoena, and photographed property.
- At sentencing the trial court awarded restitution for victims’ medical bills and $3,200 in attorney fees for services the victims’ attorney provided in the criminal case.
- Defendant appealed, challenging the attorney-fee award as not being recoverable “economic damages” under ORS 137.106/ORS 31.710(2)(a); the Court of Appeals affirmed the fee award and reversed one victim’s medical-expense award.
- The Oregon Supreme Court affirmed in part, reversed in part, and held that attorney fees voluntarily incurred by a victim to protect restitution interests in a criminal prosecution are not "economic damages" recoverable as restitution; it remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney fees voluntarily incurred by a victim to participate in the criminal prosecution are recoverable as "economic damages" in restitution | Ramos permits recovery of attorney fees and such fees were reasonably foreseeable and necessarily incurred here | The American Rule and civil-law measure of "economic damages" exclude attorney fees a victim voluntarily incurs to obtain damages | Held: No. Voluntary attorney fees to protect restitution interests are not "economic damages" under ORS 137.106/ORS 31.710(2)(a); trial court erred in awarding them |
| Preservation of the American Rule argument | State: defendant did not preserve the American Rule argument | Fox: he sufficiently raised the recoverability issue below | Held: Preservation was adequate; court considered the merits |
| Whether medical expenses awarded as restitution were reasonable and necessary | State: expenses supported by record | Fox: record insufficient to show reasonableness/necessity | Held: Supreme Court affirmed the Court of Appeals’ treatment (medical award affirmed where supported; no further discussion) |
| Whether the awarded fees were reasonably foreseeable and necessarily incurred | State: fees were reasonably foreseeable and necessary | Fox: fees were not foreseeable or necessary | Held: Court did not decide this question after resolving that such voluntary fees are not recoverable |
Key Cases Cited
- State v. Ramos, 358 Or 581 (2016) (interprets "economic damages" in restitution via civil-law concepts and discusses when attorney fees may be recoverable)
- State v. Kirschner, 358 Or 605 (2016) (upheld restitution for wages lost when victim was compelled to participate in prosecution)
- Osborne v. Hay, 284 Or 133 (1978) (recognizes recovery of attorney fees incurred in third-party proceedings as damages)
- Montara Owners Assn. v. La Noue Dev., LLC, 357 Or 333 (2015) (recaps American Rule: each litigant ordinarily pays own attorney fees absent statute or contract)