Filing of decision and award
- notice of appeal
- trial de novo
- attorney fees and costs
- effect of arbitration decision and award
Source:
Section 36.425 — Filing of decision and award; notice of appeal; trial de novo; attorney fees and costs; effect of arbitration decision and award, https://www.oregonlegislature.gov/bills_laws/ors/ors036.html.
Notes of Decisions
Although trial court has inherent authority to dismiss action for failure of plaintiff to prosecute diligently, authority does not exist to dismiss defendant’s appeal for inadequate participation by defendant at arbitration when this section mandates reversal and remand to trial court for de novo trial. Main Street Asset Corp. v. Cunningham, 98 Or App 346, 778 P2d 1003 (1989)
As used in this section, “de novo” contemplates independent decision by different decision maker, rather than simply factual review. Krause v. Andersen, 108 Or App 211, 814 P2d 178 (1991)
Arbitrator’s ruling on whether insurance policy was ambiguous was not binding on trial court after request for trial de novounder this section. Gage v. All Nations Ins. Co., 108 Or App 534, 816 P2d 682 (1991), aff’d 314 Or 700, 842 P2d 784 (1992)
Judgment entered on arbitration award has effect of final judgment and cannot be set aside for purpose of extending time for appeal. Old Republic Surety Co. v. McIlwain, 115 Or App 615, 839 P2d 743 (1992)
Default order in arbitration proceeding does not defeat party’s right to de novo trial. Treverton v. Arnold, 118 Or App 461, 847 P2d 914 (1993); Monroe v. Harmon, 158 Or App 196, 973 P2d 392 (1999), Sup Ct review denied
Although arbitration award was not appealable, refusal of court to set aside judgment based on arbitration award was appealable post-judgment order. Green Seasons Turf v. Shiva’s Restaurant Corp., 125 Or App 227, 864 P2d 1345 (1993)
Party prevailing upon trial de novo is not required to request attorney fees or cite statutory basis for fees. Markus v. Clark, 149 Or App 156, 941 P2d 1086 (1997)
Attorney fees on appeal are separate award from attorney fees awarded at trial level, but are limited in amount in same manner as trial-level attorney fees. Markus v. Clark, 150 Or App 331, 946 P2d 303 (1997)
Whether defendant improves position as result of judgment in trial de novo is determined by comparison of outcomes only for those trial claims that were part of arbitration submission. Friedman v. Christy, 158 Or App 189, 973 P2d 378 (1999)
Hearing requirement of ORCP 68C does not apply to exceptions taken to arbitrator award of attorney fees. Ashley v. Garrison, 162 Or App 585, 986 P2d 654 (1999)
Exception pertaining solely to attorney fees or costs has finality and appealability scheme that differs from finality and appealability scheme for notice of appeal and request for trial de novo on all issues. Deacon v. Gilbert, 164 Or App 724, 995 P2d 557 (2000)
Notice of appeal and request for trial de novo may be filed with clerk prior to filing of decision and award which is being appealed. Ray Klein, Inc. v. Preheim, 178 Or App 71, 35 P3d 1059 (2001)
Where arbitrator’s decision is affirmed by operation of law, appeal period commences on date decision is reduced to judgment. Mitchell v. City of St. Paul, 178 Or App 312, 36 P3d 513 (2001), Sup Ct review denied
Limitation on attorney fee amount applies to total of fees incurred at trial and on appeal. Williams v. Cabinet Masters, Inc., 335 Or 49, 57 P3d 145 (2002)
Failure of party filing written notice of appeal and request for trial de novo to pay trial fee or jury trial fee does not deprive court of jurisdiction to hear case. Cramblit v. Diamond B Constructors, 197 Or App 358, 105 P3d 906 (2005)
Oregon Rules of Civil Procedure apply to appeal procedure provisions of this section, but not to attorney fee provisions. Guess v. Lee, 198 Or App 304, 108 P3d 647 (2005), Sup Ct review denied
Period for party to file written notice of appeal and request for trial de novo does not commence until arbitrator’s decision has been both filed with clerk and served on parties. Guess v. Lee, 198 Or App 304, 108 P3d 647 (2005), Sup Ct review denied
Parties in dissolution proceeding may agree to forego right to request trial de novo in circuit court of arbitration award determining division of marital property. Woods and Woods, 207 Or App 452, 142 P3d 1072 (2006)
Party has “incurred” attorney fees only if party is liable for paying fees. Anderson v. Wheeler, 214 Or App 318, 164 P3d 1194 (2007)
For purposes of awarding attorney fees, where matter returns to trial court following arbitration, proceeding resumes as trial de novo whether matter ultimately resolves after full trial or at earlier stage such as summary judgment. Werbowski v. Red Shield Insurance Co., 221 Or App 271, 190 P3d 406 (2008)
Notice of appeal does not need to be served within 20 days of filing of arbitration award. Wilcox v. Umali, 241 Or App 124, 250 P3d 364 (2011), Sup Ct review denied
Subsection (2) of this section is alternative to subsection (6) of this section for purposes of challenging arbitration decision on attorney fees when challenge to fee decision is sole challenge; where plaintiff brought challenge to attorney fees decision and arbitrator’s decision regarding attorney fees within 20 days as required by subsection (2), plaintiff timely filed request for trial de novo. Lee v. American Family Mutual Insurance Co., 279 Or App 282, 379 P3d 698 (2016)
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