State Department of Human Resources v. Strasser

WARDEN, P. J.

Appellant prevailed in this filiation proceeding when the jury found that he was not the father of the child in question. He appeals the trial court’s refusal to award him attorney fees on the ground that he had failed to plead “the facts, statute, or rule” pursuant to ORCP 68C(2) to support an award of attorney fees.

The state’s petition alleged that appellant is the father of the child and included a prayer for attorney fees pursuant to ORS 109.155(4). In his answer, he denied the allegations and asked for “reasonable attorney fees” but failed to cite any basis for an award. Following the jury verdict in his favor, he submitted a statement of the amount of attorney fees under ORCP 68C(4)(a). The state objected to the cost bill, because appellant had failed to allege properly the facts, statute or rule that provides for the award of attorney fees as required by ORCP 68C(2). Appellant then moved to amend “his responsive pleading to conform to the evidence” and include the statutory authority for attorney fees. The trial court denied the motion to amend, reasoning that “ORCP 23B permits amendments to conform to the evidence at trial but in this action there was not evidence * * * to which the proposed amendment would relate back.” The objections to the cost bill were therefore allowed. We affirm.

The relevant language of ORCP 68C provides:

“C.(l) * * * Notwithstanding Rule 1A and the procedure provided in any rule or statute permitting recovery of attorney fees in a particular case, 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 * * *.

“C.(2) * * * A party seeking attorney fees shall assert the right to recover such fees by alleging the facts, statute, or rule which provides a basis for the award of such fees in a pleading filed by that party. * * * No attorney fees shall be awarded unless a right to recover such fee is asserted as provided in this subsection.”

The rule requires a party to assert specifically the facts, statute or rule which entitles it to recover attorney fees, and the last sentence of ORCP 68C(2) unequivocally provides that, if that is not done, no attorney fees shall be awarded. It is undisputed that appellant failed to comply with the ORCP 68C(2) requirement. We therefore affirm the denial of attorney fees pursuant to ORCP 68C(2). State ex rel AFSD v. Fulop, 72 Or App 424, 695 P2d 979, rev’d on other grounds 300 Or 39 (1985).

Appellant argues that the trial court erred in denying his ORCP 23B motion to amend his pleading to conform to the evidence. There was no evidence to which the pleading could be conformed, and therefore that argument lacks merit.

We also conclude that ORCP 12B does not apply. To read “disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party” to excuse a party from pleading a part of his claim at all would render superfluous the specific language of ORCP 68C(2): “No attorney fees shall be awarded unless, a right to recover such fee is asserted as provided in this subsection.”

Affirmed.