Mayes v. Ramos

A party may recover fees associated with litigating an attorney fee award, unless “the legislature intended to depart from that accepted practice.” Trimet v. Aizawa, 362 Or 1, 14 (2017); see ORCP 68 (denoting procedure for recovering supplemental attorney fees).

Mayes was awarded partial attorney fees by an arbitrator. In subsequent litigation of that award, although awarded the full amount requested, Mayes was denied attorney fees involved with litigating the fee award due to satisfaction of the general judgement, claim preclusion principles, excess and frivolity. Mayes appealed the supplemental judgment and assigned error to the trial court’s denial of her “fee-on-fee” request. See Trimet v. Aizawa, 362 Or 1, 3 (2017) (describing fees-on-fees). A party may recover fees associated with litigating an attorney fee award, unless “the legislature intended to depart from that accepted practice.” Id. at 14; see ORCP 68 (denoting procedure for recovering supplemental attorney fees). Although ORS 36.425(6) provides limits on a trial court’s review of an arbitrator’s award, it does not act as a limit on a court’s separate award of fees-on-fees. See Ashley v. Garrison, 162 Or App 585, 591 (1999). Although the proceeding involved the same parties, claim preclusion did not apply because the issue of fees-on-fees was raised in the same action, and it was not relitigation of an issue under the general judgment, as Mayes appealed fees denied for work performed after the general judgment was entered. See Aguirre v. Albertson’s, 201 Or App 31, 47 (2005). Bare references by the trial court to excess and frivolity did not provide adequate bases for review. McCarthy v. Oregon Freeze Dry, Inc., 327 Or 185, 190-91 (1998). Supplemental judgment reversed and remanded.