good morning and may it please the court i'm dan lindahl the period for the appellant metropolitan property and casualty insurance company metropolitan challenge is the district court's order applying a two point zero multiplier to the lodestar amount of attorney fees resulting in an enhancement of fees of approximately five hundred two thousand dollars and a total feel ward of approximately one point one million dollars in this case in which the plaintiff recovered one hundred ninety eight thousand dollars in damages have considerably more right but there was a large offset because the insurance company paid part of the loss already right well right yes there had been there have been nearly a million dollars in payments from the insurance company of which i think about three hundred forty seven thousand dollars pertain to damage to the dwelling itself and then there were other payments yes that's that's correct so here's the way i look at this and i went like your help if i could get it please i've got the way breaks on there for four components to this number and there's the numbers are a little wobbly so needle help sure so first there's a mount from january fourth two thousand and twelve the date the plaintiff retain lawyers through february third which is the day before defense counsel showed up and the judge drew a line in the sand there that's the first part the second part is the amount of fees incurred from the day which the defense lawyer showed up until the verdict right there and that was doubled correct right then there's the amount the third component is the amount incurred to basically for plane is fee bill correct and then there's the reply brief correct right ok that there's a there's a problem i think in the first two components your brief says that the correct amount for the first category must be seventy six thousand and five for two sorry four five two point five  metropolitan understands and agrees oh sorry that's their brief do you agree on that first component i don't know where the number comes from but you seem to both agree if you both agree i'm happy i believe we both agree it took some time to figure out exactly to the penny what the numbers were i believe there's an error the district court's opinion in the context of this case it's infinitesimal replace i'm just going to ask you both of you both agree on that for his component because i can't figure out where it came  forty two dollars in other words i think there's just somebody type road and transposed two numbers but if i correct all of those things then i get to one million eighty one thousand three hundred seventy dollars and fifty what i also i struggled with the numbers the way i put it in my brief is how i finally ascertained it i think there is as you say there's a trance position in the district court's enough on that but but but but breaking it down those fat four categories might be helpful because for me the most problematic category is the third and for my part i'd like to hear about that the third and that has to do with the multiplier as to the first part of  obviously it's after trial none of the conduct that the trial judge identified as warranted in this sanction and that's what we think it is pertained to any of the work that they had to put in preparing their fee bill  and yet he just doubled and i don't it's untethered to any conduct that even if any of that conduct justified doubling it and you know under oregon law there is this this rational nexus requirement that we talk about it you know repeatedly that where the amount of the enhancement must be related to the predicate acts but why isn't it why isn't it baked in if the judge found and the judge has a lengthy order here document why the judge thought that the conduct was unreasonable and repetitions and used a lot of adjectives and a lot of examples so setting that aside right then why isn't it baked in to the to the to the you know inappropriate conduct led to extra work for in the lodestar it's baked into low starch they got paid every hour and every minute at the rates they requested and that in the trial judge doesn't pretend otherwise he doesn't say otherwise sixty seven thousand dollars sixty seven to prepare the feed petition and then another twenty twenty one thousand or something for the ribbon and we talking about realistically sixty thousand seventy thousand eighty thousand dollars and you can read about  it's around it's around eighty thousand dollars but wait a minute i'm going to forgive me but on the third component which is what i'm talking about to generate the fee bill i think it's forty one thousand and that was doubled well that's a forty forty one thousand dollar difference and then on the on the reply brief that's another twenty six thousand and if so we're here about roughly thirty thousand dollars on that and he's on c d s on that piece but you're also talking about the multiplier as well that's yes that's the focus of the appeal is the district court's unprecedented application of a multiplier to as a punitive sanction not would talk about seventy thousand out of the total of the five hundred thousand or whatever that was double of something like i just want to get a perspective church or counsel just so i understand your argument do you take issue as a matter of principle with the authority of the district court to apply a multiplier generally know ok so in this case your argument is that if i understand you correctly that the district court did what the judge did and it explains why the judge is unable to articulate a rational basis for why a five hundred two thousand dollar enhancement was was is reasonable because of course the touchstone first of all the judge relied on the very same factors that he used to get to the load star fee to then say i'm going to add another five hundred two thousand and he didn't explain even though it's required by oregon precedent where does the five hundred two thousand come from other than just saying i'm going to double it how did the five hundred how is five hundred two thousand dollars rationally related to any reasonable fee necessitated by any conduct judge did write a fifty six page opinion and that's very unusual in dealing with these fees situations we don't want to encourage collateral litigation when it comes to feel wards but i'm struck quite frankly here with the comment that the judge made when he sent a note that metropolitan has reconsideration sometimes more than once a virtually every procedural discovery and substantively for the court that the really should you know really impose upon the exercise of the district wants this question who has sat through this mess from day one do you think that we should really do that of course i do because you mentioned the extraordinary fifty six page opinion it's also extraordinary in fact there is nothing like this where a trial court has awarded five hundred thousand dollars in an enhancement based on if i understand the law correctly if you're not successful in this appeal your adversary can also get fees paid for the time it took for him to handle this appeal correct i believe as it was that could be a decision that the district court judge would make  should we make it i believe the fees on appeal is a matter that goes back to the gist i was back to this record could this issue quite have the discretion to apply a multiplier on those fees i suppose it has as much discretion as a dozen any other cont id the factors that would have to be considered by the district court in this s c what the fees are what the be for the appeal what would be the factors and the complexity of the appeal of the effort you know devoted to it the reason the hours devoted to it the reasonable hourly rate the very same same standard that should apply in the field fee seventy thousand dollars factor is well why would this be different than what you're complaining about he would terms of multiplying the amount of time the money expended to so that the fee application welt the multiplier has to be justified by something beyond what the reasonable fee is based on you know the supreme court  justify good based upon taking a frivolous appeal with that be an appropriate factor for the district judge the consider if it was appropriate in the given case in an appropriate case sure and this you could judge would be the best person to make that judgement i suspect  whether this was a frivolous appeal but they support the totality of the case no i don't think he would be the best person to decide whether this was a frivolous appeal because it was not who would be who would be i think this court would be  your position that he made an error of law it's my certainly he made an error of law in a warning and a multiplier that is in no way related you keep giving you that conclusion and that means what is what is oregon law require went when it says there's needs to be this nexus well it means that there are now there needs to be the judge needs to be able to explain this amount of fees whether it's an enhancement or reduction makes is tethered to it makes sense and it flows from what we identify give me the definition of nexus but but apply it to a fisa warrant because what he's got is fifty i think six pages of episode after episode where he found the conduct was unreasonable the positions morning your honor may it please the court my name is margaret schroeder i represent plaintiff appellee lucille back the question before this court is whether the district court abused its discretion when it determined based on all of the facts and circumstances of this case and the totality of the criteria prescribed in our us twenty zero seven five that a reasonable fee under our us seven forty two zero six one should be calculated by applying a two point zero multiplier to a portion of the attorney fees incurred by mrs back as the district courts detailed fifty six page decision makes clear the district court carefully and correctly applied those sixteen factors li or may not be terribly relevant for a pristine you know aspect of the litigation respectfully i disagree your honor i believe the factors are relevant in this case because a good deal of the time spent in responding to a palace opening brief and preparing for like it was forty one and then it was doubled so we should still get the fees for for applying and i clarified that because i would like to get your response and that i've told you that i have is broken into four components and it seems to me that the reply brief where you incurred twenty your fine incurred twenty six thousand dollars in fees because your response is that the opposition to the fees motion was unreasonable i'm going to summarize it that way but what about the third component that's your toughest part and his argument is  that if even if our litigation conduct was unreasonable and we really live a gated and so on and so forth that you're adequately compensated for preparing the fees but preparing the fees petition because it's baked into the number of hours that you charge for it well one of the sixteen factors that the court can look at is whether the parties were objective lee reasonable in pursuing settlement of the case we put in the record in i can't member if it was in our motion or in our apply copies of all of the settlement negotiations that we had with metropolitan including an offer right after the trial so would that offer have included an offer that pertained to fees i'm not following you sorry i'm not getting to the point quick offered in lieu of preparing the attorney for petition we offered to metropolitan here's our fees just pay it will save the money in incurring in briefing and i think i'm just curious do you think your client contributed any way to the fact litigate the case was this sort of bad blood on both sides i'm trying to put myself in the shoes this record as to what happened well i unlike the decision seed case in which the district court in that case found the both sides were at fault the district court did not find that in this case it's throughout the district court's decision the judge notes that mrs back approached this case simply and it was this breach contract case shouldn't have taken this much as a good this case was litigated the way has been litigated you would have had the pleasure of coming here in all good before this distinguished panel i agree with that this is a privilege i would like to address a couple of the arguments that metropolitan made in its reply brief the first one is this issue of a nexus and and actually just now counsel for metropolitan argued that the district court did not adequately describe what that nexus was but i disagree it's on e r forty six page forty six of the district court's decision and in that decision the district court wrote back argues that a multiplier to point out should be applied due to the nature of this case and the conduct of metropolitan and its counsel the court agrees as explained in support of here in the two point zero multiplier is appropriate to apply to the fees back consequently incurred in the litigation the district court then goes on to explain why it only applied a two point zero multiplier to the fees that were incurred by back after metropolitans counsel became involved in the case and that and i think that is the rational nexus that the court actually included in its decision but it does it but it didn't want to i think to time where i mean white in other words that's his argument that's one of his stronger arguments why two times why not you know some other multiplier right well that's certainly up to the district court's discretion there are cases in oregon in which counsel have requested and been awarded one point six one point seven two point zero i saw one case in which counsel requested a three point zero but that was what we have is we have a requirement out of oregon law that we look for this nexus and then we have an abuse of discretion standard of review you understand what we're trying to make sure these into an error of law right what about his reasonable and the hours are reasonably incurred to come up with the loadstar that then the court looks at alland the lodestar is not gel and the lodestar is not challenge that's correct but then and in the play in determining the what an appropriate award the multiplier be the court looked at the factors in the plot my chart in twenty seven five sub one subsections a c d e and f all go to the conduct of the parties and the and at their council in litigation and that is what the court clearly tied the multiplier to was the conduct minutes replete throughout the decision and this is supported by the organ case of in that case the trial court granted a multiplier based on several factors including to deter others from in gauging in objective leon reasonable conduct now in that case the court of appeals had reversed of the general judgment and so it had to into the orus twenty zero seven five factors this all resulted from residential fire fire yeah christmas tree fire was there or was there ever a question about whether the house was going to be repaired or replace d well that was an issue that metropolitan kept trying to bring up in the trial court but it doesn't really matter because mrs bax policy she could require she could recover the actual cash value of the house which is replacement cost minus depreciation so she could take a lesser amount and use that for anything there's nothing preventing her from doing that but if she decided to rebuild and she had certain timelines in which she had to do so then she could recover that depreciation actually and so why wasn't that a freer argument for them to be trying to quantify in the course of  litigation the difference between what it would actually cost if she ultimately chose to repair or replace versus what they would have owed her if she had not i don't think that the the well the difference is the amount of depreciation and trying to figure out why you thought it was an unreasonable litigation tactic for them to pursue that line while the line that they were pursuing was that because mrs back was not going to repair her home therefore that somehow effects the value that that wasn't the issue the question before the jury was the r c the n a c the value the overall value you got and so whether she rebuilt or not it was immaterial yes well for the trial it was immaterial but where the trial going to be material to them that's what i'm trying to get out do you think it was really outside the boundaries of what was fairly conduct the discovery for example that was really conducted yes because the discovery wasn't limited to whether or not she was going to rebuild and the suspect she was living i also want to address the argument they make an argument under the maro case they argue that the organ supreme court said in morrow than a multiplier should not be based on factors already considered in setting the lodestar fee but that's not what morrow says in morrow the oregon supreme supreme court said in this case we place greater weight on the risk of nonpayment they didn't say they didn't place any weight on it the court needed to consider all sixteen factors when deciding how much a multiplier right or whether yeah i also want to this goes to the claimed error of law that metropolitan claims the district court made which was the the strong court of appeals case that a metropolitan argued that that straw man supported their argument that the deterrent factors and subsect in twenty zero seven five sub one c n d should not be considered by the district court and that's not what strong says well first it's contrary to the expressed language of the statute which says you have to get you have to consider all and i've lost my place oh in strawn the organ court of appeals quoted all of the factors in subsections one and two and then said we do not find that the factors set out in subsection one affect the amount of the fee shifting award the criterion subsection to however our material and we turn now to the application of those factors but that doesn't mean that i think what that means is that strong just in that particular case decided that the subsection one factors weren't relevant to the facts of that case and i want to point out that the same organ court of appeals issued another decision called griz b v progressive preferred insurance company on january sixth tw ten which was just twenty one days before the oregon court of appeals decision in strawn and crispy doesn't say that the subsection one factors are not to be considered in fact the organ court of appeals remanded the case to the trial court for reconsideration of one of those subsection one factors so there simply wasn't an error other not mine the only point i want to make here in the minute i have and this goes to the standard of review i think because where there are legal and factual errors there's no discretion those are errors that undermine the court's decision and we lay out in the brief several legal and factual errors that the district court made and assessed to metropolitan positions metropolitan didn't take arguments metropolitan didn't make and says this justifies a multiplier i'm not going to go through them in the thirty one seconds thirty i have here but i do want to draw the court's attention to those because again there's no discretion to make legal and factual errors as a justification for a multiplier