Perry v. Hernandez

As a general matter, when a party prevails on a claim for which attorney fees are authorized and a claim for which they are not, the trial court must apportion the fees incurred for each claim; however, there is an exception to that rule when the claims involve common issues: that exception is based on the premise that attorney fees should not be subject to apportionment when the party entitled to fees would have incurred roughly the same amount of fees, irrespective of the additional claim or claims.

Tenant prevailed on a claim under the Residential Landlord and Tenant Act (RLTA), ORS 90.100-ORS 90.875, and sought an award of attorney fees. ORS 90.255. The trial court denied attorney fees on the ground that Tenant's counsel had not sufficiently apportioned his fees between Tenant's fee-bearing claim and those claims for which attorney fees were not authorized. Before trial, the Landlord made an offer of judgment, which Tenant accepted. The offer of judgment expressly included an award of "attorney[ ] fees and costs of suit." Thereafter, Tenant submitted a fee petition attaching exhibits detailing all legal services rendered. The Landlord objected to Tenant's fee petition on the grounds that legal services had not been segregated between the RLTA claim and Tenant's common-law claims. In response, Tenant argued that apportionment was unnecessary because all claims arose out of the same common issues. Landlords' offer of judgment was "given pursuant to ORCP 54 E" and included "[Tenant's] attorney[ ] fees and costs of suit." Because the offer of judgment did not include a specified amount of attorney fees, Tenant's attorney fees needed to be determined by the trial court "as provided in Rule 68." Because Tenant would have incurred "roughly" the same fees to prove the RLTA claim irrespective of the common-law claims, segregation of fees was not necessary, and the trial court erred in concluding otherwise. Reversed and remanded.