Tilley v. Dimitry

238                    July 30, 2025               No. 673

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                        Steven TILLEY
                      and Michele Tilley,
                     Plaintiffs-Appellants,
                                v.
                        Nile DIMITRY,
      trustee of the Dimitry Family Living Trust dated
                       January 30, 2017,
                    Defendant-Respondent.
                Douglas County Circuit Court
                     23CV41311; A185462

  George William Ambrosini, Judge.
  Submitted June 9, 2025.
   Jason M. Montgomery and Dole Coalwell filed the brief
for appellants.
  No appearance by respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
  AOYAGI, P. J.
  Reversed and remanded.
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        AOYAGI, P. J.
         Plaintiffs brought this action against defendant for
ejectment and trespass, alleging title by adverse possession to a four-foot-wide strip of land along the deeded property line. Trial was held on August 6, 2024. The trial court
announced its verdict at the conclusion of the evidence, finding in plaintiffs’ favor on both claims and awarding $1,200
in damages. The court then stated, without prompting,
that it would not award attorney fees to plaintiffs because
their pretrial demand letter was not received into evidence
at trial. Plaintiffs asked the court to reopen the record to
admit the letter (which had been marked as an exhibit and
discussed during trial but not actually admitted), and the
court denied that request. Three days later, on August 9,
2024, plaintiffs filed a written motion for reconsideration of
the denial of attorney fees, objecting that the court’s ruling
was premature and that the demand letter had not needed
to come into evidence at trial. The court denied reconsideration and entered a general judgment on September 3, 2024,
that included an express denial of attorney fees.
         Plaintiffs appeal the general judgment, assigning
error to the denial of attorney fees as premature and procedurally improper. Defendant has not appeared on appeal.
Given the nature of the issue presented, our review is for
errors of law. See Johnson v. Swaim, 

, 

 (2007) (“This court reviews attorney fee awards
under ORS 20.080 for errors of law.”); O’Neal and O’Neal,

, 

 (1999) (“[W]hether the
trial court erred in failing to follow the procedure of ORCP
68 is a question of law.”). We agree with plaintiffs that the
trial court erred in denying fees on the basis that it did and,
accordingly, reverse and remand.
         As an initial matter, we agree with plaintiffs that
they adequately preserved their claim of error under the circumstances. Given the unexpected nature of the oral ruling
on attorney fees, plaintiffs could not reasonably be expected
to do more than they did in the moment, and plaintiffs
quickly followed up with a written objection, to which defendant had an opportunity to respond, well before entry of the
general judgment. Cf. Kirschenman v. Elias, 

,
240                                                         Tilley v. Dimitry

329, 

 (2008) (concluding that a party did not adequately preserve a claim of error, where the trial court prematurely denied attorney fees, and the party failed to object
before entry of the judgment denying fees). The purposes of
preservation were served. See State v. Clemente-Perez, 

, 

 (2015) (“[T]he primary purposes of
the preservation rule are to allow the trial court to consider
a contention and correct any error, to allow the opposing
party an opportunity to respond to a contention, and to foster a full development of the record.”).
         Turning to the merits, ORS 20.080(1) provides for a
mandatory attorney fee award to the plaintiff “[i]n any action
for damages for an injury or wrong to the person or property,
or both, of another where the amount pleaded is $10,000 or
less, and the plaintiff prevails in the action.” To be entitled
to such an award, the plaintiff must have made a written
demand for payment at least 30 days before commencing the
action, and the defendant must not have tendered before commencement of the action an amount equal to or greater than
the damages actually awarded to the plaintiff. ORS 20.080(1).
          Attorney fee awards under ORS 20.080 are subject
to the procedures set forth in ORCP 68, which “govern[ ]
the pleading, proof, and award of attorney fees in all cases,
regardless of the source of the right to recover such fees,” with
three exceptions not applicable here. ORCP 68 C(1); see ORCP
68 C(1)(a) - (c) (exceptions when attorney fees are claimed as
damages arising prior to the action, when attorney fees are
granted by order instead of judgment, and when “a statute
refers to this rule but provides for a procedure that varies
from the procedure specified in this rule”). Under ORCP 68 C,
a party has until 14 days after entry of the general judgment
to file a fee petition.1 See ORCP 68 C(4)(a)(i) (providing that
     1
       Notwithstanding the denial of attorney fees in the general judgment, plaintiffs proceeded to file a fee statement within 14 days of the entry of the general
judgment and attached a copy of their prefiling demand letter. See Alsaedi v.
Conroy, 

, 

 (2017) (noting that the plaintiff’s prefiling demand letters were filed with the trial court as attachments to their fee
petition). The trial court has never ruled on that fee petition. Cf. Springleaf Home
Equity, Inc. v. Jones, 

, 

 (2021) (noting that, where
the trial court had prematurely denied attorney fees in the general judgment,
but the prevailing party nonetheless filed a fee petition, at which point the trial
court followed the ORCP 68 C procedures and issued a supplemental judgment
awarding fees, the trial court had “effectively corrected its own error”).
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 (2025)                             241

“[a] party seeking attorney fees or costs and disbursements
shall, not later than 14 days after entry of a judgment” file
and serve “a signed and detailed statement of the amount of
attorney fees or costs and disbursements that explains the
application of any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements”).
Then, the other side has 14 days to file objections, ORCP 68
C(4)(b); the party seeking fees has seven days to respond to
any objections, ORCP 68 C(4)(c); the trial court is to hold a
hearing if requested, ORCP 68 C(4)(e)(i); and the trial court
determines all issues of law and fact as needed to deny or
award attorney fees, ORCP 68 C(4)(e)(i) - (ii).
         Under ORCP 68 C(4)(a), plaintiffs had until 14 days
after entry of the general judgment to file a fee petition,
and it is reasonable to infer that they had the same amount
of time to file any supporting documentation. There is no
need to resort to inference, however, because ORCP 68 C(3)
expressly provides, “The items of attorney fees or costs and
disbursements shall be submitted in the manner provided
by subsection C(4) of this rule, without proof being offered
during the trial.” (Emphasis added.)
         We have explained that parties “are entitled, as a
matter of law, to follow the procedure set forth in ORCP 68
C(4).” Pointe West Apts v. Anderson, 

,

 (1997); see also O’Neal, 

 (noting that “[t]he process outlined in ORCP 68 C(4) for seeking
attorney fees is mandatory” and that it serves important
purposes, including providing a “structured” process for
parties to present their positions and evidence). Here, the
trial court failed to follow those procedures and instead prematurely denied attorney fees in the general judgment. See
Jordan v. Voss, 

, 

 (2021)
(reversing a general judgment denying attorney fees in an
FED action, “because tenants were entitled to have that
issue decided in accordance with the procedures specified
in ORCP 68”); Kirschenman, 

 (“The
court’s decision on attorney fees and costs was premature,
because it preceded the parties’ submission of attorney fee
and cost statements.”).
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         Accordingly, we reverse and remand for the trial
court to consider plaintiffs’ fee petition in accordance with
the procedures in ORCP 68 C. In doing so, we express no
opinion on plaintiffs’ entitlement to fees or the amount of
fees. The only issue before us is whether the trial court erred
in denying fees without following the procedures in ORCP
68 C, which, for the reasons explained, we conclude that it
did.
        Reversed and remanded.