Joseph Bova v. City of Medford

2 Plaintiff is a retired employee of defendant, the City of Medford. Both

3 parties petition this court for reconsideration of its opinion in Bova v. City of Medford,

4 263 Or App 179, 326 P3d 1256 (2014) (Bova II). In that opinion, we summarized the

5 procedural posture and the parties' positions as follows:

6 "The underlying dispute is over the city's refusal to make available

7 to retired employees the same health care insurance that was available to

8 them before retirement. The trial court ruled in favor of plaintiff on his

9 claim that the city violated a statute requiring local governments to provide

10 the health care opportunities to retirees, ORS 243.303(2); on his claim that

11 the city violated ORS 659A.030(1)(b) by discriminating against him on the

12 basis of his age; and on his claim that the city was in contempt of court for

13 failing to comply with the court's order to provide the requested health care

14 opportunities. In Bova v. City of Medford, 262 Or App 29, 324 P3d 492

15 (2014) (Bova I), we affirmed the trial court's ruling holding the city in

16 contempt, we reversed and remanded the trial court's ruling on the claim

17 under ORS 243.303(2), and we reversed the trial court's judgment in favor

18 of plaintiff on his claim under ORS 659A.030(1)(b). In this appeal, filed as

19 a separate matter, the city challenges the trial court's rulings that awarded

20 plaintiff costs and attorney fees with respect to the contempt and age

21 discrimination claims."

22 Bova II, 263 Or App at 180.

23 Because this court, in Bova I, had reversed the trial court's decision in favor

24 of plaintiff on his age discrimination claim, we held that plaintiff was consequently not

25 entitled to attorney fees ($68,771.25) on that claim. Bova II, 263 Or App at 182. We

26 also held that, because plaintiff had prevailed in Bova I on his contempt claim, he was

27 entitled to the attorney fees associated with that claim ($48,609.96). We stated, "Because

28 we affirmed the trial court with respect to the contempt matter in Bova I, we have no

29 reason to reverse the associated award of costs and fees, nor does the city so argue. We

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1 therefore affirm the trial court's award of fees on that matter." Finally, we rejected

2 plaintiff's cross-assignment of error in which he argued that he was entitled to all of his

3 attorney fees on all of his claims under the equitable doctrines of "common fund" or

4 "substantial benefit."

5 We predicted in Bova II that it was "the latest battle--but probably not the

6 last--in an ongoing war between the City of Medford and its retired employees * * *." Id.

7 at 180. This case (Bova III) validates our premonition. The city argues that we should

8 have reversed the trial court's award of attorney fees to plaintiff for prevailing on the

9 contempt claim. Plaintiff argues that we should have awarded him fees for all of his

10 work on the case under the "substantial benefit" doctrine. We reject both of those

11 arguments for the reasons that follow.

12 We begin with the city's petition. It asserts that we made a factual error in

13 stating that the city did not contest plaintiff's award of costs and fees for the contempt

14 claim; according to the city, it advanced that contention in a supplemental brief when it

15 stated that the award of costs and fees relative to the age discrimination claim had to be

16 reversed because the claim itself was reversed in the general judgment underlying this

17 case and Bova I, and,

18 "'[a]s to the other costs, disbursements, and attorney fees at issue in the case

19 at bar [including, presumably, the costs and fees associated with the

20 contempt claim], those costs, disbursements, and attorney fees were

21 awarded in a supplemental limited judgment that arose from limited

22 judgments; and therefore, the supplemental judgment is invalid, and the

23 costs, disbursements, and attorney fees are not collectable. As held in

24 [Bova I,] "[w]e have held that a supplemental judgment arising from a

25 limited judgment that is entered before the general judgment is not valid

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1 and thus not appealable."' Thus, the city did argue that the fees associated

2 with the contempt should not be affirmed."

3 (Emphasis and bracketed material added.) There are two problems with the city's

4 argument. First, it appears to assert that, if a supplemental judgment arising from a

5 limited judgment is entered before the general judgment, that supplemental judgment is

6 invalid. Therefore, the city continues, since the supplemental judgment for fees and costs

7 was entered before the general judgment, it was invalid and the fees and costs are "not

8 collectible," so we should negate them. That is not what Bova I held; rather, it held that,

9 if there is an invalid supplemental judgment awarding fees, the appeal from that invalid

10 supplemental judgment must be dismissed:

11 "The city presses two additional assignments of error related to the

12 ORS 243.303(2) claim: that the trial court erred in finding it in contempt of

13 the trial court's orders to comply with ORS 243.303(2), and that the trial

14 court erred in awarding attorney fees and costs on that claim. We reject the

15 city's assignment of error related to the contempt judgment without

16 published discussion. As to the supplemental judgment for attorney fees

17 and costs on the ORS 243.303(2) claim, that judgment arose from the

18 limited judgment on the ORS 243.303(2) claim, and it was entered before

19 the general judgment. We have held that a supplemental judgment arising

20 from a limited judgment that is entered before the general judgment is not

21 valid and thus not appealable. Accordingly, we dismiss the appeal from the

22 supplemental judgment."

23 Bova I, 262 Or App at 49 (emphasis added; internal citations omitted). Bova I did not

24 countenance the city's appeal from an invalid supplemental judgment as a collateral

25 attack on the supplemental judgment itself; it held that the city's appeal from that invalid

26 judgment had to be dismissed. Applying that precept to this case would result, not in the

27 eradication of the supplemental judgment (i.e., making it "not collectible"); rather, it

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1 would result in dismissing the city's appeal of that judgment.

2 Second, nowhere in its opening or supplemental briefs does the city

3 demonstrate that, in the underlying trial, it preserved its claim of error by objecting to the

4 award of attorney fees to plaintiff on the ground that the supplemental judgment was

5 invalid. We doubt that the city made that objection and, in any event, we will not comb

6 through the voluminous record looking for it. In sum, we reject the city's argument that

7 we erred in Bova II by affirming the award of attorney fees to plaintiff on his contempt

8 claim.

9 Plaintiff, for his part, argues that we erred in rejecting his contention that he

10 is entitled to attorney fees under the "substantial benefit" doctrine. He correctly notes

11 that we concluded that "the 'substantial benefit' doctrine is inapplicable because plaintiff

12 did not vindicate an important constitutional right applying to all citizens without gain to

13 himself." Bova II, 263 Or App at 182 (emphasis in original; citation omitted). According

14 to plaintiff, we neglected to deal with a line of cases beginning with Gilbert v. Hoisting &

15 Port. Engrs, 237 Or 130, 390 P2d 320 (1964), and including more recently Crandon

16 Capital Partners v. Shelk, 342 Or 555, 157 P3d 176 (2007). That line of cases, he

17 asserts, establishes that a plaintiff can be entitled to attorney fees even if he or she does

18 not vindicate a constitutional right. Rather, the entitlement occurs if a plaintiff brings an

19 action for the benefit of an entire organization or if there are other circumstances in

20 which equitable relief would in effect be denied or severely inhibited unless the plaintiff

21 who prevails in the suit is awarded attorney fees. Gilbert, 237 Or at 141. "Under

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Gilbert," 1 plaintiff maintains, "fees may be awarded when one party files litigation which

2 confers a substantial benefit on others," even if that substantial benefit is not the

3 vindication of a constitutional right.

4 Plaintiff correctly characterizes the so-called Gilbert-Crandon line of cases.

5 He also correctly notes that a party may be entitled to attorney fees under one or another

6 equitable (as opposed to statutory) circumstance: when a party has vindicated an

7 important constitutional right applying to all citizens without any gain to himself,

8 Pendleton School Dist. v. State of Oregon, 347 Or 28, 33-34, 217 P3d 175, adh'd to as

9 modified on recons, 347 Or 344, 220 P3d 744 (2009); when a party has "creat[ed],

10 discover[ed], increase[d], or preserve[d] a fund of money to which others also have a

11 claim," Strunk v. PERB, 341 Or 175, 181, 139 P3d 956 (2006); and, as plaintiff contends,

12 when a party's action confers a substantial benefit on others, even if that benefit is neither

13 constitutional nor financial.

14 As we held in Bova II, plaintiff did not vindicate a constitutional right, nor

15 did he create, discover, increase, or preserve a financial benefit for others. After Bova I,

16 where the only claim on which plaintiff prevailed was for contempt, we conclude that he

17 has not provided others with any substantial benefit. We therefore adhere to our prior

decision.1 18

19 Petitions for reconsideration allowed; former opinion adhered to.

1 In Bova I, we remanded plaintiff's claim based on ORS 243.303(2). If plaintiff

prevails on remand, he can petition for attorney fees based on that claim and can, in that

eventuality, once again argue the substantial benefit theory.

Affirmed