UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

GRETCHEN BROOKS, an individual, Case No.: 3:14-cv-1232-AC

Plaintiff, OPINION AND ORDER

v.

HARLON RIP CASWELL, an individual,

RIP CASWELL SCULPTURES, INC., an

Oregon corporation d/b/a CASWELL

GALLERY, an Oregon assumed business

name, CASWELL PROPERTIES, INC.,

a Washington limited liability company,

and DOES 1-5, 

Defendants.

___________________________________

ACOSTA, Magistrate Judge:

Introduction

PlaintiffGretchen Brooks (“Brooks”) filed this action against defendants Harlon Rip Caswell

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(“Caswell”), Rip Caswell Sculptures, Inc., dba Caswell Gallery(“Caswell Sculptures”), and Caswell

Properties, LLC (“Caswell Properties”)(collectively “Defendants”) seeking damages related to

Defendants’ alleged wrongful conduct with regard to the settlement of a prior lawsuit (the

“Settlement”). Brooks’s claims were dismissed voluntarily or through motion practice, and the

court granted Brooks’s motion for summary judgment on Caswell Sculptures’s counterclaim under

OR. REV. STAT. 79.0625 in an Opinion and Order dated December 28, 2016 (the “Counterclaim

Opinion”). The court subsequently entered a judgment dismissing the entire action with prejudice. 

Defendants now move to alter or amend the Counterclaim Opinion pursuant to Rule 59(e) of the

Federal Rules of Civil Procedure and seek sanctions against Brooks for false representations. 

Additionally,Brooksseeksreasonable attorneyfees and costs incurred in defending the counterclaim

pursuant to OR. REV. STAT. 79.0625(3)(c).1

The court finds it erred in failing to view in Defendants’ favor the evidence relating to

Brooks’s ability to inspect the collateral, but that its holdings with regard to the viability of

Defendants’ counterclaim under OR. REV. STAT. 79.0625 were not clearly in error or manifestly

unjust, and the allegedly false statements contained in the Brooks’ declaration are not sanctionable. 

Additionally, Brooks is not entitled to an award of attorney fees under the relevant factors set forth

in OR. REV. STAT. 20.075(1). Accordingly,Defendants’ motion to amend the Counterclaim Opinion

is granted in part and denied in part and Brooks’s motion for attorney fees is denied.2

1The parties requested oral argument on the pending motions. The court finds the motions

appropriate for disposition without oral argument pursuant to LR7-1(d)(1) and denies these requests. 

2The parties have consented to jurisdiction bymagistrate judge in accordance with 28 U.S.C.

§ 636(c)(1).

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Background

Defendants’ motion for reconsideration attacks the court’s characterization of evidence

presented by the parties in its various summary judgment rulings. Specifically, Defendants’ object

to the court’s view of the evidence addressing Brooks’s ability to inspect statue molds serving as

collateral (the “Molds”) for a promissory note executed by Caswell Sculptures in favor of Brooks

(the “Note”). Accordingly, a review of the evidence, as well as the court’s summary of such

evidence, is necessary. 

I. The Missing Molds Opinion

On March 14, 2016, the court granted Defendants’ motion for summary judgment on

Brooks’s claim for breach of contract, in which she alleged Defendants failed to deliver and maintain

the Molds in accordance with the terms of the Settlement (the “Missing Molds Opinion”). Brooks

v. Caswell, Case No. 3:14-cv-01232-AC, 2016 WL 1056977, *5 (D. Or. March 14, 2016)(“Brooks

I”). The court also granted summary judgment in favor of Defendants on the entirety of Brooks’s

claim for conversion, and on Brooks’s fraud, negligent misrepresentation, and elder financial abuse

claims to the extent they relied on allegations of missing or damaged Molds. Id. at *7. 

Relevant, at least in part, to the Missing Molds Opinion was the factual finding that:

Brooks did not attempt to access the Molds, either on her own or through an agent,

until September 2014, (Brooks Dep. 150:9-16), when she hired Todd Pettelle, Owner

and Operator of another bronze casting foundry, (“Pettelle”), to visit Parks Bronze

to inventory and visually inspect the Molds, (Pettelle Decl., ECF NO. 111, ¶¶ 2, 3;

Pl.’s Resp. To Defs.’ First Set of Interrogs., at 9).

Id. at *2. The court later stated: “Brooks concedes she never attempted to access the Molds, let alone

sell or profit by them in any way, until September 2014, two years after she was legally able to do

so” and “[t]he mere fact Caswell may have retained access to the Molds at Parks Bronze does not

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necessarily suggest Brooks was ever denied access to them, and no evidence of such exists.” Id. at

*5, *7. 

The excerpt from the Brooks deposition cited by the court provided:

Q. Now, the work product – let me make sure for purposes of the record

that I’m clear: Did you ever yourself, personally, ever go out to Parks Bronze at any

time and look at the molds?

A. I’ve never been in Enterprise.

Q. Okay. So I take in the answer is – 

A. To my knowledge.

Q. I take it the answer is no?

A. No.

Q. Before you filed this complaint, did you ever ask anyone to go out to

Parks Bronze and inspect the Molds?

A. No.

(Seidl Decl. dated August 21, 2015, ECF No. 96 (“Seidl 2015 Decl.”), Ex. 4 at 2.) 

The interrogatory and response referenced by the court were:

INTERROGATORY NO. 10: Following execution of the Settlement

Agreement, state the date or dates that you and/or your agents physically inspected

the molds that served as collateral under the Security Agreement. If you retained

agents to conduct any inspections, state the name, address, and telephone number of

each agent.

ANSWER: Brooks objects to this interrogatory to the extent it seeks

information protected by attorney-client privilege or the work product doctrine. 

Subject to, andwithout waiving, the foregoing general and specific objection, Brooks

responds that an inspection of the molds was conducted on her behalf on September

9, 2014. Brooks objects to the remainder of this interrogatory in full as it seeks

information protected by Federal Rule of Civil Procedure 26(b).

Discovery is ongoing and Brooks reserves the right to amend or supplement

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her responses as appropriate.

(Seidl 2015 Decl. Ex. 8 at 2.)

The relevant portions of the Pettelle declaration referred to by the court described Pettelle’s 

experience with statue molds, his retention by Brooks to inspect the Molds, and his visit to Parks

Bronze (“Parks”) on September 9, 2014, to complete an inventory and visual inspection of the

Molds. (Pettelle Decl. dated October 26, 2015, ECF No. 111, at ¶¶ 2-4.) 

In support of her opposition to Defendants’ summary judgment motion, Brooks offered a

January 29, 2013 email from Defendants’ counsel Andrew D. Hahs (“Hahs”) to Brooks’s counsel

Laura J. Walker (“Walker”) (the “Hahs Email”) stating:

Laura,

Parks Foundry knows about Gretchen’s interest in the molds. Here is what Rip says

about Gretchen’s person inspecting and taking them:

Yes they can call Parks foundry and they will pull the molds for them. they

are scattered in several containers and locations. best to give them the list and time

to locate them all.

Hope this helps.

Andy

(Honore Decl. dated October 28, 2015, ECF No. 109, Ex. 3.)

Based on this evidence, the description and characterization of the facts in the MissingMolds

Opinion were primarily supported by the record. However, the statement “Brooks did not attempt

to access the Molds” may have been a bit overreaching. In fact, the evidence established Brooks

expressed an interest in inspecting the Molds in the Hahs Email, but never traveled to Enterprise to

look at the Molds nor asked someone else to inspect the Molds on her behalf before September 9,

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2014. 

II. The Summary Judgment Opinion 

Seven months later, the court issued an opinion addressing Defendants’ motion for summary

judgment on Brooks’s remaining claims (the “Summary Judgment Opinion”). Brooks v. Caswell,

Case No. 3:14-cv-01232-AC, 2016 WL 6305980 (D. Or. Oct. 27, 2016)(“Brooks II”). The court

found Brooks “failed to establish Defendants made anyfalse representations with regard to their duty

to pay or the value of the collateral, a breach of the statutory duty of good faith with regard to terms

of the settlement documents, or improper motive at the time of negotiation and execution of the

settlement agreement.” Id. at *1. Consequently, the court granted Defendants’ motion for summary

judgment. Id. at *13.

In their motion for summary judgment, Defendants represented Brooks’s claims rested on

“two fundamental fallacies,” one of them being “that defendant RCS did not perform its obligations

under the Settlement Agreement.” (Defs.’ Mots. for Summ. J., ECF No. 143 (“Defs.’ Mots.”), at 3.) 

Defendants claimed “there was no breach [of the Settlement Agreement] because defendant RCS

fully performed when it attempted to convey the collateral pursuant to the Security Agreement.” 

(Defs.’ Mots. at 3.) In her opposition briefing, Brooks noted the Settlement required Defendants to

“authorize and direct Parks Bronze to . . . provide Brooks (or her designated agent) with access to

view and inspect the Molds at any time during business hours.” (Pl.’s Resp. in Opp’n to Defs.’ Mot.

for Summ J., ECF No. 159 (“Pl.’s Resp.), at 12.) Brooks asserted that contrary to her “express rights

. . . to access and view the Molds at any time, Caswell’s attorneys demanded Brooks sign a surrender

agreement containing a release prior to viewing the [M]olds.” (Pl.’s Resp. at 13.) Accordingly, the

question of whether Defendants’ conduct breached the terms of the Settlement was identified as a

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relevant issue by both parties in their summary judgment briefing.

In support of their motion for summary judgment, Defendants offered evidence of various

communications between Hahs and Walker in the months followingDefendants’ default on the Note. 

In an August 6, 2012 email, Hahs advised Walker that Defendants would not be making payments

under the Note and would “cooperate” in Brooks gaining possession of the Molds. (Hahs Decl.

dated December 10, 2014, ECF No. 146 (“Hahs 2014 Decl.”), Ex. E at 1.) In an email dated October

4, 2012, Hahs informed Walker of Defendants’ intent to remove their statue molds from Parks

leaving only the Molds. (Hahs 2014 Decl. Ex. F.) Hahs recommended Walker contact Parks to

make storage arrangements if Brooks intended to continue storing the Molds at Parks, and also

expressed a desire to finalize a surrender agreement. (Hahs 2014 Decl. Ex. F.)

In his declaration dated December 10, 2014 (the “Hahs Declaration”), Hahs represented that

on January 28, 2013, Walker indicated she would prepare a surrender agreement detailing the

transfer of the Molds, a draft of which Hahs received on February 18, 2013. (Hahs 2014 Decl. ¶¶

16, 17.) Subsection six of the surrender agreement provided that “Debtor hereby authorizes Parks

Bronze, or such other party in possession of the [M]olds . . . , to deliver the [M]olds to the Secured

Party or her agent.” (Hahs 2014 Decl. Ex. G at 4.) Hahs marked the draft with requested changes

and returned it to Walker the same day. (Hahs 2014 Decl. ¶ 17.) Among Hahs’s requested changes

were the inclusion of the language “Secured Party is willing to accept surrender of the collateral in

full satisfaction of the Note and Debtor is willing to surrender the collateral” and the substitution of

the term “surrender” for the term “deliver” in subsection six. (Hahs 2014 Dec. Ex. G at 6, 7.) Hahs

and Walker did not communicate again until April 8, 2013, when Walker confirmed Brooks’s intent

to retain her lien on the Molds and take possession of them once the terms for transfer of possession

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could be agreed upon. (Hahs 2014 Decl. ¶ 19.) 

In support of her opposition briefing, Brooks offered Walker’s memory of the negotiation

of the surrender agreement – “Mr. Hahs – on behalf of RCS – responded to my draft by demanding

the surrender agreement include a release of liability. Ms. Brooks had not yet inspected the [M]olds

prior to RCS’ demand. Ms. Brooks did not agree to the release of the liability demanded by RCS.” 

(Walker Decl. dated July 14, 2016, ECF No. 163, ¶ 4.) Additionally, Brooks herself represented

in her July 15, 2016 declaration (the “Brooks Declaration”) that:

After Caswell defaulted on his obligations to pay me, in early 2013, I made

an attempt to have Todd Pettelle, an expert in bronze sculptures and foundries and

someone I trust, go and count the [M]olds and give an initial opinion as to their

condition. As I understood it, I had the right to inspect the [M]olds at any time under

the settlement agreement. Contrary to that understanding, Caswell’s attorneys

required me to prepare a surrender agreement containing a release of liability in order

to have access to the [M]olds. Because I did not want to waive any rights I had under

the settlement agreement, I did not sign the surrender agreement and counsel

instructed Mr. Pettelle not to inspect the [M]olds at that time. 

(Brooks Decl. dated July 15, 2016, ECF No. 161, ¶ 20.)

In the Summary Judgment Opinion, the court summarized the evidence presented to it and

stated that “Brooks was unwilling to release Defendants from liability under the Note before having

the opportunity to inspect the Molds and Caswell was unwilling to allow Brooks access to the Molds

until a collateral surrender agreement releasing Defendants from liability had been signed.” Brooks

II, 2016 WL 6305980 at *6. This statement is supported byWalker’s representation that Brooks did

not inspect the Molds prior to February 18, 2013, when Hahs requested changes to the surrender

agreement, and Brooks’s statement thatDefendants’ required her to agree to release Defendants from

their liability under the Note before allowing her to have access to the Molds. Moreover, the

statement is not contradicted by any evidence then before the court and was not contested by

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Defendants in their reply briefing or through a motion for reconsideration at that time. 

III. Counterclaim Opinion

Finally, the court granted Brooks’s motion for summary judgment on Caswell Sculptures’s

counterclaim under Oregon’s Uniform Commercial Code (the “UCC”), specificallyOR. REV. STAT.

79.0625, in the Counterclaim Opinion. In its counterclaim, Caswell Sculptures alleged Brooks

“breached her duty of good faith by: (1) filing this lawsuit in an attempt to avoid the terms of the

Note; and (2) failing to immediately accept the Molds as the sole remedy for breach of the Note.” 

Brooks v. Caswell, Case No. 3:14-cv-01232-AC, 2016 WL 7473207, at *5 (D. Or. Dec. 28,

2016)(“Brooks III”). The court found Brooks’s filing of the lawsuit complied with the UCC’s good

faith standard for four reasons: (1) she honestly believed she had a valid claim for fraud and

misrepresentation based on Defendants’ intent to pay the Note and the value of the Molds at the time

she filed the lawsuit; (2) she filed the lawsuit without the opportunity to determine the Molds had

been delivered to Parks and properly maintained; (3) not all of the Molds, in fact, were timely

transferred to Parks, and (4) it was commercially reasonable for her to challenge the terms of the

Note and Security Agreement where evidence supporting such challenge existed. Id. at *7-*8. The

court further found Chapter 9 of the UCC imposes no requirement on secured creditors to take

possession of collateral in a timely manner and, consequently, Caswell Sculptures could not assert

a viable claim under OR. REV. STAT. 79.0625. Id. at *11.

Brooks did not offer additional evidence in support of her motion for summary judgment but

relied on the relevant complaint and answer, as well as the court’s prior summary judgment ruling. 

Accordingly, the court relied on “declarations and evidence associated with motions for summary

judgment previously filed by the parties as well as those filed with the present motion” in describing

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the underlying facts relevant to Brooks’s summary judgment motion on Caswell Scupltures’s

counterclaim. Id. at *1 n.2. The court again noted the evidence established “Brooks was unwilling

to release Defendants from liability under the Note before having the opportunity to inspect the

Molds and Caswell was unwilling to allow Brooks access to the Molds until a collateral surrender

agreement releasing Defendants from liability had been signed.” Id. at *3. The court also

recognized in a footnote that “Defendants dispute Brooks’s representation thatshewas denied access

to the Molds for the first time in the declaration of Andrew Hahs dated November [2]9, 2016, and

filed with the court in opposition to Brooks’s motion for summary judgment on Defendants’s

counterclaim.” Id. at *4 n.3.

In his declaration dated November 29, 2016, Hahs refuted the court’s prior summary of the

facts, asserting such summary “is blatantly false. At no time did we deny Ms. Brooks or her

representatives the opportunity to inspect the collateral. I do not recall Ms. Walker ever requesting

such an inspection.” (Hahs Decl. dated November 29, 2016, ECF No. 192 (Hahs 2016 Decl.”), ¶

24.) Hahs further explained that if Brooks relied upon Hahs’s requested changes to the surrender

agreement as evidence Defendants were unwilling to allow Brooks access to the Molds, she “is

obviously misstating what occurred.” (Hahs 2016 Decl., ¶ 27.) In its opposition to Brooks’s motion

for summary judgment, Caswell Sculptures sought to correct the factual error, claiming “[t]here is

simply no evidence that Brooks was precluded from inspecting the molds, or precluded from gaining

possession of the molds under any terms other than the agreement she signed and her remedies under

the UCC. “ (Def. RCS’ Resp. to Pl.’s Mot. For Summ. J., ECF No. 190 (“Def.’s Resp.”), at 5.) 

Caswell Sculptures conceded Brooks never inspected the Molds, and it relied on this fact in arguing

Brooks had no basis to allege Defendants failed to transfer or maintain the Molds. (Def.’s Resp. at

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10.)

Discussion

I. Defendants’ Motion to Amend Counterclaim Opinion

Defendants ask the court to amend the Counterclaim Opinion, arguing Brooks falsely

represented in the Brooks Declaration that Defendants refused to provide her the opportunity to

inspect the Molds. Defendants assert the court improperly relied on this statement in finding

Defendants deprived Brooks access to the Molds, which was a violation of the Settlement. 

Defendants claim the court’s reliance on the false representation resulted in clear error and manifest

injustice necessitating the issuance of an amended opinion, even if the court does not alter the

ultimate result. Additionally, Defendants seek sanctions against Brooks for the false representations

found in the Brooks Declaration. 

Rule 59(e) of the Federal Rules of Civil Procedure allows a party to file a motion to alter or

amend a judgment within twenty-eight days of the filing of such judgment. Rule 59(e) does not

articulate a test to consider when a court should reconsider a prior decision, but courts have

determined that reconsideration under Rule 59(e) is “appropriate if the district court ‘(1) is presented

with newly discovered evidence, (2) committed a clear error or the initial decision was manifestly

unjust, or (3) if there was an intervening change in controlling law.’” Dixon v. Wallowa County, 336

F.3d 1013, 1022 (9th Cir. 2003)(quoting School Dist. No. 1J, Multnomah County v. AcandS, Inc.,

5 F.3d 1255, 1263 (9th Cir. 1993)). Clear error “is a very exacting standard” requiring a court to

consider a decision “as more than just maybe or probablywrong; it must be dead wrong.” Teamsters

Local 617 Pension and Welfare Funds v. Apollo Group, Inc., 282 F.R.D. 216, 231 (D. Ariz. 2012)

(internal quotation marks and citations omitted.)

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The only direct evidence of Brooks’s ability to inspect the Molds before the court at the time

it issued the Summary Judgment Opinion was the Brooks Declaration. Other evidence offered, such

as the Hahs Email and Walker’s July 14, 2016 declaration, established Brooks expressed an interest

in inspecting the Molds in January 2013, but had not inspected the Molds as of February 18, 2013. 

The Hahs Declaration summarized the drafting of the surrender agreement in February 2013, as well

as Defendants’ desire to condition surrender of the Molds to Brooks on Brooks’s concession such

surrender would be in full satisfaction of the Note.

In consideringevidence presented in the context of a motion for summaryjudgment, the court

must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron

Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). In other words, all reasonable doubt as

to the existence of a genuine issue of fact should be resolved against the moving party. Hector v.

Wiens, 533 F.2d 429, 432 (9th Cir. 1976). However, the court’s description of the evidence in this

manner does not result in binding findings of fact. Trials court are not to weigh the evidence in a

summary judgment record, but merely to pinpoint undisputed facts supporting summary judgment

while viewing all facts and inferences most favorably to the nonmoving party. Swarner v. United

States, 937 F.2d 1478, 1481 (9th Cir. 1991). 

Viewing the evidence in a light most favorable to Brooks, the nonmoving party, the court

found the evidence established that Defendants conditioned Brooks’s access to the Molds on her

releasing Defendants from liability under the Note, thereby depriving her of the opportunity to

inspect the Molds prior to executing the surrender agreement. Defendants did not object to this view

of the evidence at the time the Summary Judgment Opinion was entered and, realistically, do not

object to such view now. Rather, Defendants object to the court’s adherence to this view of the

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evidence in light of the new evidence offered in opposition to Brooks’s motion for summary

judgment on Defendants’ counterclaim. Upon reconsideration, the court findsDefendants’ argument

has merit. 

In the Counterclaim Opinion, the court relied on its previous summary of the relevant

evidence and acknowledged, in a footnote, that Defendants had offered new evidence contradicting

Brooks’s representation she was deprived access to the Molds. The evidence Defendants offered

raised a genuine issue of material fact with regard to Brooks’s ability to inspect the Molds. Because 

the court was considering Brooks’s motion for summary judgment, it should have viewed the

disputed facts in a light most favorable to Defendants, not Brooks. Accordingly, the court should

have considered as true Hahs’s statement that Defendants never denied Brooks an opportunity to

inspect the Molds. But, even if the court had considered the evidence in this light, it would not have

altered its ultimate conclusion that Brooks filed this lawsuit in good faith or that Defendants failed

to state a claim under OR. REV. STAT. 79.0625.

The court identified four reasons supporting its finding that Brooks filed her lawsuit in good

faith; Defendants’ failure to provide Brooks an opportunity to inspect the Molds was only one. The

court’s alternative grounds were not challenged byDefendants, are not affected bythe court’s failure

to view the evidence in Defendants favor, and continue to justify the finding Brooks honestly

believed she had a valid claim for misrepresentation with regard to the Settlement and for improper

handling of the Molds. Accordingly, the court’s determination that Brooks filed her lawsuit in good

faith and in a commercially reasonable manner was proper. The court’s failure to view the genuine

issue of material raised by Hahs’s statement may have been clear error, but the record still supports

the conclusion that Brooks’s filing of this action was commercially reasonable and in good faith and,

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thus, was not manifestly unjust. 

Defendants ask the court to sanction Brooks for filing a false declaration. Defendants

concede the court lacks the ability to issue sanctions under Rule 11 in light of the issuance of a final

judgment but assert the court retains inherent authority to sanction misconduct of parties. 

Defendants argue the timing of the Brooks declaration was suspect, it was not supported by other

evidence in the record, and Brooks’s counsel never offered additional evidence to corroborate

Brooks’s statement when provided the opportunity.

“An award of sanctions under . . . the district court’s inherent authority requires a finding of

recklessness or bad faith.” Barber v. Miller, 146 F.3d 707, 711 (9th Cir. 1998). Viewing the Brooks

Declaration under this standard, the court finds sanctions are not warranted. In her declaration,

Brooks represented she believed Defendants would not allow her access to the Molds until she

agreed to release Defendants from liability under the Note. The Hah Email establishes Brooks

requested access to the Molds in early 2013. While Hahs indicated Parks was aware of Brooks’s

interest in the Molds, he suggested Brooks give Parks notice of her desire to inspect them and allow

time to locate all the Molds. Thereafter, Walker drafted a surrender agreement and Hahs requested

changes which authorized Parks to surrender the Molds to Brooks only if Brooks was willing to

accept surrender of the Molds in full satisfaction of the Note. The parties obviously construed the

language of the proposed changes, and specificallythe term “surrender,” differently. Brooks viewed

the language to mean Parks would allow her access to the Molds only if she agreed accepting such

access would fully satisfy the Note. Defendants construed the language differently, that Brooks

could not possess or take ownership of the Molds until she released Defendants from liability under

the Note. Both interpretations are arguably reasonable and consistent with the language of the

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surrender agreement. Brooks’s offering her interpretation of the surrender agreement language in

the Brooks Declaration does not make the declaration false – it merely expresses her understanding

of Defendants’ requirements under Hahs’s proposed changes to the surrender agreement.

The Brooks Declaration contained evidence that Defendants deprived Brooks of an

opportunity to inspect the Molds creating, at the least, a genuine issue of material fact on this issue. 

Consequently, Brooks’s counsel’s subsequent failure to offer additional evidence in support of this

understanding in response to Defendants’ request does not establish Brooks made a knowingly false

representation. Additionally, Defendants make much of Walker’s inability to remember

conversations related to the inspection of the Molds or the negotiation of the surrender agreement. 

However, in his November 2016 declaration, Hahs refutes Brooks’s statement he denied her the

opportunity to inspect the Molds and states “I do not recall Ms. Walker ever requesting such an

inspection.” The Hahs Email makes clear Brooks expressed an interest in inspecting and taking the

Molds, and that Hahs was aware of such interest. Consequently, even though Hahs may not

remember, the evidence establishes Walker made at least one request to allow Brooks access to the

Molds. An individual’s inability to remember a conversation does not necessarily lead to a

conclusion the conversation did not occur. 

Finally, Defendants contend the Counterclaim Opinion implies the court decided not to

exercise its discretion under OR. REV. STAT. 79.0625, and asks the court to state this decision

explicitly. Specifically, Defendants ask the court to issue an amended opinion expressly finding that

relief under OR. REV. STAT. 79.0625 is not warranted under the circumstances of this case. 

Defendants seek to avoid Brooks claiming in future litigation the court made express finding of facts. 

The court agrees it is not entitled to make findings of fact at the summary judgment stage. However,

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the court may view the evidence before it, accept the undisputed facts as true, and view the disputed

facts in a light most favorable to the non-moving party. With the exception of the newly created

issue of fact with regard to Brooks’s ability to access the Molds for inspection, the evidence

summarized by the court was undisputed. Accordingly, Defendants’ concern that Brooks would

offer the court’s summary of the evidence as findings of fact is unwarranted. Moreover, the court

did not exercise its discretion in grantingBrooks’s summaryjudgment on Defendants’ counterclaim. 

Rather, the court applied the undisputed evidence to find, under the UCC standard, Brooks acted in

good faith and in a reasonably commercial manner in filing this lawsuit. Additionally, the court

found, as a matter of law, that Chapter 9 of the UCC does not impose a requirement on a secured

creditor to take possession of collateral in a timely manner and Caswell Sculptures does not have a

viable action under OR. REV. STAT. 79.0625. Defendants have failed to convince the court such

conclusions were in clear error or manifestly unjust.

II. Brooks’s Motion for Attorney Fees

Brooks seeks an award of attorney fees and costs incurred in successfully defendingCaswell

Sculpture’s counterclaim. Brooks relies on the provision found in OR. REV. STAT. 79.0625(3)(c),

which provides: “[t]he court may award reasonable attorneys fees to the prevailing party in an action

under this subsection.” Defendants argue the language of this provision unambiguously limits the

recovery of attorney fees to actions brought under OR. REV. STAT. 79.0625(3). Because Brooks did

not prevail in a claim for damages under OR. REV. STAT. 79.0625(3), Defendants assert she is not

entitled to recover attorney fees. Brooks contends the counterclaim expressly alleged a claim for

damages under OR. REV. STAT. 79.0625(3). Consequently, she argues her success in defending that

claim allows her to recover attorney fees. The court does not need to resolve this issue because it

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finds Brooks is not entitled to discretionary attorney fees under the relevant factors in any event.

In diversity actions, federal courts look to state law to determine the propriety and

reasonableness of a request for attorney fees. Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir.

2007). Under Oregon law, a request for attorney fees is governed by OR. REV. STAT. 20.075, which

mandates a two-step inquiry. The court first considers the factors listed in OR. REV. STAT.

20.075(1), which relate primarily to parties’ behavior during the litigation, particularly with regard

to attempts to reach settlement, to determine whether an award for attorney fees is warranted where

such award is discretionary.

3

If the court finds an award of attorney fees is appropriate, it then

calculates the amount of such award, considering the OR. REV. STAT. 20.075(1) factors in

conjunction with the factors enumerated in OR. REV. STAT. 20.075(2), which relate primarily to the

quality of the legal services at issue.

“While courts need not make lengthy or complex findings under ORS 20.075, courts still

‘must describe the relevant facts and legal criteria for the court’s decision to award or deny attorney

fees in any terms that are sufficiently clear to permit meaningful appellate review.’” In re Marriage

of Boyd, 226 Or. App. 292, 303 (2009)(quoting McCarthy v. Oregon Freeze Dry, Inc., 327 Or. 185,

190-91 (1998)(on reconsideration)). The court satisfies this obligation by “including in its order a

brief description or citation to the factor or factors on which it relies.” McCarthy, 327 Or. at 188. 

“Those findings need not be complex or lengthy; they need not include criteria immaterial to the

decision and not used by the trial court.” Kovac v. Crooked River Ranch Club and Maint. Ass’n, 186

Or. App. 545, 553 (2003)(citing McCarthy, 327 Or. at 188; Wright v. Jones, 155 Or. App. 249, 252-

3Where an attorney fee award is mandated by another statute, the OR. REV. STAT. 20.075(1)

factors do not apply to the analysis of whether to award fees. Precision Seed Cleaners v. Country

Mut. Ins. Co., 976 F. Supp. 2d 1228, 1240 (D. Or. 2013).

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53 (1998). 

OR. REV. STAT. 20.075(1) provides:

(1) A court shall consider the following factors in determining whether to award

attorney fees in any case in which an award of attorney fees is authorized by statute

and in which the court has discretion to decide whether to award attorney fees:

(a) The conduct of the parties in the transactions or occurrences that gave rise

to the litigation, including any conduct of a party that was reckless, willful,

malicious, in bad faith, or illegal.

(b) The objective reasonableness of the claims and defenses asserted by the

parties.

(c) The extent to which an award of an attorney fee in the case would deter

others from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter

others from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties

and their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties

and their attorneys in pursuing settlement of the dispute.

(g) The amount that the court has awarded as a prevailing party fee under

ORS 20.190. 

(h) Such other factors as the court may consider under the circumstances of

the case.

Brooks contends all of the factors, with the exception of the prevailing fee factor, support her claim

for attorney fees. She asserts Defendants’ conduct throughout this litigation establishes Caswell

Sculptures filed the counterclaim to intimidate her into releasing her claims against Defendants; the

counterclaim, to the extent it sought only an order requiring her to take possession of the Molds, was

objectively unreasonable; and an award of attorney fees would encourage the filing of good faith

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claims while discouraging the tactic of alleging a counterclaim that intimidates through the threat

of a fee award. The court disagrees.

While neither Brooks nor Defendants were successful in the claims and counterclaims

alleged, this does not equate to a finding the claims and counterclaims were objectively

unreasonable. The court previously determined Brooks initiated this lawsuit in good faith and now

expressly finds Caswell Sculpture’s counterclaim was not objectively unreasonable in light of the

relatively unique claim alleged and the absence of clear precedent. Rogers v. RGIS, LLP, 229 Or.

App. 580, 189-90 (2009)(“Also, pursuant to ORS 20.075, in deciding whether to award fees, the trial

court properly considered the fact that it believed plaintiff’s rest and meal break claims to be

reasonable, especially in light of the fact that the law was unsettled at the time.”)(footnote omitted). 

In support of the amount of attorney fees requested, Brooks represented the counterclaim “involved

novel questions of law” and necessarily required her attorneys to “[look] to case law outside the

jurisdiction to attempt to find analogous cases; that extensive research required additional time that

would not be necessaryin connection with claims coveringmore well tread ground.” Consequently,

Brooks effectively conceded this issue. (Pl.’s Mot. for Att’y Fees, ECF No. 202, at 8.)

Factor (b) of the OR. REV. STAT. 20.075(1) factors weighs in favor of denying Brooks’s

claim for attorney fees. Moreover, an award of attorney fees with regard to a claim raising novel

issues of law, such asCaswell Sculptures’s counterclaim under OR. REV. STAT. 79.0625, could serve

to deter others from asserting similar good faith claims and defenses, and likelywould have no effect

on others assertingmeritless claims or defenses. Accordingly, factors (c) and (d) also weigh in favor

of the denial of attorney fees.

The parties to this action have vigorously litigated the issues relating to their business

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relationship for the past six years, both in this court and the state courts, and have consistently

alleged willful, malicious, and bad faith conduct against the other during this period. The court is

not convinced one party engaged in conduct any more egregious than the other party but considers

all parties equally responsible for the conduct giving rise to the litigation and the relative positions

taken on issues during the litigation. Consequently, factors (a) and (e) are neutral. Neither party

appears to have meaningfullypursued settlement in the instant case, leaving factor (f) neutral as well. 

The court, having weighed the relevant factors set forth in OR. REV. STAT. 20.075(1), finds

such factors favor Defendants. Consequently, the court exercises the discretion afforded it under OR.

REV. STAT. 79.0625(3) and denies Brooks’s motion for attorney fees.

Conclusion

Defendants’ motion (ECF No. 199) to amend judgment and for sanctions is GRANTED to

the extent the court failed to view the evidence relating to Brooks’s ability to inspect the Molds in

Defendants’ favor but DENIED in all other respects. Brooks’s motion (ECF No. 202 ) for attorney

fees is DENIED.

DATED this 25th day of May, 2017.

 /s/ John V. Acosta 

 JOHN V. ACOSTA

United States Magistrate Judge

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