Motion — DeLong Corp. v. Oregon ex rel. State Highway Commission

a BILE COPY

ot

gy) Dees

In the Supreme Court

of the Ginited States

OCTOBER TERM, 1972

No. 72-1086

DeLONG CORPORATION, and THE TRAVELERS

INDEMNITY COMPANY,

Petitioners,

vs.

STATE OF OREGON, by and through its STATE

HIGHWAY COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Oregon

RESPONDENT’S MOTION FOR ALLOWANCE OF

ATTORNEY’S FEES AND SUPPORTING BRIEF

LEE JOHNSON

Attorney General of Oregon

JOHN W. OSBURN

Solicitor General

WALTER L, BARRIE

Assistant Attorney Genera!

and Counsel

LESLIE B. HAMPTON

Assistant Chief Trial Course!

State Office Building

Salem, Oregon 97316

Phone (503) 378-4402

Counsel for Respondent

eae

In the Supreme Court

of the United States

OCTOBER TERM, 1972

No. 72-1086

DeLONG CORPORATION, and THE TRAVELERS

INDEMNITY COMPANY,

Petitioners,

vs.

STATE OF OREGON, by and through its STATE

HIGHWAY COMMISSION,

Respondent.

RESPONDENT’S MOTION FOR ALLOWANCE

OF ATTORNEY FEES

Respondent respectfully moves the Court for an

Order awarding it a reasonable attorney’s fee, either

as cnsts or as damages, and directing the clerk to enter

the amount thereof in the body of the mandate, pur-

suant to Rule 57, par. 6, of the Rules of this Court.

Attacher hereto and incorporated herein by this

reference marked, respectively, Exhibits “A” and ~- ;

are the affidavits of Leslie B. Hampton and Bruce M.

Hall.

Respectfully submitted,

LEE JOHNSON

Attorney General of Oregor

JOHN W. OSBURN

Solicitor General

2

WALTER L, BARRIE

Assistant Attorney General

and Counsel

LESLIE B. HAMPTON

Assistant Chief Trial Counsel

By Leslie B. Hampton

Counsel of Record

State Office Building

Salem, Oregon 97310

Phone (503) 378-4402

3

BRIEF IN SUPPORT OF RESPONDENT’S MOTION

FOR ALLOWANCE OF ATTORNEY FEES

The substantive right to a reasonable attorney’s fee

1 this case, in addition to the usual taxable costs,

itially arises from ORS 743.114, which provides as

lows:

“743.114 Recovery of attorney fees in action on

policy. If settlement is not made within six months

from the date proof of loss is filed with an insurer

and an action is brought in any court of this state

upon any policy of insurance of any kind or nature,

and the plaintiff's recovery exceeds the amount of

any tender made by the defendant in such action, a

reasonable amount to be fixed by the court as at-

torney fees shall be taxed as part of the costs of the

action and any appeal thereon.

[Formerly 736.325; 1971 c. 123 § 1]”

Pursuant thereto, the trial court awarded plaintiff

tespondent here) reasonable attorney’s fees in the

ial court, as against Defendant, Travelers Indemnity

ompany (one of Co-Petitioners here), and such award

as affirmed on appeal to the Court of Appeals of the

ate of Oregon. Oregon State Highway Commission

DeLong Corporation, — Or. App. —, 495 P2d 1215,

31-1233, 94 Or. Adv. Sh. 983 (1972). An additional

vard was made for attorney’s fees in the State Ap-

late Court.

The proceedings in this Court on Petition for

rtiorari were, of course, in the same action commenced.

ied and appealed in the Oregon courts. Petitioners

ught review by this Court of the state court judg-~

ent, and pursuant to the intent of the statue, a furher

SR EP WT

4

allowance should be made herein, taxed as part of the

costs in this Court. The statute provides that attorney

fees, in a reasonable amount to be fixed by the court

- . Shall be taxed as part of the costs of the action

and any appeal thereon.” ORS 743.114, supra.

When ORS 743.114 is otherwise applicable, the right

to attorney fees as therein provided has been uniformly

enforced by the lower federal courts, :n actions com-

menced within the District of Oregon. Cornell, Howland,

Hayes & Merryfield, Inc. v. Contine.tal Casualty Co.,

465 F2d 22, 25 (9th Cir. 1972); New York Life Insur-

ance Company v. Lee, 232 F2d 811, 815 (9th Cir 1956);

Staff Jennings, Inc. v. Fireman’s Fund Insurance Com-

pany, 218 F. Supp. 112 (D.C. Or. 1962).

Although Rule 57, par. 1, refers to allowance of costs

in this Court in “cases of affirmance of any judgment”,

there would appear to be little doubt that there is

similar power upon denial of a Petition for Certiorari.

Rule 57, par. 1, provides that in cases of affirmance,

“costs shall be paid by appellant or petitioner unless

otherwise ordered by the court.” This clearly contem-

plates that costs should be taxed in proceedings on

certiorari as well as in direct appeals.

Rule 56, par. 4, also provides that where it appears

that a petition for certiorari has been filed although

there is no ground for granting such a writ, the court

may in appropriate cases adjudge to the respondent rea-

sonable damages for the delay. Or, under par. 2 of the

same Rule, damages not exceeding 10 percent may be

awarded where an appeal delays proceedings on the

5

judgment below and appears to have been sued out

merely for delay. Either or both of these provisions

might also be deemed applicable here.

As to the enabling statute, 28 USC § 1912, it was

decided long ago that the authority of this Court to

award damages for delay pursuant to Court Rule,” under

the predecessor to 28 USC § 1912, existed when a writ

of error was dismissed for frivolity, as well as when the

judgment below was affirmed — such ground; the

statute in its then form (Rev. Stat. § 1010) authorized

damages for delay in cases “where, upon a writ of

error, judgment is affirmed in the Supreme Court

” Deming v. Carlisle Packing Co., 226 U.S. 102,

33 S. Ct. 80, 57 L. Ed. 140 (1912).

It is also pertinent to observe that where a direct

appeal is improvidently taken to this Court, it may be

treated as a petition for certiorari, and where in such a

case no reasonable ground for certiorari is apparent, this

Court may adjudge to the respondent reasonable dam-

ages for the delay, and single or double costs. 28 USC

» 2103. Certainly if what should have been a petition

for certiorari is through improvidence presented as a

direct appeal, and damages and costs may be awarded

respondent in such case, a like award is also proper

where the proceeding was initially presented as a peti-

tion for certiorari.

Thus, it is clear that under state law, respondent

is entitled to a reasonable attorney's fee from Travelers

in this case, as a part of its costs, not only in the trial

© Similar to present Rule 56.

Ziad AN Sia SL

6

court, but in subsequent appellate proceedings. The

lower federal courts have allowed recovery of such a

fee in cases to which the statute otherwise applies,

even though the action was initiated in the federal court

system. This Court has ample authority under its rules

and 28 USC § 1912 to allow recovery of such a fee in

this case, either as “costs” or as damages.®

It is obvious from the length and nature of the Peti-

tion herein, and of Respondent’s Brief in Opposition

thereto, that respondent was indeed delayed in proceed-

ing to enforce its judgment and that it has incurred

substantial actual costs, including attorney fees, as a

result of the ill-founded proceeding in this Court.

Under these circumstances, we submit that it is not

only permissible, but altogether reasonable, fair and just

that respondent be allowed a reasonable attorney’s fee

in this Court.

As to the amount, respondent has submitted with its

Motion the Affidavit of Bruce M. Hall, a qualified and

experienced attorney and a member of the bar of this

Court, expressing the expert opinion that a reasonable

attorney’s fee to respondent for the proceedings in this

Court would be $22,500 to $25,000.

If this be deemed an appropriate case for imposition

of delay damages under Rule 56, such rule allows an

award up to 10 percent, in addition to interest, of the

amount of the judgment. The principal amount of the

judgment in this case, exclusive of interest, attorney’s

fees and costs, is $2,671,864.19®°. Ten percent of that sum

®If an award is deemed appropriate as costs authorized under

ORS 743.114, it appears that it would properly be as against Travelers

Indemnity Company only; if the Court deems such an award ap-

propriate as damages it would apparently be entered as against both

petitioners.

® See opinion below, 495 P2d 1215, 1219.

7

is $267,186.42. While respondent does not contend that

an award of 10 percent damages would necessarily be

appropriate in this case, this nevertheless indicates that

Mr. Hall’s opinion as to a reasonable attorney’s fee is

not disproportionate.

If this case had originated in the Federal District

Court for Oregon it would be appropriate to file this

motion in that court. Perkins v. Standard Oil Company

of California, 399 U.S. 222. We are assuming that in a

case originating in the Oregon state courts the motion

should be filed in this Court.

Respondent respectfully urges that this Court exer-

cise its authority to award $22,500 to $25,000, or such

other amount as it deems reasonable as and for respond-

ent’s attorney fees in this matter, and direct that such

award be entered in the mandate, pursuant to Rule 57,

par. 6.

Respectfully submitted,

LEE JOHNSON

Attorney General of Oregon

JOHN W. OSBURN

Solicitor General

WALTER L. BARRIE

Assistant Attorney General

and Counsel

LESLIE B. HAMPTON

Assistant Chief Trial Counsel

By __ Leslie B. Hampton

Counsel of Record

State Office Building

Salem, Oregon 97310

Phone (503) 378-4402

eo |

8

Exhibit “A”—Affidavit

In the Supreme Court

of the United States

No. 72-1086

DeLONG CORPORATION, and THE TRAVELERS

INDEMNITY COMPANY,

Petitioners,

vs.

STATE OF OREGON, by and through its STATE

HIGHWAY COMMISSION,

Respondent.

STATE OF OREGON )

) ss. AFFIDAVIT

County of Marion )

I, Leslie B. Hampton, being first duly sworn depose

and say that:

I am an Assistant Attorney General, and counsel

for Respondent in the above-captioned cause. That I

have been associated with the preparation and trial of

this case since approximately June, 1967. I participated

in all phases of the deposition and discovery proceedings

and was in daily attendance during the lengthy trial

and supplemental procedings in the State trial court.

I was directly involved with the appeal of this case

in the State appellate courts and had a substantial part

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9

in the planning of the State’s defense to the appeal and

the planning and review of the State’s Briefs in said

State Appellate courts.

I have been directly responsible for Respondent’s

defense to Petitioner’s Petition for Writ of Certiorari in

this case.

The Highway Commission retained attorney A. H.

Johansen to assist me in Respondent’s defense. Mr.

Johansen is a former Assistant Attorney General and

participated in all phases of the preparation and trial of

this cause in the State trial courts and in the State

appellate courts. He was primarily responsible for writ-

ing the Respondent’s Brief in the Court of Appeals of

the State of Oregon, which Brief is part of the desig-

nated record herein. Mr. Johansen resigned from the

Attorney General’s staff on October 31, 1970. There-

after, he was retained to assist in the completion of the

state appellate court proceedings.

As an Assistane Attorney General, I keep time records

recording the time devoted to individual assignments.

I devoted 161 hours of my time exclusively to this pro-

ceeding. Mr. Johansen devoted 71 hours of his time

exclusively to this proceeding. All but 10 hours of his

time has been billed to the Highway Division. The

balance will be billed at the end of this month. Mr.

Johansen and I have been admitted to practice approxi-

mately 15 years and 20 years respectively. Both of us

have had substantial experience in the trial courts and

the appellate courts of Oregon. In my opinion the total

Phe Boecese |

10

time devoted to this proceeding was reasonable and

necessary.

DATED on the 25th day of May, 1973.

LESLIE B. HAMPTON

Assistant Chief Trial Counsel

Subscribed and sworn to before me this 25th day

of May, 1973.

JUDY A. LeFORCE

Notary Public for Oregon

My Commission Expires: 1-28-77

SEAL

11

Exhibit “B”—Affidavit

In the Supreme Court

of the United States

No. 72-1086

DeLONG CORPORATION, and THE TRAVELERS

INDEMNITY COMPANY,

Petitioners,

Vs.

STATE OF OREGON, by and through its STATE

HIGHWAY COMMISSION,

Respondent.

STATE OF OREGON )

ss. AFFIDAVIT

County of Multnomah )

I, Bruce M. Hall, being first duly sworn, depose and

say:

That I am a practicing attorney in the city of Port-

land, Oregon. That my firm is Hall and Novak, 400

Jackson Tower, Portland, Oregon. My practice includes

matters in the Federal Courts, including the District

Court for Oregon, the Court of Appeals, Ninth Circuit

and the United States Supreme Court.

I am generally familiar with the pleadings and issues

in the State court trial of this proceeding. I testified for

<tenstnutaisaiiaiieal

al a IE i TLE EE

12

the Highway Commission at the hearing to set a rea-

sonable attorney fee in the trial court.

I have examined the Briefs filed by the Petitioners

and the Respondent, State of Oregon, in this proceed-

ing. I have been advised by counsel for Respondent that

232 hours of attorney time have been devoted to this

proceeding.

Considering the novelty, magnitude and complexities

of the litigation, the time and labor involved, the ability

and standing of the attorneys performing the services

and the ability and standing of opposing counsel, the

customary charges of the bar for similar services, the

amount involved and the results obtained for the client,

it is my opinion that an attorney fee ranging from

$22,500 to $25,000 would be a reasonable sum to be

awarded Respondent herein.

DATED this 24th day of May, 1973.

BRUCE M. HALL

Attorney at Law

Subscribed and sworn to before me this 24th day

of May, 1973.

STEPHANIE SLATER

Notary Public for Oregon

My Commission Expires: 1/24/75

SEAL