Makarios-Oregon, LLC v. Ross Dress-for-Less, Inc

For a party to succeed “on a fee-generating claim that shares common issues with other claims or unsuccessful efforts, time spent working on those matters is recoverable if it ‘was reasonably incurred to achieve the success that the [party] eventually enjoyed in the litigations[.]’” Fadel v. El-Tobgy, 245 Or App 696, 709-10, 264 P3d 150 (2011).

Plaintiff appealed the trial court’s dismissal of its forcible entry and detainer (FED) action against Defendant. Plaintiff asserted six assignments of error including its ruling in favor of Defendant’s affirmative defense of laches and waiver, and the court’s award of attorney fees to Defendant. Plaintiff argued that the trial court abused its discretion awarding court fees that were excessive and without issuing supporting findings or conclusions. “Where a party succeeds on a fee-generating claim that shares common issues with other claims or unsuccessful efforts, time spent working on those matters is recoverable if it ‘was reasonably incurred to achieve the success that the [party] eventually enjoyed in the litigations[.]’” Fadel v. El-Tobgy, 245 Or App 696, 709-10, 264 P3d 150 (2011). The Court held that Plaintiff had failed to preserve its challenge of Defendant’s equitable defense of laches regarding the FED action. However, the Court held that because the trial court never determined the relationship between Defendant’s motion to dismiss and the balance of its case, the trial court abused its discretion in awarding the attorney fees ordered in its first supplemental judgement. As a result, the trial court is required to vacate the second supplemental judgment awarding attorney fees and costs in connection with the first supplemental judgment. First and second supplemental judgments vacated and remanded; otherwise affirmed.