637
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted January 7, 2022; general judgment reversed and
remanded, supplemental judgment reversed March 15, 2023
Donald Scott UPHAM,
Plaintiff-Respondent,
v.
H. Dick COOK,
Defendant-Appellant.
Multnomah County Circuit Court
18CV57547; A173454
Leslie M. Roberts, Judge.
Timothy R. Volpert argued the cause for appellant. Also
on the brief was Tim Volpert, P.C.
No appearance for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
General judgment reversed and remanded; supplemental
judgment reversed.
638 Upham v. Cook
SHORR, J.
This case arises against an unfortunate background
in which the parties and their counsel have been fighting
for years solely over the form of a “stipulated” judgment and
related costs. The unfortunate aspect of this litigation is that
the parties’ underlying dispute was resolved by settlement
years ago and yet the litigation continues over those minor
issues. Because we reverse the trial court’s judgment, this
matter will regrettably continue further on remand for entry
of a revised judgment. However, our opinion should hopefully resolve any uncertainty as to the proper path towards
resolving this litigation. As we will explain, we agree with
defendant’s first assignment of error that contends that the
trial court erred in directing defendant to enter a stipulated judgment that provided plaintiff with the right to seek
an award of costs against defendant. As a result, we also
reverse the supplemental judgment in which the trial court
awarded plaintiff an enhanced prevailing party fee.
The primary legal issue before us is whether the
parties reached an agreement to enter a stipulated judgment in which plaintiff had a right to seek costs and disbursements. As we discuss below, the parties agreed to a
judgment to resolve their litigation for $10,000, but did so
without agreeing that plaintiff would receive an additional
right to pursue costs on top of that amount.
We summarize the salient facts. Plaintiff Donald
Upham is a former district attorney and now semi-retired
private attorney. Plaintiff was retained by defendant Dick
Cook to represent him both in a dissolution with Cook’s
then-wife as well as a dispute between Cook and a local
golf club. Shortly before the dissolution matter was set to
go to trial, defendant terminated plaintiff. Plaintiff then
sued his former client in Washington County Circuit Court
for over $14,000 in unpaid legal fees. Defendant initially
counterclaimed and sought $100,000 against plaintiff for
legal malpractice, but later dismissed that counterclaim.
The Washington County matter was ultimately referred
to arbitration. Before the arbitration hearing, however,
the parties settled through email correspondence. The
Nonprecedential Memo Op: 324 Or App 637 (2023) 639
settlement agreement provided that defendant would “allow
entry of judgment” against himself for $10,000; that defendant would make payment to plaintiff in certified funds
within 30 days, by December 30, 2018; and that defendant’s
counsel would prepare the judgment for entry. However,
nearly three weeks later, defendant’s then-counsel indicated that defendant “repudiates the settlement” and withdrew counsel’s authority to prepare a judgment against
defendant.
Plaintiff then immediately filed the lawsuit that
underlies this appeal. Despite the ongoing litigation in the
Washington County Circuit Court, plaintiff filed this second
suit against defendant in Multnomah County Circuit Court.
The complaint asserted one breach of contract claim, alleging that defendant had breached the settlement agreement
to pay $10,000. Apparently deciding to perform on the repudiated settlement after all, defendant then reversed course
and sent a cashier’s check dated December 28 to plaintiff for
$10,000, which plaintiff cashed. Although one would reasonably expect that to effectively bring the litigation to a close,
it continued.
Plaintiff seemingly continued to pursue his claim for
damages (even after receiving the settlement payment) and
amended his complaint to add that “[t]he defendant should
be required to prepare and file with the court a stipulated
judgment.” Defendant filed an answer that noted that defendant had paid the $10,000 settlement, asserted affirmative
defenses, and sought sanctions, prevailing party fees, and
attorney fees. The matter was then referred to arbitration.
In arbitration, plaintiff contended that he still had a right
to recover on his breach of contract claim because defendant
had never filed a stipulated judgment in the Washington
County case as agreed.
The arbitrator decided on summary judgment that
plaintiff’s claim for damages for breach of the settlement
agreement was mooted and resolved by plaintiff’s acceptance of defendant’s settlement payment. The arbitrator also
concluded that defendant had not breached the settlement
agreement by not preparing a stipulated judgment of dismissal, because the parties had not agreed to a stipulated
640 Upham v. Cook
judgment of dismissal. Instead, defendant agreed to “draft
a stipulated confession of judgment for $10,000,” or have a
judgment of $10,000 entered against himself. The arbitrator
further concluded that, even if the parties had agreed to a
stipulated judgment of dismissal, such judgment was not a
material term of the settlement agreement. The arbitrator
observed that a judgment of dismissal would protect defendant, not plaintiff, in the Washington County case, such
that any failure by the defendant to file one did not harm
plaintiff.1 In the meantime, just days after the arbitration
award, a judgment of dismissal was entered by the court in
the Washington County Circuit Court case, dismissing that
case. Again, one might expect that those events would effectively resolve the parties’ disagreement. However, plaintiff
appealed the arbitration award to the Multnomah County
Circuit Court, seeking a trial.
Plaintiff proceeded to trial before the court and
argued in his trial brief that, despite the fact that he had
been paid $10,000, defendant had “failed to prepare a stipulated judgment to complete his bargain” and that plaintiff was entitled to specific performance of “this material
condition.” Following a bench trial, the court ordered that
defendant move to set aside the judgment of dismissal in
the Washington County case and file a “stipulated judgment
against [defendant] for $10,000 as requested. It can reflect
that that money has now been paid.”
After that trial court order, plaintiff submitted
his proposed version of the required stipulated judgment.
Plaintiff’s proposed stipulated judgment provided that “[t]he
plaintiff shall be entitled to a judgment for the costs and disbursements he incurred in [the Washington County Circuit
Court] case.” Defendant submitted a competing stipulated
judgment of dismissal that provided that “this matter is dismissed with prejudice without an award of costs or attorney
fees to either party.” (Emphasis added.) Over defendant’s
objection and competing proposal, the trial court ordered
1
As the reader may recall, defendant had dismissed his malpractice counterclaim against plaintiff in Washington County Circuit Court. The only remaining
claim was plaintiff’s claim for breach of the settlement agreement, which had
been largely resolved.
Nonprecedential Memo Op: 324 Or App 637 (2023) 641
that plaintiff’s form of judgment should be used. The trial
court made some minor edits to plaintiff’s form of judgment
by striking and adding some text. Although those edits create some uncertainty, it appears that the final judgment permits plaintiff to at least request his costs and disbursements
in the Washington County case. Indeed, the stipulated judgment that was ultimately submitted in that case clearly provided plaintiff a right to seek costs and disbursements.
Later, in the Multnomah County litigation, the trial
court ordered defendant to pay plaintiff a $5,000 enhanced
prevailing party fee. The court entered a supplemental judgment awarding that fee.
Defendant now appeals from both the general and
supplemental judgments. Defendant first assigns error to
the trial court’s approval of plaintiff’s proposed stipulated
judgment, solely to the extent that it provides plaintiff a
right to seek costs and disbursements in the Washington
County case.2 Defendant next assigns error to the trial
court’s award of an enhanced $5,000 prevailing party fee to
plaintiff for prevailing in this action.
As to his first assignment of error, defendant contends that it was error for the trial court to direct entry of
a stipulated judgment that provided plaintiff with a right
to pursue costs and disbursements, because there is no evidence that the parties’ settlement agreement provided that
right. We agree. There is no evidence in the record that
the parties’ settlement included a right for plaintiff to seek
costs and disbursements on top of the $10,000 that plaintiff received. The parties’ settlement provided that plaintiff would receive a judgment of $10,000 against defendant
with payment to be made by certified funds within 30 days.
There is no mention of plaintiff’s right to receive or even
pursue costs and disbursements on top of the $10,000 payment. As a result, the trial court erred in directing that the
stipulated judgment include plaintiff’s right to seek costs
and disbursements. Any corrected order and judgment in
2
Defendant does not raise any issues regarding whether the Multnomah
County Circuit Court could direct a judgment be entered in Washington County
Circuit Court. We assume, without deciding, that the judgment could at least
direct the parties to enter a stipulated judgment in another court.
642 Upham v. Cook
this case should not provide plaintiff with a right to pursue
costs and disbursements in the Washington County case.3
In defendant’s second assignment of error, defendant contends that the trial court erred in entering a supplemental judgment that awarded plaintiff an enhanced
prevailing party fee of $5,000 under ORS 20.190(3). Because
we reverse the underlying general judgment, we also
reverse the award of an enhanced prevailing party fee in
the supplemental judgment. See ORS 20.220(3)(a) (stating
that, if the court reverses a judgment to which an award of
fees or costs is attached, the award of fees or costs “shall be
deemed reversed”). We do not otherwise reach defendant’s
legal arguments as to the enhanced prevailing party fee. We
note, however, that the trial court’s award, at a minimum,
appears to be based on a misunderstanding of the facts that
transpired between the parties in attempting to resolve this
case.
General judgment reversed and remanded; supplemental judgment reversed.
3
Defendant also contends that “the Washington County stipulated judgment and any award of costs, disbursements, or prevailing party fees in that
case should be vacated.” Only the Multnomah County Circuit Court judgment is
before us in this appeal, and although our reversal of it may ultimately accomplish defendant’s desired result, the Washington County Circuit Court judgment
is not before us in this appeal.
