311 ORAPP 406 - Anderson v. Sullivan

                                       406

Argued and submitted September 22, 2020, vacated and remanded May 12, 2021


                      Harold ANDERSON,
               Trustee, Jill Anderson Family Trust,
                      Plaintiff-Respondent,
                                 v.
                      Michele SULLIVAN,
                      Defendant-Appellant.
                  Douglas County Circuit Court
                      19LT00394; A171290

492 P3d 118

In this residential forcible entry and detainer (FED) action, plaintiff’s claim
was dismissed based on a defective termination notice, after which defendant
requested that the trial court exercise its discretion to award her $3,660 in attorney fees under ORS 90.255. Plaintiff objected to defendant’s fee statement, and
defendant responded to plaintiff’s objections. Defendant then requested an additional $4,070 in attorney fees for the time spent responding to plaintiff’s objections, i.e., “fees on fees.” The trial court awarded defendant $2,460 in attorney
fees for defending the FED action and no fees on fees. Defendant appeals. First,
she argues that the trial court erred in awarding her $600 for attorney travel
time instead of the $1,800 that she had requested. Second, she argues that the
trial court erred in awarding her no fees on fees. Third, she argues that the trial
court made an inadequate record of its reasoning. Held: The trial court made an
adequate record of its reasoning, and it did not abuse its discretion by awarding
less attorney fees for travel time than defendant had requested. Its decision to
award no fees on fees relied on a mistaken legal premise, however, requiring
remand for further proceedings.
Vacated and remanded.

Jason R. Thomas, Judge pro tempore.
Harry D. Ainsworth argued the cause and filed the brief
for appellant.
Stephen Mountainspring argued the cause and filed the
brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Vacated and remanded.
Cite as

311 Or App 406

 (2021)                             407

        AOYAGI, J.
         In this residential forcible entry and detainer (FED)
action, defendant appeals the trial court’s decision to award
her discretionary attorney fees in a lesser amount than she
had requested. Specifically, defendant contends that the
trial court erred by (1) awarding her one-third of the amount
requested for attorney travel time between Portland and
Roseburg, (2) not awarding her any attorney fees to respond
to plaintiff’s objections to her fee statement, and (3) failing
to put its findings and conclusions on the record in sufficient
detail to enable meaningful appellate review or to inform
the parties of its reasoning. We conclude that the trial court
erred only in connection with the second issue. We vacate
and remand for further proceedings.
                           FACTS
         Defendant rented a house from plaintiff. Plaintiff
issued a 30-day notice of intent to terminate without stated
cause. See ORS 90.427. When defendant did not leave,
plaintiff filed an FED action. On the day of trial, after
hearing initial arguments but without holding a full trial,
the trial court stated its intention to dismiss the action
due to a defect in plaintiff’s termination notice. Upon dismissal of the action, defendant moved for a discretionary award of attorney fees under ORS 90.255, requesting
$3,660. That amount included $1,800 for time that defendant’s Portland-based attorney spent travelling to and from
Roseburg on the day of trial, based on six hours at $300 an
hour.
         Plaintiff filed objections to the fee statement.
Plaintiff asked the court to exercise its discretion not to
award any fees, pointing out that he had been unrepresented
when he sent the termination notice and that the case was
“dismissed on a technical basis.” Alternatively, plaintiff
argued for a lesser award, asserting that the $300 hourly
rate was unreasonable, that the amount of travel time was
unreasonable, that a 0.2 hour charge for a “notice of appeal”
should be denied because there was no notice of appeal, that
a 0.4 hour charge for drafting an unspecified declaration
should be denied due to lack of indication of filing, and that
a 0.6 hour charge for post-trial matters should be denied.
408                                     Anderson v. Sullivan

Plaintiff attached a declaration in which, among other
things, his attorney (who practices in Roseburg) attested
to a trend in recent years of Portland attorneys coming to
Roseburg to represent tenants and then seeking hefty fees
for travel time.
         Defendant filed a fulsome response to plaintiff’s
objections. Defendant argued that, without counsel, she
would have been evicted, because the notice defect was not
obvious. She defended her attorney’s hourly rate, providing
extensive information about the hourly rates of other attorneys who had appeared in FED actions in Douglas County
and nearby counties, ranging from $175 to $350, and noting
her attorney’s substantial FED experience, having appeared
in thousands of FED actions and tried hundreds. As to travel
time, defendant cited other FED actions in which travel time
had been allowed, and she argued that, given the difficulty of
finding Douglas County attorneys willing to represent tenants for free or on a contingent-fee basis, travel time should
be paid in full so that out-of-town attorneys remain willing
to represent local tenants. Finally, defendant explained that
the “notice of appeal” line item was a mistake and should
have said “notice of appearance”; identified the declarant
and the filing date for the challenged declaration-drafting
charge; and argued that fees for post-trial matters are routinely allowed.
         Two weeks after responding to plaintiff’s objections
to her fee statement, defendant filed a supplemental fee
statement, requesting an additional $4,070 for responding
to the objections, i.e., “fees on fees.”
         After a hearing, the trial court awarded $2,460 in
attorney fees to defendant, all from the original fee statement. In a letter opinion, the court explained that it was making a discretionary fee award, that fees could be awarded in
full or part based on what was reasonable under the circumstances, and that fees on fees “may be awarded.” Addressing
the original fee statement, the court acknowledged plaintiff’s
objection to fees, including his objection about excessiveness, and defendant’s position that the requested fees were
reasonable. The court noted that both parties had acknowledged the lack of legal representation for tenants in Douglas
Cite as

311 Or App 406

 (2021)                                              409

County and that the court had already been aware of that
situation.1 In that context, the court addressed defendant’s
attorney’s hourly rate, stating that, although $300 was not a
customary hourly rate for an attorney in Douglas County, it
was “not necessarily unreasonable” for an FED action “if the
tenant needs to seek counsel from out of the local area.” The
court then identified the facts that it considered significant
in deciding that $2,460 was a reasonable fee to award: that
the case did not proceed to a full hearing on the merits but,
instead, was resolved based on a defective notice; that nothing in the record supported defendant’s claim that plaintiff
had acted in bad faith or with malice; that defendant prevailed, which argued in favor of some fee award; that the
amount sought for travel time “at the full rate of $300 per
hour for six hours ($1,800 total)” was “excessive”; and that
the number of hours in defendant’s fee statement otherwise
seemed appropriate.

         The trial court separately addressed defendant’s
request for fees on fees. It said that, with respect to fees
on fees, “there are other considerations as well,” particularly that “plaintiff was not acting in bad faith to contest
the attorney’s fees, which the court agrees were more than
was warranted in the circumstances” and “simply excessive.” The court noted that, even though plaintiff had filed
a legally insufficient case, because he was “trying to ‘save
money’ by not having an attorney review the filing or hiring counsel,” that did not necessarily mean that defendant’s
fee request was reasonable. The court ultimately denied any
fees on fees, stating that, because plaintiff’s objection “was
warranted,” and, because the court was “awarding something less than was requested, the defendant cannot receive
attorney’s fees for contesting the objection.”

       Defendant appeals the supplemental judgment
awarding her $2,460 in attorney fees. She raises three
assignments of error, as previously described.

     1
       At the attorney-fee hearing, plaintiff’s counsel acknowledged that there
is a general shortage of attorneys in Douglas County, which he attributed to a
substantial number of retirements in the past ten years, such that the “civil bar
is strained to the limits.” The trial court subsequently remarked that it too was
“aware that there is a shortage of attorneys in Douglas County.”
410                                    Anderson v. Sullivan

                         ANALYSIS
         In any action on a rental agreement or arising under
ORS chapter 90, a trial court “may” award attorney fees
to the prevailing party. ORS 90.255; see also ORS 20.075
(stating factors that a trial court must consider in deciding whether to make a discretionary fee award and, if so, in
what amount). Only “reasonable” fees may be awarded. ORS
20.075(4) (“Nothing in this section authorizes the award
of an attorney fee in excess of a reasonable attorney fee.”).
“[W]hether fees are reasonable is a factual determination
that we review for abuse of discretion.” Makarios-Oregon,
LLC v. Ross Dress-For-Less, Inc.,

293 Or App 732, 739

430 P3d 142

, adh’d to as modified on recons,

295 Or App 449

430 P3d 1125

 (2018).
         We begin with defendant’s contention that the trial
court failed to put its findings and conclusions on the record
in sufficient detail to enable meaningful appellate review
or to inform the parties of its reasoning. Under ORCP 68
C(4)(g), a party may request that the trial court “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.” Defendant made that request here, and the
trial court issued a written opinion with findings and conclusions. Defendant contends that those findings and conclusions were insufficiently detailed, but we disagree. Focusing
on travel time and fees on fees—the only aspects of the fee
ruling challenged on appeal—the trial court provided findings and conclusions that were sufficient to explain the reasoning behind its ruling. See Bruce v. Cascade Collections,
Inc.,

199 Or App 59, 67-68

110 P3d 587

, rev den,

339 Or 66

 (2005) (remanding a judgment denying fees where the
trial court failed to make findings, despite explicit request,
and the court’s “unadorned observation” that the requested
amount was unreasonable “was inadequate to permit meaningful appellate review”); see also McCarthy v. Oregon Freeze
Dry, Inc.,

327 Or 185, 190-91

957 P2d 1200

 (1998) (stating
that adequate findings are those that “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”). We therefore reject
defendant’s third assignment of error.
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311 Or App 406

(2021) 411

We next address travel time. Defendant argues that
the trial court abused its discretion by awarding her $600
for attorney travel time, rather than the $1,800 that she had
requested. Defendant argues—as she did in the trial court—
that awarding full attorney fees for travel time is important
to ensure that tenants have access to legal representation
when local attorneys are unwilling or unable to represent
them for free or on a contingent-fee basis. Plaintiff responds
that the court did not abuse its discretion. He argues—as
he did in the trial court—that it would be unreasonable to
award $1,800 in travel time, given that defendant had called
only a few Douglas County attorneys and had never contacted a single attorney from Eugene or a nearby county
where the lawyers charge lower rates and require much less
travel time. The trial court referred to plaintiff’s travel-time
argument when it took the fee issue under advisement,
saying that it was undecided on travel time and wanted to
think more about the possibility “that it would be more reasonable for say a Lane County attorney to charge $300 and
come down here for an hour” than for a Portland attorney to
drive three hours.
We are unpersuaded that the trial court abused its
discretion by awarding $600 for travel time. The trial court
expressly acknowledged that it is difficult for tenants in
Douglas County to obtain local legal representation, and it
took that into account in finding that defendant’s attorney’s
hourly rate was reasonable, even though it exceeded the customary hourly rate for an attorney in Douglas County. As to
travel time, however, the court found that awarding fees for
travel time “at the full rate of $300 per hour for six hours”
was excessive, and it awarded $600 as a reasonable amount.
Because our review is for abuse of discretion, ORS 20.075(3),
the question is whether that amount was in the range of
legally permissible outcomes. See Stonecrest Properties,
LLC v. City of Eugene,

280 Or App 550, 562-63

382 P3d 539

 (2016) (affirming fee award where “the amount awarded
was within the range of permissible choices available to the
trial court”).
        We conclude that it was. The trial court was not
required as a matter of law to rely on a single consideration—
the underfunding of legal aid services and resulting reliance
412                                                 Anderson v. Sullivan

of low-income tenants on private attorneys susceptible to
economic forces—to the exclusion of all others, including
individual case circumstances. The trial court might not
have abused its discretion if it had awarded more fees for
travel time, but neither did it abuse its discretion by awarding $600 for travel time. Where a discretionary decision is in
the range of legally permissible outcomes, we will not substitute our judgment for the trial court’s as to how best to
balance the various considerations in play in making a fee
award.2 See ORS 20.075(3) (“In any appeal from the award
or denial of an attorney fee subject to this section, the court
reviewing the award may not modify the decision of the
court in making or denying an award, or the decision of the
court as to the amount of the award, except upon a finding
of an abuse of discretion.”).
        Finally, defendant contends that the trial court
erred by awarding her no fees on fees, i.e., no fees to respond
to plaintiff’s objections to her fee statement. Recall that
defendant requested $3,660 in attorney fees to defend
against the FED action, that she subsequently requested
another $4,070 in attorney fees to respond to objections to
her $3,660 fee request, and that the trial court awarded
$2,460 for the FED defense and zero fees on fees. Defendant
argues that the trial court wrongly denied fees on fees “as
a matter of law,” based on a mistaken belief that its authority to award fees on fees was limited to situations where
the prevailing party successfully defeated all objections to
a fee request and was awarded the full amount originally
requested. Alternatively, defendant argues that the trial
court abused its discretion by not awarding any fees on fees,
because defendant was awarded most of the fees that she
originally requested, because plaintiff’s objections were
“overstated” and it was reasonable to respond to them, and
because it is especially important to defend fee requests in
    2
      Relatedly, we disagree with defendant that the trial court was wrong to
consider the reasonable expectations of landlords with respect to attorney fee
exposure when filing good-faith FED claims. We understand the court’s comments to go to the larger issue of reasonableness, as well as to the issue of not
wanting to deter good-faith claims by making excessive fee awards, particularly
in cases dismissed on technical grounds. See ORS 20.075(1)(c) (requiring consideration of “[t]he extent to which an award of an attorney fee in the case would
deter others from asserting good faith claims or defenses in similar cases”).
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311 Or App 406

 (2021)                              413

contingent-fee cases because attorneys will not continue to
take such cases unless they are paid.
         Considering the trial court’s explanation of its ruling in the context of the record as a whole, we agree with
defendant that the court based its decision not to award
any fees on fees on a mistaken legal premise. Relying on a
mistaken legal premise when exercising discretion is error,
regardless of whether the trial court would have had discretion to reach the same result based on a correct understanding of the law. See State v. Romero (A138124),

236 Or App 640, 643-44

237 P3d 894

(2010) (when a trial court’s
exercise of discretion flows from a mistaken legal premise,
its decision does not fall within the range of legally correct
choices and does not produce a permissible, legally correct
outcome, such that it is an abuse of discretion).
Early in its letter opinion, the trial court recognized in general terms that attorney fees “may be awarded
by the court even if the fees are sought in connection with
the defending of a request for attorney fees.” However,
after deciding to award defendant less than she had
requested—$2,460, instead of $3,660—the court denied any
fees on fees, explaining that, because plaintiff’s objection
“was warranted” and the court was “awarding something
less than was requested, the defendant cannot receive attorney’s fees for contesting the objection.”
While objecting was warranted, so too was
responding—at least in that it seems reasonable to file some
response. And not all of plaintiff’s objections were successful, such that it is at least possible that defendant’s response
influenced the ultimate fee award. Notably, most of plaintiff’s objections were successful. Plaintiff prevailed on his
travel-time objection, which was the issue that he briefed
the most. His objection to defendant making extra-judicial
arguments also succeeded, in that the trial court agreed
that there was no evidence that plaintiff had acted in bad
faith. Plaintiff’s objection about the “notice of appeal” charge
spurred defendant to correct an error in her fee statement.
And his objection about an unspecified declaration spurred
defendant to identify the declaration at issue. On the other
hand, plaintiff failed to persuade the trial court that it
414 Anderson v. Sullivan

should exercise its discretion not to award any fees, that
defendant’s attorney’s hourly rate was too high, or that no
fees should be awarded for post-trial work.
Given that defendant defeated at least some of
plaintiff’s objections, the trial court had discretion to award
some fees on fees to defendant, even if it might have been
inclined to award much less than what was requested. In
context, the trial court’s statement that “defendant cannot
receive attorney’s fees for contesting the objection” (emphasis added) necessarily suggests a mistaken legal premise as
to when fees on fees are available. Although a court may
deny fees on fees in connection with unsuccessful aspects
of a fee request, it is legally incorrect to say that a party
“cannot” recover any fees on fees unless all of the requested
fees were awarded. That is, a trial court has legal authority to make a discretionary award of fees on fees for a partially successful response to a fee objection. Because the
trial court appears to have viewed fees on fees as an all-ornothing proposition—which it is not—we vacate the supplemental judgment and remand for further consideration of
the fee award. That is, having clarified that the trial court
has legal authority to award at least some fees on fees, we
leave it to the trial court to exercise its discretion whether to
do so and, if so, in what amount.
Vacated and remanded.