856 P.2d 642 | Or. Ct. App. | 1993
Respondent Department of Insurance and Finance (DIF)
When this case was first before us, we affirmed a judgment that the trial court entered in favor of one of several petitioners under ORCP 67B. Benzinger v. Oregon Dept. of Ins. and Finance, supra n 1. We held that ORS 656.268(6)(a) (since amended by Or Laws 1991, ch 502, § 1), required the Workers’ Compensation Division to process a request for reconsideration of a claim closure within 15 days.
After that decision, the trial court authorized another petitioner, VanHooser, to represent a class of persons similarly situated in order to continue the proceeding as a class action. ORCP 32C.
Some of the remaining individual petitioners and the class representative filed motions for summary judgment, which were granted.
The class representative considered the communication to be a contemptuous violation of the notification restrictions that the court had imposed in its class determination order. At petitioners’ request, the court held a hearing to determine whether DIF and a responsible official of DIF should be held in contempt of court. See former ORS 33.040 (;repealed by Or Laws 1991, ch 724, § 32). In an opinion letter dated October 16,1991, issued after the show cause hearing, the trial court found that DIF was not in contempt. The court also stated that it was “prepared to receive [a] request for attorney fees.”
On November 6,1991, petitioners filed a petition for attorney fees for services performed on behalf of the class on the merits and for services performed in the contempt proceeding. DIF filed objections, which the court disallowed. On December 4, 1991, the court entered a judgment awarding fees. DIF appeals from that judgment, assigning error to the attorney fee award.
With respect to fees that were incurred to obtain the judgment on the merits on behalf of the class, DIF argues that the fee petition was untimely. We agree. ORCP 68C(4)(a)(i) provided
2. With respect to the fees that are related to the contempt proceeding, the court also erred, but for a different reason. In general, an award of attorney fees may be made only when a contract or a statute expressly authorizes them. Dennehy v. Dept. of Rev., 308 Or 423, 781 P2d 346 (1989). Petitioners nevertheless rely on Deras v. Myers, 272 Or 47, 66, 535 P2d 541 (1975), where the court stated that “courts of equity have the inherent power to award attorney’s fees.” In Dennehy v. City of Gresham, 314 Or 600, 602, 841 P2d 633 (1992), the court explained that fees were appropriate in Deras because the plaintiff had “vindicated an important constitutional right applying to all citizens without any gain peculiar to himself.”
Petitioners argue that the award of fees for services rendered in the contempt proceeding was a proper exercise of the court’s inherent authority.
Reversed.
The parties characterize themselves as plaintiff and defendant. However, ORS 183.490 provides that “upon petition,” a court may compel an agency to act in prescribed situations. Consequently, we refer to the parties as petitioner and respondent and refer to the pleading that initiates the proceeding as a petition, not a complaint. We acknowledge that we have not always followed that practice in prior cases. See, e.g., Benzinger v. Oregon Dept. of Ins. and Finance, 107 Or App 449, 812 P2d 36 (1991), and Wyer v. Dressler, 41 Or App 799, 601 P2d 1268 (1979), rev den 288 Or 527 (1980).
Several others remained in the proceeding as individual petitioners.
DIF had issued reconsideration orders to some of the remaining individual petitioners during the course of the proceeding. The court dismissed their claims as moot.
The Council on Court Procedures amended ORCP 68C(4) in 1990. The amendment became effective January 1, 1992. See ORS 1.735.
In Marquez v. Meyers, 96 Or App 214, 772 P2d 437 (1989), we held that ORCP 15D gives the court authority to extend the time limitation when a party files a
We express no opinion about whether petitioners would have been entitled to attorney fees if the petition had been timely filed.
In 1991, the legislature enacted new contempt laws. ORS 33.105(l)(e) now authorizes a court to require payment of attorney fees “incurred by a party as the result of a contempt of court.” Neither party argues that the new legislation authorizes fees in this case.