Peeples v. Lampert , 345 Or. 209 ( 2008 )

DURHAM, J.,

concurring.

The majority concludes that the Court of Appeals correctly declined to review petitioner’s argument that the trial court had failed to make the express special findings of fact that this court identified in Pamplin v. Victoria, 319 Or 429, 877 P2d 1196 (1994), as necessary for appellate review of the dismissal of an action as a sanction under ORCP 46 D. According to the majority, this court’s cases, including Pamplin, require lower courts to make findings of fact supporting the court’s order in this and similar circumstances to facilitate meaningful appellate review. However, according to the majority, those cases fail to address whether a party must request findings of fact, or object to the court’s failure to make findings, to preserve for appellate review the issue of the absence of findings of fact to support the court’s order. Addressing what the majority perceives as this court’s past silence on the topic, the majority presents a dissertation on the presumed advantages of requiring preservation of error and concludes that this case presents no occasion for relieving petitioner of the obligation to preserve for appellate review the issue of the trial court’s failure to make findings of fact.

The problem, as I see it, with the majority’s opinion is that it misstates the substance of this court’s prior analysis in its cases the requirement of findings of fact in this context. As a result of that incorrect premise, the majority opinion’s exposition on the relative advantages of requiring preservation of error regarding issues raised on appeal is an abstract exercise.

The majority’s faulty analysis is a serious concern for two reasons. First, that error leads the majority to examine and decide an issue that this case does not raise; I discuss that concern below at greater length. Second, the majority’s analysis incorrectly states the true history of this court’s multiple decisions to require findings of fact by lower courts to permit meaningful appellate review of awards of attorney fees and discovery sanctions. An accurate portrayal of that history will be an essential first consideration should this court in the future decide whether to require lower courts to observe specific procedures to safeguard meaningful appellate review by this court.

I begin by acknowledging that the result reached by the majority is correct. That is so, however, because certain rule changes have taken effect following certain decisions of this court, discussed below. It is those after-the-fact rule changes, not the abstract merits of requiring preservation of errors asserted on appeal, that satisfy me that this court should decline to review petitioner’s argument regarding the inadequacy of the trial court’s findings of fact to support the dismissal of his petition.

I also agree with the majority’s implicit assumption that, in analyzing this court’s cases, the court properly can disregard the fact that those cases relied on different sources of statutory and rule-based authority to award attorney fees and to impose discovery sanctions. Regardless of those differing sources of authority, the court relied on the same prudential principles in requiring lower courts to make specific findings of fact supporting their decisions in those contexts.

I turn, then, to a brief review of this court’s cases discussing the necessity of findings of fact by a trial court in these settings. In Tyler v. Hartford Insurance Group, 307 Or 603, 771 P2d 274 (1989), the plaintiff sought review of an award by the Court of Appeals of attorney fees to certain defendants in the case. The court did not set out any assignment of error by the plaintiff concerning the absence of findings of fact; neither did the court describe the plaintiffs arguments concerning the Court of Appeals order. Instead, the court stated:

“The order does not cite any statutory or other authority for the award of attorney fees. Both petitions for attorney fees, however, were based solely on ORS 20.105(1), which provides:

“ ‘In any civil action, suit or other proceeding in a district court, a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court may, in its discretion, award reasonable attorney fees appropriate in the circumstances to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party wilfully disobeyed a court order or acted in bad faith, wantonly or solely for oppressive reasons.’

“That statute does not expressly require the Court of Appeals to make findings on the record. Nevertheless, we conclude that findings are required. Otherwise, we have no basis upon which to review the award of attorney fees, nor to consider what the Court of Appeals understood the relevant statutory words to mean. Accordingly, we remand this case to the Court of Appeals to make the necessary findings to support its order.

“The petition for review is allowed. The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further proceedings.”

Id. at 605.

This court’s disposition in Tyler demonstrates what in later cases became even more explicit: It is virtually impossible to engage in appellate review of awards of attorney fees, often totaling many thousands of dollars, unless the lower court explains, in findings of fact, the factual basis for the award and the authority on which the court relied. The court stated that findings were required. It used that term advisedly: even though the statute authorizing the award was silent regarding the need to make findings of fact, the court itself required the trial court to make those findings to protect its ability to conduct meaningful appellate review of the award. The court took that step not in response to any apparent objection by the plaintiff or the defendants but, instead, for prudential reasons tied to the court’s strong interest in safeguarding meaningful appellate review.

Tyler left open the question whether trial courts had the same responsibility as did the Court of Appeals to make findings of fact to support an award of attorney fees under ORS 20.105(1). This court answered that question in the affirmative the following year in Mattiza v. Foster, 311 Or 1, 803 P2d 723 (1990). In Mattiza, a conservator brought an action asserting that the defendant had exercised undue influence over the plaintiffs elderly aunt, causing financial injury. The trial court rejected that claim. After making extensive findings of fact, the trial court determined that the plaintiff had asserted her claim in bad faith and awarded $7,620 in attorney fees to the defendant. The Court of Appeals affirmed. On review, this court construed the phrase “bad faith” in ORS 20.105(1) to require a finding, supported by evidence, that the plaintiff had pursued her claim for a reason other than the procurement of the fair adjudication of an authentic claim. The court also addressed the requirement of findings of fact to allow meaningful review by an appellate court of the relevant issues:

“The Need for Findings

“Although, in the absence of a request for special findings by one of the parties, the court ‘may’ make special findings or general findings, ORCP 62 A, the award of attorney fees under ORS 20.105(1) is a situation in which special findings are a prerequisite to meaningful review by an appellate court. See Tyler v. Hartford Insurance Group, 307 Or 603, 771 P2d 274 (1989) (requiring findings by Court of Appeals in cases under ORS 20.105(1)); see also Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F2d 1486, 1508 (11th Cir 1985), cert den 475 US 1107 (1986) (under Florida law, the trial court ‘must make a specific finding of “complete absence of justiciable issue of either law or fact” or face reversal or remand on the award of attorneys fees.’). Not only should the trial court make findings regarding the merit of the party’s claim, defense, or ground for appeal or review, and which of the three grounds under ORS 20.105(1) the court is considering, but it should also specify which actions of the party are violative of the statute.”

Id. at 10-11.

The Mattiza court noted that the trial court had discussed the facts extensively but had failed to resolve the key disputed fact, i.e., it had failed to make a finding of fact about whether the plaintiff had had an improper motive in bringing and maintaining the action:

“Did plaintiff act in bad faith? Even assuming that the trial court’s conclusions noted above are supported by the evidence in this case, there was no finding — and the evidence would not support a conclusion — that plaintiffs actions constituted conduct, the primary aim of which was something other than the procurement of the fair adjudication of an authentic claim. We conclude that, regardless of other motives she may have had, plaintiffs primary aim was to obtain an adjudication of a bona fide dispute. Defendant is not entitled to attorney fees under ORS 20.105.”

Id. at 12. (Emphasis in original.)

Tyler and Mattiza, read together, indicate that trial and appellate courts were required to make findings of fact supported by evidence to facilitate meaningful appellate review of an award of attorney fees. Because those cases addressed fee awards under ORS 20.105(1), they logically did not answer the question whether the same requirement applied to the imposition of other significant sanctions.

In Pamplin, this court answered that question. In that case, the trial court dismissed the plaintiffs personal injury action under ORCP 46 B(2)(c) as a sanction for the plaintiffs’ failure to provide discovery materials requested by the defendant. ORCP 46 B(2)(c) authorized the trial court to sanction a party’s failure to provide discovery by making “such orders in regard to the failure as are just, including” dismissal of the action. The trial court heard the parties’ conflicting arguments about whether the plaintiffs had complied adequately with the defendant’s discovery requests. Without making any findings of fact to resolve those issues, the court ordered the action dismissed. This court construed the rule to permit dismissal only when that sanction is “just,” and only if there is “willfulness, bad faith, or other fault of like magnitude by the disobedient party.” Pamplin, 319 Or at 436. To confirm compliance with those criteria, this court required the trial court to satisfy the requirement of findings of fact that the court had discussed in Mattiza-.

“We turn now to consideration of whether findings of fact are required to support the sanction of dismissal under ORCP 46 B(2)(c).

“In a similar context, this court has noted the importance of findings for ‘meaningful review by an appellate court.’ Mattiza v. Foster, 311 Or 1, 10, 803 P2d 723 (1990). Mattiza involved an award of attorney fees under ORS 20.105(1). Although that statute does not expressly require findings, this court held that findings are required, reasoning:

“ ‘Although, in the absence of a request for special findings by one of the parties, the court “may” make special findings or general findings, ORCP 62 A, the award of attorney fees under ORS 20.105(1) is a situation in which special findings are a prerequisite to meaningful review by an appellate court. 311 Or at 10 (citations omitted).’

“Here, as in Mattiza, the sanction of dismissal under ORCP 46 B(2)(c) is a ‘situation in which special findings are a prerequisite to meaningful review by an appellate court.’ As discussed above, that sanction is appropriate only when it is ‘just’ and only when there is willfulness, bad faith, or other fault of like magnitude by the disobedient party. To assess the propriety of imposing that sanction, an appellate court needs to know (1) the historical facts on which the trial court based its decision to impose it and (2) the analytical process by which the trial court concluded that dismissal is ‘just’ in view of those facts and in view of the other sanctions that are available. The present case provides a classic example of the difficulty of meaningful appellate review, because of the unresolved factual questions in the record.

“In summary, we hold that a trial court that imposes the sanction of dismissal under ORCP 46 B(2)(c) must make findings of fact and must explain why that sanction is ‘just’; that a finding of willfulness, bad faith, or fault of a similar degree on the part of the disobedient party is required; and that a finding of prejudice to the party seeking discovery is not required.”

Pamplin, 319 Or at 436-37. (Footnote omitted.)

In Pamplin, the defendant argued that the court should disregard the plaintiffs objection, raised for the first time on appeal, to the insufficiency of the trial court’s factual findings to support dismissal.¹ The court’s response — reversal and remand to the trial court because the court’s factual findings were insufficient to justify dismissal — demonstrates that the court accorded no weight to the defendant’s preservation argument.

Finally, this court later explained why it did not accept a preservation of error argument when the trial court failed to make the necessary findings of fact. In McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200, modified on recons, 327 Or 185, 957 P2d 1200 (1998), the Court of Appeals granted attorney fees to a defendant in an appeal. The trial court had dismissed the underlying employment discrimination action and the plaintiff had appealed, but lost. The defendant sought attorney fees, arguing that it was the prevailing party and that the appeal was frivolous. The plaintiff filed objections. Without making any findings of fact, the Court of Appeals granted attorney fees to the defendant in the sum of $12,000.

On review in this court, the plaintiff argued, among other things, that the Court of Appeals had failed to make required findings of fact to support the award of attorney fees. This court acknowledged that the plaintiff had “raised the issue of the lack of special findings in his petition for review to this court.” The court explained, however, that preservation of that issue before the Court of Appeals was not required:

“He was not required to take action to preserve that issue below, because it arose when the Court of Appeals issued its order.”

Id. at 95 n 6.²

On reconsideration, this court explained why it regarded the lack of findings of fact as a reversible error, even though the plaintiff had asserted that issue for the first time on review:

“Efficient and meaningful appellate review for abuse of discretion cannot occur on the present record, because we can only speculate about the possible relevant facts and legal criteria relied on for the court’s award of attorney fees. Adequate findings about those matters need not be complex or lengthy. Rather, they must describe the relevant facts and legal criteria for the court’s decision to award or deny attorney fees in any terms that are sufficiently clear to permit meaningful appellate review. Our opinion in this case adopted that description of the requirement of findings on appellate review of an award of attorney fees from Mattiza and Tyler and, after reconsideration, we adhere to that description.”

Id. at 190-91.

The foregoing cases demonstrate that this court has applied consistent principles regarding appellate review of the lack of factual findings to support a serious sanction, whether the facts concerned either an award of attorney fees for frivolous litigation or the dismissal of an action for noncooperation with discovery obligations. At the time of its prior decisions, no rule obligated a party to request findings of fact regarding those decisions, or compelled the adversely affected party to object to an insufficiency or lack of factual findings after-the-fact.

The court did not analyze the requirement of adequate findings of fact in those cases as the source of a procedural right that a party was free to invoke by requesting findings or, failing a request, to abandon. Rather, the court consistently has treated the duty to make findings of fact as an intrinsic part of the trial court’s decisional responsibility. It is for that reason that McCarthy observed that the issue concerning the absence of findings arose when the Court of Appeals made its decision without entering the required findings of fact. Additionally, McCarthy noted that the plaintiff was not required (by any statute, rule, or court decision) to assert that issue at an earlier point because the issue arose solely from the unexplained decision of the Court of Appeals.

Under the extant rules of appellate procedure, this court’s announcement of the lower court’s obligation to accompany its decision on the merits with explanatory findings of fact was a perfectly reasonable one. It cannot be gainsaid that requiring findings of fact in this context safeguards meaningful appellate review that, without findings, would be difficult, if not virtually impossible.

Several of the pertinent rules have changed since this court decided those cases. Effective January 1, 2000, the legislature, acting through the Council on Court Procedures, amended ORCP 68, concerning the allowance of attorney fees in the trial courts, in two significant ways. First, the amendment deleted the following sentence in ORCP 68 C(4)(c)(ii): “No findings of fact or conclusions of law shall be necessary.” Second, the amendment added ORCP 68 C(4)(e), which provides:

“On the request of a party, the court shall make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees. A party shall make a request pursuant to this paragraph by including a request for findings and conclusions in the title of the statement of attorney fees or costs and disbursements or objections filed pursuant to paragraph (a) or (b) of this subsection. In the absence of a request under this paragraph, the court may make either general or special findings of fact and may state its conclusions of law regarding attorney fees.”

The latter amendment is important because it creates a procedure, tied specifically to the recovery of attorney fees, authorizing either party to request special findings of fact and conclusions of law regarding any award of attorney fees. The amendment to ORCP 68 C(4)(c)(ii) also is important for purposes of this discussion, because a party now may employ a simple motion, under ORCP 14 A, to point out to the trial court that its findings of fact — general or specific — fail to apply the applicable legal criteria or to explain why the award or denial of fees is justified.

Another important rule, ORAP 13.10(7), also has changed. Before 1999, that rule was silent regarding any procedure for requesting findings of fact regarding an award of attorney fees in an appellate court. However, in 1999, the rule was amended to authorize a party to request findings regarding the facts and pertinent legal criteria, and to declare that a party’s failure to request findings constituted a waiver of any objection to the absence of findings. A further amendment, made a permanent part of the rule in 2003, obligated every party who requests findings to incorporate the request into the caption of that party’s petition, objection, or reply. ORAP 13.10(7) now provides:

“A party to a proceeding under this rule may request findings regarding the facts and legal criteria that relate to any claim or objection concerning attorney fees. A party requesting findings must state in the caption of the petition, objection, or reply that the party is requesting findings pursuant to this rule. A party’s failure to request findings in a petition, objection, or reply in the form specified in this rule constitutes a waiver of any objection to the absence of findings to support the court’s decision.”

(Footnote omitted.)

Those rule changes place in perspective the real issue that this case poses: In light of the new rules of procedure now in effect, should the court continue to follow the prudential rule announced in its prior cases? My answer is no. A contrary answer would create one set of requirements for trial court fact-finding and another, different set of requirements for appellate court fact-finding. The need for uniformity in this area trumps any benefit that might result from different requirements concerning the obligation to request findings of fact in the trial and appellate courts.

It is of no consequence that Pamplin addressed the requirement of findings in the context of discovery sanctions and the rule amendments discussed above address procedures concerning attorney fees. Pamplin demonstrates that this court readily borrowed the rationale for its decision regarding a discovery sanction from cases concerning attorney fee disputes. The same interest in uniformity regarding procedural matters, noted above, indicates that, if the vitality of the findings procedures adopted in the attorney fee cases on which Pamplin relied is superseded or undermined by later rulemaking, so is the rationale for the prospective application of Pamplin in the context of discovery sanctions.

Petitioner failed to object to the sufficiency of the trial court’s findings of fact to support the sanction of dismissal, although he easily could have done so. That failure prevents this court from addressing petitioner’s contention on appeal that the findings failed to explain why dismissal, rather than a lesser sanction, was necessary. That is so because intervening rulemaking has undermined this court’s prior case law that, in the absence of later rulemaking, would have supported petitioner’s argument. Accordingly, I concur in the result that the majority reaches, but not in its rationale.³

I concur.

Gillette, J., joins in this concurring opinion.

1 The defendant’s brief to this court in Pamplin stated, in part:

“Plaintiffs argue that the trial court’s decision to impose the sanction of dismissal against plaintiffs should be reversed because the court’s order was not accompanied by specific findings of fact or law. The court’s order in this matter was issued pursuant to ORCP 46 B. There is no requirement under that provision for the court to issue special findings. Normally, courts are free to rule on motions without being required to make special findings. Under ORCP 62, a court is not required to make special findings unless demanded to do so by a party. There was no such demand in this matter.”

Brief of Defendant-Respondent at 20-21, Pamplin, 319 Or 429. (Footnote omitted.)

2 The court’s phrase, “because [the issue] arose when,” perhaps better could have been stated as “because [the issue] did not arise until,” but the meaning is the same.

3 The majority concludes its opinion by reinforcing “the importance of special findings to meaningful appellate review of a dismissal under ORCP 46 B(2)(c)[ ]” and draws particular attention to the vital rule that the specific findings required in Pamplin play when an appellate court examines a trial court’s exercise of discretion under that rule. Peeples, 345 Or at 225. The majority also observes that a failure by a trial court to enter the necessary findings of fact may prevent the appellate court from concluding that a dismissal is warranted. Id. I join fully in those statements.