Page v. Muzyn

861 P.2d 382 (1993) 124 Or. App. 137

Sandra Jean PAGE, Respondent,
v.
James Kelly MUZYN and the City of Gresham, Appellants.

9102-01303; CA A74658.

Court of Appeals of Oregon.

Petition for Attorney Fees May 10, 1993. Decided October 20, 1993.

J. Michael Alexander and Burt, Swanson, Lathen, Alexander and McCann, P.C., for petition.

Elizabeth K. Reed and Thomas Sponsler, contra.

Before RIGGS, P.J., and DE MUNIZ and DURHAM, JJ.

On Respondent's Petition for Attorney Fees May 10, 1993.

DURHAM, Judge.

This matter is before the court on plaintiff's petition for attorney fees on appeal. Plaintiff used a percentage formula to determine the requested fee. Defendants' sole objection is that ORAP 13.10(3) requires use of an hourly rate times hours formula and does not authorize use of a percentage formula. We disagree, and allow the petition.

Plaintiff sued defendants, who are a local government and a police officer, for a deprivation of civil rights under 42 U.S.C. § 1983,^[1] and obtained a judgment for damages and attorney fees. Defendants appealed, and we affirmed without opinion. Page v. Muzyn, 119 Or.App. 512, 852 P.2d 975 (1993). Plaintiff seeks attorney fees on appeal under 42 U.S.C. § 1988.^[2] Her appellate counsel agreed to represent her on a contingency basis for 12 percent of plaintiff's judgment for noneconomic damages. Defendants argue that the court is restricted to consideration of a rate times hours formula^[3] by ORAP 13.10(3), which provides:

"A petition shall state the total amount of attorney fees claimed and the authority relied on for claiming the fees. The petition shall be supported by a statement of facts showing the total amount of attorney time involved, the amount of time devoted to each task, the reasonableness of the amount of time claimed, the hourly rate at which time is claimed and the reasonableness of the hourly rate."

The rule states the required elements of a fee petition. It does not purport to authorize or require use of any particular formula to calculate or award a reasonable fee.

Defendants also argue that Griffin v. Tri-Met, 112 Or.App. 575, 584, 831 P.2d 42 (1992), rev. allowed 315 Or. 442, 316 Or. 527, 847 P.2d 409, 854 P.2d 939 (1993), restricts the court to consideration of six factors similar to those stated in ORAP 13.10(3), and does not permit use of a percentage formula. We disagree. In Griffin, we affirmed a trial court's award of attorney fees calculated at twice counsel's standard hourly rate. We said:

"The evidence showed that plaintiffs generally experience difficulty in obtaining qualified counsel and also that counsel who successfully undertake the cases for a contingency fee are generally compensated at rates greatly exceeding standard billing rates for general legal services." 112 Or.App. at 585, 831 P.2d 42.

We did consider the six factors described in Hess v. Seeger, 55 Or.App. 746, 766, 641 P.2d 23, rev. den. 293 Or. 103, 648 P.2d 851 (1982), but the holding demonstrates that those factors do not restrict the court to a rate times hours formula, or prevent the court from taking into account the contingency risk of a loss in setting a reasonable fee.^[4]

Plaintiff's petition states the facts required by the rule and explains why the requested fee reasonably compensates counsel for the work performed and the contingency risk of a loss. She is entitled to a reasonable fee under 42 U.S.C. § 1988. ORAP 13.10(3) does not prevent the court from awarding, under that statute, a fee calculated as a percentage of her recovery, as long as the award is reasonable. Defendants make no claim that the requested fee is excessive or otherwise unreasonable.

Petition for attorney fees allowed in the sum of $12,000.

NOTES

[1] 42 U.S.C. § 1983 provides, in part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State * * *, subjects or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured * * *."

[2] 42 U.S.C. § 1988 provides, in part:

"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

For a description of the factors used to determine a reasonable attorney fee under that section, see Kerr & Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. den. Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S. Ct. 1726, 48 L. Ed. 2d 195 (1976).

[3] Defendants contend that the court should reject the requested fee of $12,000 and award a fee of $4,950. They calculate that fee by multiplying counsel's hourly rate of $150 by 30.6, which is the number of hours spent on the appeal.

[4] See also Craig and Craig, 30 Or.App. 419, 567 P.2d 141 (1977); Oregon State Bar, Code of Professional Responsibility DR 2-106.