State Ex Rel. Adult & Family Services Division v. Fulop

695 P.2d 979, 72 Or. App. 424

• Court: Court of Appeals of Oregon
• Decided: February 27, 1985
• Docket: D8204-68360, D8301-60009 CA A31740 (Control), CA A32166
• Status: Published

Opinions

PER CURIAM

In these paternity cases, Adult and Family Services appeals the allowance of attorney fees to respondents. We reverse. Parkhurst v. Faessler, 62 Or App 539, 661 P2d 571 (1983); Diamond Claims & Inves., Inc. v. Grensky, 68 Or App 446, 681 P2d 802 (1984). The dissent acknowledges that respondents failed to comply with the specific requirement of ORCP 68C(2) but argues that we should disregard that failure, because there was no prejudice. The relevant language of ORCP 68C(2) provides:

“A party seeking attorney fees shall assert the right to recover such fees by alleging the facts, statute, or rule which provides a basis for the award of such fees in a pleading filed by that party. * * * No attorney fees shall be awarded unless a right to recover such fee is asserted as provided in this subsection.” (Emphasis supplied.)

ORS 174.020 provides:

“In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.” (Emphasis supplied.)

The particular language of ORCP 68C(2) forecloses respondents’ argument, adopted by the dissent, that we may look to the general provisions of ORCP 12B and disregard their failure to comply with the specific requirements applicable to a claim for attorney fees because of the lack of prejudice.

Reversed.