Jordan v. Voss ( 2021 )

495
Argued and submitted February 22, reversed and remanded July 21, 2021
Paula JORDAN,
Plaintiff-Respondent,
v.
Lundy VOSS,
Kristen Voss, and
all other occupants,
Defendants-Appellants.
Douglas County Circuit Court
20LT00142; A173519
494 P3d 372
Jason R. Thomas, Judge pro tempore.
Harry D. Ainsworth argued the cause and filed the brief
for appellants.
Dan G. McKinney argued the cause for respondent. Also
on the brief was DC Law.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Reversed and remanded.
496 Jordan v. Voss
PER CURIAM
In this residential FED action, landlord moved to
dismiss her FED action against tenants. A hearing about
the dismissal took place. The trial court did not announce
anything about attorney fees. The judgment dismissing
the action was entered that same day. In the judgment,
the court denied an award of costs and attorney fees to any
party. Although tenants had included in their pleadings an
assertion of fee entitlement under ORS 90.255, they did not,
after the judgment was entered, request attorney fees under
the post-judgment procedures set out in ORCP 68. Tenants
appeal the judgment, arguing that the trial court erred in
denying an award of attorney fees without following the pro-
cedures specified in ORCP 68 for such an award and that
the ruling by the court denying attorney fees in the judg-
ment effectively prohibited them from applying for attorney
fees under ORCP 68.
To begin with, an exception to the preservation
requirement occurs when the claimed error “arose when the
court issued its order or judgment, and not earlier.” State v.
Selmer, 231 Or App 31, 34, 217 P3d 1092 (2009), rev den, 347
Or 608 (2010). Here, the denial of attorney fees occurred in
the judgment without the issue having been raised or dis-
cussed by the court or by the parties, beyond the request
in the pleadings. That circumstance distinguishes this
case from others on which landlord relies to assert that
tenants failed to preserve the error claimed on appeal. See,
e.g., McDougal v. Griffith, 156 Or App 83, 87, 964 P2d 1135(1998), rev den, 328 Or 330 (1999) (holding that a party
must object when the court announces its intention before
the intention is memorialized in the judgment); Husted v.
SCI Oregon Funeral Services, Inc., 209 Or App 45, 146 P3d
376 (2006) (merely concluding that an ORCP 68 cost bill
was filed untimely from the date of the entered judgment).
Tenants are excused from the preservation requirement.
Turning to the merits, we have said that,
“[w]ith exceptions that do not apply here, ORCP 68 C(1)
provides that ‘this section governs the pleading, proof, and
award of attorney fees in all cases, regardless of the source
of the right to recovery of such fees.’ Defendants are entitled,
Cite as 313 Or App 495 (2021) 497
as a matter of law, to follow the procedure set forth in ORCP
68 C(4) and to file with the court a detailed statement set-
ting forth the amount they claim for their attorney fees. See
ORCP 68 C(4)(a)(i).”
Pointe West Apts v. Anderson, 145 Or App 596, 597, 931 P2d
100 (1997) (emphasis added); see also O’Neal and O’Neal,
158 Or App 431, 434, 974 P2d 785 (1999) (trial court erred
in refusing to follow the procedure of ORCP 68 by refusing
to allow wife to submit an ORCP 68 affidavit before enter-
ing the final judgment). Here, the trial court ruled on the
award of attorney fees when it denied them in the judgment.
The court erred in doing so because tenants were entitled to
have that issue decided in accordance with the procedures
specified in ORCP 68. Consequently, we reverse and remand
the judgment to allow tenants to petition for attorney fees
under ORCP 68.
Reversed and remanded.