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Beers v. Jeson Enterprises3/1/2000
En Banc
Appeal from Circuit Court, Multnomah County.
Kristina A. LaMar, Judge.
Argued and submitted November 5, 1998; resubmitted en banc July 7, 1999.
Reversed and remanded for further proceedings.
Edmonds, J., concurring.
Wollheim, J. concurring in part; dissenting in part.
Warden, S. J., dissenting.
Plaintiff appeals a circuit court judgment affirming an arbitrator's determination that she is not entitled to attorney fees under ORS 20.080. We review for errors of law. Koster Remodeling & Construction, Inc. v. Jataka, 155 Or App 142, 145, 963 P2d 726 (1998) (entitlement to attorneys fees is a legal question). We conclude that plaintiff was entitled to attorney fees on one of the two claims on which she sought fees. We therefore reverse and remand for a determination of reasonable fees to be awarded to plaintiff.
This case arises out of an incident in which plaintiff, while patronizing defendants' store, was detained by defendants' employees and then arrested by police for suspected shoplifting. Plaintiff later was prosecuted for theft and was acquitted. After the acquittal, plaintiff's attorney wrote defendants a letter demanding $4,000 to settle plaintiff's claim for damages allegedly caused by defendants' actions. Plaintiff prepared a single letter, identical in its substance, and sent it first to the store owner and then, about two weeks later, to the store's manager. The letter stated:
"Dear [Store Manager][Store Owner],
"This office represents Ms. Helen Beers in conjunction with an incident that occurred at your store located at 1355 NW 185th Avenue, Hillsboro, Oregon on February 23, 1995.
"On that date Mrs. Beers was detained, and subsequently falsely arrested and imprisoned, at the instance of your employees or agents. Despite a reasonable explanation following the original detention Mrs. Beers was questioned, intimidated, humiliated and imprisoned and her liberty restrained for no just cause. As a result she suffered humiliation, embarrassment, was required to obtain counsel to defend herself and was required to appear in court and endure a trial. As a result of all of the above demand is hereby made against Craft Warehouse for compensation in the sum of $4,000. If payment is not received forthwith Mrs. Beers will file a lawsuit against your company seeking such damages, plus her attorney's fees and costs incurred in prosecuting such action.
"Please contact me immediately in response to this demand. I am enclosing an extra copy of this letter to be provided to your insurance representative, if coverage for this type of incident is available." (Emphasis added.)
The letter then concluded with plaintiff's attorney's signature.
Defendants declined to settle. Plaintiff then filed two separate actions, one alleging false imprisonment and the other alleging malicious prosecution, each seeking damages of $4,000. Although the two actions began as separate proceedings, eventually they were consolidated and were submitted to mandatory arbitration. See ORS 36.405. The arbitrator awarded plaintiff $4,000 on each claim. Plaintiff sought attorney fees under ORS 20.080.
In a written order denying the fee request, the arbitrator first indicated that he agreed with defendants' view of plaintiff's demand letter. Defendants had asserted that the letter, although sent to both the store manager and the store owner, was only a "single, pre-suit demand for payment of damages in the amount of $4,000" and it therefore did "not satisfy the requirements of ORS 20.080 for the two lawsuits subsequently file
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