Beers v. Jeson Enterprises

LINDER, J.

Plaintiff appeals a circuit court judgment affirming an arbitrator’s determination that she is not entitled to attorney fees under ORS 20.080. We review for errors of law. Koster Remodeling & Construction, Inc. v. Jataka, 155 Or App 142, 145, 963 P2d 726 (1998) (entitlement to attorney fees is a legal question). We conclude that plaintiff was entitled to attorney fees on one of the two claims on which she sought fees. We therefore reverse and remand for a determination of reasonable fees to be awarded to plaintiff.

This case arises out of an incident in which plaintiff, while patronizing defendants’ store, was detained by defendants’ employees and then arrested by police for suspected shoplifting.¹ Plaintiff later was prosecuted for theft and was acquitted. After the acquittal, plaintiffs attorney wrote defendants a letter demanding $4,000 to settle plaintiff’s claim for damages allegedly caused by defendants’ actions. Plaintiff prepared a single letter, identical in its substance, and sent it first to the store owner and then, about two weeks later, to the store’s manager. The letter stated:

“Dear [Store Manager][Store Owner],

“This office represents Ms. Helen Beers in conjunction with an incident that occurred at your store located at 1355 NW 185th Avenue, Hillsboro, Oregon on February 23,1995.

“On that daté Mrs. Beers was detained, and subsequently falsely arrested and imprisoned, at the instance of your employees or agents. Despite a reasonable explanation following the original detention Mrs. Beers was questioned, intimidated, humiliated and imprisoned and her liberty restrained for no just cause. As a result she suffered humiliation, embarrassment, was required to obtain counsel to defend herself and was required to appear in court and endure a trial. As a result of all of the above demand is hereby made against Craft Warehouse for compensation in the sum of $4,000. If payment is not received forthwith Mrs. Beers will file a lawsuit against your company seeking such damages, plus her attorney’s fees and costs incurred in prosecuting such action.

“Please contact me immediately in response to this demand. I am enclosing an extra copy of this letter to be provided to your insurance representative, if coverage for this type of incident is available.”

(Emphasis added.) The letter then concluded with plaintiffs attorney’s signature.

Defendants declined to settle. Plaintiff then filed two separate actions, one alleging false imprisonment and the other alleging malicious prosecution, each seeking damages of $4,000. Although the two actions began as separate proceedings, eventually they were consolidated and were submitted to mandatory arbitration. See ORS 36.405. The arbitrator awarded plaintiff $4,000 on each claim. Plaintiff sought attorney fees under ORS 20.080.

In a written order denying the fee request, the arbitrator first indicated that he agreed with defendants’ view of plaintiffs demand letter. Defendants had asserted that the letter, although sent to both the store manager and the store owner, was only a “single, pre-suit demand for payment of damages in the amount of $4,000” and it therefore did “not satisfy the requirements of ORS 20.080 for the two lawsuits subsequently filed by plaintiff.”² The arbitrator further observed that, if the letters were construed as plaintiff argued they should be — i.e., each letter serving as a separate demand on each of plaintiffs two causes of action — then the total amount of the settlement demand was $8,000. The arbitrator determined that, under either view, plaintiff was not entitled to attorney fees.

ORS 20.080(1) provides:

“In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $4,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less that 10 days before the commencement of the action.”

The statute applies in “any action for damages” to person or property where the amount pleaded is $4,000 or less. To be entitled to a prevailing party attorney fee award, the plaintiff, not less than 10 days before commencing the action, must make a written demand for payment of “such claim.” Plaintiff contends that the demand letter in this case satisfied the statute because it “effectively was a demand indicating that both causes of action could be settled for a total of $4,000.00.” (Emphasis added.) Defendants, in response, dispute plaintiffs characterization of her pretrial demand:

“Either there was one demand for $4,000 followed by two lawsuits alleging $8,000 in damages; or there were two demands each seeking $4,000 for a total of $8,000. Either way, the pre-filing demand requirement of ORS 20.080 has not been met.

“If the two letters were a single demand notifying defendants that the entire matter could be resolved for $4,000, then the demand may have complied with the statutory requirements, [but] the ultimate filing of two actions each seeking $4,000 runs afoul of the statute. If, however, the two letters constitute separate demands, then as the arbitrator concluded, the pre-suit demand was in reality a demand for $8,000, an amount in excess of the statutory $4,000.”

(Emphasis in original.)

We agree that the most reasonable view of the demand letter is that it was a single, pre-suit demand seeking $4,000 for a single claim, not $4,000 for two claims. The identical text of the twice-mailed letter demands a sum of $4,000 as a result of plaintiff’s detention, arrest, and prosecution. The letter then advises that, if the $4,000 is not paid, then plaintiff will file “a lawsuit,” not two or several, in which plaintiff will seek “such damages.” No person receiving the letter reasonably would understand from it that plaintiff was asserting multiple claims for damages based on the incident, was threatening to file multiple lawsuits, and was willing to settle the multiple claims for a single $4,000 payment. Plaintiffs argument to the contrary evidently is based only on the fact that plaintiff sent the letter twice, first to the store owner and then to the store manager. The number of people served with the letter does not alter its essential substance, however. Whether it was mailed to one, two, or a dozen agents of defendants’ business, it substantively provided notice of only one threatened action for damages and a demand to settle for $4,000.³

Given the demand contained in the letter, what is the consequence for plaintiffs attorney fee request? Contrary to defendants’ position and the arbitrator’s conclusion, the answer is not that plaintiff has no entitlement whatsoever to an attorney fee award. Had plaintiff, after sending the letters, filed only one action (either for false imprisonment or for malicious prosecution) and obtained a judgment for $4,000 in that one action, plaintiff would be entitled under the statute to an award of attorney fees. No one contends otherwise. What, then, if plaintiff had filed two separate actions, without consolidating them as in this case? Plaintiff would be entitled to attorney fees in one of the two. If plaintiff then sought fees after prevailing in both actions, defendants would be able to resist an award in one — but not in both — on the ground that plaintiff did not make a written pre-trial demand as to both actions. Nothing in ORS 20.080(1) suggests a different result merely because the separate actions were consolidated for trial.⁴

Consequently, we hold that plaintiff is entitled to attorney fees on one, but not both, of her consolidated claims. Accordingly, plaintiff on remand should designate the claim on which she seeks fees pursuant to ORS 20.080, and the trial court should award a reasonable amount of fees attributable to that claim. See generally Bennett v. Baugh, 164 Or App 243,990 P2d 917 (1999) (discussing standards for apportionment of attorney fees requests).

Reversed and remanded for further proceedings.

1 Defendants include Jeson Enterprises, dba Craft Warehouse, and its officers and shareholders. For convenience, we refer to those parties as “defendants.”

2 More specifically, defendants argued:

“In this case plaintiff made a single, pre-suit demand for payment of damages in the amount of $4,000. That demand was contained in a letter sent by plaintiffs counsel to both the manager of defendants’ store on September 19, 1996, and the owner of the business on September 6,1996. Those letters, which are identical in their language, demandredl damages of $4,000. Subsequently, plaintiff filed two lawsuits — one alleging a claim for false imprisonment; the other claiming malicious prosecution — each seeking damages of $4,000 and attorney fees.”

(Emphasis in original.) Defendants contended that because the letter was a single pre-suit demand on a single claim, the statute was not satisfied.

3 Judge Wollheim adopts plaintiffs characterization of the letter — that is, that the demand letter was an offer to settle two claims for damages for a single settlement amount. 165 Or App at 733-34 (Wollheim, J., concurring in part, dissentingin part). Given the substance of the letter, that view is particularly implausible. If, as plaintiff argues, the demand letter provided notice oí both the false imprisonment and malicious prosecution claims, despite the threat to file only a single lawsuit, then the twice-mailed letter necessarily also constituted a demand for a settlement of $4,000 on each claim, and thus sought a total settlement of $8,000 and exceeded the limit in ORS 20.080(1). Because we do not accept plaintiffs view of the demand letter, it is not necessary to decide whether the damages in plaintiffs two complaints must be aggregated for purposes of testing the amount pleaded against limit in the statute.

4 Judge Warden, although sharing our view of the demand letter, concludes that plaintiff is not entitled to any award of attorney fees under ORS 20.080 because she inappropriately split a single cause of action into two causes of action. 165 Or App at 737 (Warden, J., dissenting). The rule against splitting a claim arises in connection with the judicially crafted claim preclusion doctrine. It requires a plaintiff to bring all claims arising from the same factual transaction or circumstance in a single action to avoid having a judgment in a first action be binding in any subsequent action. See generally Peterson v. Temple, 323 Or 322, 327, 918 P2d 413 (1996). Here, there has never been a dispute over the separately actionable nature of plaintiffs claims. The gravamen of false imprisonment is the imposition of restraint on a person’s freedom of movement without legal process; the gravamen of malicious prosecution is the wrongful initiation of unwarranted legal proceedings against a person. See generally Hiber v. Creditors Collection Service, 154 Or App 408, 413, 418-19, 961 P2d 898, rev den 327 Or 621 (1998). The two actions are distinct torts, involving different elements, different injuries, and potentially different damages. Depending on the facts involved, the two may be alternative theories of liability for a single tortious act (i.e., where the existence of legal authority for an arrest is disputed), or cumulative theories based on sequential acts by a defendant (i.e., first detaining someone without lawful process or authority and later playing an actionable role in initiating legal proceedings against the person earlier detained). At least on the record before us, and given the lack of any dispute over the point, we have no basis to conclude that that plaintiff improperly split a single cause of action in this case.