Coast 2 Coast Logistics v. Badger Auctioneers ( 2022 )

374
Submitted November 3; general judgment affirmed, supplemental judgment
reversed and remanded with instructions to delete award of “post-judgment”
attorney fees, otherwise affirmed December 29, 2022
COAST 2 COAST LOGISTICS, LLC,
an Oregon limited liability company,
Plaintiff-Respondent,
v.
BADGER AUCTIONEERS, INC.,
a foreign corporation,
Defendant-Appellant.
Jackson County Circuit Court
15CV31266; A176482
524 P3d 555
In this long-running litigation arising from the delivery of grocery-store
freezer doors that were damaged in shipment, the doors’ owner, defendant
Badger Auctioneers, Inc., appeals from general and supplemental judgments for
plaintiff Coast 2 Coast Logistics, LLC, the shipping broker. Defendant asserts
that the trial court erred in granting plaintiff’s motion for summary judgment
on plaintiff’s claims of breach of contract arising from defendant’s failure to
pay brokerage fees on seven shipments; erred, after a bench trial, in ruling for
plaintiff on two additional breach of contract claims and on defendant’s counter-
claim of negligence; erred in awarding plaintiff attorney fees of $98,494.50 under
ORS 20.082(2); and erred in awarding “post-judgment” attorney fees of $5,000.
Held: The trial court did not err in granting plaintiff’s motion for summary
judgment on plaintiff’s claims of breach of contract, because defendant failed
to demonstrate a genuine issue of material fact concerning the existence of the
contracts. The trial court did not err in ruling for plaintiff on two additional
breach of contract claims and on defendant’s counterclaim of negligence, because
the evidence at trial was sufficient to support the trial court’s verdict. The trial
court did not err in awarding plaintiff attorney fees under ORS 20.082(2). The
trial court did err, however, in awarding “post-judgment” attorney fees of $5,000
for anticipated legal services.
General judgment affirmed; supplemental judgment reversed and remanded
with instructions to delete award of “post-judgment” attorney fees; otherwise
affirmed.
Benjamin M. Bloom, Judge.
Jeremy Vanderloop, Wisconsin, and Lakeside Legal Services,
LLC, Dominic Campanella and Brophy Schmor, LLP, filed
the briefs for appellant.
Melisa A. Button and Michael J. Mayerle filed the brief
for respondent.
Cite as 323 Or App 374 (2022) 375
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
General judgment affirmed; supplemental judgment
reversed and remanded with instructions to delete award of
“post-judgment” attorney fees; otherwise affirmed.
376 Coast 2 Coast Logistics v. Badger Auctioneers
TOOKEY, P. J.
In this long-running litigation arising from the
delivery of grocery-store freezer doors that were damaged in
shipment, the doors’ owner, defendant Badger Auctioneers,
Inc., appeals from general and supplemental judgments for
plaintiff Coast 2 Coast Logistics, LLC, the shipping bro-
ker. Defendant asserts that the trial court erred in grant-
ing plaintiff’s motion for summary judgment on plaintiff’s
claims of breach of contract arising from defendant’s fail-
ure to pay brokerage fees on seven shipments; erred, after a
bench trial, in ruling for plaintiff on two additional breach
of contract claims and on defendant’s counterclaim of negli-
gence; erred in awarding or in failing to apportion plaintiff’s
requested attorney fees of $98,494.50 under ORS 20.082(2);
and erred in awarding “post-judgment” attorney fees for
legal services anticipated to be incurred in collecting the
judgment.
We agree with the trial court that there are no gen-
uine issues of material fact and that plaintiff was entitled to
summary judgment on seven of its breach of contract claims.
ORCP 47 C. We further conclude that legally sufficient evi-
dence supports the trial court’s rulings for plaintiff on its
two remaining breach of contract claims and on defendant’s
negligence claim. Finally, we conclude that the trial court
did not err in its award of attorney fees of $98,494.50 to
plaintiff under ORS 20.082(2) but did err in awarding plain-
tiff “post-judgment” attorney fees of $5,000 for anticipated
attorney fees that had not yet been incurred. Accordingly,
we affirm the trial court’s general judgment and remand
the supplemental judgment for deletion of the award for
post-judgment attorney fees.
Defendant is a Wisconsin corporation in the busi-
ness of liquidating grocery store equipment. In February
2015, it hired plaintiff, an Oregon freight brokerage that
arranges shipping services through independent third-party
carriers. Defendant hired plaintiff to arrange the transport
of restaurant equipment from Florida and Illinois to its loca-
tion in Wisconsin. In the course of their relationship, plain-
tiff brokered and paid carriers for sixteen transports for
defendant. Defendant, in turn, paid plaintiff its fees, but for
Cite as 323 Or App 374 (2022) 377
only seven of the 16 transports, because defendant believed
that plaintiff owed it money for damage to cargo in two of
the transports, as described below.
In April 2015, defendant asked plaintiff to arrange
shipment of 67 grocery-store freezer doors from Florida to
Wisconsin. Plaintiff brokered the shipment through LIV
Transportation, a carrier. It is undisputed that, before the
shipment of the freezer doors, plaintiff had brokered two
prior shipments for defendant with LIV without incident.
There is undisputed evidence that, through a software ser-
vice called SaferWatch, which links to information from the
Federal Motor Carrier Safety Administration, plaintiff mon-
itors a carrier’s authority, insurance coverage, safety scores,
and other operational issues, and that plaintiff did so before
qualifying LIV to carry defendant’s freight and confirmed
that LIV had the legally required insurance coverage and
no outstanding issues. There is evidence that the freezer
doors were not loaded by plaintiff and that the two trans-
ports were “sealed,” meaning that the trailer was locked
after loading and when it arrived at defendant’s location,
and that neither plaintiff nor the trucker had accessed the
cargo during transport. Defendant asserted, and an insur-
ance investigation determined, that the cargo had been
damaged during transport; defendant asserted that it had
a prospective buyer for the doors and that it lost $73,700
in sales as a result of the damage. Pending its attempt to
be compensated for the damage, defendant declined to pay
plaintiff its fees on the damaged shipment and as well as
other shipments.
LIV’s insurer ultimately settled with defendant for
$40,000, and defendant sought the balance from plaintiff,
who declined to pay. Defendant continued to decline to pay
plaintiff’s fees for nine shipments, which totaled $14,750,
not disputing plaintiff’s performance on those shipments
but asserting that the amount due was set off by the amount
that plaintiff owed to defendant on account of the damaged
cargo.
Plaintiff brought a claim for breach of contract.
Plaintiff’s complaint alleged nine counts of breach of con-
tract, based on nine invoices that had been sent to defendant
378 Coast 2 Coast Logistics v. Badger Auctioneers
for nine shipments, each invoice for an amount less than
$10,000. Plaintiff alleged that it had completed its broker-
age obligation on each of the nine shipments and that defen-
dant had failed to pay the invoiced amounts for the broker-
age services. Plaintiff’s complaint further alleged a right to
attorney fees under ORS 20.082(2),1 a provision authorizing
reasonable fees to the prevailing party on contracts if “[t]he
amount of the principal together with interest due on the
contract at the time the claim is filed is $10,000 or less.”
Defendant disputed the trial court’s personal juris-
diction and moved to dismiss the complaint on that ground.
The trial court denied defendant’s motion to dismiss, and
defendant responded with an answer denying the substan-
tive allegations of plaintiff’s claim and alleging as affirma-
tive defenses that plaintiff had breached or negligently per-
formed its obligations under the contract.
The trial court granted plaintiff’s motion for sum-
mary judgment on all nine counts of its breach of contract
claim, declined to allow defendant to amend its answer to
allege counterclaims, and entered judgment for plaintiff.
Defendant appealed.
After the trial court had denied defendant’s request
to file an amended answer, defendant had filed an action
against plaintiff and LIV in Wisconsin, seeking damages of
$73,700 for the broken freezer doors through claims of neg-
ligent bailment; breach of contract; “carrier” liability under
the Carmack Amendment to the Interstate Commerce Act,
49 USC section 14706(a)(1); and plaintiff’s negligent hiring
and supervision of LIV.
The parties subsequently agreed that, in exchange
for defendant’s voluntary dismissal of the Wisconsin lit-
igation and agreement to waive personal jurisdiction in
Oregon, plaintiff would not object to defendant filing an
amended answer in the Oregon proceeding. Thus, the par-
ties stipulated to a dismissal of the Wisconsin proceeding,
1
ORS 20.082(2) provides:
“Except as provided in this section, a court shall allow reasonable attor-
ney fees to the prevailing party on any claim based on contract if:
“(a) The amount of the principal together with interest due on the con-
tract at the time the claim is filed is $10,000 or less.”
Cite as 323 Or App 374 (2022) 379
a dismissal of the Oregon appeal, and defendant’s waiver of
personal jurisdiction in Oregon.
The parties’ stipulation provided, “[Defendant] hereby
submits to jurisdiction in the State of Oregon for matters
raised in the underlying Jackson County Circuit Court Case
No. 15CV31266 (‘Trial Court Case’) and hereby waives that
issue at the trial court level.” On the parties’ stipulation, we
dismissed defendant’s appeal, the trial court set aside its
judgment under ORCP 71, and the matter returned to the
trial court docket.
With the trial court’s permission, defendant filed an
amended answer, alleging affirmative defenses and coun-
terclaims. For its first affirmative defense, breach of con-
tract, defendant alleged:
“Plaintiff may not enforce the contract as Plaintiff materi-
ally breached the contract by failing to perform its obliga-
tions and/or negligently performing its obligations causing
substantial loss to Defendant.”
For its second affirmative defense, set-off/recoupment, defen-
dant alleged:
“Plaintiff is not entitled to recover because Plaintiff owes
substantially more sums to defendant regarding the dam-
age to property and freight caused by Plaintiff’s negligence
and/or breach of the contract.”
Defendant’s amended answer also alleged counter-
claims. For its first counterclaim, breach of contract, defen-
dant alleged:
“As part of the contract between Plaintiff and Defendant,
Plaintiff and/or Plaintiff’s agents authorized and arranged
for the transportation of Defendant’s property in a negli-
gent and/or reckless manner causing Defendant’s property
to be damaged in transportation.”
Defendant further alleged:
“Due to Plaintiff’s breach of the contract to provide trans-
portation of Defendant’s property, approximately 67 doors
were damaged, and Defendant had a buyer ready to pur-
chase these doors at a price of $1,100.00 per door for a
total damage to Defendant of the lost sale in the amount
of $73,700.00.”
380 Coast 2 Coast Logistics v. Badger Auctioneers
For its negligence counterclaim, defendant alleged:
“As part of the contract between Plaintiff and Defendant,
Plaintiff was required to arrange and provide for the
transportation of Defendant’s property from Florida to
Wisconsin. Plaintiff and or Plaintiff’s agents transported
Defendant’s property which arrived completely damaged.
Plaintiff was negligent in one or more of the following ways:
“a) Negligent hiring, supervision and/or selection of
the person(s)/agent(s) loading Defendant’s property for
transportation;
“b) Negligent hiring, supervision and/or selection of
the person(s)/agent(s) transporting Defendant’s property
for transportation; and/or
“c) Failure to maintain proper speed and/or driving
procedures when transporting Defendant’s property, which
included glass components which are fragile.”
Defendant sought damages of $73,700 on each counterclaim.
In a motion for summary judgment, plaintiff once
again asserted that there was no dispute that plaintiff had
fulfilled its obligations under nine separate agreements for
transport, and that defendant breached those agreements
by failing to pay plaintiff’s fees. Plaintiff also offered the
declaration of Jewett, an owner and plaintiff’s CEO, who
stated that separate invoices were sent to and received by
defendant for each transport, and further noted that defen-
dant’s answer included an admission of that fact. Plaintiff
asserted that those invoices represented separate contracts,
that there was no genuine issue of material fact as to the
existence of the separate contracts, and that plaintiff was
entitled to judgment as a matter of law on its breach of con-
tract claims.
In response, defendant admitted that it owed plain-
tiff $10,050 on what it characterized as a single contractual
agreement with plaintiff for the transport of cargo, but it
argued that that amount should be set off by $33,200, which
was the amount defendant alleged that plaintiff owed for
the remaining balance of its loss a result of the damaged
cargo.2
2
At trial, defendant reduced the requested offset to $23,150.
Cite as 323 Or App 374 (2022) 381
Defendant further argued that it had only a sin-
gle contract with plaintiff to broker multiple shipments of
cargo for defendant, rather than individual contracts for
each transport. Defendant contended that it had never seen
separate invoices for each transport, and that plaintiff had
invented them “ex post facto” so that its claims would fall
within the “small contract” provisions of ORS 20.082 for
purposes of attorney fees. Defendant asserted that, rather
than nine small contracts as alleged by plaintiff, the parties
had agreed to the shipment of multiple loads under a single
contract.
Defendant presented the declaration of Fleisner,
defendant’s owner and president, stating that defendant’s
oral agreement with plaintiff was for multiple shipments
that plaintiff billed to defendant on a single invoice. The
president declared,
“I was never aware of sixteen (16) separate contracts with
[defendant]. [Defendant] hired [plaintiff] to ship freight,
which [plaintiff] did over several loads. There were never
multiple contracts for freight shipping services.”
Defendant asserted that Fleisner’s affidavit gave rise to
a genuine issue of material fact that precluded summary
judgment.
The record on summary judgment also includes an
invoice for $14,750 from plaintiff to defendant for shipping
services from March 15, 2015 to June 2, 2015, and a demand
letter from plaintiff’s counsel for the full balance of $14,750.
Citing Carrillo v. City of Stanfield, 241 Or App 151, 255 P3d
491 (2011), defendant contended that plaintiff’s multiple
claims for relief were based on the same contract and should
be aggregated in determining whether attorney fees are
available under ORS 20.082(2).
Plaintiff responded that defendant had admitted
in its answer that it had received nine separate invoices,
and that the “outstanding invoice” to which Fleisner had
referred in his declaration was simply a past-due statement
listing all unpaid invoices.
The trial court agreed with plaintiff that the invoices
represented nine separate agreements with defendant that
fell within the “small contract” provisions of ORS 20.082(2).
382 Coast 2 Coast Logistics v. Badger Auctioneers
The trial court granted plaintiff’s motions for summary
judgment on seven of plaintiff’s nine breach of contract
claims. But the trial court denied plaintiff’s motion for
summary judgment as to the two breach of contract claims
that related to the transport of the damaged cargo, conclud-
ing that there were disputed issues of material fact as to
whether plaintiff had satisfied its obligations under those
two contracts.
The parties tried to the court plaintiff’s two remain-
ing breach of contract claims and defendant’s counterclaims
of breach contract and negligence, and the court ruled in
plaintiff’s favor on all the claims and counterclaims and
awarded plaintiff the full amount of its requested attorney
fees.
On appeal, defendant raises a number of assign-
ments of error, and we address them in turn. In its first
assignment, defendant contends that Oregon courts lack
personal jurisdiction over defendant. We reject the conten-
tion. Although, as required by ORCP 21 G(1),3 defendant ini-
tially raised a challenge to personal jurisdiction by motion,
defendant subsequently waived that challenge by stipulat-
ing to personal jurisdiction in the trial court; it cannot now
ORCP 21 G(1) provides:
3
“A defense of lack of jurisdiction over the person, that there is another
action pending between the same parties for the same cause, insufficiency
of summons or process, or insufficiency of service of summons or process, is
waived under either of the following circumstances: (a) if the defense is omit-
ted from a motion in the circumstances described in section F. of this rule, or
(b) if the defense is neither made by motion under this rule nor included in a
responsive pleading.”
ORCP 21 F provides, in turn:
“A party who makes a motion under this rule may join with it any other
motions herein provided for and then available to the party. If a party makes
a motion under this rule, except a motion to dismiss for lack of jurisdiction
over the person or insufficiency of summons or process or insufficiency of
service of summons or process, but omits therefrom any defense or objection
then available to the party which this rule permits to be raised by motion, the
party shall not thereafter make a motion based on the defense or objection so
omitted, except a motion as provided in subsection G.(3) of this rule on any of
the grounds there stated. A party may make one motion to dismiss for lack of
jurisdiction over the person or insufficiency of summons or process or insuf-
ficiency of service of summons or process without consolidation of defenses
required by this section.”
Cite as 323 Or App 374 (2022) 383
assert that the trial court lacked personal jurisdiction.4 We
therefore reject the first assignment of error.
In its second assignment, defendant asserts that,
under ORS 15.380(2)(b),5 which governs choice of law in “con-
tracts for personal services,” the law of the state where the
services were primarily rendered should control. Defendant
contends that, because the contract or contracts between
the parties were for the shipment of freight, the services
were not rendered in Oregon but were rendered where the
shipments took place, in Florida, Wisconsin, or Illinois, nei-
ther of which have a “small contract” attorney-fee provision
like ORS 20.082(2). Thus, defendant contends, the trial
court erred in applying Oregon contract law, including ORS
20.082(2), to the analysis of plaintiff’s breach of contract
claims.
Plaintiff’s complaint alleged a right to recover attor-
ney fees under ORS 20.082(2). From its inception, as defen-
dant has acknowledged, this dispute has been largely about
the availability of attorney fees under ORS 20.082(2), the
applicability of which depended on whether the parties had
a single contract for multiple transports of cargo or multiple
small contracts. In addressing that issue below, defendant
argued exclusively Oregon law. For example, in its briefing
4
We reject defendant’s contention that, because its stipulation to personal
jurisdiction was limited to purposes of trial, it did not waive its right to chal-
lenge the trial court’s personal jurisdiction on appeal. Defendant’s stipulation to
submit to the trial court’s personal jurisdiction at the trial and to “waive[ ] that
issue at the trial court level” brought defendant within the court’s personal juris-
diction, and is not subject to challenge on appeal. See ORCP 6 (“A court of this
state having jurisdiction of the subject matter may, without a summons having
been served upon a party, exercise jurisdiction in an action over * * * any party
who appears in the action and waives the defense of lack of jurisdiction over the
person[.]”).
5
ORS 15.380 provides, in relevant part:
“(1) To the extent that an effective choice of law has not been made by
the parties pursuant to ORS 15.350 or 15.355, or is not prescribed by ORS
15.320, 15.325, 15.330 or 15.335, contracts described in subsection (2) of this
section are governed by the law of the state specified in subsection (2) of this
section unless a party demonstrates that the application of that law would be
clearly inappropriate under the principles of ORS 15.360.
“(2)(a) * * *
“(b) Contracts for personal services are governed by the law of the state
where the services are to be primarily rendered pursuant to the contract.”
384 Coast 2 Coast Logistics v. Badger Auctioneers
on plaintiff’s motion for summary judgment relating to
whether the parties had a single contract or multiple con-
tracts, defendant did not raise a choice-of-laws issue and, in
fact, argued Oregon law:
“Under Oregon law, the relevant test for whether sepa-
rately pled claims fall under the ambit of [ORS] 20.082 is
whether the claims ‘are based on separate contracts or on
the same contract.’ Carrillo v. City of Stanfield, 241 Or App
151, 160, 255 P3d 491 (2011).”
Defendant did not present the choice-of-law issue
for the trial court’s consideration until after trial and after
the record had closed, in a closing memorandum to which
plaintiff did not have an opportunity to respond. In that
memorandum, defendant pointed out that the choice-of-law
issue had bearing really only on the applicability of ORS
20.082(2). Defendant next raised the issue in a memoran-
dum and at hearing on plaintiff’s petition for attorney fees
under ORS 20.082(2). Defendant asserts on appeal that it
has thereby preserved the issue for our consideration, that
ORS 20.082(2) is a substantive law that is subject to choice-
of-law analysis, and that, under ORS 15.380(2)(b), the laws
of Oregon are not applicable, because the contract, which
involved the transport of freight, was performed in other
states.
The difficulty with defendant’s argument is that, as
has been acknowledged by defendant, this case has always
been about the availability of attorney fees. We conclude
that, having cited and argued exclusively Oregon contract
law with reference to the applicability of ORS 20.082(2)
for the entirety of the litigation until after trial, defendant
waived or, at a minimum, invited any error relating to appli-
cation of choice-of-law criteria, and its last-minute assertion
relating to choice of law does not provide a basis for revers-
ing the trial court.
However, assuming that the choice-of-law issue was
properly raised below, we conclude that the trial court did
not err. Putting aside the issue of where plaintiff’s broker-
age services were primarily rendered, we conclude that the
choice-of-law statute on which defendant relies does not
apply. ORS 15.380(2)(b) states that it applies to contracts for
Cite as 323 Or App 374 (2022) 385
“personal services.” The statute does not define what con-
stitutes a contract for a “personal services,” but we readily
conclude that the parties’ contract for plaintiff’s brokerage
services was not a contract for personal services. We there-
fore reject defendant’s second assignment of error.
In its third assignment of error, defendant contends
that the trial court erred in granting summary judgment to
plaintiff on seven of plaintiff’s nine counts of breach of con-
tract. Defendant’s only contention in its third assignment
is that the court erred in determining, as a matter of law,
that there were nine separate contracts for purposes of ORS
20.082(2), rather than a single “master” agreement for the
shipment of cargo.6
In reviewing the trial court’s summary judgment
ruling, “we will affirm if there are no genuine issues as to
any material fact and the moving party is entitled to judg-
ment as a matter of law.” Towner v. Bernardo/Silverton
Health, 304 Or App 397, 400, 467 P3d 17, rev den, 367 Or
115 (2020). There is “[n]o genuine issue as to a material fact”
when “no objectively reasonable juror could return a verdict
for the adverse party on the matter that is the subject of the
motion for summary judgment.” ORCP 47 C.
As we said in Carrillo, for purposes of determining
the applicability of ORS 20.082(2),
“[w]hether a trial court is required to aggregate claims in
determining whether to allow attorney fees * * * depends on
the number of particular contracts in any given case. Thus,
where multiple claims for relief are based on the same con-
tract, those claims must be aggregated. However, where
multiple claims for relief are based on separate contracts,
aggregation is unnecessary, indeed, it is inapplicable.”
241 Or App at 160. In reviewing the trial court’s ruling, the
question thus is whether the record on summary judgment
gives rise to a genuine issue of material fact as to whether
plaintiff’s multiple claims are based on a single contract or
separate contracts.
6
Defendant does not otherwise challenge plaintiff’s entitlement to judgment
on those claims.
386 Coast 2 Coast Logistics v. Badger Auctioneers
We agree with the trial court that, in the record
on summary judgment, there is no disputed issue of mate-
rial fact as to whether the parties had a single overarch-
ing contract of which the separate deliveries were compo-
nents. Oregon subscribes to an objective theory of contracts.
Newton/Boldt v. Newton, 192 Or App 386, 392, 86 P3d 49,
rev den, 337 Or 84 (2004), cert den, 543 US 1173 (2005). That
means that, in ascertaining the meaning of a contract, we
examine the parties’ objective manifestations of intent, as
evidenced by their communications and acts. Cryo-Tech, Inc.
v. JKC Bend, LLC, 313 Or App 413, 428, 495 P3d 699 (2021),
rev den, 369 Or 211 (2022). The record on summary judgment
includes a declaration of Fleisner that he was never aware of
separate contracts and that defendant did not agree to indi-
vidual contracts; but the record on summary judgment does
not include evidence of communications or acts that would
support the existence of a single “master” agreement that
would have encompassed each shipment.7 While the record
would support a finding that the parties had a general oral
understanding that they would work together on multiple
shipments, there is no evidence in the record that would
support a finding that their working together was pursuant
to a single master contract.
In contrast, the record on summary judgment
includes invoices from plaintiff to defendant for each ship-
ment. Each invoice named defendant as the “customer,” and
listed a “ship date,” a “delivery date,” an “invoice date,” a
“due date,” and a “rate.” Each invoice stated, “Thank you
for your business. Please call us for your next shipment.”
We agree with the trial court that the record on summary
judgment requires the conclusion that each invoice reflected
a separate contract. Thus, we reject defendant’s contention
in its third assignment that the trial court erred in deter-
mining on summary judgment that plaintiff’s claims were
separate contracts within the “small contract” provision of
ORS 20.082(2).
7
Defendant pointed to an “outstanding invoice” sent by plaintiff to defen-
dant that combined charges for multiple shipments as evidence of a single
“master” contract. But the record on summary judgment requires the find-
ing that that invoice was for delinquent charges that had been previously
billed.
Cite as 323 Or App 374 (2022) 387
In its fourth assignment, defendant challenges the
sufficiency of the evidence in support of the trial court’s
findings for plaintiff on defendant’s counterclaim of negli-
gence. In its fifth assignment, defendant challenges the trial
court’s rejection of its breach-of-contract affirmative defense
to plaintiff’s two remaining breach of contract claims. We
review the trial court’s findings on a bench trial under the
same “any evidence” standard that we apply in reviewing a
jury’s verdict. Illingworth v. Bushong, 297 Or 675, 694, 688
P2d 379 (1984); Hendrix v. McKee, 281 Or 123, 125, 575 P2d
134 (1978); see ORCP 62 F (The findings of the trial court
“have the same force and effect” and are “equally conclusive,
as the verdict of a jury.”); Or Const, Art VII, § 3 (Amended)
(“[N]o fact tried by a jury shall be otherwise re-examined in
any court of this state, unless the court can affirmatively say
there is no evidence to support the verdict.”). In our review
of the record, we view the evidence in the light most favor-
able to the prevailing party, which is entitled to the bene-
fit of every reasonable inference that may be drawn from
the evidence. Hendrix, 281 Or at 126. We have reviewed the
record and conclude that the trial court’s rulings are sup-
ported by legally sufficient evidence. Thus, we reject defen-
dant’s fourth and fifth assignments.
Defendant’s sixth assignment of error relates to
the award of attorney fees to plaintiff. In its sixth assign-
ment of error, defendant contends that the trial court erred
in failing to apportion the attorney fee award to reduce the
request of $98,494.50 by the amount that it asserts is not
attributable to plaintiff’s prosecution of its breach of con-
tract claims—fees incurred in defense of defendant’s coun-
terclaims and in defense of defendant’s action in Wisconsin.
When a party prevails in an action that encom-
passes both a claim for which attorney fees are authorized
and a claim for which they are not authorized, the court
generally must apportion the fees incurred for each claim.
Greb v. Murray, 102 Or App 573, 576, 795 P2d 1087 (1990).
An exception arises, however, if the claims involve common
legal issues. Fees “ ‘need not be apportioned when they are
incurred for representation on an issue common to a claim
in which fees are proper and one in which they are not.’ ”
Id. (quoting Sunset Fuel & Engineering Co. v. Compton, 97
388 Coast 2 Coast Logistics v. Badger Auctioneers
Or App 244, 249, 775 P2d 901, rev den, 308 Or 466 (1989).
In that situation, the prevailing party is entitled to fees rea-
sonably incurred in association with the claims on which
she prevailed, as well as fees incurred on the other claims,
“if the party entitled to fees would have incurred roughly the
same amount of fees, irrespective of the additional claim or
claims.” Perry v. Hernandez, 265 Or App 146, 149, 333 P3d
1188 (2014). The trial court has wide discretion in making
the factual determinations necessary to segregate claims
that are covered by an attorney fee provision from those
that are not, Malot v. Hadley, 102 Or App 336, 341, 794 P2d
833 (1990), and we review the trial court’s apportionment
decision for an abuse of discretion. Village at North Pointe
Condo. Assn. v. Bloedel Constr., 278 Or App 354, 374 P3d
978, adh’d to as modified on recons, 281 Or App 322, 383 P3d
409 (2016).
Defendant did not dispute that plaintiff was enti-
tled to fees incurred in defense of defendant’s affirmative
defenses, but urged that apportionment was appropriate as
to fees incurred in defense of defendant’s counterclaims and
the claims filed in Wisconsin. In rejecting defendant’s request
for an apportionment, the trial court found that defendant’s
affirmative defenses and defendant’s counterclaims and
Wisconsin claims were “closely connected,” such that plain-
tiff could not prevail on its breach of contract claims “until
they resolved the issue in the Wisconsin litigation, and in
[the] counterclaims on the negligence and breach of contract
claims in Oregon.” As is apparent from our description of
the pleadings, above, the trial court was correct in conclud-
ing that defendant’s affirmative defenses and counterclaims
were “closely connected.” Defendant’s affirmative defenses
and counterclaims, as well as its claims against plaintiff
in Wisconsin, were based on the same factual allegations
and involved the same or closely analogous legal issues. To
prevail on its breach of contract claims, plaintiff needed to
defend not only against the affirmative defenses but also
against the counterclaims. In view of that, the trial court
could find, as it did, that a resolution of plaintiff’s claims
required it to litigate defendant’s counterclaims. We con-
clude for that reason that the trial court did not abuse its
discretion in declining to reduce the attorney fee award by
Cite as 323 Or App 374 (2022) 389
the fees incurred in defense of defendant’s counterclaims
for negligence and breach of contract, including the fees
incurred for representation in Wisconsin.
If and to the extent that defendant’s assignment
of error includes a contention that the award of $98,494.50
in attorney fees is excessive, we conclude that, in light of
the duration of the litigation and the hours expended, the
trial court did not abuse its discretion. Barber v. Green, 248
Or App 404, 410, 273 P3d 294 (2012) (stating abuse of discre-
tion standard of review).
Finally, in its seventh assignment of error, defen-
dant contends that the trial court erred in separately
awarding “post-judgment” attorney fees of $5,000 for antic-
ipated future collection efforts, contingent on the fees being
incurred. “Ordinarily, a court awards attorney fees to a liti-
gant only if a statute or contract authorizes such an award.”
Swett v. Bradbury, 335 Or 378, 381, 67 P3d 391 (2003). We are
not aware of any source of law that authorizes an award of
attorney fees to be incurred in the future. See N. Coast Elec.
Co. v. Selig, 136 Wn App 636, 646, 151 P3d 211 (2007) (“An
attorney fee award should generally not include fees to be
incurred in the future because the amount is too uncertain
and can be easily addressed in a supplemental order.”). We
therefore reverse the trial court’s award of “post-judgment”
attorney fees of $5,000 for anticipated future fees.
General judgment affirmed; supplemental judg-
ment reversed and remanded with instructions to delete
award of “post-judgment” attorney fees; otherwise affirmed.