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Norris v. R&T Mfg., LLC

Court of Appeals of Oregon

October 8, 2014

KENNETH R. NORRIS, Plaintiff-Appellant,
v.
R & T MANUFACTURING, LLC, an Oregon limited liability company, Defendant-Respondent

Argued and Submitted May 7, 2014

Multnomah County Circuit Court. 101116202. David F. Rees, Judge.

Conrad E. Yunker argued the cause for appellant. With him on the briefs were Conrad E. Yunker, P. C., Gary Abbott Parks, and Northwest WageLaw, LLC.

Helen C. Tompkins and Tompkins Law Office, LLC, filed the brief for respondent.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.

OPINION

[266 Or.App. 124] DUNCAN, P. J.

Plaintiff Kenneth Norris, who prevailed at trial on his claim against defendant R & T Manufacturing under the Uniform Fraudulent Transfer Act (UFTA), ORS 95.200 to 95.310, appeals from a supplemental judgment

Page 718

disallowing his request for attorney fees. We affirm.

The underlying facts are described in Norris v. R & T Manufacturing, __ Or.App. __, 338 P.3d 150, (2014) ( Norris I ). In summary, plaintiff was previously awarded a judgment against Action Accessories, LLC (Action), in a statutory wage claim, but was unable to collect on the judgment. Plaintiff brought his claim under UFTA, asserting that property had been transferred from Action to defendant to avoid Action's debt to plaintiff. Plaintiff prevailed in his claim against defendant under UFTA, and the trial court entered judgment that included a monetary award of $64,170. We recently affirmed the trial court's judgment in Norris I .

This appeal relates only to plaintiff's entitlement to attorney fees on the UFTA claim. In his complaint, plaintiff sought " attorney fees for having to take this action to collect on judgments against Action and/or pursuant to ORS 20.105." After trial, plaintiff filed a petition pursuant to ORCP 68 in which he requested attorney fees of $105,300. As the legal authority for the award of fees, plaintiff cited several cases, which, he contended, provide for recovery of attorney fees for legal action taken to collect on a judgment. The trial court denied the request for attorney fees in a supplemental judgment, concluding, " I am without authority to make such an award because ORS 95.230(1) does not expressly provide for the recovery of attorney fees and * * * [plaintiff] is not otherwise entitled to recover attorney fees." Plaintiff appeals, contending that the trial court erred in concluding that it lacked authority to award fees.

We review the trial court's determination that it lacked authority to award fees for errors of law. Olson v. Howard, 237 Or.App. 256, 264, 239 P.3d 510 (2010). Oregon courts adhere to the " American rule" of attorney fees, under which courts generally will not award attorney fees to the [266 Or.App. 125] prevailing party absent statutory or contractual authorization. Mattiza v. Foster, 311 Or. 1, 803 P.2d 723 (1990); see also Menasha Forest Products Corp. v. Curry County Title, 350 Or. 81, 88, 249 P.3d 1265 (2011).

UFTA does not explicitly provide for an award of attorney fees. For the first time on appeal, plaintiff asserts that the trial court had implicit authority to award attorney fees under ORS 95.260(1)(c)(C), which provides that a creditor in an action for relief from a fraudulent transfer may recover, as a remedy, " [a]ny other relief the circumstances may require." Assuming, without deciding, that an award of attorney fees could be considered a remedy and encompassed within ORS 95.260(1)(c)(C), but see Berry and Huffman, 251 Or.App. 744, 748-49, 284 P.3d 1202 (2012) (statute granting courts authority to enforce stipulated judgments of dissolution by imposing " any remedy available to enforce a judgment" did not authorize award of attorney fees where statute did not expressly provide for recovery of attorney fees as a remedy and there was no evidence that the legislature intended to include attorney fees as a remedy for enforcing the judgment), we decline to consider plaintiff's argument, because it is not preserved. Plaintiff did not raise ORS 95.260(1)(c)(C) until this appeal, and we decline to consider it as a ground for reversal.

In the alternative, citing ORCP 68 A(1), plaintiff contends that an award of attorney fees is authorized in this action, because it was brought to enforce the underlying wage claim judgments against Action, and attorney fees incurred are therefore " related to the prosecution or defense of" the underlying wage claim, for which attorney fees were also awarded. See ORCP 68 A(1) (" 'Attorney fees' are the reasonable value of legal services related to the prosecution or defense of an action." ); ORS 652.200 (providing for attorney fees for prosecution of an action for the collection of wages). As we understand plaintiff's contention, it is that, because attorney fees were available and awarded in the underlying wage claim, under ORCP 68 A(1) fees are also available in ...


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