Hammer v. Hammer

Full title: John P. Hammer, Plaintiff–Appellant Cross–Respondent, v. Paul Hammer…

Court: Court of Appeals of Oregon.

Date published: Aug 3, 2016

380 P.3d 1196 (Or. Ct. App. 2016)

380 P.3d 1196

Opinion

A158067

08-03-2016

John P. Hammer, Plaintiff–Appellant Cross–Respondent, v. Paul Hammer, Trustee of Hammer Revocable Trust; Paul Hammer, Trustee of Wyman Hammer Trust; and Paul Hammer, Individually, Defendants–Respondents Cross–Appellants, and Sara Hammer, Individually, Defendant.

John C. Fisher, Dallas, argued the cause and filed the briefs for appellant-cross-respondent. George W. Kelly, Eugene, argued the cause and filed the brief for respondent-cross-appellant.

PER CURIAM.

John C. Fisher, Dallas, argued the cause and filed the briefs for appellant-cross-respondent.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent-cross-appellant.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

PER CURIAMIn this dispute over trustee fees, plaintiff appeals a general judgment that dismissed his petition for supplemental relief under ORS 28.080. We reject plaintiff's assignment of error without written discussion and write only to address defendant's cross-appeal, in which defendant assigns error to the trial court's award of attorney fees. The court awarded defendant attorney fees for services related to the supplemental-relief proceeding and not for services related to the underlying action for declaratory relief, which were requested by defendant because, in his view, he was the ultimate prevailing party in the matter. Defendant points out that the court incorrectly stated when defendant's motions to disqualify a judge and for reconsideration were made. According to defendant, the court erred because the factual error served as the basis for its decision to not award fees for the part of the proceeding related to the declaratory relief action. We agree with defendant. Because the court based the attorney fee award on a “materially erroneous factual premise,” Grisby v. Progressive Preferred Ins. Co. , 233 Or.App. 210, 221, 225 P.3d 101 (2010), we vacate the attorney fee award and remand for reconsideration. Id . at 221–22, 225 P.3d 101.

On appeal, affirmed; on cross-appeal, attorney fee award vacated and remanded; otherwise affirmed.