*1 235 6, Argud July appeal; and submitted affirmed on reversed remanded on cross-appeal October BRENNAN, John - Appellant Cross-Respondent, LA TOURELLE APARTMENTS, - Respondent Cross-Appellant.

99F 003721; A106448 P3d *2 briefs and filed Greg Oldham the cause argued - appellant cross-respondent. brief and filed Warner E. Allen the cause argued - respondent cross-appellant. 236-a Edmonds, Presiding Judge, and Armstrong Before Kistler, Judges. P. J.

EDMONDS, J.,

Armstrong, dissenting.

236-b

EDMONDS, P. J. appeals judgment dismissing

Plaintiff from personal moot his claim under ORS 105.112 for return of cross-appeals assigning Defendant error to the trial court’s failure to award fees under ORS 90.255 as appeal in this action. We affirm on the cross-appeal. and reverse and remand on the complaint alleges wrong- Plaintiffs that defendant fully prevented plaintiff recovering personal prop- from his erty premises. from defendant’s Defendant filed an answer in plaintiff posses- which it denied that was entitled to recover personal property sion of the from it “because the Defendant possession any prop- did not take and does not have erty complaint.” explained listed in the Defendant’s answer plaintiffs girlfriend that it was the landlord of and that the girlfriend, possession plaintiffs per- defendant, had alleged sonal at all relevant times. It also * * * proceed “Plaintiff has failed to in good faith for the rea- son that Plaintiff failed pick and refused to up personal property despite agreement Defendant’s plaintiff to allow pick up personal said property and provision Defendant’s access to the Plaintiff purpose of picking up Plaintiffs personal property.” pursuant

Defendant also counterclaimed for fees ORS 90.255. parties appeared

When the trial, the trial court plaintiff personal prop- was informed that had recovered his erty. proceeding trial, Rather than the court took the issue requested of mootness under advisement and memoranda parties. from the Plaintiff filed a memorandum which he argued, part:

“Because personal property recovered his after lawsuit, filing parties may required be litigate issue of plaintiffs right to recover his personal property. happen scenarios, This could under a number of but the likely, usual, most particular most and in this case the actual reason is that he believes is entitled to his costs and pursuant to ORS 90.255. *5 recover

“Plaintiff would not be entitled to his voluntarily, fees and if the matter costs dismissed because answer and would then be defendant has filed its fees, costs and purposes disbursements. and the Despite urging of defendant court, plaintiff specifically refuses to dismiss its claim.

<(* * * :f: % court, “In the case before the of physical posses- the fact sion no longer exists because the recovered his per- however, fees, sonal property; costs disbursements, try the court must the facts and make a determination right as to the to The court possession. should set a trial date for this matter.” (Emphasis original.)

In response plaintiffs memorandum, states, filed a memorandum that part: herein, “At adamantly all times material Defendant has maintained that Plaintiff was never a residential tenant of the Defendant. Defendant provided further contends that it Plaintiff complete access and adequate opportunities with Further, which to pick up Plaintiffs personal property. Plaintiff had sufficient/complete personal access to the * * * property through girlfriend his actual who was the tenant Plaintiff intention- knowingly and ally personal property subject premises, left his at the thereby waiving right proceed his with this action. Plain- tiff personal recovered his filing after this lawsuit.

“ISSUES “The sole issue presently before this Court is whether the case should be dismissed or set for trial. If this case is dismissed, it requests must be set for trial. Defendant June trial date.

“Dismissal Versus Trial acknowledges prop- “Plaintiff recovering personal erty. already This Court has indicated that it intends order this matter dismissed. that this Defendant concurs thereby case should be dismissed. be the Defendant would prevailing party.”

(Internal omitted.) receiving memoranda, After citations sent it to the and had judgment, the court prepared judgment pro- it entered a later the court clerk. day vides, in relevant part:

“FACTS brought personal prop- “Plaintiff this action to recover erty procedures [forth] from defendant under set trial, prior 105.112. After the action was filed and [plaintiff] personal property. recovered his The defendant right personal property. asserts no to the *6 “Upon had his learning plaintiff recovered property asserting and that the defendant landlord rights to the the court property, judgment ordered a of dis- upon stayed missal its own motion. The court entry of the 5th, May until in order for the to * * * present memorand[a]. written

“OPINION only “The issue at trial in an action a tenant to personal recover under property ORS 105.112 is ‘whether plaintiff entitled possession personal prop- to of the 105.112(2)(d). erty listed in the complaint.’ ORS Claims for damages any stem from withholding personal property in a brought separate must be action. ORS 105.112(2)(e). case, In this instant there is no issue con- troversy: possession has actual and the defen- dant disputing plaintiff’s right is not to possess. attorney

“Plaintiff that he is entitled argues to recover right hinges fees and that upon finding this the court at trial that he entitled possession per- was in fact to Fenn, sonal property. cites Edward v. (1989) 129[, Corp. 1375] 775 P2d and NW Dev. Pacific 367[, (1976), Holloway, standing 546 P2d 1063] for the the court proposition that must hear an action even only controversy when the issue is who would have been [sic] prevailing party that would be entitled to attor- ney fees. v v v

«ífc “ORS allows the court to award attor- 90.255 reasonable ney prevailing party fees to the at trial. Had the court to a attorney ‘prevailing’ party, awarded fees Edwards would have required the court to determine whether the prevailing party in fact right had a to recover at trial. In the case, instant the court attorney has not awarded fees to either controversy because there is no upon issue which either party prevail. could

“The Plaintiffs argument suggests that right there is a fees that through filing attach the mere of an action. Such a position any would allow require landlord to to hear an FED action even if long the tenant has vacated premises, all in the name of collecting protects fees. ORS 90.255 the court from pointless such draining litigation by such awarding only pre- to the vailing party at trial.”

Consequently, the trial court entered of dismissal party. and awarded no fees or costs to either appeal, plaintiff argues question On that the “right possession” recovery issue, is still at because his legal did not establish the issue ofentitlement to apparently, believes, the been the He that he would have in the action if the court had deter- possession. mined that he was entitled to Therefore, the case entirety according plaintiff, in its moot, was not and the question right posses- court should have resolved the of his question sion and then considered the of costs and fees thereafter. responds

Defendant that the trial court was correct *7 in its determination ofmootness once it learned that physical possession had recovered actual It argues nothing that, because took as a result of a judgment, only girl- plaintiffs but instead benefitted from voluntary successfully property, friend’s return of the it has plaintiff’s defeated claim and was therefore the argues as a matter of such, law. As it that it is entitled attorney Although to fees and costs defen- under ORS 90.255. ruling correct, dant therefore asserts that the mootness was judgment it seeks in its favor. have to the amended to add presented by The initial issue the this case is whether judgment appealable judgment trial court’s as a final judgment says, under ORS 19.205. The orders “The court No fees or costs awarded entry Judgment of of Dismissal. to adjudicates either In a fewer party.” general, judgment than all of the claims of all the to an action is not a final judgment 19.205, for of ORS unless appeal, the trial court enters under judgment the ORCP 67 B and expressly judgment decides to issue a on fewer than all Corrections, claims. Butler Dept. 190, 206, v. 138 Or App (1995). 909 P2d 163 The in this judgment case does not pur port be a under ORCP 67 B.

In Wheatley v. 92 Or 758 P2d Safley, App (1988), we held that a that failed dispose of a counterclaim fees was not a final judgment 19.033(1) under (1985), renumbered as ORS former (1997), 19.270 and Consequently, ORCP 68 C. we dismissed the appeal in that case was because there no final judgment. After our decision in the Wheatley, Supreme Court decided Propp Long, P2d 685 In Propp, court held that only means for a claim bringing for attor- ney fees, with few is to follow the exceptions, procedures in Thus, ORCP 68. a “counterclaim” for attorney fees was held not to be a “claim” that must be in disposed judgment, in order to make the judgment final under ORCP 67. Applying in reasoning case, this Propp to defendant’s claim for attorney fees, styled counterclaim, as was not required to be disposed of in the judgment in order to make it pur- “final” for poses of appeal. A request fees is not a “claim” that affects the finality judgment. of a Consequently, judgment on appeal this case is final and appealable. (1)

On merits, we conclude as follows: the trial court erred when it ruled that the entire controversy case or before it was moot because the return of the only (2) moot; required designate court was (3) as the prevailing party law; remand, as a matter of on the court must exercise its discretion whether regarding award attorney party. fees to defendant as the prevailing following paragraphs explain reasoning support our those conclusions.

Whether a depends part case is moot on whether the court’s decision can have a practical rights effect on parties. P2d PSRB, 402, 405, Brumnett v. *8 case, recover sought In this both attor- fees, on that on different

ney depended legal rulings. theories had sought that, Plaintiff fees on the if court held theory the hearing, proved he have that was with- a could he holding possession prevailing from him and thus is the theory that, sought attorney Defendant fees on the party. dismissed, was it entitled be plaintiff’s because claim was the party. The award or denial attor- designated a parties. fees to has effect on both ney party practical either issue in is similar that in N.W. Dev. The this case Pacific issue of that, although where the court held the basic Corp., the moot, plain- of an right possession apartment the district was not from on precluded challenging tiff appeal award Or at Just as that attorney court’s fees 274 367. from being case the issue fees the case prevented moot, too, case the fees so in this issue of whether the prevailing party justiciable. should be awarded to is trial court We turn next to issue of whether issue, prevailing party. erred in not a As to designating provides: ORS 90.255 this any arising

“In a rental or under agreement action on appeal trial chapter, attorney fees at and on reasonable costs may prevailing party together be awarded to the with disbursements, any agree- notwithstanding and necessary section, ‘prevailing As in this contrary. ment to used is party in whose favor final party’ means rendered.” on based an brought action

Unquestionably, he only rental Not did seek alleged agreement. court on 90.255,

under ORS but his memorandum to the trial on to this appeal the issue of mootness his brief 105.112(1) is under make clear his claim made ORS a ten- by authority well. That statute an action provides “taken or ant to recover against personal property landlord 90.” Con- of ORS by chapter retained landlord violation 90.255, party” as defined sequently, “prevailing is favor action “the in whose final party this The language unambiguous. the statute rendered.” vic- party’ gained means who “prevailing phrase Dictionary Webster’s Third New Int’l tory proceeding, in the con- language and the statute’s (unabridged 1993), ed See also prevailing party. of a templates designation *9 (1999) 626, 632, 984 P2d 261 Zurlinden, 328 Or v. Wilkes claim, on its then the nothing takes stating plaintiff “[i]f that 20.096 [1999] under ORS party is the prevailing fees.”). American of to an award entitled 183, 583 P2d 521 D & L Oil 283 Or Supply, v. Petrofina (1978). we to the trial language, turn light In of the statute’s entry “The court orders It states that judgment. court’s fees or costs awarded either of Dismissal. No Judgment complaint, a dismisses the Party.” when Typically, the As the defending prevailing party. the is considered party Parole, v. Board 332 Or DeYoung court said in Thomas / in the of who is 266, 276, (2001), pre 27 P3d 110 context a on vailing appeal, party may

“[although courts decline award costs to appellate dismissal, the in cases of for reasons of prevailing party otherwise, may nevertheless be said to party fairness or have bursements, of costs and dis- prevailed appeal, on appeal or

by obtaining dismissal the petition.”

(Footnote omitted.) v. Ry. Doyle, & O.C. Co. See also Portland 270, P 291 In of ORS 206, light 86 Or 167 P 168 90.255, failing erred des- we that the trial court conclude ignate judgment. in the prevailing party we turn to the issue background,

With that hearing to a which plaintiff whether was entitled on prevail the was the or whether defendant In Homeowners ing party Ridge as a matter of law. Conifer (2001), P3d this Assn. v. Hayworth, App court similar to the one that argument addressed an makes In filed an action case, plaintiffs here. that against the defen injunctive relief as requesting certain voluntarily everything eventually dants. did The defendants do them to sought compel that the to have the plaintiffs then through injunction. plaintiffs of an issuance sought party, arguing as the with their impetus compliance requests for the defendant’s they “prevailing were the filing was the of the action and parties” “catalyst theory.” based aon Id. at 609-10. The “cat- theory alyst” explained has been one court as follows: voluntarily complies plaintiff’s “Wherea defendant awith requested thereby rendering plaintiffs relief, lawsuit ‘prevailingparty’ USC] [42 moot, the is a under catalyst section 1988if his suit is a for the vol- defendant’s untary compliance gratuitous, meaning compliance and the defendant’s plaintiffs suit was neither frivo- groundless.” lous, unreasonablenor Special 1, 17 Little Rock School Dist. v. School Dist. F3d (8th 1994). 262-63 Cir “catalyst” theory adopt In we Conifer, declined to recognize theory, plaintiffs because, even were we to prove filing had failed to that the cata of the action was the lyst App compliance. for the at defendant’s ultimate Siverly Young Morgan Trucking 610-11; Co., see also & *10 (2001); App 282, 285, 17 Trebes, 162 Or P3d 579 Freedland v. App “catalyst” 2, 378 n P2d The the Or ory rights actions, like that has obvious value in federal civil in Rock If a is able to involved Little School Dist. context, demonstrate a nonfrivolous claim in that it means arguable plaintiffs that there is at least an the violation of rights. voluntary compliance civil civil rights A defendant’s with occurring entry judgment

laws before the that man compliance accomplishes purpose the dates such the underlying legal plaintiffs filing Therefore, law. if a of a judg proceeding action results in such a result without policy furthering ment, it is as much in the interest of the judgment the law as if had been rendered. policy, however, with

Such a cannot be reconciled “pre- plain language a the of ORS 90.255. The statute defines vailing party’ judgment is the in final as whose favor plaintiffs complaint dismissed, the rendered. Because was judgment prevail- designated should have defendant as the ing party. Employing “catalyst” lan- rule turn the would guage Although of the final statute on its head. plaintiffs action would be in favor of defendant because plaintiff, interpretation, could still dismissed, under his by showing action become the that his recovery How- induced the ever, defendant. of the from permit language result. statute’s does not statute, a dismissal of the plain of the language Under in favor of the is definition a by complaint tiffs 276; Wilkes, Or at DeYoung / Thomas, defendant. (1978); 283 Or at 199-200 American Petrofina; at reasons, Co., at 210. For the above Ry. & O.C. Portland that he was entitled to a hear argument reject plaintiffs we a As prevailing party. that he was ing to demonstrate is the prevail statutory interpretation, matter of facts before us. a matter of law on the as ing party the enforcement of Moreover, underlying the policy made under ORS is to claims rights inapplicable civil laws the public While property. 105.112 for the return of personal rights civil laws without compliance has an interest with against fees the need for and an award litigation action is filed will fur- an offender who after the capitulates interest, interest is public lacking ther such an that kind of is in of a ten- possession a over whether a landlord dispute fundamen- situation, ant’s In the latter there no mem- by tal at stake a law which the principle expressed Rather, dispute have a direct interest. public bers of Indeed, rule adopt catalyst between private parties. not motivate public compli- under such circumstances does liberty. Rather it concept ance with some fundamental of civil a motive to seek a encourages costly litigation provides settling such remedy opposed disputes court-ordered litigation. without the need for end 90.255 does not analysis required

simply designates prevailing party. because the judgment statute, the trial court has discre language Under to the tion as to whether to award that discretion Here, the trial did not exercise party.1 *11 That prevailing party. because it ruled that there was no must error, remand, the trial court holding was also and on attorney deciding exercise its discretion in whether award prevailing party.2 to defendant as the 1 effect, legislature given to decline In the discretion to the trial court “catalyst” purpose prevailing party as the award fees to a serves the same rule. express only provisions no of ORS 90.255 and We decide this case under the regarding designate prevailing party opinion as to whether there a need other kinds of claims. appeal;

Affirmed on reversed and remanded on cross-appeal. dissenting.

ARMSTRONG, J., majority pre- that defendant is the concludes vailing party of an award fees under plaintiffs ORS 90.255 because court dismissed action to personal property view, recover his from defendant. In its it not matter does that the trial court dismissed the action as ground plaintiff property moot on the independently that had recovered his Although respectfully disagree.

of the action. I normally pre- an dismissal of action makes the defendant the vailing party necessarily it, that is not the case when independent dismissal occurs because events the action have caused the action to become moot. purposes,

Assume, for these that defendant had wrongfully plaintiff’s property withheld and did not intend to plaintiff prop- return erty, After it. filed his action to recover his employee mistakenly gives plaintiff an of defendant moot, The action would then be and the court would According majority, have to dismiss it. to the the dismissal though would make defendant the even plaintiff his dismissal occurred because had recovered wrongfully independently withheld from defendant other, of the action. I do not believe that ORS 90.255 and the equivalent govern statutes that the award of costs and attor- ney fees to the “in whose favor final is ren- require dered” must be understood to that result. attorney-fee language I believe that equivalent interpreted four, 90.255 and statutes can be ways. interpretation alternative advances. One is the though plaintiff prop- it, Under even recovered erty, had the court still would have to determine if defendant wrongfully withheld it. The resolution of that issue would prevailed consequently, and, determine who in the action who was entitled to seek an fees. Notwith- award of standing support for that cases that cites as legislature interpretation,11 agree majority that the with the way. attorney-fee language did not intend the to work Fenn, (1989); Dev. N.W. See Edwards v. 775 P2d Pacific Corp. Holloway, 546 P2d 1063 *12 majority the one that interpretation

Another it, always be on. Under there must settles if the party is the action, prevailing an and the defendant that In reject interpretation. I dismisses action. judgment dismissed, appropriate it is in which an action is most cases in whose favor the party the defendant be the to consider is dis- However, when an action is rendered. final events moot as a result of it has become missed because I action, of the filing of after and occurring independently nec- the action dismissing that the judgment do not believe In defendant’s favor. to be in the essarily must be understood a dismissal is one dismissals, all other such contrast any relief to ability give party, has which the court lost the action is one that does so the that dismisses party. favor either the one that I have

A third interpretation it, Under when holding. rejecting majority’s described action as events in the dismissal of an result independent of attor- moot, awarding neither party prevails fees. ney is one that embod-

A final alternative interpretation is dismissed an action that “catalyst” ies a in which principle, can have a prevail- as moot as a result of events independent that on However, party depends of ing party. designation that the action can establish parties whether one of the other steps that independent became moot because of liability in the action.2 took to avoid potential history or other information legislative There is no on which of guidance I useful provides which am aware that language attorney-fee interpretations the alternative third however, believe, I in ORS 90.255 is correct. legisla- reflects the likely alternative most interpretation parties designation prevailing ture’s intended on the policy landlord-tenant and the award of fees in residential an award rejection Because the trial litigation. court’s See, County Special # e.g., Dist. Little School Rock School Dist. v. Pulaski (8th 1994) (plaintiffs 17 F3d 262-63 Cir entitled to voluntary rights litigation catalyst action in civil lawsuit was where moot). that rendered lawsuit interpreta- case is with fees in this consistent majority’s I from the decision to reverse tion, dissent the trial judgment.