*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
«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).
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,
“[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);
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,
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.