Wedemeyer v. Nike Ihm, Inc.

ORCP 68 C(2)(a) provides: “A party seeking attorney fees shall allege the facts, statute, or rule that provides a basis for the award of fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover fees accrues."

Plaintiff raised an assignment of error regarding the trial court’s order awarding defendant attorney fees despite defendant’s failure to plead an entitlement to the attorney’s fees. Plaintiff argued that the defendant’s pleading failure deprived the trial court of any authority to award fees and the timing of the plaintiff’s objection cannot itself grant that authority. Defendant argued that plaintiff’s lateness of raising the objection enders the argument either unpreserved or waived. ORCP 68 C(2)(a) provides: “A party seeking attorney fees shall allege the facts, statute, or rule that provides a basis for the award of fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover fees accrues.” The Court ruled that the trial court did not err when it denied the defendant’s request to amend its answer. While a court can decide a properly pleaded request for fees during an ongoing appeal, it cannot modify the pleadings to allege the right to those fees in the first place. Supplemental judgment awarding defendant attorney fees reversed and remanded; otherwise affirmed.