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Rule 68 – Pleading, Allowance and Taxation of Attorney Fees and Costs and Disbursements

May 14, 2021 | Civil Procedure, Oregon

(A) Definitions. As used in this rule:

(1) Attorney fees. “Attorney fees” are the reasonable value of legal services related to the prosecution or defense of an action.
(2) Costs and disbursements. “Costs and disbursements” are reasonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services, and include the fees of officers and witnesses; the expense of publication of summonses or notices, and the postage where the same are served by mail; any fee charged by the Department of Transportation for providing address information concerning a party served with summons pursuant to Rule 7(D)(4)(a)(ii); the compensation of referees; the expense of copying of any public record, book, or document admitted into evidence at trial; recordation of any document where recordation is required to give notice of the creation, modification, or termination of an interest in real property; a reasonable sum paid a person for executing any bond, recognizance, undertaking, stipulation, or other obligation therein; and any other expense specifically allowed by agreement, by these rules, or by any other rule or statute. The court, acting in its sole discretion, may allow as costs reasonable expenses incurred by a party for interpreter services. The expense of taking depositions shall not be allowed, even though the depositions are used at trial, except as otherwise provided by rule or statute.
(B) Allowance of costs and disbursements. In any action, costs and disbursements shall be allowed to the prevailing party, unless these rules or any other rule or statute direct that in the particular case costs and disbursements shall not be allowed to the prevailing party or shall be allowed to some other party, or unless the court otherwise directs. If, under a special provision of these rules or any other rule or statute, a party has a right to recover costs, that party shall also have a right to recover disbursements.
(C) Award of and entry of judgment for attorney fees and costs and disbursements.

(1) Application of this section to award of attorney fees. Notwithstanding Rule 1(A) and the procedure provided in any rule or statute permitting recovery of attorney fees in a particular case, this section governs the pleading, proof, and award of attorney fees in all cases, regardless of the source of the right to recover such fees, except when:

(a) attorney fees are claimed as damages arising prior to the action;
(b) attorney fees are granted by order, rather than entered as part of a judgment, ; or
(c) a statute refers to this rule but provides for a procedure that varies from the procedure specified in this rule.
(2)

(a) Alleging right to attorney fees. 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. No attorney fees shall be awarded unless a right to recover fees is alleged as provided in this paragraph or in paragraph C(2)(b) of this rule.
(b) Alternatives. If a party does not file a pleading but instead files a motion or a response to a motion, a right to attorney fees shall be alleged in the party’s motion or response, in similar form to the allegations required in a pleading.
(c) Specific amount not required. A party shall not be required to allege a right to a specific amount of attorney fees. An allegation that a party is entitled to “reasonable attorney fees” is sufficient.
(d) Pleadings or motions responding to allegations of right to attorney fees. Any allegation of a right to attorney fees in a pleading, motion, or response shall be deemed denied and no responsive pleading shall be necessary. The opposing party may make a motion to strike the allegation or to make the allegation more definite and certain. Any objection to the form or specificity of the allegation of the facts, statute, or rule that provides a basis for the award of fees shall be waived if not alleged prior to trial or hearing.
(3) Proof. The items of attorney fees and costs or disbursements shall be submitted in the manner provided by subsection (C)(4) of this rule, without proof being offered during the trial.
(4) Procedure for seeking attorney fees or costs and disbursements. The procedure for seeking attorney fees or costs and disbursements shall be as specified in this subsection.

(a) Filing and serving statement of attorney fees and costs and disbursements.

A party seeking attorney fees or costs and disbursements shall, not later than 14 days after entry of a judgment.

(i) file with the court a signed and detailed statement of the amount of attorney fees or costs and disbursements that explains the application of any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements, together with proof of service, if any, in accordance with Rule 9(C); and
(ii) serve, in accordance with Rule 9(B), a copy of the statement on all parties who are not in default for failure to appear.
(b) Filing and serving objections. A party may object to a statement seeking attorney fees or costs and disbursements or any part thereof by a written objection to the statement. The objection and supporting documents, if any, shall be filed and served within 14 days after service on the objecting party of a copy of the statement. The objection shall be specific and may be founded in law or in fact and shall be deemed controverted without further pleading. The objecting party may present affidavits, declarations, and other evidence relevant to any factual issue, including any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements.
(c) Response to objections. The party seeking an award of attorney fees may file a response to an objection filed pursuant to paragraph C(4)(b) of this rule. The response and supporting documents, if any, shall be filed and served within 7 days after service of the objection. The response shall be specific and may address issues of law or fact. The party seeking attorney fees may present affidavits, declarations, and other evidence relevant to any factual issue, including any factors that ORS 20.075 or any other statute or rule requires or permits the court to consider in awarding or denying attorney fees or costs and disbursements.
(d) Amendments and enlargements of time.

(i) Amendments; supplements. Statements, objections, and responses may be amended or supplemented in accordance with Rule 23.
(ii) Discretion related to time of filing. The court may, in its discretion and upon any terms that may be just, allow a statement, an objection, or a response to be filed and served after the time specified in paragraph C(4)(a), C(4)(b), or C(4)(c) of this rule, or by an order enlarge such time.
(e) Hearing on objections. No hearing shall be held and the court may rule on the request for attorney fees based upon the statement, objection, response, and any accompanying affidavits or declarations unless a party has requested a hearing in the caption of the objection or response or unless the court sets a hearing on its own motion.

(i) How determined. If a hearing is requested the court, without a jury, shall hear and determine all issues of law and fact raised by the objection.
(ii) Court’s ruling. The court shall deny or award in whole or in part the amounts sought as attorney fees or costs and disbursements.
(f) No timely objections. If objections are not timely filed, the court may award attorney fees or costs and disbursements sought in the statement.
(g) Findings and conclusions. On the request of a party, the court shall make special findings of fact and state its conclusions of law on the record regarding the issues material to the award or denial of attorney fees. A party must make a request pursuant to this paragraph by including a request for findings and conclusions in the caption of the statement of attorney fees or costs and disbursements, objection, or response filed pursuant to paragraph (C)(4)(a), (C)(4)(b), or (C)(4)(c) of this rule. In the absence of a request under this paragraph, the court may make either general or special findings of fact and may state its conclusions of law regarding attorney fees.
(5) Judgment concerning attorney fees or costs and disbursements.

(a) As part of judgment. If all issues regarding attorney fees or costs and disbursements are decided before entry of a judgment, the court shall include any award or denial of attorney fees or costs and disbursements in that judgment.
(b) After entry of a judgment.

(i) After entry of a general or supplemental judgment. If any issue regarding attorney fees or costs and disbursements is not decided before entry of a general or supplemental judgment, any award or denial of attorney fees or costs and disbursements shall be made by supplemental judgment.
(ii) After entry of a limited judgment. Attorney fees or costs and disbursements may be awarded or denied following entry of a limited judgment if the court determines that there is no just reason for delay. In such cases, any award or denial of attorney fees or costs and disbursements shall be made by limited judgment.
(6) Avoidance of multiple collection of attorney fees and costs and disbursements.

(a) Separate judgments for separate claims. If more than one judgment is entered in an action, the court shall take any steps that are necessary to avoid the multiple taxation of the same attorney fees or costs and disbursements in those judgments.
(b) Separate judgments for the same claim. If more than one judgment is entered for the same claim (when separate actions are brought for the same claim against several parties who might have been joined as parties in the same action, or, when pursuant to Rule 67(B), separate limited judgments are entered against several parties for the same claim), attorney fees or costs and disbursements may be entered in each judgment as provided in this rule, but satisfaction of one judgment bars recovery of attorney fees or costs and disbursements included in all other judgments.
(7) Procedure for seeking attorney fees or costs and disbursements incurred in enforcing judgments.

(a) Frequency. If a party has alleged a basis for the award of attorney fees as provided in paragraph C(2)(a) or C(2)(b) of this rule, and the party incurs attorney fees or costs and disbursements in collecting or enforcing a judgment, that party may file a supplemental statement of attorney fees or costs and disbursements. A party may file a supplemental statement at any time after entry of the judgment being enforced; however, unless good cause is shown, not more than one supplemental statement may be filed and served under this paragraph in the first year after entry of that judgment, and only one such supplemental statement may be filed and served annually after the filing of the previous supplemental statement.
(b) Procedure. The procedure for seeking attorney fees or costs and disbursements in collecting or enforcing judgments shall otherwise be as specified in subparagraph C(4)(a)(i) through paragraph C(4)(g) of this rule.

Or. R. Civ. P. 68

CCP 12/13/80; amended by 1981 c.898 § 7; §C amended by 1983 c.728 § 6; §A(2) amended by CCP 12/8/84; §A amended by 1987 c.586 § 43; §C(2) amended by CCP 12/10/88 and 1/6/89; §C amended by CCP 12/15/90; §A amended by CCP 12/12/92; §C amended by 1993 c.18 § 4; §A amended by CCP 12/14/96; §A amended by 1997 c. 872 § 17; §C amended by CCP 12/12/98; §C amended by CCP 12/14/02, 2003 c. 194, § 13 and 2003 c.576 § 262; §C amended by 2005 c. 22, § 4 and 2005 c.568 § 31 a; amended by CCP 12/1/12