dissenting.
Because I conclude (as did the arbitrator) that plaintiff improperly split her causes of action into two lawsuits in order to recover attorney fees, I dissent. In arriving at this conclusion, I rely on Restatement (Second) of Judgments § 24(1) (1982); Drews v. EBI Companies, 310 Or 134, 795 P2d 531 (1990); and Whitaker v. Bank of Newport, 313 Or 450, 836 P2d 695 (1992); see Peterson v. Temple, 323 Or 322, 918 P2d 413 (1996) (decided before plaintiff filed complaints in this case). “[A] plaintiff ordinarily is required to bring all claims arising from the same factual transaction or circumstances in a single action.” Peterson, 323 Or at 327 (emphasis added). Those authorities make it clear that the operative facts can be “either a single transaction or a connected series of transactions,” Whitaker, 313 Or at 455 (citations omitted), “out of which the action or proceedings arose.” Drews, 310 Or at 141.
The majority and concurring judges would allow plaintiff to recover attorney fees under ORS 20.080 on the basis of their shared conclusion that her two lawsuits did not arise out of the same operative facts; but they did, and even plaintiff appears to have recognized that they did. In her “Exception to Arbitrator’s Denial of Attorney Fees,” she stated the facts underlying both her lawsuits as follows:
“On February 23, 1995, plaintiff Helen Beers was detained by the agents and employees of defendant Craft Warehouse based on the stated grounds they believed plaintiff had committed theft. Despite a reasonable explanation by plaintiff, she was detained and was eventually forced to appear and endure a criminal trial where she was found not guilty. On September 6,1996, plaintiff by letter to Jeson Enterprises, Inc., dba Craft Warehouse, requested compensation of $4000.00 for plaintiff being falsely arrested and imprisoned. * * * On September 19,1996, the identical letter was sent to the store manager where the incident took place. * * * These letters constituted a written demand of $4000.00 pursuant to ORS 20.080.”
*737The single fact that caused defendant to detain plaintiff and to participate in the state’s prosecution of her for theft was the setting off of defendant’s security alarm system by an item in plaintiffs purse. Plaintiffs claim for damages for malicious prosecution was factually based and directly connected with her claim for damages for false imprisonment, both of which resulted from the security alarm incident. They were, for purposes of claim preclusion, i.e., claim splitting, a connected series of transactions. Because plaintiff sought and recovered more in aggregate in the two lawsuits than the $4,000 limit for awarding attorney fees under ORS 20.080, she may not recover attorney fees too.
As the majority states, the demand letter “was a single, pre-suit demand seeking $4,000 for a single claim.” 165 Or App at 726. As stated in her demand letter, the claim was for being “detained, and subsequently falsely arrested and imprisoned, * * * questioned, intimidated, humiliated and imprisoned” from which “she suffered humiliation, embarrassment, [and] was required to obtain counsel to defend herself and was required to appear in court and endure a trial. As a result of all of the above demand is hereby made * * * for compensation in the sum of $4000.” (Emphasis added.) When she filed two lawsuits demanding more than $4,000, based on this single demand, she put herself outside the purview of ORS 20.080(1).
If plaintiffs claims had been filed separately in a single lawsuit, i.e., as separate claims or counts, then attorney fees would not be recoverable, even if she had demanded attorney fees in only one of them. Johnson v. White, 249 Or 461, 439 P2d 8 (1968). However, the majority would reward her for separating her claims into two lawsuits and demanding attorney fees in both, based on a single demand, by allowing her to recover attorney fees in both claims and letting her choose in which she can justify the greater amount.
Neither the arbitrator nor the trial judge fell for plaintiffs ploy of dividing her claim into separate lawsuits. Unfortunately, most members of this court have.
Somewhat respectfully, I dissent.